Opinion
(Decided 12 December, 1899.)
Married Woman's Property — Real, Personal — Power to Convey, Article X, Section 6, of the Constitution — Power to Charge Her Separate Estate — The Code, Sec. 1826.
1. The power of a married woman to convey her property, real or personal, is regulated by the Constitution, Art. X, sec. 6, and must be exercised by the written assent of her husband.
2. Her power to make contracts charging her separate estate is regulated by The Code, sec. 1826, which requires a similar assent.
3. Her property may not be charged or disposed of by her husband without her assent.
4. Where a married woman wrote her name upon and across the back of a $1,250 note belonging to her, to secure which was another note for $615, hypothecated by the payee L. A. Bristol, and her husband E. S. Walton, now dead, delivered the same (both notes) to the Piedmont Bank as collateral security to his indebtedness due said bank, which became increased by further dealings to $3,000, when Walton executed his note for that amount, endorsed by the Piedmont Bank, and borrowed the money from the National Bank of Wilmington, with which sum he paid off his indebtedness to the Piedmont Bank, which retained his wife's notes by agreement with her husband as collateral security for its endorsement of his $3,000 note to the Bank of Wilmington; Held, that this last arrangement required the assent of the wife, of which there was no evidence.
CIVIL ACTION for the immediate possession of certain promissory (420) notes, claimed as the property of plaintiff, and held by defendant L. A. Bristol, receiver of the Piedmont Bank of Morganton, tried before McNeill, J., at Spring Term, 1899, of the Superior Court of BURKE County.
Avery Avery and Avery Erwin for appellant.
S. J. Ervin for appellee.
Jury trial was waived, and the facts were found by his Honor, who rendered judgment against the plaintiff, and she excepted and appealed to the Supreme Court.
The facts found by his Honor are fully recapitulated in the opinion.
MONTGOMERY, J., writes the opinion.
CLARK, J., writes dissenting opinion.
This is an action on the part of the plaintiffs to recover of the defendants the possession of certain personal property consisting of certain promissory notes and another paper writing mentioned in the complaint; one of the notes being in the sum of $1,250, executed on the 18th March, 1893, by S. Huffman, L. A. Bristol, J. M. Huffman Co., and J. H. Pearson, to J. V. Blackwell, or order, with certain credits endorsed thereon. The other note was in the sum of $615, executed by A. R. Buffaloe and C. E. Buffaloe to L. A. Bristol. The last-mentioned note was hypothecated by the payee, L. A. Bristol, with Blackwell, the payee of the first-mentioned note, as collateral security to that note. The other paper writing mentioned in the complaint is the assignment and transfer of the Buffaloe note as a security for the first-mentioned note. A jury trial was waived, and the facts were found by his Honor, which were in substance, as follows: The payee, J. V. Blackwell, of the first note, was the father of the plaintiff in this action, and after his death the note was assigned by his executor, I. T. Avery, to her as a part of her share of her father's (421) estate. Afterwards the plaintiff, who was then a married woman, the wife of E. S. Walton, now deceased, in the language of the finding of fact, "wrote her name upon and across the back thereof (the note), and her husband, E. S. Walton, delivered the same to the Piedmont Bank of Morganton, N.C. as collateral security to an indebtedness then due and owing by him to the said bank on account of overdrafts, and the same was accepted by the bank for this purpose, the bank and the said E. S. Walton thereafter continuing to have mutual dealings, the bond at all times remaining in the possession of the bank." After that time the indebtedness of the husband to the bank became increased by overdrafts in a large amount until it amounted to about $3,000. That amount was borrowed from the other defendant, the National Bank of Wilmington, N.C. by the husband, E. S. Walton, and for which he executed his note payable to that bank. That note was endorsed by the Piedmont Bank upon agreement with the husband that the $1,250 note should be placed by the husband with it as security against loss by reason of its endorsement of the $3,000 note, and in order to secure the payment of that note. At the time of the loan by the Wilmington bank the husband, E. S. Walton, by letter, acquainted the Wilmington bank with the agreement between him and the Piedmont Bank. Later, E. S. Walton, the husband, wrote to the Wilmington bank that the $1,250 note was deposited with the Piedmont Bank as a collateral security to the endorsement of the $3,000 note. The amount realized on the $3,000 note from the Wilmington bank was applied by E. S. Walton to the payment of his indebtedness to the Piedmont Bank. The $3,000 note is still due and unpaid, and E. S. Walton is dead, (422) and his estate is insolvent. Since these transactions the Piedmont Bank has failed; L. A. Bristol is the receiver, and was in possession of the note and the other paper writing mentioned in the complaint at the time this action was commenced.
Upon the finding of facts substantially set out as above stated, it was considered and adjudged by the court below that the plaintiff was not entitled to the possession of the note sued for, and the plaintiff appealed.
The contentions of the plaintiff, are: First, that if the endorsement and transfer of the note by the plaintiff be considered as a sale or conveyance of the same to the Piedmont Bank, it was not executed with the written assent of the husband, as was required by Article X, section 6, of the Constitution, and was therefore invalid. Second, that if the endorsement be considered as an attempt by the wife, the plaintiff, to charge her separate estate, the husband not having entered his written assent thereto, the attempt must fail, because it was prohibited under section 1826 of The Code; and, third, that if it be considered as an attempt by the wife to pass the title to the property in the note to her husband, it was ineffectual, because it was not made according to the requirements of section 1835 of The Code.
The defendants' contentions are: First, that the endorsement by the wife was effectual to vest the property in the Piedmont Bank, for they say that a married woman has a right, with the verbal assent of her husband, to sell or dispose of her choses in action, and that the law has drawn a line between the executed and executory contracts of married women. Second, that upon the endorsement by the wife of the note, and the placing it in the hands of her husband, he was enabled to transfer it to the defendants, and they being innocent purchasers for value are not affected by the fact that she was a married woman. Third, that by virtue of the agreement between E. S. Walton, the husband, (423) and the Piedmont Bank, and the subsequent agreement between them and the Wilmington Bank, in reference to the $3,000 note, the $1,200 note in the hands of the Piedmont Bank should be applied to the benefit of the Wilmington bank.
In the beginning of the examination of the contentions of the parties, it may be said that the aspect of the case which is presented as falling under the prohibition of section 1835 of The Code may be eliminated from our consideration, for it appears from the facts found that the note was not attempted to be given to the husband by the wife. It was endorsed by her, and then taken by the husband to the Piedmont Bank, and delivered by him to the bank as a collateral security to a then existing indebtedness of the husband for overdrafts, and it was accepted by the bank for that purpose.
If the endorsement by the wife be considered in the view of an attempt on her part to convey her property, her separate estate, to the defendants, then the attempt must fail, for she could not do that without the written assent of her husband, and that was never had. Article X, section 6, of the Constitution, is in these words: "The real and personal property of any female in this State, acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried." The Constitution as we have seen, so far as the wife's power to convey her separate estate is concerned, makes no difference between real property and personal property. If she undertakes to convey either species of property, the written assent of her husband must be had. In the brief of (424) defendants' counsel it is said: "But aside from all that, it would be a monstrous doctrine in our law that a married woman can, with the verbal assent of her husband, dispose of an article of personal property or endorse a note or draft, and receive the proceeds thereof, and then recover such security or property on the ground that she did not have the written consent of her husband. If such be the law, then her coverture becomes a sword instead of a shield. Certainly, if such be the law, no reported cases can be found in this State to sustain it, and none should be found." But the Constitution, as we have seen, in the section we have quoted, distinctly requires the written assent of her husband in order to enable the wife to convey her separate personal property, and certainly no reported cases can be found in the Reports of this State against that constitutional requirement, and in the language of the brief, "none should be found." That a married woman should be able to draw her money out of a bank where it is deposited, or to receive payment of a note due to herself without the written assent of her husband, is altogether a different thing from conveying her property. In the first-mentioned cases, she brings into her estate all that she is entitled to, while in a sale of conveyance of her personal property without the assent of her husband she may be defrauded in the facts connected with the transaction or in the value of her property, and the Constitution, to doubly guard her property, requires the assent of her husband to be in writing.
The defendants' counsel cited us to the cases of Taylor v. Sikes, 108 N.C. 724, and Kirkman v. Bank, 77 N.C. 394. In the first-mentioned case, the transaction having occurred in Maryland, and no proof to the contrary having been introduced, the Court assumed that the common law prevailed in Maryland and applied the principles (425) of the common law to the facts in the case. In the case of Kirkman v. Bank, the wife drew out of the bank a sum of money on her draft or order without the written assent of her husband, and after her death he, as administrator of his deceased wife, brought suit against the bank to recover the amount so paid to the wife. The court said that he could not recover against the bank, that the wife was not "conveying" her property or "disposing" of it, that she was only "receiving" her property. So it is seen that the cases of Taylor v. Sikes and Kirkman v. Bank, not only do not support the position of the defendants' counsel, but are authorities against it. Again, if the endorsement of the note by the plaintiff and its being deposited with the Piedmont Bank for the purposes found by his Honor be considered in the view of an attempt to charge the separate estate of the wife, it may be answered that it was for the benefit of the husband alone, and that he never gave his written assent to the transaction. As to the agreement made between the husband, E. S. Walton, the Piedmont Bank, and the Wilmington bank, in reference to the hypothecation of the $1,250 note to secure the payment of the $3,000 of the husband to the latter bank, and to save harmless the Piedmont Bank for its endorsement of the $3,000, it appears that the husband did make that agreement in writing, but the trouble is that the wife never gave her consent to that arrangement, and did not endorse the note for that purpose. The case of Bates v. Sutton, 117 N.C. 94, cited in the brief of defendants' counsel, has no application here in any aspect, for the husband there gave his consent in writing to the purchase of the goods by the wife on account of her own separate estate; and her application for credit was in writing and contained a clause charging her separate estate for the same. As to the last position of the defendants' counsel, that is, that an endorsement by a married woman of a note belonging to her conveys the property therein to the holder who has paid (426) value for it, and who was ignorant of the fact that she was under coverture at the time of endorsement, we think it can not be maintained. The purchaser of such a note can not place a married woman in North Carolina, in her attempt to contract, in the position of a person free to contract. Our Constitution and our laws will not permit a married woman to make any contracts without the written assent of her husband, whether her coverture be known or not, except those authorized under section 1826 of The Code. But there was no finding of his Honor as to whether either of the banks knew that the plaintiff was not a married woman.
For the reasons given, we find error in the judgment of the Court below, and the same is
Reversed.