#### MARTHA C. REA v. J. K. REA, Administrator of C. W. REA. Deceased.

(Filed 9 November, 1911.)

1. Contracts — Married Women — Personal Property — Consequences —Interpretation of Statutes.

Tbe provision oí Laws 1911, ch. 109, that a married woman may “contract and deal so as to affect her real and personal property as if she were a feme sole," except in instances of contract between her and her husband (Revisal, sec. 2107), does not extend to conveyances of personalty by the wife to the husband, and certainly when it would lead to an absurd conclusion, as in instances of a gift from the wife to her husband.

2. Contracts — Married Women — Separate Property — Personalty— Interpretation of Statutes.

The object of Revisal, sec. 2107, requiring certain findings and conclusions of the probate officer to be made with reference to contracts between the wife and husband in relation to her separate property, was to prevent the wife making any contract with her husband whereby she would incur a liability against her estate which in future might prove a burden or charge upon it, or cause a charge or impairment of her income or personalty.

3. Contracts — Conveyances—Married Women — Separate Property— Realty — Privy Examination.

The statutory requirement of a privy examination in conveyances of realty by married women is merely a regulation to ascertain whether the wife really executed the deed.

*5304. Constitutional Law — Married Women — Jus Disponendi — Husband and Wife — Contracts—Fraud.

The Constitution gives a married woman full power of jus disponendi of her personalty, and there is no restriction imposed thereon by statute; and hence an absolute. conveyance thereof from a wife to her husband is valid, except when procured by fraud or duress the transaction can be impeached just as if made to any one else. The right of married women to contract and convey real and personal property summed up by Clark, C. J.

Walker and Brown, XL, concurring; Hoke and Allen, XL, dissenting.

Appeal by defendant from Justice, J., at Spring Term, 1911, of Chowan.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Ghief Justice Gla/rk.

G. 8. Vaom for plaintiff.

W. M. Bond a/nd Pruden & Pruden for defendant.

Clark, C. J.

On 6 April, 1908, tbe plaintiff, wbo owned 46 shares of stock in tbe Edenton Cotton Mills, delivered same to C. W. Rea, ber husband having indorsed on tbe certificate as follows:

For value received, I hereby sell, assign, and transfer unto C. W. Rea tbe shares of stock represented by tbe within certificate, and do hereby irrevocably constitute and appoint W. O. Elliott, secretary, attorney to transfer tbe said stock on tbe books of tbe within corporation; with full power of substitution in tbe premises. Martha C. Rea.

April 6, 1908.

In tbe presence of C. W. Rea.

On 8 April, 1908, said C. W. Reá surrendered said certificate to said cotton mill and tbe same number of shares were issued to him. O. ~W. Rea died in 1909 and tbe certificate of stock which bad been issued to him went into tbe bands of bis administrator.

Tbe plaintiff contends in this action that said assignment, delivery, and transfer of said stock by ber was a nullity because of noncompliance with Revisal, 2101.

*531There is a broad distinction between conveyances and contracts. Eevisal, 2107, applies only to contracts. Laws of 1911, ch. 109, provides: “Subject to the provisions of section 2107,-Eevisal 1905, 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; but no conveyance of her real estate shall be valid unless made with the written assent of her husband, provided by section 6, Article X of the Constitution, and a privy examination as to the execution of the.same, taken and certified as required by law.” This recognizes that section 2107 applies to contracts, and that the only restriction upon conveyances by her is that constitutional one requiring the “written assent” of her husband as to conveyances of realty and her privy examination in such case.

Eevisal, 2107, is equally explicit. It comes under subhead ' 3, entitled "Contracts between husband and wife,” and provides : “No contract between a husband and wife during’ cov-erture shall be valid to affect or change any part of the real estate of the wife or the accruing income thereof, for longer time than three years next ensuing the making of such contracts, or to impair or change the body or capital of the personal estate of the wife, or of the accruing income thereof, for longer time than three years next ensuing the making of such contracts, unless such contract shall be in writing, and be duly proved as is required for conveyances of land; and upon the examination of the wife separate and apart from her husband, as is now or may hereafter be required by law in the probate of deeds of femes covert, it shall appear to the satisfaction of such officer that the wife freely executed such contract, and freely consented thereto at the time of her separate examination, and that the same is not unreasonable or injurious to her. The certificate of the officer shall state his conclusions, and shall be conclusive of the facts therein stated. But the same may be impeached for fraud as other judgments may be.”

An examination of section 2107 shows that it applies solely to contracts and not to conveyances; indeed, the word “con*532tract” is used five times in that section. Tbe object of tbe legislature was clearly to prevent tbe wife making any contract witb ber busband whereby sbe should incur a liability against her estate which in future might prove a burden or charge upon it, or cause a change or impairment of her income or personalty. To that end not only a privy examination was required, but the certificate of a magistrate that the contract is not unreasonable or injurious to her. This provision does not attempt to apply to conveyances by her as to which the act of 1911 retains the constitutional restriction in regard to realty, that there must be the written assent of the husband and privy examination. Had the act attempted to impose a further restriction upon the conveyance of married women of realty, such as the approval of a third person, it would be in conflict with the Constitution, which gives her the power to convey her realty, if she has “the written assent of her husband.”

The majority of this Court has sustained the statutory requirement of a privy examination in conveyances of realty by married women, but solely upon the ground that it is not an additional restriction, but merely a regulation to ascertain whether the wife really executed the deed.

As to conveyances by the wife of her personalty, the Constitution gives her full power of jus disponendi, without any restriction whatever. Nor is there any statute whatever that in any way has attempted to restrict it. This matter has been fully considered and settled by this Court in a remarkably well-considered and able opinion by Mr. Justice Walker in Vann v. Edwards, 135 N. C., 661, which leaves nothing to be added. That case overruled Walton v. Bristol, 125 N. C., 419, so far as it could be construed to intimate a different conclusion. In Sydnor v. Boyd, 119 N. C., 481, the wife attempted to assign her life insurance policy to her husband so as to make it payable to him at her death, and guaranteed “the validity and sufficiency of the foregoing assignment.” This was an executory contract which would have changed or diminished the’ corpus of her estate at her death, and she would have incurred liability upon her guarantee. The Court held that this was a contract, and invalid because not made in compliance with The Code, 1835 (now Revisal, 2107).

*533If Revisal, 2107, bad included conveyances, it would bave been invalid as to tbe transfers by a married woman of ber personalty, because tbe Constitution gives ber as to tbem tbe absolute jus disponendi, as if feme sole, without any restriction whatever. It would bave been invalid as to conveyances of realty, because requiring the assent of a third person over and above tbe “written assent” of ber husband, which is tbe only requirement of tbe Constitution, and an addition to tbe privy examination required by statute, which has been held a mere regulation and not a restriction upon tbe right of tbe woman to convey. In this case tbe husband actually witnessed tbe transfer in writing, which, under tbe authority of Jennings v. Hinton, 126 N. C., 51, is a sufficient compliance with tbe requirement of tbe written assent of tbe husband to conveyance of realty.

In this case there does not appear to bave been any consideration, and tbe assignment was not only a conveyance, but a gift. No magistrate could certify that a gift by a woman to ber husband is for ber benefit or does not diminish ber estate. It would be a startling proposition that a married woman who by our Constitution has full control of ber property, as if unmarried, cannot make a present to ber husband if she sees fit. It- is a matter of everyday occurrence. Whether she make ber husband a gift of money, a dressing gown, or a pair of slippers, it would be astonishing if she could recover it from bis administrator, or from him if there should be a divorce. Of course, if tbe conveyance or gift by ber has been procured by fraud or duress, it can be impeached just as if made to any one else.

Summing up, the rights of married women in North Carolina as to conveyances and contracts are:

As to conveyances of personalty: There is no restriction whatever upon her right to dispose of her personalty as fully and freely as if she had remained unmarried, either in the Constitution or by any statute. Vann v. Edwards, 135 N. C., 661, cited with approval by Justice Connor in Ball v. Paquin, 140 N. C., 91.

*5344s to convey emees of realty: Tbe Constitution requires only, “the written assent” of the husband. The statute superadds only a regulation providing for a privy examination, which has been upheld on the ground that it is not an additional requirement, but merely a method of ascertaining if the deed is really her voluntary act.

As to contracts: Laws 1911, ch. 109, provides that a married woman is authorized to contract and to affect her real and personal property thereby in the same manner and to the same effect as if she were unmarried, excepting only contracts whereby she may incur liability to her husband, as to which the provisions of Revisal, 2107, are retained.

The conveyance of the stock by the wife was not restricted by the Constitution or any statute. If, reversing Vann v. Edwards, 135 N. C., 661, it were now held otherwise, the cotton mills could be held liable, and every bank, railroad company, and other corporation which has transferred stock in like cases to this. Wooten v. R. R., 128 N. C., 119. While the Legislature has seen fit to guard contracts whereby a wife may incur liability to her husband, it has not attempted to restrict her right of conveyance, still less to forbid gifts by her to her husband without the approval of a justice of the peace.

Upon the case agreed, judgment should have been entered in favor of the defendant.

Reversed.

Walker, J.,

concurring: The transaction in this case was a gift, which excludes the idea of any contract between the husband and wife, and for this reason there is no law forbidding it, in substance or in form. If it had been an executed contract of sale, I think, in that form, it also would have been valid; and in neither case does Revisal, see. 2107, apply. The law in regard to a married woman’s dealings with reference to her separate property, up to its present stage of development, I think, may be stated thus:

1. She may will her property without the consent of her husband, and as if she were a feme sole (Const., Art. X, sec. 6), and, in this way, she may deprive him of his estate by the *535curtesy. Tiddy v. Graves, 129 N. C., 620 (s. c., 127 N. C., 502); Ex parte Watts, 130 N. C., 257; Halyburton v. Slagle, 132 N. C., 947; Watts v. Griffin, 137 N. C., 572.

2. She may convey her real property, with the written consent of, her husband evidenced by her privy examination.

.3. - She may dispose of her personal property by gift or otherwise, without the assent of her husband, and as if she were unmarried. Vann v. Edwards, 135 N. C., 661; act of 1911, ch. 109.

4. By virtue of the Martin act (Public Laws 1911, ch. 109), she may now contract and deal, so as to affect her real or personal property, in the same manner and with the same effect as if she were unmarried, unless the contract belongs to the class of those ’ described in Eevisal, sec. 2107, or unless it is a conveyance of her real property, when the formalities required by the existing law, for its validity, must be observed; those two cases' being expressly excepted in the act of 1911. But Eevisal, see. 2107, does not embrace gifts or sales of personal property by the wife to the husband, as the general right to make these, as if she were unmarried, is given by the Constitution, and cannot be restricted or impaired by legislation.

Section 2107, which is still in force, applies, therefore, only to her executory4' contracts, and she cannot enter into any such contract with her husband which will affect or change any part of her real estate, or the accruing income thereof, for a longer period than three years from the making of the contract, or which will impair or change the body or capital of her personal estate, or the accruing income thereof, for a like period, the Constitution not having removed her common-law disability as to executory contracts, and the act of 1911 having expressly excepted section 2107 from its operation." Kearney v. Vann, 154 N. C., 311.

Subject to the views herein stated, I assent to the conclusion reached by the Chief Justice in the opinion delivered by him for the Court.

BbowN, J.,

concurring: I have heretofore always concurred in the decisions of this Court in respect to the powers of feme *536 coverts. These eases began with Harris v. Jenkins, 72 N. C., 183, and ended, I believe, with Bank. v. Benbow, 150 N. C., 782.

By the Martin act (introduced by Senator J. C. Martin in the General Assembly of 1911) the wives have been emancipated and are placed on an equal footing with their single sisters, except that in order to convey their real estate they must still have the written consent of their husbands.

I see no especial reason now for withholding from them the privilege of conferring gifts upon their husbands without the supervision and sanction of a justice of the peace or other judicial officer.

I think the opinion of the Chief Justice is a fair construction of the Revisal, sec. 2107, and also of the Constitution, and I give it my approval.

Hoke, J.,

dissenting: I do not think that Article X, sec. 6, of our Constitution had or was intended to have effect upon conveyances or contracts between husband and wife, but that such transactions have been and should continue to be proper subjects of legislative regulation, unaffected by that instrument. This, in my judgment, being a correct position, I am of opinion that section 2107 of our Revisal, the section controlling on the subject referred to, should be upheld in its integrity and construed as it is plainly written. It has been sustained and applied in numerous and repeated cases before this Court ever since its enactment, forty years ago; was recognized as the law of the land in a decision at the last term in Kearney v. Vann, 154 N. C., 311, and was expressly retained and approved by our legislature at its last session. Public Laws N. C., 1911, ch. 109. Further, I am utterly unable to perceive how a decision, setting aside the safeguards provided by this statute, and affording facilities for a married woman to deprive herself of her property, and, in many instances, of a home for herself and children, in favor of an improvident husband, can be properly regarded as part of an enlightened and progressive policy, or in any way having a tendency to liberate married women from the shackles of tyrannous precedent, and, *537in my opinion, tbe statute should be upheld in its entirety. Holding the view, however, as stated, I think it a matter of supreme importance that this question should be considered as settled, and shall, therefore, make no further protest.

I am authorized to say that Associate Justice AlleN concurs in this view.