
    JESSIE B. EVERETT v. M. W. BALLARD et als.
    (Filed 12 September, 1917.)
    Married Women — Separate Realty — Contracts—Breach—Damages—Constitutional Law — Statutes.
    A married woman is liable in damages for the breach of her written contract to convey her separate realty, though made without the written consent of her husband. Const., Art. X, sec. 6; Laws of 1911, ch. 109.
    Allen, J., concurs in result; Brown, J., dissenting; Walker, J., concurring iii the dissenting opinion.
    Appeal by plaintiff from Wheclbee, J., at June Term, 1917, of Mae-TIN.
    On 14 October, 1914, the defendant Nannie B. Roberson, wife of W. R. Roberson, contracted in writing, without written assent of her husband, with the plaintiff to sell him a tract of land, her separate property, at the price of $2,500. After the delivery of said contract the defendant Nannie B. Roberson, with the written assent of her husband, conveyed the land to the defendant M. W. Ballard. This action is brought against said Nannie B. Roberson to recover damages for the breach of said contract upon her part and against her husband and M. ~W. Ballard for conspiracy with her to damage the plaintiff by breaking said contract.
    
      Tbe judge below being of opinion -that the failure of the husband of Nannie B. Eoberson to give his written consent to the contract rendered it void and entered judgment of nonsuit. Appeal by plaintiff.
    
      Dunning & Moore for plaintiff.
    
    
      Harry W. Stubbs for defendants.
    
   Clark, C. J.

The change in the property and contract rights of married women made by the Constitution of 1868 and the laws since is so complete that no aid can be had by reference to the decisions made before such changes, and their present status may be thus briefly summed up:

Property Rights. — The Constitution, Art. X, 'sec. 6, provides that all the property, real and personal, of any married woman acquired before or after marriage shall not be liable (as formerly) to the debts or control of the husband, but shall be “The sole and separate estate and property of such female . . . and may be devised and bequeathed and, with -the written assent of her husband, conveyed by her as if she were unmarried.”

It will thus be seen that a married woman has the absolute jiower to dispose of her property by will, and that she can convey it “with the written assent of her husband,” which does not restrict her freedom in the disposition of her personal property, as conveyances apply only to realty. , •.

The Constitution requires the privy examination of a wife only as to the conveyance of her husband’s allotted homestead. Const., Art. X, sec. 8.

The statute which requires her privy examination as to the conveyances of her husband’s property, so as to release her right of dower, is unquestionably a matter for the Legislature, which confers, and which can reduce or increase, or deprive her of dower at will. Hence, from 1784 to 1868 (during which time the common-law right of dower was repealed), the wife was not required to join in conveyances by the husband of his realty. The only debatable question has been whether the Legislature can now require the privy examination of the wife in conveyances by her of her own realty, since the Constitution guarantees that she can convey “as if she were unmarried,, with the written assent of her husband.”

Contractual Rights. — Since the Constitution of 1868 there have been successive changes by sundry statutes and by decisions of the Court towards full freedom of contract by married women to correspond with the freedom of ownership bestowed by the Constitution. The complication of our decisions was admirably summed up in a table of several pages of fine print prepared by Professor Mordecai, wbieb is set out in Vann v. Edwards, 128 N. C., 431-434, inclusive. Eor tbis “codeless myriad of precedent” tbe Martin Act, Laws 1911, ch. 109, substituted a simple statute tbat, “subject only,” tbe act says, to Rev., 2107 (wbieb retains tbe former requirements as to contracts between busband and wife), “Every married woman shall he authorized to contract and deal so as to affect her real and personal property in the same manner and with the same effect as if she were unmarried,” witb a further condition tbat "conveyances of ber real estate shall not be valid without tbe written assent of ber busband, as required by tbe Constitution, and a privy examination to execution of the same as now required.”

There is in tbis statute no requirement of tbe written assent of tbe busband, nor of tbe privy examination of tbe wife, as to any contract unless between ber and ber busband.

Tbe “Martin Act” emancipates a wife, absolutely as to all contracts, except with ber busband, as to which there must be ber privy examination and tbe approval of tbe contract by a justice of tbe peace.

Tbe requirement of privy examination is exacted as to no other contract, but is required in conveyances by the wife still in addition to tbe “written assent of tbe busband,” which alone is required by tbe Constitution.

This is the plain letter and intent of the statute, and was so held in Warren v. Dail (Hoke, J.), 170 N. C., 406, where damages were held recoverable against a married woman for breach of a contract to convey land, as the Court was unable to decree specific performance owing to the refusal of bis written assent by the busband. Tbat case, often cited since, is conclusive of the liability of the wife to damages for breach of tbis contract. To the same effect are the decisions of other States on similar statutes. Wolf v. Meyer, 76 N. J. L., 574; Davis v. Watson, 89 Mo. App., 15, and many others.

One cannot make a conveyance of land except in writing, but it has never been held that on breach of an oral contract damages cannot be recovered under wbieb the land can be sold, “because that would permit to be done indirectly what-cannot be done_ directly.” When the Legislature authorized a married woman “to contract and deal so as to affect ber real and personal property in the same manner, and witb the same effect, as if she were unmarried,” it authorized contracts for breach of which they would be liable as fully as if they bad remained unmarried. Tbe act so states. The Legislature was of opinion, evidently, that a woman did not lose ber intelligence and ber capacity to contract when she married, and in making valid ber contracts after that date it was intended that ber property, “real and personal,” should be liable for breach of the same; otherwise, instead of saying to “affect her real and personal property in tbe same manner and witb tbe same effect as if sbe were unmarried,” it would bave said “to affect ber personal property only.”

Tbe Constitution emancipated married women fully as to their property rights, save only the restriction (retained in very few States) of the husband’s assent to conveyances. . If it bad intended to extend tbis restriction to “contracts” it would bave said so. Certainly there was no restriction upon the power of the Legislature to declare married women as capable of making contracts as their single sisters or their brothers.

To what purpose should tbe Legislature enact that a married woman “can contract as if single” if sbe is not liable for breach of such contract? Who would accept such contract?

Eeversed.

Allen, J., concurs in result.

BROWN, J.,

dissenting: I agree witb tbe Court that tbe opinion of tbe majority in Warren v. Dail, 170 N. C., 406, is controlling in tbis ease.

In my dissenting opinion in Warren v. Dail (concurred in by Justice Walker), I said: “If any legal question has ever been settled by repeated decisions of tbis Court, it is tbat tbe deed or contract of a married woman charging ber real estate in tbis is a nullity unless ber husband joins and ber privy examination is taken,” citing numerous ca'ses.

It is admitted in this case that "W. E. Eoberson, tbe husband of Nannie E. Eoberson, did not give bis written assent to tbe contract to convey ber land to plaintiff. It is admitted that tbe contract cannot be specially enforced because executed by the wife alone. It is now proposed to recover damages against tbe wife for breach of ber contract and to sell ber separate'estate to pay tbe judgment. If tbis is not “whipping tbe devil around tbe stump,” I am at a loss to know what is.

I do not think the Martin Act permits, or that its author ever contemplated, that a married woman should be permitted to enter into a contract of any sort affecting ber real estate without ber husband’s consent, by virtue of which sbe may be mulcted in damages and ber property sold to satisfy tbe judgment.

My views are set out more fully and tbe authorities cited in the dissenting opinion in Warren v. Dail, and I am content simply to refer to that.

Mr. Justice Walker concurs in tbis dissent.  