#### JESSIE ARCHBELL v. WILLIAM J. ARCHBELL.

(Filed 20 March, 1912.)

1. Husband and Wife — Contracts — Deed of Separation — Public Policy.

A deed of separation executed by the husband and wife is not against our public policy, when properly made in accordance with our statutes.

2. Same — Time of Separation.

The validity of a deed of separation between husband and wife will not be upheld if it looks to a separation at some future time; and it is effective only when the separation has already taken place or is to immediately follow the execution of the deed. .

*4093. Husband and Wife — Contracts—Deed of Separation — Reasonableness.

A deed of separation between husband and wife, to be valid, must be made for an adequate reason, not for mere mutual volition or caprice, and under circumstances of such character as to render it reasonably necessary to the health or happiness of the parties.

4. Same — Circumstances.

An agreement of separation between husband and wife must be reasonable, just, and fair to the wife, having due regard to the condition and circumstances of the parties at the time it was made.

5. Husband and Wife — Contracts—Deed of Separation — Subsequent Relations.

A deed of separation between husband and wife is rescinded by the acts of the parties in subsequently resuming their conjugal relations.

6. Husband and Wife — Contracts — Deed of Separation — Divorce, Action for.

An agreement of separation between husband and wife does not affect the rights of the parties to sue for a divorce for cause occurring either before or after it has been made.

7. Same — Property Rights — Evidence.

When, after an agreement of separation has been entered into between a husband and wife, a decree of divorce has been obtained, the agreement, if otherwise valid and in so far as it affects the property rights involved, should be upheld by the decree.

8. Husband and Wife — Marriage and Divorce — Property Rights— Maintenance.

The right of a married woman to support and maintenance is-primarily a property right, and it may be, and very usually is, made largely dependent on the amount of property owned by the husband.

9. Husband and Wife — Contracts — Deed of Separation — Requirements.

While it is not held to be against our public policy for a husband and wife to enter into a valid contract of separation, the identity of .person between husband and wife in reference to their right to contract with each other is not further relaxed or affected than is specified and required by our Constitution and statutes.

*41010. Same — Interpretation of Statutes.

Contracts between husband and wife upon consideration of their separation and living apart which purport to release or quitclaim dower, curtesy, and “all other rights which they might respectively acquire or may have acquired in the property of each other,” are, by Eevisal, see. 2108, subjected to. the requirements of Eevisal, sec. 2107, that in addition to the ordinary form the probate officer shall certify that the contract is not unreasonable or injurious to the wife, which certificate shall be conclusive until successfully impeached for fraud; and where, as in this case, the requirements of the statute have not been met, the contract of separation is inoperative.

Appeal from. Cline, J., at December Term, 1911, of Beau-FORT.

Civil action for divorce from bed and board. In the complaint the plaintiff by proper averment alleged cruelties and ill-treatment, entitling her to divorce a mesna, etc.; alleged further, ownership of an amount, real and personal, of property by defendant, and that he was an able-bodied man, capable of earning good wages, etc. Defendant answered, denying all allegations of cruelty and set up counterclaim for divorce by reason of wrongful abandonment by plaintiff, and denied the ownership of any real property whatever, alleging that it had all been disposed of and the proceeds expended in support of plaintiff and the payment of costs and charges imposed upon him at the instance and by the wrong of plaintiff; that his personal property was of insignificant amount and that he was a man sixty years of age, who could only do ordinary manual labor and was incapable of earning any such amount as claimed in the complaint. The answer further set-up a deed of separation entered into by plaintiff and defendant of date 14 October, 1909; averred full compliance therewith on part of defendant and relied upon the terms of same in bar of the action- and in' bar of any other or further allowance to plaintiff by reason of the marital relations between the parties. This contract and agreement was in terms as follows:

North Carolina. — Columbus County.

These articles of agreement entered into between W. J. Arch-bell of Beaufort County and Jessie Archbell of Columbus *411County, this 14 October, 1909, witnessetb: That'whereas the said ~W. J. Arcbbell and Jessie Arcbbell were lawfully married in North Carolina four years ago, and for tbe past year have been unable to agreeably live together as man and wife; and whereas it is mutually agreeable that they shall each live separate and apart from the other; now, therefore, for and in consideration of the sum of $100 to the said Jessie Archbell in hand paid, the receipt of which is hereby acknowledged, the said W. J. Archbell and Jessie Arcbbell do mutually agree to live separate and apart from one another, and in consideration of the sum of $100 to her, the said Jessie Arehbell, paid by the said ~W. J. Archbell, the said Jessie Arcbbell agrees, and by these presents does agree, to release and relinquish all right of support, all dower right, and all other personal and property rights which she might have acquired against the person or property of the said ~W. J. Archbell by virtue of the aforesaid marriage, and does hereby receive and accept the aforesaid $100 in full payment and satisfaction of all and of every right that she may hold against the person and estate of the said ~W. J. Arch-bell in consequence of the aforesaid marriage, and she does further agree to abandon and relinquish and release the said W. J. ■ Archbell of all and every right of suit that she might have against him by reason of an act of abandonment that he might have committed in the past, and further agrees to release him of any claim she might have against him by reason of the aforesaid marriage. And the said W. J. Arcbbell-agrees to release the said Jessie Archbell of all and every right of curtesy and all rights that he acquired in any property that she might have or might in the future possess and all personal rights that he might have acquired against her by virtue of the aforesaid marriage. And it is mutually agreed that they shall each live separate and apart from the other, independently of the other to the same extent as if they had never been married, and each shall in the future contract and be contracted with independently of the other -to the full extent as if they had never been married.

In testimony whereof the said W. J. Archbell and Jessie Archbell have hereunto set their hands and seals this the 14th day of October,-1909. Jessie ARChbell (seal).

"W". J. Aechbell (seal).

*412And same was acknowledged before a justice of the peace in ordinary form of privy examination; 'probate adjudged correct by Superior Court Clerk, Beaufort County, and duly registered in said county on 28 October, 1909. On issues submitted the jury rendered the following verdict :

1. Were plaintiff and defendant married, as alleged? Answer : Yes.

2. Has plaintiff been a resident of the State two years before filing the complaint ? Answer: Yes.

3. Did defendant in 1908 and up to Eebruary, 1909, fail and refuse to furnish plaintiff and her child proper and sufficient food, clothing, and other provisions, as alleged? Answer: Yes.

4. Did defendant on and shortly after Eebruary, 1909, assault the plaintiff with strops and other instruments, as alleged? Answer: Yes.

5. Did the defendant in the year 1906 strike plaintiff with his hand, as alleged by her? Answer: Yes.

6. Did defendant assault and beat plaintiff prior to May, 1906, as alleged? Answer: Yes.

7. Did defendant shortly after Eebruary, 1909, assault plaintiff on or near the bridge with her child and whip her, as alleged ? Answer: Yes.

8. Did defendant wrongfully, take plaintiff’s infant from her and carry it out of the State, as alleged ? Answer: Yes.

9. Did defendant offer such indignities to the person of plaintiff as to render her condition intolerable and life burdensome ? Answer: Yes.

10. Did the defendant by cruel and barbarous treatment endanger the life of plaintiff ? Answer: Yes.

11. Has the defendant been a resident of North Carolina two years preceding the filing of his answer, as alleged ? Answer: Yes.

12. Did the plaintiff abandon the defendant, as alleged ? Answer: No.

13. Was the deed of separation procured through fraud and undue influence? ■ Answer: No.

On the verdict defendant through his counsel tendered judgment for divorce a mdsna, and denying order for alimony by *413reason of the contract, etc., above set forth. The court being of opinion that the deed of separation was void as a matter of law, entered judgment for divorce and awarding alimony, $15 per' month for support of plaintiff and $75 to be paid into court as fees for Ward & Grimes in conducting present suit, and defendant excepted and appealed.

Ward & Grimes for plaintiff.

E. A. Daniel, Jr., and A. D. MacLeah for defendant.

HoKe, J.,

after stating the case: In Collins v. Collins, 62 N. C., 153, the Court made definite decision “that articles of separation between husband and wife, whether entered into before or after separation, were against law and public policy and therefore void.” Since that decision was rendered in 1867, our statutes 'upon “Marriage and Marriage Settlements and Contracts of Married Women,” as entitled in The Code of 1883 and contained with amendments in Revisal 1905, ch. 51, have made such distinct recognition of deeds of this character, more especially in Revisal, secs. 2116, 2108, 2107, etc., that we are constrained to hold that public policy with us is no longer peremptory on this question,, and that under certain conditions these deeds are not void as a matter of law. This change in our public policy, which has been not inaptly termed and held synonymous with the “manifested will of the State” (25 Arkansas, p. 634), has been already recognized in several of our decisions, as in Ellett v. Ellett, 157 N. C., 161; Smith v. King, 107 N. C., 273; Sparks v. Sparks, 94 N. C., 527. And while there are some differences in the matter' of form and in the conditions requisite to their validity and their effect when executed, the general proposition as to the validity of these deeds, in so far certainly as they concern property rights, is in accord with that long established in England (Hill v. Hill, I H. L. Cases, 1847 and 48, 553, and notes to. Stapleton v. Stapleton, White and Tudor’s Leading Cases in Equity, Part II, vol. 2, pp. 1675, 1697, 1698), and which has generally prevailed with the courts in this country (Walker v. Walker, 76 U. S., 743; Commonwealth v. Thomas Richards, 131 Pa. St., 209; Cary v. Mackey, 82 Me., 516; Aspinwall v. Aspinwall, 49 N. J. Equity), all of them, so far as ex*414amined., except in New Hampshire. Hill v. Hill, 74 New Hampshire, 288; Foote v. Nickerson, 70 New Hampshire, 496.

While our statute, as stated, recognizes these deeds as valid, it makes no definite regulation as to their contents or their effect , when made, except in 2116, which provides in general terms that when a woman is living separate from a husband, either under a /judgment of divorce or a deed of separation executed by the i husband and wife and registered in the county where she resides, I she shall be deemed and held a free trader with power to dispose .! of her personal and real estate without her husband’s assent, and . the question being to a great extent without authoritative deci- \ sion in this State, we must recur for guidance to the general principles applicable and to well-considered precedents elsewhere as to the nature of these instruments and the conditions and circumstances under which they may be properly upheld. From a consideration, then, of the authorities, we take it as established that articles or deeds of separation are permissible where the separation has already taken place or immediately follows; but that agreements looking to a future separation of husband and wife will not be sustained, and from the apparent weight of opinion it seems in making such agreements, under the circumstances indicated, the parties must be moved to it by adequate reasons, and not from mere “mutual volition or caprice,” under circumstances of such character as to “render it reasonably necessary to the health or happiness of the one or the other,” a position well stated in a case from Montana as follows: “An agreement between husband and wife providing for a separation, an adjustment of their respective interests in property and for the future support apd maintenance of the wife, is valid only when it is to take effect at once and is immediately complied with, and when the marital relations are of such a character as to render a separation necessary for the health or happiness of one or the other. Mere willingness to live apart is not enough, neither will the agreement be enforced when it is the result of mutual caprice or reckless disregard of marital obligations; neither will such an agreement be enforced when it is to be used as a means to facilitate a *415divorce.” "Held, accordingly, a demurrer to tbe complaint was properly sustained, where the complaint alleges the agreement to live apart, the mutual obligations thereunder, and the breach of the contract by the husband, but neither the agreement nor the complaint contains any statement of facts showing the necessity or cause for such separation.” 19 Montana, 115. This case and the principle it sustains is referred to with approval in a full and learned note to Baum v. Baum, 109 Wis., 47, and reported in 83 American St. Reports at pages 854-866. The note in question, however, refers to an opinion by Sanborn, J., in Daniel v. Benedict, 97 Fed. Rep., 367 and 369, as a “well-considered ease,” and in which a contrary view is taken, the case holding, among other things, that the relations existing between husband and wife as justifying a deed of this kind must be left to the determination of the parties interested, and that the “courts cannot inquire into the sufficiency of the reasons as affecting the validity of the agreement.”

It may be that our statutes, 2107, 2108, hereinafter more particularly referred to, resolve this question in favor of the Federal decision, and the difference appearing in these cases is not perhaps of the first importance, as it will be a very rare occurrence when a deed of the kind is made without adequate reason moving the parties — a condition assuredly present in the case before us.

It is further established that if the parties resume the conjugal relations the agreement will be rescinded. This has been directly held with us in Smith v. King, 107 N. C., 273, and is in accord with the weight of authority. Zerminer v. Settle, 124 N. Y., 37; Tiffany on Persons and Domestic Relations, 168. Again it is held, “That such an agreement must be reasonable, just and fair to the wife, having due regard to the conditions and circumstances of the parties at the time when made.” Garver v. Miller, 16 Ohio State, 528; Hutton v. Hutton, 3 Pa. St., 100. The authorities also hold that these agreements, even when valid, do not affect the right of the parties to sue for a divorce for causes occurring either before or after they are entered. Bailey v. Bailey, 127 N. C., 474; notes to Baum v. Baum, 83 Am. St., 873. And while the American courts hold *416that deeds of separation are so far imperfect obligations that they will not be specifically enforced in that feature which contemplates or provides for the separation of the parties (Aspinwall v. Aspinwall, 49 N. J. Eq., supra), when a suit for divorce is entered and the same is obtained, the agreement, if otherwise valid and in so far as it affects the property rights involved, should be respected by the decree. Galusha v. Galusha, 116 N. Y., 635. On the record, therefore, we could not, as formerly, declare the deed void in law as against the present public policy, of the State, and if the matter were presented only in that aspect, we would feel constrained to uphold the deed, or in any event remand the case for a fuller finding as to whether the instrument in question was a fair and just arrangement. We are of opinion, however, that the judgment of the lower court should be sustained for the reason on which his Honor, no doubt, acted, that the deed in question is not executed in the form and manner required by our law to make it a binding agreement. On the matter of form, a large number of the States upholding these deeds have heretofore maintained that the interposition of a trustee was necessary, as in Stevenson v. Stevenson, 41 Miss., 119. This was based partly on the principle of the absolute identity of person in the case of husband and wife, which prevented their making contracts directly between them, a principle approved and acted on in the English courts and which prevailed to a great extent in North Carolina prior to the Constitution of 1868. Barbee v. Armstead, 32 N. C., 530. A number of courts, however, have always maintained a contrary view, as in Jones v. Clifton, 101 U. S., 225; Randall v. Randall, 31 Mich., 513; Commonwealth v. Richards, 131 Pa., supra, etc.; and in this.respect also a change has been wrought in our law and public policy, not only- as manifested by the general provisions of the Constitution of 1868 and subsequent statutes, but more directly by express legislative enactment. Revisal 1905, secs. 2107, 2108, 2116. Section 2107 providing that no contract between husband and wife made during coverture shall be valid to affect or charge any part of the wife’s real estate or the accruing income thereof for a longer time than three years, etc., or to impair or change *417tbe body or capital of ber present estate, unless in writing, etc., tbe wife’s privy examination taken, witb an additional certificate of tbe examining officer tbat tbe “same is not unreasonable or injurious to ber,” etc. Section 2108 provides tbat contracts between busband and wife not forbidden by tbe preceding’ section and not inconsistent witb public policy are valid and subject to preceding section. Any married person may release or quitclaim dower, tenancy by tbe curtesy, and all other rights which they may respectively acquire or have acquired by marriage in tbe property of tbe other, and such releases may be pleaded in bar of any action or proceeding for tbe recovery of tbe right so released. While the presence of a trustee is clearly dispensed witb by these enactments, it will be noted that by section 2107, in order to bind tbe^wife by contract witb tbe bus-band which may affect or charge ber real estate, etc., for a longer period than three years orjo impair or change the body or capital of her pergonaLes.tate^-the^CQn.trant must be in writing, ber privy examination, taken and, in addition to tbe ordinary form, ti^&.jmust^be^the additional certificate tbat tbe same is not unreasonable^ or injurious to ber, tbe section concluding as follows: “The-eertificate of tbe officer shall state bis conclusions, and shall be conclusive of tbe facts therein stated. But tbe same-may be impeached for fraud as other judgments may be.” Section 2108 in express terms subjects to requirements of 2107 contracts between busband and wife which purport to release or quitclaim dower, curtesy, and “all other rights which they might respectively acquire or may have acquired in tbe property of each other.” While we have held tbat an allowance by way of alimony may be predicated in some instances on tbe capacity of tbe busband to labor (Muse v. Muse, 84 N. C., 35), this right of a married woman to support and maintenance is primarily a property right, or may be and very usually is made very largely dependent on amount of property owned by tbe busband. Taylor v. Taylor, 93 N. C., 418; Nelson on Divorce and Separation, secs. 908-909. Our decisions are to tbe effect tbat tbe identity- of person between busband and wife in reference to their right to contract witb each other is not further relaxed or affected than is specified *418and required by the Constitution and statutes (Armstrong v. Best, 112 N. C., 59; Sims v. Ray, 96 N. C., 87), and tbis section 2108 by correct interpretation clearly contemplates that a deed of tlie kind presented here, “surrendering dower ancUall personal and property rights which she may have acquired -against the person and property of her husband,” shall only hejipheld when it complies with the forms established and required by section 2107. On this ground, therefore, the ruling of the lower court holding that the instrument is void and of no effect on the rights of these parties is affirmed.

No error.