BARNHILL, J., dissenting.

DEVIN and SEAWELL, JJ., concur in dissent.

Civil action in ejectment.

The plaintiffs, who had been married to each other, were divorced in 1936. Thereafter the feme plaintiff held herself out and did business as a single woman. On or about 1 September, 1940, she authorized her attorney, Thomas J. Moore, to sell her house and lot in the town of Wilson. Pursuant to this authorization, Moore forthwith negotiated a contract with the defendants for the purchase of the property. They were told that the feme plaintiff was unmarried, and at the time the deed was drafted, which was prior to its execution and delivery, she made the statement in the presence of one of the defendants that she was a single woman. In the deed "Birdie S. Buford" is designated "party of the first part."

The sale was consummated 21 September, 1940. In the meantime, however, the feme plaintiff had gone to Dillon, S.C., and on 15 September, she and her former husband were remarried. This fact was not disclosed to her attorney or to the defendants at the time of the execution and delivery of the deed, albeit the deed is signed "Mrs. Birdie S. Buford."

On 18 March, 1942, the feme plaintiff and her husband instituted this action to recover possession of the land, alleging that the deed of 21 September, 1940, was void, because executed by the feme plaintiff, a married woman, without the written assent of her husband or privy examination as required by law. The plaintiffs offer to make the defendants whole by accounting for the purchase money, offsetting improvements against rents, etc.

The defendants admit the allegations of the complaint in respect of the deed, but allege that they were defrauded by the plaintiffs, in that they schemingly withheld from the defendants the fact of their remarriage, and such conduct is set up as a bar to the present action. The precise denomination of the plea is estoppel in pais.

On the hearing, "it was admitted . . . that the plaintiff, Birdie S. Buford, is the owner of the land in question unless she is estopped in accordance with the allegations of the answer."

The plaintiffs' demurrer to defendants' evidence on the plea of estoppel was sustained, and the demurrer to the amended answer was not passed upon as it "raises the identical question."

From judgment in favor of plaintiffs, and retaining the cause for an accounting, etc., the defendants appeal, assigning errors.

STACY, C. J.

The plaintiff, a married woman, executed a deed to her land without the written assent of her husband or privy examination as required by law. The grantees allege that during the negotiations she represented herself to be unmarried. She offers to return the purchase money and to save the grantees harmless, but they decline to surrender possession. Plaintiff sues in ejectment. The defendants plead estoppel in pais.

Is the plea of estoppel good? The law answers in the negative.

In Scott v. Battle, 85 N.C. 184, where a married woman executed a deed to her land without the joinder of her husband — a case identical in principle with this one — it was said that the plaintiff's right to recover in ejectment could not be questioned as nothing passed by the deed. It is admitted on the present record that "the plaintiff, Birdie S. Buford, is the owner of the land in question unless she is estopped in accordance with the allegations of the answer."

The question of estoppel was fully discussed in the case of Williams v. Walker, 111 N.C. 604, 16 S.E. 706. There it was said that neither a covenant nor a representation on the part of a married woman that she was a feme sole would estop her from asserting her incapacity to convey her separate real estate without the written assent of her husband and privy examination as required by statute, and further that a married woman could not by her own misrepresentation enlarge her capacity to convey an estate; that she would not be allowed to do indirectly what the law prohibits her from doing directly; that she could not do by acts in pais what she could not do by deed; that to hold otherwise "would be to introduce into our law an entirely new system of the conveyances of the real estate of femes covert," Drury v. Foster, 69 U.S. 24; that, as no remedy could be had upon the void contract, it would be against the policy of the law to allow the same result to be reached through the medium of an estoppel, and that the conclusion reached was in full accord with the constitutional limitation and statutes adopted and enacted for the protection of married women, and not "to permit, much less help, one of them to perpetrate a fraud." The following from Bishop was quoted with approval: "If a married woman executes a conveyance of land in her maiden name, and dates it back to a time before her marriage, this transaction, however fraudulently intended, does not pass the land by estoppel." Bishop Law Married Women, sec. 489. Also the following from Farthing v. Shields, 106 N.C. 289, 10 S.E. 998: "Whatever may be the rulings in other states (and they are admitted to be in hopeless conflict), we prefer to adhere to the principle, so often declared by this Court, that a married woman, as to her statutory separate property, is to be deemed feme sole only to the extent of the power conferred by the Constitution and laws creating the same." To allow a married woman voluntarily to disregard the provisions of the law intended for her benefit would render them nugatory or of no binding effect. "So if a feme covert, reciting by her deed that she is a feme sole, grant an annuity, this is a void grant, and she shall not be concluded by this recital." Brinegar v. Chaffin, 14 N.C. 108.

It is contended, however, that all these earlier cases were rendered apocryphal by the passage of the Martin Act in 1911. G.S., 52-2 (C. S., 2507). Conceding the general broad effect of this statute, enabling a married woman ordinarily to contract and deal with her property as if she were unmarried, Martin v. Bundy, 212 N.C. 437, 193 S.E. 831, and to be bound by estoppel, Tripp v. Langston, 218 N.C. 295, 10 S.E.2d 916, yet the following pertinent delimitation must not be overlooked: "But no conveyance of her real estate shall be valid unless made with the written assent of her husband as provided by section six of article ten of the Constitution, and her privy examination as to the execution of the same taken and certified as now required by law." See Fisher v. Fisher, 218 N.C. 42, 9 S.E.2d 493; Capps v. Massey, 199 N.C. 196, 154 S.E. 52; Wallin v. Rice, 170 N.C. 417, 87 S.E. 239.

Admittedly the deed given by the plaintiff to the defendants is void for failure to comply with the terms of the statute. Whatever rights and remedies the defendants may have against the plaintiff in other respects, and she offers to comply with these, it will not do to say the plaintiff has title to the land and yet she shall not have it, or that the defendants may hold it under a void deed. 50 A.L.R., 956. The Constitution and statutes forbid. In no previous decision have we exacted of a married woman divestiture of her land as a penalty for misrepresenting her capacity to convey it. Nor has she been permitted, by any voluntary act, to circumvent or to set at naught the provisions of the law intended for her protection. Equity abhors fraud and diligently seeks to prevent it or to redress it wherever found, but it also follows the law. One who deals with a married woman is chargeable with knowledge of her disability, and that she can convey her real estate only in the manner prescribed by the Constitution and laws on the subject. Johnson v. Bryan, 62 Tex. 623. Here, the deed which the defendants took from the plaintiff is signed "Mrs. Birdie S. Buford." Numerous decisions have shaped and cast the law in this jurisdiction.

But supposing the plea of estoppel were held to be good, what would be the result? The plaintiff with title to the land could not recover in ejectment. Yet if perchance she should obtain possession of it, the defendants could not recover in ejectment on a void deed. Thus the law would be in the position of saying to the parties:

"He may take who has the power; He may keep who can."

Such, we apprehend, would ill befit the law. Mosseller v. Deaver, 106 N.C. 494, 11 S.E. 529; Monger v. Lutterloh, 195 N.C. 274, 142 S.E. 12. It seems incontestable that unless the feme plaintiff is estopped by her deed, which is not pleaded, she is entitled to recover. Certainly if the feme plaintiff had signed no writing at all, it would hardly be contended she could not recover. G.S., 22-2 (C. S., 988). The deed she did sign has the same effect so far as the land is concerned. It is inoperative as a deed and conveys nothing. Vann v. Edwards, 135 N.C. 661, 47 S.E. 784. At no time in this State has a married woman had the capacity to convey her real estate without the written assent of her husband. The limitation is constitutional, Art. X, sec. 6, and the General Assembly is without authority to change it. Similar provisions are not to be found in most of the other state constitutions, Stallings v. Walker, 176 N.C. 321, 99 S.E. 25, a circumstance to be borne in mind in assessing the persuasiveness of decisions in other jurisdictions.

It all comes to a narrow compass: By the Constitution and laws of this State a married woman is incapable of making a valid conveyance of her real estate without the written assent of her husband and privy examination duly taken and certified. Hence, she may not convey it by estoppel, or fraudulently divest herself of coverture, if such characterization be preferred. A married woman cannot by a simple declaration or by intentional fraud change her status from feme covert to feme sole and thus convert a void deed into a valid conveyance of her real estate. Nor will equity close the doors of the courts to her in the assertion of a legal right. Estoppel is applied against those who are capable of acting in their own right in respect of the matter at issue, and not against those under specific disability in respect of it. Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261. To the extent that a married woman is authorized to deal with her property as a feme sole she is liable on her contracts and subject to estoppel, Council v. Pridgen, 153 N.C. 443, 69 S.E. 404, but otherwise her disability may not be circumvented or the pertinent legal restrictions of coverture set at naught. Smith v. Ingram, 132 N.C. 959, 44 S.E. 643. Equity will go as far as the law permits to make the defendants whole, but it will not impinge on positive constitutional and statutory provisions. Neither the doctrine of clean hands nor any kindred principle on which courts refuse relief is applicable here. "Equity does not demand that its suitors shall have led blameless lives." Loughran v. Loughran, 292 U.S. 216, 78 L.Ed., 1219. Moreover, the plaintiff has not come into equity. She is suing at law in ejectment. The law will not allow that to be done indirectly which it has forbidden to be done directly, and if a married woman can, by the simple expedient of misrepresenting her marital status, practically convey her real estate, the very disability which the law has imposed will be removed, and the safeguards which it has carefully thrown about her will be broken down and abrogated. Ray v. Wilcoxon, 107 N.C. 514, 12 S.E. 443. The law in its protective features is not so easily swept aside.

"A married woman is no more estopped by her acts in pais than by her covenant of warranty. This Court has said that no one can reasonably rely upon the acts and representations of a married woman, at least those which are contractual in their nature, as he must know that she is not bound thereby, and `it is only in the case of a pure tort, altogether disconnected with the contract, that an estoppel against her can operate —'" Walker, J., in Smith v. Ingram, supra.

It should be observed that the case is one in which the parties have undertaken to form a contractual relationship with each other, and not one in which a third person has dealt with the property in ignorance of plaintiff's rights. Bishop v. Minton, 112 N.C. 524, 17 S.E. 436; Note, 50 A.L.R., 962.

With the above disposition of the case, no cognizance need be taken of the fact that all the evidence comes from a single witness, namely, the attorney who represented the feme plaintiff at the time of the execution and delivery of the deed, McNeill v. Thomas, 203 N.C. 219, 165 S.E. 712, nor of the circumstance that the defense was dismissed on challenge to the evidence, Lester v. Harward, 173 N.C. 83, 91 S.E. 698, rather than on demurrer to the answer. McIntosh on Procedure, 507. Had the result been otherwise, however, these obstacles might have appeared formidable. Guy v. Bank, 206 N.C. 322, 173 S.E. 600.

The judgment seems to be in accord with our former decisions.

Affirmed.