{ "id": 11272845, "name": "MERCANTILE NATIONAL BANK v. Mrs. L. J. BENBOW et al.", "name_abbreviation": "Mercantile National Bank v. Benbow", "decision_date": "1909-05-25", "docket_number": "", "first_page": "781", "last_page": "787", "citations": [ { "type": "official", "cite": "150 N.C. 781" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "140 N. C., 85", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "74 N. C., 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683003 ], "opinion_index": 0, "case_paths": [ "/nc/74/0437-01" ] }, { "cite": "72 N. C., 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689389 ], "opinion_index": 0, "case_paths": [ "/nc/72/0183-01" ] }, { "cite": "118 N. C., 273", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "117 N. C., 100", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "126 N. C., 396", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 1 }, { "cite": "130 N. C., 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274023 ], "opinion_index": 1, "case_paths": [ "/nc/130/0529-01" ] }, { "cite": "135 N. C., 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660698 ], "opinion_index": 1, "case_paths": [ "/nc/135/0661-01" ] } ], "analysis": { "cardinality": 612, "char_count": 12246, "ocr_confidence": 0.46, "pagerank": { "raw": 7.165677700548404e-08, "percentile": 0.42907713924634217 }, "sha256": "2b404417616bee90b6c7e42cd748077045c4a464f3cad4d0c367c57077626eae", "simhash": "1:2c61ad9d82adcce9", "word_count": 2140 }, "last_updated": "2023-07-14T18:55:20.077008+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MERCANTILE NATIONAL BANK v. Mrs. L. J. BENBOW et al." ], "opinions": [ { "text": "Brown, J.\nThe feme defendant was the owner of and conducting a store .in the town of Wilkesboro. Through her husband she purchased certain jewelry from Bixler & Go. and, in payment therefor, executed six promissory notes, signed by herself alone, but with the written consent of her husband, which was found by the jury to. have been given in certain letters appearing in the record. These notes or acceptances were assigned to the plaintiff for value and before maturity.\nThe complaint declares upon the notes, and asks for a judgment against the feme defendant only. The male defendant is a nominal party, no relief being asked against him.\nThe form of all the notes is the same, to wit:\n\u201cCleveland, Ohio, 19 June, 1903.\n\u201cTw;o months after date pay to the order of M. F. Bixler & Go., limited, the sum of thirty-two dollars, without interest, at their office in Cleveland, Ohio.\n\u201c(Mrs.) L. S. Benbow.\u201d\nAppropriate prayers for instruction and exceptions present for our consideration the liability of the feme defendant upon the contract as herein set out.\nThere is no specific charge upon her personal estate contained in' the evidence of debt, or any other paper writing executed in connection therewith, and there is nothing in the writing from which an intent to charge her separate estate may be implied.\nThat being so, we think the ruling of the court below contravenes the principles of law governing the executory .contracts of married women as enunciated in numerous decisions of the Court since 1875, when the subject was first considered, in Harris v. Jenkins, 72 N. C., 183, and Pippen v. Wesson, 74 N. C., 437. From the adjudged cases covering a period of thirty years this rule of - law may be deduced. In order that a married woman may make an executory contract enforcible against her personal estate it must be done with the written assent of her husband, and the contract must expressly or by clear intendment and implication create a specific charge against her personal estate. In order that she may bind her real property, the feme covert must execute either a formal conveyance or some paper writing which in equity may be charged Upon her separate estate, accompanied by the written assent of her husband and her privy examination. An example of the latter is to be found in Ball v. Paquin, 140 N. C., 85.\nIn the Pippen case this Court held that neither the Constitution nor statute law of the State conferred upon a married woman any power to enter into an executory contract except in the specific instances mentioned in the statute, now section 2094 of the Revisal. Since that ease, in a long unbroken -line of decisions, this Court has held that a married woman is incapable of making a contract of any sort, and that her attempted contracts, unless such as are authorized by the statute, are void. These decisions have been repeated and reaffirmed so often by this Court that in Ball v. Paquin, supra, they are regarded by Mr. Justice Connor as \u201ccontrolling decisions,\u201d who refers to them in these words: \u201cIn the absence of controlling decisions to the contrary, we should unanimously hold that she could make all manner of-contracts with tlie written assent of her husband, and that for a breach of them her property was liable as if she were a feme sole.\u201d\nThis subject has been so much discussed in decisions of this Court that to review them again 'is unnecessary and unprofitable. Both sides of the controversy are presented fully in the opinion of the Court by Mr. Justice Walker and in the dissenting opinion of the Chief Justice in the case of Harvey v. Johnson, 133 N. C., p. 353.\nThere is no pretense of any express or implied charge in -the contract sued on upon the personal estate of the feme defendant which can be enforced by a court of equity. Because the jury have found that the feme defendant owns a separate personal estate affords no ground for charging it with the performance of such contract.\nOur laws provide in what manner married women may become free traders, so that their contracts may be enforced as readily as if they were unmarried. Their status is easily ascertained by reference to the register of deeds by those who deal with them in business. If they neglect to obtain such information, it is the loser\u2019s fault.\nHis Honor erred in declining to give the defendants\u2019 prayer \u25a0 for instruction. As there was no motion to nonsuit, there must be a\nNew Trial.", "type": "majority", "author": "Brown, J." }, { "text": "Clark, C. J.,\ndissenting: The most diligent research shows no statute that forbids a married woman to make a contract \u201cwith the assent\u201d of her husband. The statute which has been relied on is The Code, 1826, now Revisal, 2094, which forbids her to make any contract \u201cwithout the assent\u201d of her husband, except in three cases, named, i. e., for necessaries, for support of the family, and to pay antenuptial debts, for which she can contract without his assent. The prohibition to contract without the husband\u2019s assent in the other cases than the three cases named is certainly not a prohibition of the power to contract with his assent, but a recognition that she can contract with the husband\u2019s assent.\nTbe right to act as free trader (Revisal, 2112) is a dispensation witb tbe prohibition to contract without tbe husband\u2019s assent in all cases. As this is conferred by tbe husband\u2019s assent once for all, certainly be can give bis assent to each contract as it arises.\nTbe Constitution allows a woman to convey her land witb tbe written assent of her husband, and tbe Court has often held that, as tbe assent is only required as to land, she can draw checks and dispose of personal property without bis assent. It was so held in Vann v. Edwards, 135 N. C., 661. A. fortiori can she contract with bis assent.\nA married woman can draw checks and drafts without her husband\u2019s assent, and, of course, is liable on them if not paid. Revisal, 2095. She is liable upon her real estate for buildings or repairs put thereon by her verbal assent or acquiescence ivith-ou-t the assent of her husband... Revisal, 2016; Finger v. Hunter, 130 N. C., 529. Of course, she must be liable when tbe contract is made witb bis assent.\nEver since tbe Statute of Frauds (29 Chas. II.) it has been held that land can be conveyed only in writing. But it has never been held that in consequence one cannot make a contract verbally which could be enforced by a sale of land. But if such were tbe law, as a married woman can convey her land witb tbe assent of her husband, certainly she can contract with bis assent.\nTbe courts have no right to enact a statute forbidding married women to contract witb tbe assent of tbe husband. Tbe Legislature has not done so. Tbe Constitution has emancipated married women by giving them full control of their property and earnings, with tbe right to dispose of it by will or otherwise, save that as to conveyances of real estate there must be tbe written assent of tbe husband \u2014 in analogy to tbe joinder of tbe wife in the conveyance of tbe husband\u2019s realty.\nThat there is no prohibition of tbe wife to contract freely with tbe husband\u2019s .assent is held in Brinkley v. Ballance, 126 N. C., 396, and Bates v. Sultan, 117 N. C., 100. There is no statute requiring \u201ccharging,\u201d and tbe Court has no power to enact it. It is against tbe spirit of tbe Constitution and in violation, of tlie enfranobised status of married women created by it. Every student of tbe bistory of tbe law knows that tbe doctrine of \u201ccharging\u201d was created in England in an effort to confer upon married women of wealth tbe power to contract on tbe faith of their property, at a time when tbe law there did not, as now, give them unrestricted control of their property and freedom to contract even-without tbe assent of their husbands. See Century of Law Reform,, 354-358, 368-373, 376; Dicey-Law and Opinion in England, 369-393. Certainly, the doctrine is obsolete and an anachronism here, when the wife has contracted with the assent of her husband and she can convey her realty with his assent and all her other property without it.\nIf there are any decisions of this or preceding courts which forbid a married woman to contract with the assent of her husband, they should be modified or overruled. A court should overrule its own errors (as this Court has shown it is strong enough to do), as well as the errors of a court below. Indeed, errors of the'higher court more imperiously demand correction, for they are more injurious. Ten times zero is only zero, and an error ten times repeated acquires thereby no approximation to being correct. It is an error still, only more harmful by repetition. As we have as precedent Brinkley v. Ballance, supra, we can follow that, if \u2019a precedent is essential.\nThe feme defendant bought the plaintiff\u2019s goods, at the price $163.20, with the' written assent of her husband and, indeed, through his agency. She has kept the goods and now refuses to pay for them, though the jury find that she is worth $13,000 in personal property, besides realty. It is but common honesty that she be adjudged to pay the $289.' There is no sign or shred of a statute that provides that she is not liable for such contract when made with the assent of her husband.\nThe decisions that a wife cannot contract with the assent of her husband, though she can convey realty with his assent, and can make many contracts and dispose of j>ersonalty without his assent, have not become a rule of property, and to correct the error cannot affect any title. As the husband\u2019s assent is not required for her protection in disposing of her personalty, and such assent is sufficient protection in conveying her realty, there can be no reason why the husband's assent was not enough protection in purchasing these goods when there is no statute that requires more.\nIn Bank v. Howell, 118 N. C., 273, this Court, in effect, recommended a statute permitting a wife to contract as a feme sole, without the assent of her husband in all cases, as is the law in England, New York, and our adjoining States. But that would require amending Revisal, 2094, which forbids her to contract without her husband\u2019s consent except in certain. cases. Here she contracted with the assent of her husband, and there is no statute making her incompetent to buy these articles. Her estate has benefited to the extent of the jewelry bought. \u25a0", "type": "dissent", "author": "Clark, C. J.," } ], "attorneys": [ "L. M. Lyon and Manly & Hendren for plaintiff.", "C. G. Gilreath and H. C. Caviness for defendant." ], "corrections": "", "head_matter": "MERCANTILE NATIONAL BANK v. Mrs. L. J. BENBOW et al.\n(Filed 25 May, 1909.)\n1. Husband and Wife \u2014 Wife\u2019s Separate Personalty \u2014 Wife\u2019s Note\u2014 Consent of Husband \u2014 Charge Specific-by intendment.\nA note signed by a feme covert alone, but with the written consent of her husband, will not bind her separate personal property to its payment when it does not expressly or by clear intendment and application create a specific charge against her property, sought to be bound for its payment.\n2. Husband and Wife \u2014 Wife's Separate Realty \u2014 Wife\u2019s Note \u2014 Consent of- Husband \u2014 Charge Specific \u2014 Equity\u2014Privy Examination.\nFor a feme covert to bind her real property to the payment of a note given by her, she must execute a formal conveyance or some paper writing which in equity may be a charge upon her separate estate, accompanied by the written assent of her husband and her privy examination.\nClark, C. J., dissenting, arguendo.\nActioN tried before Murphy, J., and'a jury, at October Term, 1908, of Wilkes.\nThese issues were submitted :\n1. \u201cIs the feme defendant indebted to the plaintiff? And if so, in what sum?\u201d Answer: \u201cYes; indebted $163.20, with interest from maturity.\u201d\n2. \u201cWere the acceptances sued on signed by the feme defendant by the written consent of her. husband?\u201d Answer: \u201cYes.\u201d\n3. \u201cDid the feme defendant own a separate personal estate at the time the acceptances were signed and suit brought? And if so, how much?\u201d Answer: \u201cYes; from six hundred to eight hundred \"dollars.\u201d\n4. \u201cDid the feme defendant own a separate personal estate at the time of the trial ? And if so, how much ?\u201d Answer : \u201cYes; $13,000.\u201d\nHis Honor rendered judgment against the feme defendant, Mrs. Benbow, upon the issues as found, directing that it be collected out of her personal estate only. The said defendant duly excepted and appealed.\nL. M. Lyon and Manly & Hendren for plaintiff.\nC. G. Gilreath and H. C. Caviness for defendant." }, "file_name": "0781-01", "first_page_order": 825, "last_page_order": 831 }