{ "id": 11272927, "name": "ARTHUR COUNCIL v. R. PRIDGEN and F. M. WRAY", "name_abbreviation": "Council v. Pridgen", "decision_date": "1910-11-17", "docket_number": "", "first_page": "443", "last_page": "457", "citations": [ { "type": "official", "cite": "153 N.C. 443" } ], "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": "118 N. C., 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653291 ], "opinion_index": 0, "case_paths": [ "/nc/118/0377-01" ] }, { "cite": "139 N. C., 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652124 ], "opinion_index": 0, "case_paths": [ "/nc/139/0065-01" ] }, { "cite": "122 N. C., 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660730 ], "opinion_index": 0, "case_paths": [ "/nc/122/0571-01" ] }, { "cite": "118 N. C., 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653048 ], "opinion_index": 0, "case_paths": [ "/nc/118/0271-01" ] }, { "cite": "140 N. C., 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651543 ], "opinion_index": 0, "case_paths": [ "/nc/140/0083-01" ] }, { "cite": "118 N. C., 273", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "140 N. C., 89", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "151 N. C., 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653969 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nc/151/0085-01" ] }, { "cite": "135 N. C., 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660698 ], "opinion_index": 1, "case_paths": [ "/nc/135/0661-01" ] }, { "cite": "121 N. C., 8", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651952 ], "opinion_index": 1, "case_paths": [ "/nc/121/0008-01" ] }, { "cite": "139 N. C., 67", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "130 N. C., 531", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "111 N. C., 608", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 1 }, { "cite": "137 N. C., 83", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 1 }, { "cite": "85 N. C., 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277330 ], "opinion_index": 1, "case_paths": [ "/nc/85/0184-01" ] }, { "cite": "90 N. C., 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690622 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nc/90/0222-01" ] }, { "cite": "118 N. C., 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653291 ], "opinion_index": 1, "case_paths": [ "/nc/118/0377-01" ] } ], "analysis": { "cardinality": 1106, "char_count": 32176, "ocr_confidence": 0.44, "pagerank": { "raw": 1.379841156467684e-07, "percentile": 0.6402989131798804 }, "sha256": "2c6445fe401588b37684faaed41282ff0c27b4973e70492ffb028bb6881bcc5b", "simhash": "1:ab4384ae6ebb3f68", "word_count": 5589 }, "last_updated": "2023-07-14T20:39:54.157289+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ARTHUR COUNCIL v. R. PRIDGEN and F. M. WRAY." ], "opinions": [ { "text": "Hoije, J.\nOur Constitution, Article X, see. 6, in reference to tbe property of married women, provides: \u201cTbe 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 tbe 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.\u201d In the very year of its adoption, the Legislature, in the endeavor to carry out and give effect to this provision, passed an act requiring that in order to the validity of a conveyance or other instrument, affecting the \u201cestate, right or title of any married woman in lands, tenements or heredita-ments,\u201d her privy examination must be taken by the proper officer. Code, Civil Procedure, sec. 429, sub-sec. 6. Ee-onacted, with some slight modifications, Laws 1868-69, ch. 211, sec. 15. This enactment continued,' in substance, through the various codes and laws on the subject, and appearing in Eevisal 1905, sec. 952, is as follows: \u201cEvery conveyance, power of attorney or other instrument affecting the estate, right or title of any married woman in lands, tenements or hereditaments must be executed by such married woman and her husband and due proof or acknowledgment thereof must be made as to the husband and due acknowledgment thereof must be made by the wife and her private examination, touching her voluntary assent to such instrument, shall be taken separate and apart from her husband, and such acknowledgment or proof as to the execution by the husband and such acknowledgment by the wife and her private examination shall be taken and certified as provided by law.\u201d Not long after the statute was enacted, the question was raised whether the requirement as to privy examination was not in conflict with the constitutional provision, and was finally brought before the Court, and in two cases at the same term and by unanimous decision, it was held that the act was constitutional. That it did not militate against the provision that a married woman could convey her property with the written assent of her husband, but only established a form by which this assent should be evidenced. Southerland v. Hunter, 93 N. C., p. 310; Ferguson v. Kinsland, 93 N. C., p. 337. In this last case it was held: \u201cThat c[eeds conveying lands of femes covert must be jointly executed by both husband and wife,\u201d and that the requirement as to the wife\u2019s urivy examination was constitutional. Speaking directly to the question, Chief Justice Smith, delivering the opinion, said: \u201cThe only point made by the appellant\u2019s counsel, is that the Constitution, Art. X, sec. 6, which secures to a married woman all the property acquired previous to and since her marriage, as her sole and separate estate, free from her husband\u2019s debts, and confers upon her power to devise and bequeath, and, with her husband\u2019s written consent, to convey it, as if she were unmarried, sanctions this mode (the assent of the husband being on a separate paper). But .it is for the General Assembly to provide the method by which this right may be exercised, as it has done heretofore when her real estate was not less her own, and when she was permitted to convey it only by observing a prescribed form.' The requirement that the husband should execute the same deed with his wife was to afford her his protection against the wiles and insidious arts of others, while her separate and private examination was to secure her against coercion and undue influence from him. These have been deemed prudent safeguards to insure freedom of volition and action on her part when she is disposing of her real property, and these are none the less necessary now, when she retains her full .real and personal estate.\u201d Both before and since these decisions and through all the various cases on the law concerning the property of married women, this one thing has been steadfastly adhered to, that in order to convey a married woman\u2019s separate estate or Ax a charge upon it, her privy examination is required. Bank v. Benbow, 150 N. C., p. 781; Ball v. Paquin, 140 N. C., p. 83; Smith v. Bruton, 137 N. C., p. 79; Harvey v. Johnston, 133 N. C., p. 352; Bank v. Ireland, 122 N. C., p. 571; Scott v. Battle, 85 N. C., p. 185, and authorities cited. In Bank v. Benbow the ruling is: \u201cFor a feme covert to bind her realty, to the payment of a note, 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.\u201d In Smith v. Bruton, 137 N. C., at page 82, Montgomery, Judge, delivering the opinion, said: \u201cA married woman in North Carolina can be bound only in two ways, by her deed duly executed with the written assent of her husband and with her privy examination or by a decree of a court of competent jurisdiction. As to the requirements of the first method, the decisions of the Court are very numerous.\u201d These decisions too, and many others that could be noted, are to the effect that in order to a valid conveyance of a married woman\u2019s land, the assent of her husband must be included by his joining with her in the body of the deed. Such joinder is not required to charge her land, the written assent of her husband may be otherwise expressed, but to convey, the husband must join in the deed, and in both the privy examination is required. In Ball v. Paquin, 140 N. C., 83, Connor, Judge, after deciding that the land of a married woman, under certain circumstances, may be charged 'by necessary implication, under a contract for repairs, entered into with the written consent of her husband and to which her privy examination had been taken, in reference to this last requirement, said: \u201cIt is evident that the judges were referring to the formalities with which such contracts should be executed. In Bank v. Howell, 118 N. C., 271, it is said that she cannot charge her separate real estate \u2018except upon privy examination.\u2019 In Bank v. Ireland, 122 N. C., 571, the present Chief Justice, writing in that respect for a unanimous Court, referring to Farthing v. Shields, supra, and other cases, said: \u2018Those decisions do not require that the charge shall be made by mortgage.\u2019 In so far as it was intimated that no privy examination was necessary, the then Chief Justice and other Justices did not concur. The conclusion is irresistible that where the contract has all of the elements required by the statute and is reduced to writing, assented to by the husband, and the wife is privately examined separate and apart from her husband, it is binding upon her separate real estate.\u201d\nIt is not seriously controverted that the cases referred to decide the question as stated, but it is contended that the present conveyance, lacking as it does both the joinder of the husband and the privy examination of the wife, should be upheld, by reason of the fact that the wife was registered as a free-trader, under sections 2112 and 2113 of Revisal, but in view of other provisions of our statute law, bearing upon this question and authoritative decisions of courts here and elsewhere, w.e are of opinion that these sections in question do not have the effect contended for. Section 2112 establishes the method by which a married woman may become a registered free-trader, and section 2113 provides that \u201cthe married woman therein mentioned shall be a free.-trader and authorized to \u2018contract and deal as if she were a feme sole.\u2019 \u2019\u2019 Both the words free-trader and the words \u201ccontract and deal\u201d refer, in their ordinary acceptation, to contracts and trades in some -business enterprise, and do not, primarily, include or describe conveyances of reality. It is urged that while the word \u201ccontract\u201d might not have such significance, the word \u201cdeal\u201d does, and the fact that this word is added necessarily shows an intent on the part of the Legislature to confer the power to convey the realty, but this, we think, an unwarranted deduction. Both words, as stated in their primary acceptation, refer to the ordinary bargains and trades incident to some business enterprise and these a free-trader may make. If there is a difference between the words, the term contract should be construed as referring to executory obligations, while deal would uphold her trades and bargains executed, but both, as a general rule, are terms which apply to the ordinary incidents of business. In Black\u2019s Dictionary, the word deal is said to mean, \u201cto traffic, to transact business, to trade,\u201d etc. In 8 A. & E., p. 846, the same definition is given. In Oye. it is said that deal as a noun, as applied to intercourse between parties, refers to any transaction of any kind between them, but as a verb, it means to \u201ctraffic to transact business, to trade.\u201d Accordingly, in both of these last publications, in describing the powers to be ordinarily exercised by a statutory free-trader, reference is made to those contracts usually incident to some business enterprise, as in 21 Cyc., p. 1338, where it is said: \u201cWhen a married woman trades by authority of a statute, as a feme sole, she has all the powers and liabilities incident to her business. She may buy and sell on credit, execute notes, sue and be sued, and may be adjudged a bankrupt. She may hire assistants and clerks, appoint agents and even employ the service of her husband.\u201d 15 A. & E., p. 755, and Harris on Contract of Married Women, sec. 508-510, et seq., are to like effect.\nSo far as we have examined, in those States where a contrary ruling has been apparently made, the statute either conferred the power to convey realty, in express terms, or the powers arose by a decree o'f some court, fixing the married woman\u2019s status, and the decree, in terms, gave her the power to convey her land. And if a different principle was shown to obtain in other jurisdictions, it could not be allowed to prevail here, for the words to \u201ccontract and deal\u201d are at best indefinite as to the question we are discussing and the significance contended for is not permissible in the face of the explicit declaration of our statute, \u201cthat every conveyance, power of attorney or other instrument, affecting the estate, etc., of a married woman, must be executed by the husband, and the wife and her privy examination must be taken and certified as provided by law.\u201d There are no cases in our own court that directly decide the question presented in this appeal, the power of a registered free-trader to' convey her real property, without joinder of her husband and without her privy examination, but there has been reference to it at different times and so far as they bear upon it, their expression is against defendant\u2019s position. Thus in Smith v. Bruton, supra, a case in which the right of a married woman to enter into an agreement to arbitrate the question of title to her land, and in which it was decided that such agreement was not binding without joinder of her husband and her privy examination taken, Montgomery, Judge, delivering the opinion, among other things, said: \u201cThat the plaintiff was a free-trader, can make no difference. As we have said, there are pnly two ways by which a married woman can dispose of her real estate, one by deed with the written assent of her husband and her privy examination, and the other by decree or judgment of a court- of competent jurisdiction.\u201d And in Wilkes v. Allen, 131 N. C., p. 279, it was urged that because the married woman, plaintiff, was a registered free-trader, the statute of limitations should run against her, but tbe court beld otherwise on tbe ground tbat her position as free-trader did not affect tbe explicit language of tbe statute as it then was, tbat such statute should not run against a married woman. \"We are not inadvertent to tbe cases of Vandiford v. Humphreys, 139 N. C., 65, and Hall v. Walker, 118 N. C., 377, in which conveyances by married women were upheld without privy examinations, but it will be noted tbat both of these were cases of abandonment and are regulated and controlled by a separate and distinct section of our Revisal, i. e., sec. 2117. Tbat section, after providing tbat a married woman, abandoned by her husband, shall be deemed a free-trader, so far as to be competent to contract and to be contracted with and to bind her separate property, in express terms confers this power: \u201cAnd she shall have power to convey her personal estate and her real estate without the assent of her husband.\u201d This additional provision is not contained in the section under which the feme covert acted, and the fact that in her case she was only given the power \u201cto contract and deal,\u201d while in tbe case of abandonment, the power to convey real estate is expressly given, supports our conclusion that these words, \u201ccontract and deal,\u201d did not and were not intended to confer upon an ordinary free-trader the right to convey realty, except in the way provided by law.\nWe have been referred to several poems, sacred and profane, in which the word deal is given a more extended meaning than that which obtains in this opinion, but these references, while, to some extent, persuasive, are far from convincing. It is well understood that in works of that character authors are allowed a broader sweep, in the matter of language, its use, pronunciation, and even its orthography than is ordinarily permissible, and we think it better, in construing statutes and instruments concerning the devolution and transfer of property, to follow the meaning established by tribunals charged with the duty of making authoritative deliverance on these subjects.\n\"We are of opinion that there was error in the instructions given by his Honor, and that, on the facts established, the verdict and judgment should have been for the plaintiff.\nReversed.", "type": "majority", "author": "Hoije, J." }, { "text": "Glare:, O. J.,\ndissenting. The sole question presented in tbis case is whether a conveyance of land by a married woman who is a free-trader and has received the purchase money, the deed being endorsed with the full written assent of her husband, and thereafter duly probated and admitted to registration, is void against the heirs \u2014 who do not tender the return of the purchase money \u2014 because her privy examination is not shown to have been taken.\n\u2022 If the deed is not valid, the heirs certainly should not be allowed to set it aside, and recover the land unless they should tender the return of the purchase money. This is elementary justice, and was laid down in Burns v. McGregor, 90 N. C., 222, citing Scott v. Battle, 85 N. C., 184, and other cases, and has been cited and reaffirmed often since. See cases cited in the annotated edition, 90 N. 0., 226.\nThe point, however, as to the validity of a deed executed by a married woman who is a free-trader, executed with the written assent of her husband (which is all that the Constitution requires), but without privy examination, has never before been presented to this Court for decision. No question as to the power of married women to contract arises in this case. It is true Montgomery, J., so intimates obiter, in Smith v. Bruton, 137 N. C., 83, but he immediately adds that in that case the rights of a married woman as a free-trader did not arise. Besides, his general expression, not pertinent to the case in hand, that no married woman could make a conveyance of land without a privy examination was incorrect. We know that the statute in several instances permits a married woman to make a conveyance of her land, without privy examination, even without being a free-trader, and though without her husband\u2019s assent. Eevisal, 2117, 2116, 2111, 2096 and 956. Here the married woman was a free-trader, her husband\u2019s assent and joinder in the deed was expressed and she received the purchase money, and this action seeks to recover the land without repayment of the purchase money.\nIn Williams v. Walker, 111 N. C., 608, it was practically held by the whole Court that if the grantor had been a free-trader her deed would have been valid without privy examination.\nTbe question being before tbis Court for tbe first time we are free to decide it without infringing upon any precedent. Tbe general provision in Revisal, 952, requiring tbe wife\u2019s privy examination is subject to tbe above statutory exceptions. At tbis session in S. v. Holder, it was beld tbat tbe Revisal must be construed as a whole, and tbat where one section provided tbat \u201call offenses punishable by death or imprisonment in the State\u2019s prison,\u201d should be felonies, but five other sections prescribe for certain offenses, punishment in tbe State\u2019s prison, adding tbat they, should be misdemeanors, tbe latter are exceptions to tbe general rule, and hence not felonies.\nIn Revisal, 2117, it is provided tbat if any husband shall abandon bis wife or maliciously turn her out of doors she \u201cshall be deemed a free-trader\u201d and shall have power to convey her real estate \u201cwithout tbe assent of her husband.\u201d Tbis statute was held constitutional. Hall v. Walker, 118 N. C., 377; Finger v. Hunter, 130 N. C., 531; Vandiford v. Humphreys, 139 N. C., 67; Brown v. Brown, 121 N. C., 8.\nRevisal, 2116, provides tbat if tbe husband is living separate from the wife either by decree of court or under deed of separation, or if be is an idiot or \u00e1 lunatic, .the wife \u201cshall be a free-trader\u201d and can \u201cconvey her real estate without tbe assent of her husband.\u201d ,,\nRevisal, 2111, provides that if tbe husband shall separate from bis wife and live in adultery, she may \u201csell and convey her real property as if she were unmarried.\u201d\n\u2022 Revisal, 2096, provides that no leases of real estate by a married woman, \u201cnot a free-trader\u201d shall be valid without privy examination. This shows the legislative understanding is that if she is a free-trader the conveyance is valid without privy examination. Burwell, J., in Williams v. Walker, 111 N. C., 608.\nRevisal, 959, also dispenses with privy examination where the conveyance is of the husband\u2019s land and the wife is a lunatic. The requirement of a privy examination has therefore many exceptions.\nRevisal, 2113, prescribes that when a wife has been duly made a free-trader \u201cshe may contract and deal as if she were a feme sole.\u201d\nIf tbe sole object of this statute had been to authorize the free-trader to contract as a feme sole, the statute would have so expressed it. It would have stopped with the word \u201ccontract\u201d which expresses the idea and power as fully and completely as possible. By adding the words \"and deal as if she were a feme sole \u201d it was meant to give her complete and full powers as she possessed before she was married, or after she ceased to be so. The word \u201cdeal,\u201d evidently could mean only \u201cconvey,\u201d because by the Constitution a married woman has full power to dispose of her personalty in any mode whatsoever, as if feme sole. Vann v. Edwards, 135 N. C., 661; and she could dispose of her realty by will, and requires only the husband\u2019s written assent as to conveyance of her realty (which she had here). The addition of the word \u201cdeal\u201d in connection with the words \u201cas if she were a feme sole\u201d are meaningless, therefore, unless it authorizes the wife to execute a deed, when she is a free-trader, free from all requirements of any kind, save the constitutional one that she must have the written assent of her husband. What else could \u201cdeal as a feme sole\u201d signify? For the statute already provides that she could contract.\nBesides, the word \u201cdeal\u201d is a much broader word than \u201ccontract,\u201d and is therefore not a mere repetition of it. The word \u201cdeal\u201d among its primary meanings as defined by both'Webster andWorcestersignifi.es \u2014 1. Give or transfer. 2. Transact. In this they are borne out by the usage of the best English writers.\n\u201cDeal thy bread to the hungry.\u201d Isaiah, Ixviii, 7.\n\u201cI could deal kingdoms to my friends and ne\u2019er be weary.\u201d Shakespeare, Tim\u00f3n, Act. I, sc. 2.\n\u201cAs rich men deal gifts.\u201d lb. lv., 3.\n\u201cDeal damnation round the land.\u201d Pope\u2019s Universal Prayer.\n\u201cWith a broken truncheon deals his blows.\u201d Dryden.\nCertainly the word cannot, therefore, be regarded as a mere duplication of the word \u201ccontract.\u201d This is true also of the second meaning above given of general transaction:\n\u201cHe that deals between man and man.\u201d Lord Bacon.\n\u201cThe Jews have no dealings with the Samaritans.\u201d John, lv, 9.\nOn the authority of the lexicographers and the best writers tbe word \u201cdeal\u201d bas a far different meaning from tbe. word \u201ccontract.\u201d To restrict tbe meaning of tbe word to \u201ccontract\u201d would be to give it a signification nxucb narrower tban tbat wbicb naturally belongs to it, and would .uselessly duplicate a word al-' ready used. Tbe natural'meaning wbicb should be given tbe words \"and deal as if she were feme sole\u201d is to add something beyond the power of contracting. The word \u201cand\u201d means \u201cin addition,\u201d and tbe word \u201cdeal\u201d evidently shows tbat tbe Legislature intended to give a free-trader in all other respects tbe same freedom and power of dealing with her property \u201cas if she were a feme sole \u201d subject, of course, only to tbe constitutional restrictions tbat a married woman must have tbe written assent of her husband to conveyances of her realty.\nWhat is tbe reason, what is tbe necessity, to construe tbe liberal words of tbe Legislature, wbicb treat a free-trader \u201cas if she were a feme sole\u201d to be not \u201cas if she were a feme sole\u201d except as to \u201ccontracting?\u201d Tbe requirement of a privy examination is of no benefit to any one and is simply a vexation and a useless expense wbicb in tbe aggregate is no small sum. We have no reason to believe tbat tbe married women of North Carolina are in any wise inferior to tbe married women in our adjoining States, South Carolina, Georgia, Tennessefe and Virginia, in all of wbicb this useless formality bas been abolished these many years, without any detriment to any one. Nor are tbe married women of North Carolina inferior to those of New York or in tbe other States of this Union, in all of wbicb save perhaps 8 or 9 this' useless formality bas been abolished for many years; nor to those in England and other countries of tbe British Empire, in wbicb tbe privy examination of a married woman bas long since been relegated to tbe company of tbe feudal tenures and tbe refinements of special pleading. There is no reason tbat North Carolina should retain useless and vexatious formalities which have been discarded elsewhere.\nViewed in tbe light of Eevisal, 2113, and giving to tbe words of tbe statute their ordinary signification, it would seem tbat tbe Legislature intended to confer upon free-traders not merely tbe power of contracting, but in all other respects tbe same freedom \u201cas if she were a feme sole.\u201d It is tbe natural and ordinary meaning of tbe words used, and there can be no reason to give them an unusual and restricted meaning; a meaning, in short, that strikes out of the statute the words \u201cand deal,\u201d if they meant no more than has already been expressed by the word \u201ccontract.\u201d But independently of the statute, the parties who paid the full purchase money for this land and received the deed of the married woman and free-trader, with the written assent of her husband endorsed, should not be deprived of it. If the grantees had received the deed from a married woman who is a quasi free-trader from implied consent under Revisal, 2117, 2116, 2111, 2096 or 956, they could not be deprived of it. The deed would be admittedly valid, under the decisions of this Court, above cited. A fortiori, they should not be deprived both of the land and of the purchase money when they have taken the deed from a free-trader who was made such with the express consent of the husband under Revisal, 2113, and he is also joined in the deed and expressed his full assent to the conveyance. In Bell v. McJones, 151 N. C., 85, this Court has held recently that where a married woman has received the purchase money for her tract of land she would not be allowed to profit by the fraud of her husband, who palmed off on the purchaser a deed conveying a smaller tract than the one she had contracted to sell. Here the heirs at law are seeking to deprive the purchaser not merely of a part of the land, as in Bell v. McJones, supra, but to take the whole of it back without restoring any part of the purchase money.\nIndependently of the terms of Revisal, 2113, empowering a married woman to deal \u201cas if she were a feme sole \u201d and of the equitable principle stated in Burns v. McGregor, 90 N. C., 222, and other cases cited by that case or which have approved it since, to the effect that a married woman cannot disavow her contract and notwithstanding retain the consideration she has received therefor (an elemental principle of justice) there is this further consideration, that the Constitution, Art. X, sec.. 6, provides that a married woman, \u201cwith the written assent of her husband,\u201d may convey her realty \u201cas she were unmarried.\u201d It would seem clear, from this language that the Legislature could not add any other requirement as to conveyances by a married woman of ber realty wbicb is not exacted, of unmarried women. Tbe Convention was not inadvertent to tbe matter of privy examination, for in tbe same article, sec. 8, it retained it as to a conveyance of tbe homestead. It therefore dispensed with tbe privy examination intentionally in sec. 6, when it provided that a married woman could convey as if unmarried, provided she bad tbe written assent of ber husband.\nPrivy examination is a substitute for a fine and a recovery, and as such is brought forward in Revisal, 952, evidently by inadvertence to tbe change made by tbe Constitution. Tbe proper construction of Revisal, 952, to make it conform to tbe Constitution, is that tbe privy examination is only required in tbe instance in wbicb tbe Constitution retains it. It is true that we have cases wbicb bold contrary to this view, but there is not one, as we have seen, wbicb bolds that a privy examination is required of a free-trader who is authorized by Revisal, 2113, \u201cto contract and deal as if she were a feme sole.\u201d\nIn tbe recent case of Ball v. Paquin, 140 N. C., 89, this Court said, that \u201cin tbe absence of controlling decisions to tbe contrary,\u201d it would bold otherwise than our line of decisions bad held as to tbe right of married women to contract, and on page 96 expressed tbe wish that tbe Legislature would bring tbe statute law \u201cinto harmony with-the best modern thought and conditions.\u201d Tbe same was said in Bank v. Howell, 118 N. C., 273, and in other cases.\nAs to tbe point now presented, there has been no decision rendered heretofore. If Revisal, 2113, empowers a free-trader to convey, with tbe written assent of ber husband, without privy examination, it conforms to tbe Constitution, to Revisal, 2096, and as to leases by married women, and is \u201cin harmony with tbe best modern thought and conditions,\u201d Ball v. Paquin, supra, for, as already said, privy examination has been abolished in all other countries except possibly in 8 or 9 of our States. No evil results have followed. In these days, we no longer presume either as a matter of fact or of law that a husband will intimidate bis wife into consenting to a conveyance or that wives will be intimidated. If it were otherwise, tbe intimidation would be renewed if tbe wife did not assent before tbe justice of tbe peace. Sucb ceremony certainly does not possess tbe protection wbicb was afforded by fine and recovery wbicb was bad in open court, and wbicb bas been abolished everywhere. There can be no reason for tbe retention of its ineffective substitute.\nIt is certainly a great hardship that these defendants shall lose tbe land for wbicb full value was paid, and for wbicb they received a deed executed by a married woman who was a free-trader, when tbe deed was executed with tbe written assent of her husband, duly adjudged, probated and registered, and under a Constitution wbicb guaranteed to all married women tbe right to convey their realty, with tbe sole requirement that tbe conveyance should be with tbe written assent of tbe husband.", "type": "dissent", "author": "Glare:, O. J.," } ], "attorneys": [ "J. B. Schullcen for plaintiff.", "Donald McRachan and D. J. Lewis for defendant." ], "corrections": "", "head_matter": "ARTHUR COUNCIL v. R. PRIDGEN and F. M. WRAY.\n(Filed 17 November, 1910.)\n1. Married Women \u2014 Separate Realty \u2014 Deeds and Conveyances \u2014 Privy Examination \u2014 Interpretation of Statutes \u2014 .Constitutional Law.\nArticle X, sec. 6,- of our Constitution requiring that a married woman conveying her separate real estate shall have the \u201cwritten assent of her husband,\u201d the statute laws, now embodied in Revisal, sec, 952, provides the manner in which the assent of the husband must be obtained, to-wit, that the deed \u201cmust be executed by such married woman and her husband and due proof or acknowledgment thereof must be made by the wife, and her privy examination taken,\u201d etc.; and thus construed, the statutes are constitutional and valid.\n2. Deeds and Conveyances \u2014 Married Women \u2014 Joinder of Husband\u2014 Privy Examination.\nIn order to convey a married woman\u2019s separate real estate or fix a charge upon it, her privy examination is required, and the husband must join in the deed.\n3. Same \u2014 Interpretation of Statutes.\nRevisal, sec. 2112, establishes a method by which a married woman may become a free-trader, and sec. 2113 provides, that \u201cthe married woman therein mentioned shall be a free-trader and authorized to contract and deal as if she were a feme sole.\u201d Held, (1), The words \u201cfree-trader,\u201d \u201ccontract\u201d and \u201cdeal,\u201d refer to contracts and trades in some business enterprise, and are restricted under this section to the dealings of the wife as a free-trader with reference to her contracts in the pursuit of the business she is engaged in; (2) the word \u201cdeal,\u201d taken in its legal significance, does not enlarge this meaning so as to confer upon a married woman power to convey her real estate, especially in view of the restrictive words of our statute, \u201cthat every conveyance, etc., affecting the real estate of a married woman must be executed by the husband and the wife and her privy examination must be taken and certified as provided by law.\u201d\n4. Deeds and Conveyances \u2014 Married Women \u2014 Joinder of Husband\u2014 Privy Examination \u2014 Requisites.\nA deed executed by a married woman to her separate real property, the name of the husband not appearing in the body of the deed or his signature thereto, proved on oath of a subscribing witness and registered on such probate, without her privy examination, is inoperative, and the written assent of her husband endorsed on the deed does not meet with the constitutional and statutory requirements necessary for her to make a valid conveyance.\nClark, C. J., dissenting.\nAppeal from W. R. Allen, J., at tbe February Term, 1910, of Columbus.\nCivil action to recover land. It was admitted that tbe property in controversy had belonged to Mrs. Sarah E. Wooten, wife of Shade Wooten, Esq., and that in June, 1893, she made a deed, purporting to convey the property. This deed,. executed by herself alone was witnessed by E. W. Wooten, Jr., and was proved by the oath and examination of said witness and registered on such probate and that no privy examination of said Sarah E. Wooten was had. The name of Shade Wooten, the husband, did not appear in the body of the deed, nor did he, in any way, join therein, except that his written consent thereto, signed by himself, appeared on the back of the instrument. It further appeared that at the time said deed was made and delivered, said Sarah E. Wooten was a married woman, living with her husband, and that she was at the time a registered free-trader, according to the provisions of the statute, now Ee-visal, sec. 2112-2113. It was also admitted and agreed that, on the facts stated, if the deed referred to was not a valid conveyance, the plaintiff was the owner of the property; otherwise, not. The court, being of opinion that the deed in question was valid, so instructed the jury, and there was verdict for defendant. Judgment and plaintiff excepted and appealed.\nJ. B. Schullcen for plaintiff.\nDonald McRachan and D. J. Lewis for defendant." }, "file_name": "0443-01", "first_page_order": 491, "last_page_order": 505 }