{ "id": 8551737, "name": "ELSIE ELIZABETH TRAMMELL v. ROBERT LEWIS TRAMMELL", "name_abbreviation": "Trammell v. Trammell", "decision_date": "1968-08-14", "docket_number": "No. 68SC187", "first_page": "166", "last_page": "169", "citations": [ { "type": "official", "cite": "2 N.C. App. 166" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "99 S.E. 2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628022 ], "opinion_index": 0, "case_paths": [ "/nc/246/0666-01" ] }, { "cite": "6 S.E. 2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598591 ], "opinion_index": 0, "case_paths": [ "/nc/217/0070-01" ] }, { "cite": "137 S.E. 578", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217665 ], "opinion_index": 0, "case_paths": [ "/nc/193/0560-01" ] }, { "cite": "2 S.E. 443", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "96 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649325 ], "opinion_index": 0, "case_paths": [ "/nc/96/0087-01" ] } ], "analysis": { "cardinality": 417, "char_count": 7373, "ocr_confidence": 0.562, "pagerank": { "raw": 1.5158292648850323e-07, "percentile": 0.6683992001078055 }, "sha256": "b04f016dfbfe4f2469116435cffee8dc05b225406b80d68bc8b0fea169edb8e4", "simhash": "1:b97e8173138d6085", "word_count": 1209 }, "last_updated": "2023-07-14T19:15:57.624547+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Campbell and Morris, JJ., concur." ], "parties": [ "ELSIE ELIZABETH TRAMMELL v. ROBERT LEWIS TRAMMELL" ], "opinions": [ { "text": "Britt, J.\nDefendant\u2019s principal assignments of error raise the following questions: (1) Did the trial court commit error in allowing plaintiff to introduce the purported deed of separation as evidence? (2) Did the trial court commit error in overruling defendant\u2019s motion for judgment as of nonsuit at the conclusion of plaintiff\u2019s evidence?\nThe certificate attached to the purported deed of separation is as follows:\n\u201cNorth Carolina\nLinCOLn County\n\"I, Nellie L. Bess, Asst. Clerk of the Superior Court for Lincoln County, North Carolina, do hereby certify that Robert Lewis Trammell and his wife, Elsie Elizabeth MoAlister Tram-mell, personally appeared before me this day and acknowledged the due execution of the foregoing instrument.\n\u201cAnd I do further certify that it has been made to appear to my satisfaction, and I do find as a fact, that the same is not unreasonable or injurious to her.\n\u201cWitness my hand and official seal, this 8th day of July, 1965. \u201cs/ Nellie L. Bess, Asst. Clerk of the Superior Court\u201d\nG.S. 52-6 provides in part: \u201c. . . nor shall any separation agreement between husband and wife be valid for any purpose, unless such contract or separation agreement is in writing, and is acknowledged before a certifying officer who shall make a private examination of the wife according to the requirements formerly prevailing for conveyance of land.\u201d\nG.S. 47-39 sets forth the form of acknowledgment of conveyances and contracts between husband and wife. It provides, in part, that when an instrument or contract purports to be signed by a married woman and such instrument or contract comes within the provisions of G.S. 52-6 of the General Statutes, the form of certificate of her acknowledgment before any officer authorized to take the same shall be in substance as follows:\n\u201c. . . and the said (here give married woman\u2019s name), being by me privately examined, separate and apart from her said husband, touching her voluntary execution of the same, does state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and that she does still voluntarily assent thereto.\n\u201cAnd I do further certify that it has been made to appear to my satisfaction, and I do find as a fact, that the same is not unreasonable or injurious to her.\u201d\nDefendant insists that the purported deed of separation is void for the reason that the certifying officer did not provide in her certificate that the plaintiff was privately examined; and being void, the trial court erred in permitting it to be introduced in evidence.\nAll transactions of the wife with her husband in regard to her separate property were held void at common law. Sims v. Ray, 96 N.C. 87, 2 S.E. 443.\nIn Caldwell v. Blount, 193 N.C. 560, 137 S.E. 578, Connor, J., speaking for the court, it is said:\n\u201cC.S., 2515, (now G.S. 52-6) is an enabling statute; but for the statute the deed of a wife conveying land to her husband would be void. Such deed is valid only when the statute has been strictly complied with. The law is stated in 30 C.J., at page 757, sec. 379, as follows:\n\u201c \u2018Since a married woman\u2019s power to convey is wholly statutory, all the requirements of enabling statutes must be strictly complied with to render her deed valid, and her deed will be held invalid where there is a failure to comply with statutory requirements as to execution or acknowledgment. Where, however, there has been a substantial compliance with statutory requirements, her deed may be enforced, but there must be a substantial compliance- with every requisite of the statute.\u2019 \u201d\nIn Fisher v. Fisher, 217 N.C. 70, 6 S.E. 2d 812, our Supreme Court said:\n\u201cThis Court has uniformly held that the deed of a wife, conveying land to her husband, is void unless the probating officer in his certificate of probate certify that, at the time of its execution and her privy examination, the deed is not \u2018unreasonable or injurious\u2019 to her.\u201d (Citing numerous authorities).\nIn Bolin v. Bolin, 246 N.C. 666, 99 S.E. 2d 920, Denny, J., (later C.J.) speaking for the court said: \u201cWe have universally required separation agreements to be executed in conformity with statutory requirements governing contracts between husband and wife. . . . Furthermore, this Court has uniformly held that a contract between husband and wife, which must be executed in the manner and form required by G.S. 52-12 (now 52-6) is void ab initio if the statutory requirements are not observed.\u201d (Citing numerous authorities).\nApplying these well-established legal principles to the case at bar, we are compelled to hold that the questions above stated must be answered in favor of the defendant. The purported deed of separation, without a certificate meeting the requirements of G.S. 52-6 and G.S. 47-39, is void and, over defendant\u2019s objection, should not have been allowed in evidence. Eliminating the purported deed of separation from the evidence, plaintiff failed to make out her case.\nWe are not called upon to say if it is now too late for plaintiff to obtain a proper certificate of acknowledgment to the purported deed of separation.\nWe deem it unnecessary to consider defendant\u2019s other assignments of error.\nThe judgment of the Superior Court is\nReversed.\nCampbell and Morris, JJ., concur.", "type": "majority", "author": "Britt, J." } ], "attorneys": [ "Frank Patton Cooke, Attorney for plaintiff appellee.", "Childers & Fowler by H. L. Fouder, Jr., Attorneys for defendant appellant." ], "corrections": "", "head_matter": "ELSIE ELIZABETH TRAMMELL v. ROBERT LEWIS TRAMMELL\nNo. 68SC187\n(Filed 14 August 1968)\n1. Husband and Wife \u00a7 4\u2014 wife\u2019s separate property \u2014 transactions with husband \u2014 common law rule\nAll transactions of the wife with her husband in regard to her separate property were held void at common law.\n2. Husband and Wife \u00a7 10\u2014 separation agreements \u2014 requisites and validity\nA separation agreement between husband and wife, which is executed without certification by the examining probate officer that the wife was privately examined, is void ab initio, and is not admissible in evidence to prove the terms of the agreement. G.S. 52-6, G.S. 47-39.\nAppeal by defendant from Froneberger, J., 8 February 1968 Session of Gaston Superior Court.\nThe allegations of the complaint in this civil action are summarized as follows: Plaintiff and defendant were married in 1959; on 8 July 1965, they entered into a deed of separation, copy of same being attached to and made a part of the complaint; under section \u201cSecond\u201d of the agreement, defendant agreed to convey to plaintiff a certain automobile and to pay to Wachovia Bank $3,612.96 balance owing on said automobile, secured by a chattel mortgage; defendant paid only $1,000.00 of said indebtedness, the bank foreclosed its mortgage and repossessed the automobile; defendant is indebted to plaintiff in the sum of $2,612.96 plus interest.\nIn his answer, defendant alleged that the purported separation agreement is void for the reason that the probate certificate of the officer before whom plaintiff acknowledged execution of the instrument does not comply with the statutes.\nAt the trial, two issues were submitted to and answered by the jury as follows:\n\u201c1. Did the plaintiff and defendant enter into a valid separation agreement, as alleged in the Complaint?\n\u201cAnswbR: Yes.\n\u201c2. What amount, if any, is the plaintiff entitled to recover of the defendant?\n\u201cAnswer: $2612.96.\u201d\nFrom judgment entered on the verdict, defendant appealed.\nFrank Patton Cooke, Attorney for plaintiff appellee.\nChilders & Fowler by H. L. Fouder, Jr., Attorneys for defendant appellant." }, "file_name": "0166-01", "first_page_order": 186, "last_page_order": 189 }