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[414] amined., 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 [415] divorce.” "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.
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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[414] amined., 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 [415] divorce.” "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 [416] that 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 [417] tbe 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 [418] and 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.