
    JACK WALLIN et al. v. JONAH RICE.
    (Filed 15 December, 1915.)
    Deeds and Conveyances — Husband and Wife — Conveyance to Husband — Certificate — Statutes.
    It is necessary to tbe validity of a deed to lands, made by tbe wife to ber busband, tbat tbe justice of tbe peace find and certify in his certificate of probate tbat, at tbe time of ber privy examination, tbe contract or deed was not unreasonable or injurious to ber; and, where tbe deed is void for noncompliance with tbe statute, .her covenant of warranty materially affecting ber estate is also ineffectual and cannot operate to estop ber or those claiming under ber.
    Clark, C. J., dissenting.
    Appeal by defendant from Long, J., at September Term, 1915, of MADISON.
    Civil action.
    
      Guy V. Roberts, E. Z. Ray and Martin, Rollins & Wright for the plaintiffs.
    
    
      P. A. McElroy, G. B. Marshburn, Mark W. Brown for the defendant.
    
   Beowet, J.

Plaintiffs are six of the heirs at law of Emily A. Rice, wife of defendant, who died without issue 8 April, 1915. On 3 May, 1913, she executed a deed in fee to defendant, describing the land in controversy, for the recited consideration of $1,000, containing full covenants of warranty. This deed was not executed in accordance with sec. 2107 of the Revisal, in that the justice of the peace did not find and certify in his certificate of probate that at the time of her privy examination the contract or deed was not unreasonable or injurious to her. The failure to observe the requirements of the statute makes the deed absolutely void. Singleton v. Cherry, 168 N. C., 404; Butler v. Butler, 169 N. C., 584.

The position that plaintiffs are estopped from claiming the land by the covenant of warranty in the deed is untenable. If the deed is void for noncompliance with the statute, the covenant of warranty is likewise void, as it is a contract between husband and wife materially affecting her estate.

Where the deed is void the mere fact that it contains a covenant of warranty will not make it operative by way of estoppel, for, to make a warranty binding, there must be some estate conveyed to which the warranty may be annexed. A deed void as being given in contravention of a statute works no estoppel. Thus, a married woman will not be es-topped by a deed not executed in the mode'provided by statute. Green v. Branton, 16 N. C., 504; Smith v. Ingram, 130 N. C., 106; Scott v. Battle, 85 N. C., 184.

As the contract is void, the defendant cannot recover damages from his wife’s estate for its breach, and that is especially true in this case, as the jury have found that defendant paid no consideration for the land.

No error.

Clark, C. J.,

dissenting: This is a case of peculiar hardship. The defendant and his wife lived together for sixteen years on the tract of land in controversy. She was an invalid much of the time, and he was barely able to make a living out of the land for himself and wife. Anticipating her death, she procured a magistrate to draw a deed from her for the land to her husband and duly executed the same, the justice taking her privy examination and telling her that it was all right. Since her death her brothers have brought this action to take the land away from her husband.

The jury found that there was no fraud on the part of the husband, and that- the conveyance by the wife to the husband was not injurious to her nor unreasonable. Moreover, the deed contains full covenants of warranty and was executed 5 May, 1913, more than two years after the Martin act, ch. 109, Laws 1911, which gives to all wives full right to make contracts affecting their real or personal property. Warren v. Dail, ante, 406. It is true that act excepits contracts under Rev., 2107. Butler v. Butler, 169 N. C., 584. That presents the question whether sec. 2107 is constitutional if the Court extends it to convenances.

The Constitution of 1868 made a complete change in the status of married women as to their property rights. It provided, Art. X, sec. 6, that “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”: that it should not be liable for the debts of her husband (as formerly), and “may be devised and bequeathed, and, with the written assent of her husband, conveyed by her as if she were unmarried.”

It will be seen by this reference to the organic law that absolute control of their property in every respect was guaranteed to all wives, save in the single particular that in the conveyances of her realty the written assent of her husband was required. The addition of the further requirement that tbe privy examination of tbe wife must be taken to deeds, and tbat in conveyances to ber busband there must be tbe approval of some justice of tbe peace, are in open violation of tbe constitutional provision wbicb gave wives tbe right to convey with “tbe written assent of tbe busband.”

There is no justification or authority for this addition to tbe Constitution by legislative enactment or judicial construction. In England neither of these requirements obtains. In only four other States of tbe American Union, besides this, is tbe requirement of tbe privy examination retained, and in those it is not, as here, in violation of a guarantee in tbe Constitution. It may be doubted if in any other State there is a requirement tbat a magistrate shall approve a contract between busband and wife.

Tbe retention of these archaic requirements here is due to tbe survival of tbe common-law conception of tbe inferiority of married women. These statutes were passed before the Constitution of 1868, and were retained or brought forward since. They express tbe ideas of tbe time when wives were practically tbe chattels of their husbands. Down to 1868 tbe property of a woman, upon marriage, became tbe property of ber busband, and ber person became subject to chastisement at bis will. S. v. Rhodes, 61 N. C., 453.

Tbe requirement of a privy examination (Eev., 952), and of tbe approval of some justice of tbe peace (Eev., 2107), are based upon a conclusive presumption of law tbat tbe wife is an incompetent, without sound judgment of ber own, and tbat tbe busband will impose upon ber unless there is tbe supervision of some wise justice of tbe peace, who is usually selected by tbe busband. These requirements are a constant reminder to wives tbat they are, by tbe laws of this State, still deemed inferior beings, in spite of tbe guarantee in tbe Constitution tbat they shall have free control of their own property. These requirements are, besides, worthless, because if there is fraud and undue influence, to tbe knowledge of tbe grantee, the' conveyance can always be set aside, just as would be tbe case if there was no such action of tbe justice of tbe peace required. Tbe aggregate of these useless fees is a considerable tax upon conveyances, besides the inconvenience and annoyance.

It is not necessary, however, to go further into this matter, as it has already been fully discussed in the dissenting opinions in Weathers v. Borders, 124 N. C., 616; Walton v. Bristol, 125 N. C., 426-432; Smith v. Ingram, 132 N. C., 966; Harvey v. Johnson, 133 N. C., 361; in tbe concurring opinion in Ball v. Paquin, 140 N. C., 96; and in tbe dissenting opinion in Butler v. Butler, 169 N. C., 584, and other cases.

The discriminations against married women, wbicb have been discussed in tbe above dissents, have now been removed by successive statutes (see concurring opinion in Warren v. Dail, ante, 406), except only the above provisions as to privy examination and the approval of a justice, under sec. 2107, as to contracts with husbands. These, doubtless, will be repealed also in conformity to the Constitution.

■ The sole restraint in the Constitution upon alienation by the wife is that the husband must give his written assent to the wife's conveyance, though he can convey his property (except his “allotted” homestead) without her consent. His conveyance is valid without the wife’s assent, subject to the contingent right of dower.

The requirement in the Constitution of the privy examination of the wife is confined to the conveyance by the husband of his “allotted” homestead, Mayho v. Cotton, 69 N. C., 289; Dalrymple v. Cole, ante, 102, and this is the only restraint upon alienation by him.  