Hall v. . Walker

24 S.E. 6, 118 N.C. 377

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

Faircloth, C. J.:

Gode, Section 1832 : “ Every woman 'whose husband shall abandon her, or shall maliciously turn her out of doors, shall be deemed a free trader, so far as to be competent to contract and be contracted with, and to bind her separate property * * and she shall have power to convey her personal estate and her real estate without assent of her husbatid.”

In this controversy without action, the sole question is whether the above section is constitutional. The plaintiff’s husband five years ago deserted and abandoned her, ■ and has been continuously out of the state and has not been seen or heard from by her, and he has in no way contributed to the support of herself or family.

At common law a wife and her husband could not by deed convey title to her own land, nor in any other mode, ■except by uniting with him in levying a fine. But our statute prescribes a more simple method, to-wit: by deed • and private examination, which must be strictly according to the terms of the statute.

There is no constitutional inhibition on the power of the Legislature t declare where and how the wife may become • a free trader. Art. X., Sec. 6, was uot intended to disable, ■but to protect her.

In Troughton v. Hill, 2 Hay., 614 (406), it was held that when the husband became an alien, the wife became a feme sole for the purpose of contracting and might acquire and transfer property. Chancellor KeNt, referring to this subject, said : “ Though the husband be not an alien, yet if he deserts his wife and resides abroad permanently, the necessity that the wife should be competent to obtain credit and acquire and recover property and act as a feme sole exists in full force,” and that the “ distinction between husbands who are aliens and who are not aliens cannot long be maintained in practice, because there is no-solid foundation in principle for the distinction.” 2 Kent Com., 157. It would b'e a distressing rule of law if the-wife, because of her husband’s neglect and desertion, could not control her separate property for the support and comfort of herself and family. It is her property ; why may she not sell or exchange it?

Affirmed..