Opinion
(Filed 22 October, 1919.)
1. Constitutional Law — Husband and Wife — Written Consent — Deeds and Conveyances — Contracts.
The written consent of the husband is necessary to a valid conveyance by the wife of her lands. Const., Art. X, sec. 6.
2. Same — Death of Husband — Mortgages — Sale — Election.
Without the written consent of her husband, the wife attempted to convey her lands, took a mortgage back to secure the balance of the purchase price, and, after the death of her husband, advertised the land under the power of sale in the mortgage, but withdrew it after tender of principal, interest and costs by the mortgagor and brought action of ejectment, in which the defendant asked for specific performance: Held, having by the foreclosure proceedings elected, after the death of her husband, to receive the money from her land, she will not be permitted to claim it on the ground that her deed, without the written consent of her husband, was invalid to pass the title.
APPEAL by defendant from Guion, J., at May Term, 1919, of SAMPSON.
Kerr Herring for plaintiff.
Butler Herring, Fowler Crumpler, and E. C. West for defendant.
BROWN, J., concurring; WALKER, J., dissenting; HOKE, J., concurring in the dissenting opinion.
Ejectment. The judge finds from the pleadings and admission of the parties that the plaintiff while married executed the deed for the land to the defendant, who at the same time executed notes for the purchase money secured by mortgage on the same land. After the plaintiff became discovert by the death of her husband she advertised the land for sale under the mortgage, but subsequently, when the defendant tendered her the full amount of the notes and interest, she called the sale off and brought this action for ejectment. The court rendered judgment for specific performance. Appeal by Plaintiff.
The plaintiff has gone into court asking recovery of the land, and the defendant asks a decree of specific performance.
The facts are found by the judge upon the pleadings and admissions of the parties. The privy examination of the plaintiff was duly taken, but his Honor correctly held that the deed was not sufficient as a conveyance because it lacked the "written assent of the husband." Cons., Art. X, sec. 6.
Irrespective of that defect, it was not a conveyance of any title, because at the instant of making the deed the defendant conveyed back the property by a mortgage to secure the purchase money. It was therefore, in legal effect, in no sense a "conveyance," but merely a contract to convey upon payment (316) of the purchase money, notwithstanding that in form there was a deed from the plaintiff to the defendant and a mortgage deed back. This was held in Bunting v. Jones, 78 N.C. 242, and numerous citations thereto in Anno. Ed., holding that in such case "no title vested in the defendant whose wife acquired no dower or homestead rights therein." It is therefore simply a "contract" that upon payment of the purchase money the plaintiff would convey the property. It has no other legal effect.
The Martin Act, ch. 109, Laws 1911, repealed Rev. 2094, and substituted therefor the following: "Every married woman shall be authorized to contract and deal so as to affect her real and personal property in the same manner and with the same effect as if she were unmarried," with the exception only of contracts with her husband under Rev. 2107; and as to " conveyances of her real estate" still requiring the written assent of the husband and privy examination. The sole exception as to contracts was to contracts with her husband under Rev. 2107. Thrash v. Ould, 172 N.C. 730; Grocery Co. v. Bails, 177 N.C. 299, and cases there cited.
Further, after the death of her husband, the plaintiff recognizing fully the obligation of the contract endeavored to enforce it against the defendant, and advertised the property for sale under the mortgage. But when the defendant tendered her the full amount of the note and interest thereon, together with the costs of sale under the mortgage, and demanded execution of the deed for the property under the terms of the contract she refused to comply and brought this action to recover the land, and the defendant asks a decree of specific performance.
Judge Guion, after reciting in the judgment the facts above set out, as to which there was no controversy, recites, "The court being further of the opinion, while the deed setforth in the answer was invalid and ineffectual to convey said land by reason of the want of the written assent of the husband thereto, yet being of the opinion that said deed so executed was a good and sufficient contract to convey said land under the provision of Laws 1911, ch. 109," adjudges that there was a "good and sufficient contract to convey said land, and that upon payment to the plaintiff of the full sum evidenced by the notes described in the answer, with the interest thereon until paid, said plaintiff should execute to the defendant a deed for the land described in the complaint, and that the defendant recover of the plaintiff the costs of the action."
This is in exact accordance with the terms of the contract which the plaintiff under the Martin Act had the right to make "in the same manner and with the same effect as if she were unmarried." There is exactly the same enforcement of the contract against the plaintiff which she sought to have against the defendant (317) after she again became a single woman by advertising the property for sale under the contract.
The just and accomplished judge applied to both parties the thrice repeated scriptual injunction, "With what measure ye mete, it shall be measured to you again." (Matthew 7:2, which was repeated in Mark 4:24 and Luke 7:38.) Equity and justice know no higher standard than this. The plaintiff, her husband being dead, attempted to enforce the contract and cannot now complain that the Court has made her comply therewith.
While the husband lived the obligation of the contract could be enforced only by an action for damages ( Warren v. Dail, 170 N.C. 406), for the reason that the court could not require specific performance because it could not compel the husband to give his written assent ( Fortune v. Watkins, 94 N.C. 315, which was the case where the wife refused to join in the husband's deed), but the husband being dead there is no obstacle now in requiring the plaintiff to comply with her contract by specific performance.
Affirmed.