Witty v. Barham

• Decision Date: 22 April 1908
• Citation: 147 N.C. 479,61 S.E. 372
• Parties: WITTY. v. BARHAM et al.
• Court: North Carolina Supreme Court

147 N.C. 479

61 S.E. 372

WITTY.

v.BARHAM et al.

Supreme Court of North Carolina.

April 22, 1908.

1. Marriage—-Evidence—Competency.

To corroborate a witness' testimony to his continued absence from his wife and his marriage to two others after leaving her, a certified copy of a marriage license of him and one of them and of the certificate of their marriage is competent.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Marriage, § 73.]

2. Ejectment—Evidence—Admissibility.

Evidence of the extreme destitution of a married woman abandoned by her husband when she alone executed deeds of trust on her land, by purchase under which plaintiff claims, while not necessary, is not incompetent, in ejectment for the land.

3. Same—Complaint—Allegations as to Title Papers.

The complaint in ejectment by the purchaser under a deed of trust executed by a married woman alone on her land need not allege she executed it without the written consent of her husband because of his continued absence, that being evidential matter, arising only on objection to the validity of the deed.

4. Same — Answer—Attacking Plaintiff's Title.

Defendants in ejectment need not allege that the deed of trust, under which plaintiff claims, was executed by a married woman on her lands without the written consent of her husband, in order to attack it on such ground.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Ejectment, § 231.]

5. Witnesses — Competency —Conversation with Deceased—Interested Person.

Since if plaintiff, in ejectment by the purchaser under a deed of trust of land of a married woman, be defeated by invalidity of the deed of trust, her widower would be entitled to the land for life, he is incompetent under Revisal 1905, § 1631, as a "person interested in the event of the action" to testify for defendants to a conversation between him and her.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 608, 609.]

6. Same.

Under Revisal 1905, § 1631, making incompetent a party, or a person interested in the event of the action, to testify to a conversation with deceased, a party may not testify to a conversation which he heard between an interested person and deceased.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 696, 697.]

7. Husband and Wife — Conveyance of Wife's Property — "Abandonment" by Husband.

To constitute "abandonment" within Revisal 1905, § 2117, providing that a woman whose husband abandons her may convey her property without his assent, he need not leave the state.

[Ed. Note.—For other definitions, see Words and Phrases, vol. 1, pp. 4, 13; vol. 8, p. 7559.]

8. Same—"Abandonment."

Though if husband and wife live separate by consent, that is not an "abandonment, " so as to authorize her, under Revisal 1905, § 2117, to convey her property without his consent, yet even if he leaves home with her consent, a subsequent abandonment is shown by his continual absence for years without communicating with her, and without any contribution to her support in her great destitution, and his two subsequent marriages to others during her lifetime.

Appeal from Superior Court, Rockingham County; Ferguson, J.

Action by W. J. Witty against J. R. Barham and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Manley & Hendren and C. O. McMichael, for appellants.

Scott & Reid, for defendant.

CLARK, C. J. Ejectment by purchaser at sale under trust deeds executed by Martha Daniel of Rockingham county in 1892, 1893, and 1894, without the joining therein or written assent of her husband, Charles G. Daniel, to whom she had been married in 1882. They had one child born alive but since dead. The husband left her in 1883 and did not thereafter reside with her. He married Esther Lyerly in Rowan county in 1891, and, she dying in a few months, he married still another wife, in Rowan in 1894, with whom he is still living, and by whom he has six children. In 1900 Martha Daniel died. The defendants are her children by a former marriage.

The introduction of the deeds in trust in making out chain of title was proper and indeed necessary. The question of their effect was a subsequent matter and presents thereal point in the case. Chas. G. Daniel testified to his continuous absence from his wife from 1883 and to his two subsequent marriages above stated. The certified copy of the marriage license of Chas. G. Daniel and Esther Lyerly and of the certificate of the marriage between them was competent to corroborate his evidence to that effect. Besides, there was the written agreement of counsel that this record should be admitted, to avoid, we presume, the expense of summoning witnesses. The evidence of the extreme destitution of Martha Daniel at the time of the execution of these deeds in trust and that it was necessary for her to mortgage her land in order to procure means of living while not necessary evidence was certainly not incompetent. Nor was it necessary to allege in the complaint that Martha Daniel executed the deeds in trust without the written assent of her husband because abandoned by him. That was evidential matter arising only when objection was made to the validity of the deeds. This was not an equitable matter requiring to be set up by plea, like undue influence or fraud in the treaty, but went to the legal validity of the deed, like mental incapacity to execute it, or fraud in the factum, which can be put in evidence though not pleaded. Alley v. Howell, 141 N. C. 113, 53 S. E. 821. The defendants did plead that the husband did not assent in writing to the trust deeds, but it was not necessary.

The witness Charles G. Daniel testified that he and his wife "could not get along together. She told me she would give me a horse if I would leave and stay. I took the horse. I cannot say why she gave me the horse unless it was to get rid of me. I left because I thought she did not want me there after she made me the offer she did." The court on motion of the plaintiff properly struck out...