Wade v. Wade

113 S.E.2d 424, 252 N.C. 330, 1960 N.C. LEXIS 426

• Court: Supreme Court of North Carolina
• Decided: April 6, 1960
• Status: Published

Opinion

HiggiNS, J.

From the allegations of the complaint it appears that during negotiations for a settlement prior to the institution of the suit the defendant had a deed of separation prepared. Both parties admit it was never signed by either. Therefore, it has remained a blank paper without legal effect. In the case of Pearce v. Pearce, 226 N.C. 307, 37 S.E. 2d 904, this Court had before it a deed of separation which had been signed, though “not executed in the manner required by G.S. 52-12 and 52-13.” This Court said: “It must be noted at the threshold of this case that the asserted written agreement of separation is void ah initio.” (citing authority) “In law it does not exist.”

The plaintiff on the trial could not offer the writing in evidence. The motion to strike should have been allowed. Daniel v. Gardner, 240 N.C. 249, 81 S.E. 2d 660. The motion to strike other parts of the complaint was properly denied. The order is modified by striking paragraph 10 (including Exhibit A) and all reference to the exhibit contained in paragraph 11. Otherwise, the order of December 4, 1959, is approved.

The order of December 14, 1959, providing for payments of alimony pending further hearing, related to matters within the sound discretion of the trial court, in which no error of law appears. Hall v. Hall, 250 N.C. 275, 108 S.E. 2d 487; Cunningham v. Cunningham, 234 N.C. 1, 65 S.E. 2d 375.

Modified and affirmed.