CLARK, C. J., concurring; BROWN, J., dissenting; WALKER, J., concurring in the dissenting opinion.
Civil action to recover for breach of contract to convey to plaintiff certain real estate, pursuant to a definite written contract to that effect signed by plaintiff and by defendants, W. H. Dail and his wife, M. V. Dail.
Defendants, admitting that feme defendant signed the contract, alleged and offered evidence tending to show that the privy examination of defendant, touching her execution of the contract, had not been taken. Second, that feme defendant had only a life estate in said land, she having conveyed same to her children, reserving a life estate therein, and this deed had been duly registered in said county for some time before the present contract was executed. Defendant offered evidence, further, to show that plaintiff, at the time of the contract, had actual notice of the deed executed by plaintiff to her children. This last position was controverted by plaintiff, who offered testimony in support of his position.
It was also alleged in the complaint and not denied in the answer that, at the time of the execution of the contract, feme defendant was a free trader. On issues submitted the jury rendered the following verdict:
1. Did defendants contract to convey the lands described in the complaint to the plaintiff, as alleged in the complaint? Answer: Yes.
2. If so, did the defendants fail and refuse to convey the said land pursuant to said contract, as alleged in the complaint? Answer: (408) Yes.
3. If so, what sum, if any, is plaintiff entiled [entitled] to recover of the defendants as damages for said breach of said contract Answer: $1,415, with interest from 1 January, 1913.
4. If so, what sum is plaintiff entitled to recover of the defendants as damages for injury to his business as a dealer in real estate? Answer: Nothing.
5. Did plaintiff, at time he entered into said contract with defendants, have constructive notice from the records of Greene County that defendants could not convey said land by good and indefeasible deed for the reason that they owned only a life estate in said land with remainder to their children? Answer: Yes.
6. Did plaintiff, at time he entered into said contract with defendants, have actual notice that defendants could not convey said land by good and indefeasible deed for the reason that they owned only a life estate in said land with remainder to their children? Answer: No.
Judgment on the verdict, and plaintiff excepted and appealed.
Our Constitution, Article X, sec. 6, contains provision as follows: "The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried."
Soon after its adoption, the Legislature enacted statutes defining the status of married women in reference to property and their capacity to contract, the more important now appearing in Revisal, sec. 952, which requires that, in order to a valid conveyance, power of attorney or other instrument to affect her realty, this last to include contracts to convey deeds of trust, mortgages or other instruments, the same shall be executed by the husband and the wife and the privy examination of the wife shall be had; sec. 2107, regulating contracts between the husband and the wife and providing that, as to such contracts, in addition to the privy examination, that the officer taking such examination should certify that the contract was not unreasonable or injurious to the wife; sec. 2094, providing: "No woman during her coverture shall be capable of making any contract to affect her real or personal estate, except for her necessary or personal expenses, or for the support of the family, or such as may be necessary in order to pay her debts existing before her marriage, without the written consent of her husband, unless she be a free trader, as hereinafter allowed"; sec. 2112, directing how a (409) woman may become a free trader; and sec. 2113, provided that, when she has lawfully become such, she may "contract and deal as if she were a feme sole."
In construing this section of our Constitution and statutes passed on the subject, it has been held that neither the constitutional provision nor the statutes referred to had the effect of enabling a married woman living with her husband to bind herself by contracts strictly in personam, but the constitutional provision declaring her property, real and personal, to be her sole and separate estate was intended and operated to enable her tocharge her personal estate by contracts on the principle by which, under recognized equitable principles, she was formerly allowed to charge her separate estate in the hands of a trustee and her real estate also by contract in which her husband joined and the wife's privy examination taken. Ball v. Paquin, 140 N.C. 83; Farthing v. Shields, 106 N.C. 289;Flaum v. Wallace, 103 N.C. 296; Pippen v. Wesson, 74 N.C. 437. It was further held that the requirement as to certain classes of contracts that the husband should join in them and the privy examination of the wife taken was not in conflict with the constitutional provision that the wife's property could be conveyed with the written assent of the husband, but should be considered as establishing a form by which the husband's assent to the contract should be properly evidenced. Southerland v. Hunter,93 N.C. 310; Ferguson v. Kinsland, 93 N.C. 337.
A comprehensive and searching analysis of the constitutional and statutory provisions, and the decisions construing the same, prior to Ballv. Paquin, prepared by Prof. Samuel F. Mordecai, dean of the Law Department of Trinity College, N.C. appears by permission and courtesy of Mr. Mordecai in Judge Pell's Revisal as a separate and additional annotation to sec. 2094, and may be consulted to advantage by persons desiring to inform themselves on this interesting subject.
Later, in Council v. Pridgen, 153 N.C. 443, it was held that the "power to contract and deal as if she were a feme sole," conferred upon a free trader by sec. 2113 of the Revisal, referred to the ordinary contracts made in some business in which a married woman might engage, and that it did not enable her to convey her real estate or make contracts to do so, etc., without privy examination, contrary to the express provisions of section 952. This being the law as it existed formerly, the Legislature of 1911, ch. 109, enacted the statute known as the Martin act, in terms as follows: "That sec. 2094 of the Revisal of 1905 be and the same is hereby repealed, and the following substituted therefor: `That, subject to the provisions of section 2107 of the Revisal of 1905, every married woman shall be authorized to contract and deal so (410) as to affect her real and personal property in the same manner and with the same effect as if she were unmarried, but no conveyance of her real estate shall be valid unless made with the written assent of her husband, as provided by sec. 6 of Art. X of the Constitution, and
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CLARK, C. J., concurring; BROWN, J., dissenting; WALKER, J., concurring in the dissenting opinion.
Civil action to recover for breach of contract to convey to plaintiff certain real estate, pursuant to a definite written contract to that effect signed by plaintiff and by defendants, W. H. Dail and his wife, M. V. Dail.
Defendants, admitting that feme defendant signed the contract, alleged and offered evidence tending to show that the privy examination of defendant, touching her execution of the contract, had not been taken. Second, that feme defendant had only a life estate in said land, she having conveyed same to her children, reserving a life estate therein, and this deed had been duly registered in said county for some time before the present contract was executed. Defendant offered evidence, further, to show that plaintiff, at the time of the contract, had actual notice of the deed executed by plaintiff to her children. This last position was controverted by plaintiff, who offered testimony in support of his position.
It was also alleged in the complaint and not denied in the answer that, at the time of the execution of the contract, feme defendant was a free trader. On issues submitted the jury rendered the following verdict:
1. Did defendants contract to convey the lands described in the complaint to the plaintiff, as alleged in the complaint? Answer: Yes.
2. If so, did the defendants fail and refuse to convey the said land pursuant to said contract, as alleged in the complaint? Answer: (408) Yes.
3. If so, what sum, if any, is plaintiff entiled [entitled] to recover of the defendants as damages for said breach of said contract Answer: $1,415, with interest from 1 January, 1913.
4. If so, what sum is plaintiff entitled to recover of the defendants as damages for injury to his business as a dealer in real estate? Answer: Nothing.
5. Did plaintiff, at time he entered into said contract with defendants, have constructive notice from the records of Greene County that defendants could not convey said land by good and indefeasible deed for the reason that they owned only a life estate in said land with remainder to their children? Answer: Yes.
6. Did plaintiff, at time he entered into said contract with defendants, have actual notice that defendants could not convey said land by good and indefeasible deed for the reason that they owned only a life estate in said land with remainder to their children? Answer: No.
Judgment on the verdict, and plaintiff excepted and appealed.
Our Constitution, Article X, sec. 6, contains provision as follows: "The real and personal property of any female in this State acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband, and may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried."
Soon after its adoption, the Legislature enacted statutes defining the status of married women in reference to property and their capacity to contract, the more important now appearing in Revisal, sec. 952, which requires that, in order to a valid conveyance, power of attorney or other instrument to affect her realty, this last to include contracts to convey deeds of trust, mortgages or other instruments, the same shall be executed by the husband and the wife and the privy examination of the wife shall be had; sec. 2107, regulating contracts between the husband and the wife and providing that, as to such contracts, in addition to the privy examination, that the officer taking such examination should certify that the contract was not unreasonable or injurious to the wife; sec. 2094, providing: "No woman during her coverture shall be capable of making any contract to affect her real or personal estate, except for her necessary or personal expenses, or for the support of the family, or such as may be necessary in order to pay her debts existing before her marriage, without the written consent of her husband, unless she be a free trader, as hereinafter allowed"; sec. 2112, directing how a (409) woman may become a free trader; and sec. 2113, provided that, when she has lawfully become such, she may "contract and deal as if she were a feme sole."
In construing this section of our Constitution and statutes passed on the subject, it has been held that neither the constitutional provision nor the statutes referred to had the effect of enabling a married woman living with her husband to bind herself by contracts strictly in personam, but the constitutional provision declaring her property, real and personal, to be her sole and separate estate was intended and operated to enable her tocharge her personal estate by contracts on the principle by which, under recognized equitable principles, she was formerly allowed to charge her separate estate in the hands of a trustee and her real estate also by contract in which her husband joined and the wife's privy examination taken. Ball v. Paquin, 140 N.C. 83; Farthing v. Shields, 106 N.C. 289;Flaum v. Wallace, 103 N.C. 296; Pippen v. Wesson, 74 N.C. 437. It was further held that the requirement as to certain classes of contracts that the husband should join in them and the privy examination of the wife taken was not in conflict with the constitutional provision that the wife's property could be conveyed with the written assent of the husband, but should be considered as establishing a form by which the husband's assent to the contract should be properly evidenced. Southerland v. Hunter,93 N.C. 310; Ferguson v. Kinsland, 93 N.C. 337.
A comprehensive and searching analysis of the constitutional and statutory provisions, and the decisions construing the same, prior to Ballv. Paquin, prepared by Prof. Samuel F. Mordecai, dean of the Law Department of Trinity College, N.C. appears by permission and courtesy of Mr. Mordecai in Judge Pell's Revisal as a separate and additional annotation to sec. 2094, and may be consulted to advantage by persons desiring to inform themselves on this interesting subject.
Later, in Council v. Pridgen, 153 N.C. 443, it was held that the "power to contract and deal as if she were a feme sole," conferred upon a free trader by sec. 2113 of the Revisal, referred to the ordinary contracts made in some business in which a married woman might engage, and that it did not enable her to convey her real estate or make contracts to do so, etc., without privy examination, contrary to the express provisions of section 952. This being the law as it existed formerly, the Legislature of 1911, ch. 109, enacted the statute known as the Martin act, in terms as follows: "That sec. 2094 of the Revisal of 1905 be and the same is hereby repealed, and the following substituted therefor: `That, subject to the provisions of section 2107 of the Revisal of 1905, every married woman shall be authorized to contract and deal so (410) as to affect her real and personal property in the same manner and with the same effect as if she were unmarried, but no conveyance of her real estate shall be valid unless made with the written assent of her husband, as provided by sec. 6 of Art. X of the Constitution, and
her privy examination as to the execution of the same taken and certified, as now required by law.'"
This statute was construed in Lipinsky v. Revell, 167 N.C. 508, upholding the liability of a married woman on a contract of purchase of goods, etc., and in Royal v. Southerland, 168 N.C. 405, or an ordinary contract of suretyship, and, from the very definite and specific language of the statute and its evident purpose in reference to the law as it formerly existed, we think it should be held to mean what it plainly says, that, except as to contracts with her husband, in which the forms required by sec. 2107 must still be observed, and except in conveyances of her real estate, in which case her privy examination must still be taken and her husband's written consent had, a married woman can now make any and "all contracts so far as to affect her real and personal property, in the same manner and to the same effect as if she were unmarried." And, this being true, we concur in the ruling of the court below that, on breach of her contract to convey her land, she may be held responsible in damages, as in other contracts by which she is properly bound. It is urged that the act, by correct construction, should be held to except "contracts to convey" as well as "conveyances," on the principle that equity not infrequently regards the holder of such an interest as the real owner. But, while this is a recognized principle, applicable in many instances when dealing with the interest under such a contract, equity, regarding that as done which a man is under a binding obligation to do, the position may not, in our opinion, be extended to enlarge and change the definite language of an act restricting an exception to "conveyances," and that, too, in modifying a law in which conveyances, powers of attorney and contracts to convey, etc., are expressly mentioned. In such case, if the Legislature had desired or intended to except executory contracts to convey, it would have added this to the word "conveyances," the only form of contract which the statute specifies as excepted.
Again, it is insisted that it is an unreasonable interpretation which holds a married woman liable to damages for breaking a contract when the statute itself provides that the contract may not be specifically enforced; but, to our minds, there is nothing unreasonable in this. The statute, which enables a married woman to bind herself by any contract to affect either her real or her personal estate, except that, in conveyances of the latter, the written assent of her husband and her privy examination are required, simply means that when she makes an executory contract of this character and her privy examination is not (411) taken she can only be held in damages, and that specific performance may not, as formerly, be enforced. The remedy by the award of damages is the ordinary means of adjustment for breaches of contract.
That by specific performance is properly regarded as additional and supplementary to the other. Pomeroy Contracts (2 Ed.), p. 11; Anson Contracts, pp. 384 and 385.
The requirement of privy examination in conveyances and contracts to convey realty having been established by the Legislature, it can modify the requirement or withdraw it altogether, and there is nothing unreasonable and, assuredly, nothing beyond its power in the enactment of a statute which says that in all contracts by married women to convey land, when same are wrongfully broken by them, they may be held responsible in damages, but they cannot be compelled to convey unless they have been privily examined according to forms of law.
Again, it is contended that it would be altogether unjust to mulct a married woman in damages when she might be perfectly willing to carry out her contract by a conveyance, and is prevented from doing so because her husband refuses to give his consent; but it is on more a hardship than any other case where one has, in good faith, contracted to convey land and afterwards finds out that he is unable to make title. The obligations of a contract, except in certain specified and very restricted instances, are imperative, and, when they are wrongfully broken, neither inability to perform nor ignorance of conditions may ordinarily avail as protection against an award of damages. Steamboat Co. v. Transportation Co.,166 N.C. 583.
It is further urged that plaintiff should not be allowed to recover damages because of the fact that there was on the record a deed in whichfeme defendant had conveyed the property to her children, reserving only a life estate; that plaintiff is affected with constructive notice of the terms of such a deed, and is therefore barred of any recovery; defendant citing Joyner v. Crisp, 158 N.C. 199, in support of her position.
In Joyner v. Crisp it was held that the obligations of the contract, the subject-matter of litigation, were to be performed as an entirety, and the parties were relieved of same, and of all liability thereunder because it appeared on the face of the contract itself that, in substantial and material features, there was an inability to perform. The portions of the opinion as to the effect of notice must be understood in reference to the conditions there presented, and are not applicable to the facts of this record.
Under the old system of administering justice, when legal and equitable rights were to be sought in the two forums of law and equity (412) the remedy by specific performance was enforced on the equity side of the docket, and while damages were sometimes awarded when specific performance could not be obtained, this rule was ordinarily refused if it was made to appear that the plaintiff was aware that specific
performance could not be obtained when the suit was first instituted, or before that time, It was regarded, to some extent, as a fraud on the jurisdiction to bring the suit in equity under such circumstances. But it was never understood that a claim for damages could not be recovered if the suit therefor had been brought in the proper forum, i.e., on the law side of the docket, and since legal and equitable rights are now sought and obtained in one and the same court, there is usually no reason why, in case of wrongful breach of contract, damages should not always be allowed when, for any good reason, specific performance cannot be obtained.
Speaking to this question in Pomeroy on Contracts, sec. 480, the author says: "One further question remains to be considered: whether the reformed procedure, adopted in so large a portion of the States, has abrogated or modified any of the foregoing rules concerning the recovery of damages in the action for a specific performance. While that procedure does not purport to make any changes in legal and equitable rights, duties, and remedies or reliefs, it does abolish all distinctions between legal and equitable actions and provides one civil action for the trial of all controversies in which legal and equitable causes of action and defenses may be united, and legal and equitable remedies may be granted by a single judgment. In other words, this procedure expressly and intentionally removes at one blow all the ground and reasons upon which, under the ancient system, the rule was based which forbids the award of damages in equity suits. Independently of any authority, it would seem to be perfectly clear that the general rules which had been established as a part of the former procedure had been materially modified by this sweeping reform. The question thus suggested has been directly answered by the New York Court of Appeals. An action was brought by a vendee praying the specific enforcement of a contract. Through a failure of the defendant's title a specific performance was impossible, and this inability was known to the plaintiff before the commencement of his suit. The complaint alleged all the facts necessary to show a cause of action for damages, as well as for a specific enforcement, but only demanded the latter relief. The Court refused the specific performance, but held the plaintiff entitled to recover damages for the defendant's breach of the contract. Admitting the rule to have been settled, under the former procedure, that where a plaintiff was aware of the inability at the time of commencing his suit equity would not retain the case and give damages, the Court declared that this rule had been abrogated by the Code, and it laid down the general doctrine as follows: If a complaint states facts constituting a (413) cause of action for specific performance, and also one for damages for a breach of contract, a failure of the first will not prevent his
recovery on the second, whatever may have been the prayer for relief, citing Sternburger v. McGowan, 12-20 and 21. And, assuredly, in the absence of any facts tending to show fraud or imposition, avoiding the contract or creating an estoppel, damages for wrongful breach of contract to convey are not now denied merely because the party seeking relief was aware, at the time of the contract, or before suit, that the other had no title. It is well understood that many contracts of this kind are entered into under just these circumstances, the parties believing they could obtain the title, and being allowed till the time of trial to procure and tender it.May v. Getty, 140 N.C. 311.
There is no error in this record and the judgment in plaintiff's favor is affirmed.
No error.