Jones v. Jones

Supreme Court of North Carolina

Jones v. Jones

135 S.E.2d 554, 261 N.C. 612, 1964 N.C. LEXIS 523

CourtSupreme Court of North Carolina

DecidedApril 8, 1964

Docket317

StatusPublished

Cited by4 cases

This text of 135 S.E.2d 554 (Jones v. Jones) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Jones, 135 S.E.2d 554, 261 N.C. 612, 1964 N.C. LEXIS 523 (N.C. 1964).

Pincite

Opinion

Per Curiam.

When a husband and wife execute a valid deed of separation and thereafter live apart, such separation exists by mutual consent from the date of the execution of the instrument. Richardson v. Richardson, 257 N.C. 705, 127 S.E. 2d 525. As long as the deed stands unimpeached, neither party can attack the legality of the separation on account of the misconduct of the other prior to its execution. Kiger v. Kiger, 258 N.C. 126, 128 S.E. 2d 235.

Recognizing this rule, defendant attempted to avoid the deed of separation on the ground that it was obtained by duress. However, neither the facts alleged nor the proffered proof are sufficient to invalidate the contract which was not executed until nine months after the parties had separated. Plaintiff’s duty to support his children was an obligation which defendant could have forced him to perform under both the criminal and the civil law. “A threat to withhold from a party a legal right which he has an adequate remedy to enforce will not constitute duress . . .” 17 C.J.S. Contracts § 172. Defendant has acquiesced for over seven years in the deed of separation which she would now avoid. She has shown no ground for rescission.

In the trial below we find

No error.

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Per Curiam.

When a husband and wife execute a valid deed of separation and thereafter live apart, such separation exists by mutual consent from the date of the execution of the instrument. Richardson v. Richardson, 257 N.C. 705, 127 S.E. 2d 525. As long as the deed stands unimpeached, neither party can attack the legality of the separation on account of the misconduct of the other prior to its execution. Kiger v. Kiger, 258 N.C. 126, 128 S.E. 2d 235.

Recognizing this rule, defendant attempted to avoid the deed of separation on the ground that it was obtained by duress. However, neither the facts alleged nor the proffered proof are sufficient to invalidate the contract which was not executed until nine months after the parties had separated. Plaintiff’s duty to support his children was an obligation which defendant could have forced him to perform under both the criminal and the civil law. “A threat to withhold from a party a legal right which he has an adequate remedy to enforce will not constitute duress . . .” 17 C.J.S. Contracts § 172. Defendant has acquiesced for over seven years in the deed of separation which she would now avoid. She has shown no ground for rescission.

In the trial below we find

No error.

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Bluebook (online)

135 S.E.2d 554, 261 N.C. 612, 1964 N.C. LEXIS 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-nc-1964.

Opinion

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