#### NETTIE LOWE WILSON v. CHARLES CALVIN WILSON.

(Filed 17 January 1964.)

1. Husband and Wife $ 2-The law imposes upon the husband ¡the duty to support his wife, which duty may ¡be enforced ¡by decree ¡of ithe court, and such duty is a contmu-iing -one so that .the fact that 'the husband has performed such duty in. the past is no .defense against present failure ¡to- perform.

2. Husband and Wife § 11—

A separation agreement when properly executed is binding and conclusive on the parties.

3. Cancellation and Rescission of Instruments § 5—

Rescission is ¡an equitable remedy ¡whioh may be invoiced only for a ¡breach .of condition, or covenant ¡constituting an indispensable part of the contract .and without which the agreement would not have been made.

4. Divorce and Alimony §§ 16, 18; Husband and Wife § 11— Where husband breaches separation agreement the wife may recover support.

A properly executed deed of separation under which the husband conveys to the wife certain property, agrees to pay her ¡a certain sum monthly for 18 months and 'the wdfe agrees not to seek further support from Tvim ¡after such sums had .been paid, is held ¡not ¡to bar her suit for alimony without divorce or preclude an ¡order for ¡alimony pendente lite therein *41,whan tbe Obiusbaaicl .breaches the agreement after eight monthly payments by 'refusing to make further payments in accordance with the agreement, since in saich event he refuses to perform the very condition which ds the basis of her promise to surrender her rights, although she must account for the benefits, if any, which she may have received under the agreement

Higoins, J., dissenting.

Bobbitt, J., joins in dissent.

Appeal by plaintiff from Johnston, J., in Chambers in Foesyth on 16 May 1963.

This is an action for alimony without divorce. Plaintiff alleges: The panties were married in 1952; defendant abandoned plaintiff in January 1962; in April 1962 the parties executed a separation agreement, copy of which is annexed -to and made a pant of the complaint; defendant is an able-bodied man making good wages; plaintiff has had much sickness and many financial reverses; she is not able to- subsist on the income she earns, nor does she possess the means to prosecute an action against defendant.

The agreement made a part of the complaint is dated 10 April 1962. It recites: The marriage in. 1952; the fact that no children have been born ioí the marriage; -a separation in 1962; the parties owned real property as tenants 'by the entirety, 'household and kitchen furniture, and other’ articles of personal property subject to mortgages for unspecified amounts on the real estate and on the household and kitchen furniture. The acknowledgment complies with the requirements of G.S. 52-12.

The agreement obligated defendant to convey his interest in the real estate and the household and kitchen -furniture to plaintiff subj ect to the -recited mortgages. (The record do-eis not -indicate the value of the real estate -or the amount of the liens thereon.) The agreement declared the husband the owner o-f designated articles of personalty and the wife the owner of the remaining personalty. (Value of the personalty is not revealed.)

Sec. VIII of the separation agreement reads:

“It is agreed that the husband will pay to the wife the sum of One Thousand Eight Hundred Dollars ($1,800.00) which payments shall be made in the following manner: The sum of One Hundred Dollars ($100.00) on or before the 30th day of May 1962, and a like sum, to-wit: One Hundred Dollars ($100.00) on or before the 30th -day of each succeeding month thereafter until

*42the full isum is paid. It iis further understood and agreed that after said sum is paid, the wife will seek no further 'support from the husband and the husband sihaill not thereafter he required to provide the wife with -any maintenance or support whatsoever, it being understood that she will thereafter provide her own maintenance and support.” (Emphasis supplied.)

Plaintiff alleged defendant had made eight of the eighteen payments called for by the 'contract, but he “has told the plaintiff that if she ever got anything out of him, she would have to get it in Court.”

Defendant has not answered. Notice was given that plaintiff would apply for alimony pendente lite.

Judge Johnston found: The separation agreement was duty executed; defendant had not complied with its provisions; the parties had not resumed marital relations. On these findings he concluded: “Now, therefore, upon the foregoing facts, the Count is of the opinion that the Motion of the plaintiff in the present action should not prevail and the Motion of the plaintiff for -alimony pendente lite and attorney fees pending the final trial of this suit is accordingly denied.”

Henderson & Yeager by Frank J. Yeager for plaintiff appellant.

Rodman, J.

When man -and woman marry, the law imposes a duty on the husband to support -his wife. Bowling v. Bowling, 252 N.C. 527, 114 S.E. 2d 228. Where he separates himself from his wife and fails to perform this duty, the wife may compel performance by judicial decree. G.S. 50-16. He cannot, by merely providing support until he gets beyond tire jurisdiction of the court, deprive his wife of this efficacious means of enforcing performance of the obligation imposed on him by law. Thurston v. Thurston, 256 N.C. 663, 124 S.E. 2d 852.

An agreement between 'husband and wife which, recognizing an existing -cessation of marital relations, provides for a settlement and adjustment of their -respective property rights and obligations upon the assumption that marital relations will not be renewed is, when freely executed, acknowledged by the parties, found by .the probating officer not to be unreasonable or injurious to' the wife, and performed, binding and conclusive on the parties. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327; Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171; Kiger v. Kiger, 258 N.C. 126, 128 S.E. 2d 235; Williams v. Williams, post, 48.

The question to be -decided evolves upon this situation: The wife contracts to surrender her marital rights upon condition that the husband Shall provide for her support in a fixed amount. Thereafter the husband *43refuses to .perform the very .condition which is the -basis for -the wife’s promise to surrender her rights.

Is the wife limited to an action for breach of the contract? Or may she accept her husband’s declaration -that the instrument is “a mere scrap o-f paper” -and for that reason not binding on either?

Judicial decisions ¡amid text books -on the law of contract are in agreement that where there iis a material -breach of the contract going to the very heart of the instrument, the -other party to the .contract may elect to rescind and is not bound to- ¡seek relief at law -by an award for damages. This rule was .stated by the Supreme Court of Florida in Steak House v. Barnett, 65 So. 2d 736, in this language: “A -covenant is dependent where it goes to the- whole -eomsidenation -of the contract; where it is su-ah an essential part of the bargain that the failure of it must be considered -as -destroying the entire 'contract; or where it is -such an indispensable part of what both p-arties intended that the contract would not have been made with the covenant -omitted. Black on Rescission and Cancellation, 2d Ed., Vol. I, p-p. 555, 601. A -breach of such a covenant amounts to .a breach -of the entire contract; it gives to the injured party the right to' sue at law for damages, or courts of equity may grant rescission in such instances if the remedy at law will not be full and adequate.” Dula v. Cowles, 52 N.C. 290; Carrow v. Weston, 247 N.C. 735, 102 S.E. 2d 134; Wallace v. Smith, 240 P. 2d 799; Wilson Corrugated Kraft Containers, 256 P. 2d 1012; Sanders v. Meyerstein, 124 F. Supp. 77; Fish v. Valley Nat. Bank of Phoenix, 167 P. 2d 107; Village of Wells v. Layne-Minnesota Co., 60 N.W. 2d 621; 12 Am. Jur. 972; 17A C.J.S. 517; Restatement of Contracts, sec. 274; Black on Rescission and Cancellation, 2d Ed. Vol. I, secs. 196, 214, 215.

Rescission, an equitable remedy, iis .allowed to promote justice. The right to rescind -does not exist where the -breach is not substantial -and material and does -not go- to- the heart of an .agreement. Childress v. Trading Post, 247 N.C. 150, 100 S.E. 2d 391; Jenkins v. Myers, 209 N.C. 312, 183 S.E. 529; Highway Comm. v. Rand, 195 N.C. 799, 143 S.E. 851.

If the wife is content to look to the -contract for relief, she may be awarded damages, not f-o-r failure to perform a -duty, but because of her husband’s breach of his -contract. Neither the needs of the wife nor hardship imposed on the husband is a defense. Any judgment rendered for nonperformance is a debt. It ©am only be enforced by a levy on and sale of defendant’s property. He cannot be imprisoned. N. C. Const., Art. I, sec. 16; Daniel v. Owen, 72 N.C. 340; Stanley v. Stanley, 226 N.C. 129, 37 S.E. 2d 118. On the other hand, the duty of a husband to *44support bis wife is imposed by law. The 'amount, if any, to1 be paid is fixed by order of the -court, having due regard to- .the situation of the parties, the ability of the huslband to pay, and the needs of the wife. A willful failure of the husband to comply with the 'court’s order is a contempt, and -can be punished as such .by imprisoaiment. It is not within the constitutional inhibition against imprisonment for debt. Pain v. Pain, 80 N.C. 322; S. v. Morgan, 141 N.C. 726.

The duty of the .husband to support is a continuing one. The mere fact that a huslband has performed hie duty in the past is no- defense against .present failure to- perform. Hence this Court rejected the plea of -a defendant that hiis past performance of his separation agreement to provide monthly .payments, relieved him of bis obligation to. perform in the future. It s-aid in Cram v. Cram, 116 N.C. 288: “If we concede that plaintiff had- the right to- demand that the agreement mentioned in the answer be enforced, had she ch-osen to sue upon it, the defendant will not, nevertheless, be allowed, after repudiating it by ceasing to pay or -offer to pay according to its provisions, to set it up as a bar to her recovery in thi-s -action . . . It is not the contract to pay a certain Sum in Lieu which quits the husband of his duty to furnish a support for the wife when he is discharged, but the actual payment or attempt or offer to pay in fulfillment of his agreement. Kelly’s Contracts of Married Women, p. 75, 1 Cord’s Legal -and eq. Rights of Married W-o-men., -secs. 144, 145. Having ceased to- perform his agreement to pay the monthly allowance referred to in the pleadings, it will not av-ail him now as a defense to- this proceeding for maintenance- on the part -of the plaintiff, to- whom he admits that he was married, and whom it is conceded that he afterwards -deserted.” (Emphasis supplied.)

In Rector v. Rector, 186 N.C. 618, 120 S.E. 195, plaintiff sought -alimony without divorce. As a defense to- her action -defendant pleaded the separation agreement 'by which he -obligated himself to- pay $85 per month for .plaintiff’s support. He made three payments and then ceased further -performance. Clark, C.J., disposed of defendant’s contention that the separation -agreement defeated plaintiff’s right to alimony with this terse sentence: “The defendant having failed to pay the installments as provided by the -agreement, the plaintiff can maintain this action. Cram v. Cram, 116 N.C. 288.”

In Butler v. Butler, 226 N.C. 594, 39 S.E. 2d 745, plaintiff, notwithstanding a ¡separation agreement, sought the security of an award of alimony. She alleged that the h-usb-and was- complying with the provisions of .the -contract and making the monthly payments -there called *45far. She also said that the .payments so made were sufficient for her ■support. She predicated her claim to an. award of alimony on the fact “that defendant hais expressed to plaintiff his intention to. obtain an absolute divorce at the end of .two- yeans from the date of their separation and has made statements causing plaintiff to anticipate and fear that defendant would not comply with the said separation agreement after obtaining a divorce.”

The appellant’s brief in the Butler case states -the question the Court was called upon to decide in this language:

> “Is a wife whose husband has been convicted of -an assault upon her resulting in their separation entitled to. .an order for maintenance 'pendente lite under G.S. 50-16 when her husband is making -the payments in conformity with the terms of a valid separation agreement but threatens to obtain a divorce on grounds of two years separation -and discontinue payments upon his contract?”

Seawell, J., speaking for the Court, gave this answer:

> “The Court is of opinion that tire jurisdiction of the court invoked under G.S. 50-16, iis not barred by tire-separation .agreement pleaded, and that within tire frame of her present action, the plaintiff may seek such relief as .she may be entitled to- have.”

The existence of a separation agreement is not a bar to- -an award of alimony pendente lite. Oldham v. Oldham, 225 N.C. 476, 35 S.E. 2d 332; Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171. If relief is here .denied, those cases were erroneously decided.

The conclusion reached by this Court in. Cram v. Cram, supra, is recognized in decisions elsewhere as correct. Meyerl v. Meyerl, 84 N.W. 1109; Hefele v. Hefele, 160 A. 368; French v. French, 134 N.E. 33; Bradford v. Bradford, 4 N.E. 2d 1005; Walker v. Walker, 94 A. 346, Ann. Cas. 1916B 934; Scheinkman v. Scheinkman, 118 N.Y.S. 775; Verdier v. Verdier, 223 P. 2d 214; Sellers v. Sellers, 164 S.E. 769; Lindey: SEPARATION AGREEMENTS AND ANTE-NUPTIAL CONTRACTS, sec. 25.

The contention that the order denying -alimony is supported by Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12, s. c. 194 N.C. 673, 140 S.E. 440; Brown v. Brown, 205 N.C. 64, 169 S.E. 818; Turner v. Turner, 205 N.C. 198, 170 S.E. 646; Davis v. Davis, 213 N.C. 537, 196 S.E. 819; Luther v. Luther, 234 N.C. 429, 67 S.E. 2d 345; and Spruill v. Nixon, 238 N.C. 523, 78 S.E. 2d 323, and similar cases, is fallacious.

*46That these cases do not .control the decision in the present case is, we think, .apparent from ian examination o>f them. In the first appeal in Lentz v. Lentz, supra, the Court held that .a husband who had obtained a divorce could not thereafter be required to pay alimony, nor did the divorce constitute a breach of the separation agreement the parties had executed. It is elementary that .the husband's legal duty to. support his wife, unlike his contractual obligation, terminates when the marriage relationship has been terminated by a divorce a vinculo. It was to avoid this very situation that the plaintiff brought her action in Butler v. Butler, supra. Both Lentz and Butler were decided by a unanimous Court.

The decision on the second Lentz .appeal is an application of the law declared in Stanley v. Stanley, supra, that the husband cannot be imprisoned for a breach o.f his contractual obligation.

In Brown v. Brown, supra, the wife sought .a divorce a mensa and alimony notwithstanding the provision of a valid separation agreement which the husband had “fully performed.” Of course she could not, after -her husband had performed his part of the contract, obtain an 'award of alimony.

Here .the husband has not only not performed; he has, according to the allegations of the complaint, which are not denied by him, announced that he has no intention of performing.

The conclusion reached in Turner v. Turner, supra, is not in conflict with Cram v. Cram, supra. The Cram >oaise was referred to in the briefs. Manifestly the Court 'did not intend to overrule it without referring thereto., but instead relied on Brown v. Brown, supra, and Lentz v. Lentz, supra.

Davis v. Davis, supra, is a mere application of the doctrine declared in the first Lentz caise that an absolute 'divorce terminates the husband’s legal duty to support. He cannot thereafter be held in contempt for nonsupport even, though he has contracted to. provide support.

Luther v. Luther, supra, merely holds the wife may not be punished for contempt when she refuses to abide -by an agreement which is not 'approved as required by G.S. 52-12 and is void under the statute of fraud®. The statement in that ease and in Spruill v. Nixon, supra, that a consent judgment is a contract binding on the parties which cannot be vacated unless by consent or for fraud or mistake is undoubtedly a correct .statement of the law. It is not here challenged, but that legal principle cannot be expanded so as to- require .performance by one when the other party declares he has no- -intention of complying with the condition precedent to his right to. bind 'the other.

It must not be forgotten that the public official who adjudged the contract not injurious to the wife had before him an- instrument which *47divested her oí ¡the might to support only after the husband had performed Ms part of (the contract.

When the wife, as here, elects to seek alimony rather than damages for the breach of the contract, she is only entitled to- such -an award as would ibe proper if no -contract had been signed. If there has been ■a partial performance, she must account for the net benefits, if any, which she may -have received.

Reversed.

Higgins, J.,

dissenting: The plaintiff attached the separation agreement to- her complaint and made it a part of her -alleged cause of -action. The agreement wais executed in accordance with the formalities required by law. Among -other ¡things, it provided:

> “WITNESSETH: WHEREAS, the parties hereto are husband and wife, having been lawfully married on the 23rd day of December 1952, but WHEREAS, by -reason of irreconcilable differences and -disagreements, the parties- sepiarated on the 20th day o-f January 1962, and have since said date lived continuously ■separate and 'apart from each other -and are presently living separate and -apart from each -other; and WHEREAS, the parties -h-ave agreed that they will -continue to live separate and ap-art from each other in the future, each being of the opinion that it will pro-mote their happiness and welfare to live separate and apart in the future”;

The agreement required the -defendant to convey -to- the plaintiff the home held by 'them -as an estate by entireties, the deed to be, -and presumably w-as, delivered simultaneously with the execution -o-f the separation agreement. All the personalty belonging to- -the parties was given to the plaintiff except -one incomplete set of dishes, one empty bookcase, one ro-l-l-away bed, -the 1961 Chevrolet, -and “his personal clothing -and his purely personal -belongings.” In so far as the record discloses he left the home without anything els-e -of value except Ms ability to work. He agreed to pay to the plaintiff $100.00 each month for 18 months. At the time she -instituted this suit she -had been paid $800.00, and -three of the remaining payments were then past due.

Under the facts alleged, the plaintiff was entitled to- maintain an action for the recovery -of $300.00 -and interest for breach of contract -and she would have been entitled to -amend 'her 'complaint after it was filed, alleging any additional payments that were past due up to the time -o-f the trial. Failure to -meet the payments -does not entitle the plaintiff to have the contract -declared void. A breach o-f the contract *48its cause far rescission, only when the contract is indivisible and the breach defeats it. Childress v. Trading Post, 247 N.C. 150, 100 S.E. 2d 391. By rescission the whole transaction moist be avoided. A party miay not rescind in part and affirm in part. “The nonperformance on one side must go to the entire .substance <of tire 'contract and to the whole consideration, so that it may safely be inferred . . ., if .the act to be performed on the one side is not done, there is no. consideration for t'he stipulation on the other side.” Jenkins v. Myers, 209 N.C. 312, 183 S.E. 529; New Orleans v. R.R., 171 U.S. 334. Cancellation or rescission of a 'contract even when .tire contract is procured by fraud (not even suggested here) requires' the return of all ¡consideration. Kee v. Dillingham, 229 N.C. 262, 49 S.E. 2d 510. The plaintiff does not offer to return anything.

Assuming all plaintiff’s factual allegations are true, she is entitled to- maintain a cause of action for breach of contract. Instead, she sues for .alimony 'and counsel fees. Her factual allegations show that in so doing she attempts to. assert a defective cause of action. Judge Johnston wias correct in so bolding.

Valid contracts between husband -and wife executed while they are living in a state of separation are binding in the same manner as other contracts. However, in so far as the contract is executory and relates to obligations and duties growing out of the marriage, the resumption of the marriage relationship restores the rights incident thereto. Fuchs v. Fuchs, 260 N.C. 635; Hutchins v. Hutchins, 260 N.C. 628.

The defaidant’s failure to pay does not add one cent to the amount he is 'due under the contract, and as the parties agreed so shall they be bound. I vote to affirm.

Bobbitt, J. joins in this dissenting opinion.