
    G. C. GRAVES v. W. J. JOHNSON et als.
    
    (Filed 11 October, 1916.)
    1. Deeds and Conveyances — Probate—Statutes—Constitutional Law.
    Revisal, sec. 952, providing a method and form for the execution of a deed by husband and wife is constitutional and valid.
    2. Same — Husband and Wife — Husband’s Acknowledgment — Wife—Separate Examination.
    A deed from a husband and wife to the former’s land must be executed in the form and according to the method prescribed by Revisal, sec. 592, and where a mortgage of the husband’s lands has been acknowledged -and properly probated as to the wife, with her separate examination taken in the statutory form, it is not sufficient to pass any of her interest or estate therein unless the acknowledgment thereof of her husband has also been duly taken and the deed regularly probated as to both in accordance with the statute.
    Clark, C. J., dissenting.
    Crvix, aotioN tried before Devin, J., at October Term, 1915, of Lee.
    Tbis is an action to foreclose a mortgage and to determine tbe right in certain lands as between first and second mortgagees.
    
      D. N. Black was tbe owner of tbe land, and on 81 November, 1909, be and bis wife, Sarab J. Black, delivered to tbe plaintiff a mortgage conveying said land to secure a debt of $281 due tbe plaintiff. Said mortgage was signed by tbe busband and wife. It bas never been acknowledged by tbe busband or otherwise probated as to him, but it bas been acknowledged by tbe wife and her private examination taken, and it was placed on tbe records in the office of tbe register* of deeds on 10 December, 1909.
    On 5 October, 1906, tbe said Black and wife executed a mortgage conveying said land to tbe defendant Johnson, to secure a debt of $300 due him, which was duly probated and was duly registered on 14 July, 1910.
    It is agreed by counsel, on these facts, -that tbe only question to be decided in this cause is whether or not tbe mortgage to W. J. Johnson constitutes a lien on all interest in said land prior to that of tbe plaintiff ; that is to say, tbe defendant ~W. J. Jobnson contends that inasmuch as tbe mortgage deed to tbe plaintiff was not probated as to D. N. Black,, tbe dower interest of Sarab J. Black did not pass by virtue of said mortgage to tbe plaintiff; whereas tbe said plaintiff, admitting that tbe interest of D. N. Black did not pass by virtue of said mortgage, contends that the dower interest of the said Sarab J. Black is vested in him, tbe plaintiff, by virtue of said mortgage.
    Judgment was rendered in favor of the plaintiff, condemning tbe dower interest of Sarab J. Black to be sold, and tbe defendant excepted and appealed.
    
      No counsel for plaintiff.
    
    
      Shaw & McLean and Sinclair, Dye & Ray for defendant.
    
   AltjsN, J.

Tbe statute in force when tbe mortgage to tbe plaintiff was executed (Eevisal, see. 952) provided that it sbould.be signed by the busband and tbe wife; that it should be duly acknowledged by both, and that tbe private examination of tbe wife should be duly taken in order to affect tbe estate, right, or title of tbe wife; and while tbe Constitution, Art. X, sec. 6, says that tbe real and personal property of a married woman “may be devised and bequeathed, and, with the written assent of her busband, conveyed by her as if she were unmarried,” it bas been held that the General Assembly may prescribe tbe form in which tbe assent of tbe husband shall be evidenced, and that these forms are material and must be complied with.

The case of McGlennery v. Miller, 90 N. C., 218, is almost directly in point. In that case tbe husband and wife signed tbe deed, the private examination of the wife was duly taken in 1852 and proof of the execution of tbe deed as to tbe busband was made in 1857 by a subscribing witness. It was held that the deed did not convey the title of the wife, and the Court says: “It is contemplated and required by the statute that the deed shall be first acknowledged by the husband and wife, and that her privy examination shall be taken afterwards; or if, for any of the causes specified in the statute, this cannot be done, then, first, the husband must acknowledge the execution of the deed, or it must be proved as to him by witnesses before a judge or the county court, and then, upon suggestion to the judge or county court, as directed by the statute, the commission may go out to take the acknowledgment and privy examination of the wife.

“This is the order of acknowledgment of the execution of a deed by husband and wife provided by the terms of the statute, and this order is regarded as material, and' of the substance of the execution of such a deed. The leading purpose of the statute, it is true, was to facilitate alienations by married women, but it was likewise intended to protect them against the undue influence of their husbands. Hence the privy examination; thisi was to take place after the acknowledgment of the signing of the deed, apart from the husband, in the presence of the examining officer where the wife was supposed to feel free to express herself under the examination as to her will and desire in respect to the deed. It was intended, also, that the husband should first acknowledge the execution of the deed, to the end it appears that the wife signed the same with his knowledge and consent. She is to be protected by him as well as by the law. This view of the statute is fully warranted by its terms and purpose, and it has been so repeatedly- and uniformly construed. Burgess v. Wilson, 2 Dev., 309; Pierce v. Wanett, 10 Ired., 446; Malloy v. Bruden, 88 N. C., 305.”

Again, in Ferguson v. Kinsland, 93 N. C., 339, the Court held that the requirement that the deed should be jointly executed by the husband and wife must be complied with, and the Court considers and answers the constitutional objection as follows: “The only point made by the appellant’s counsel is that the Constitution, Art. S, sec. 6, which secures to a married woman all the property acquired previous to and since her márriage as her sole and separate estate, free from her husband’s debts, and confers upon her power to devise and bequeath, and, with her husband’s written consent, to convey it as if she were unmarried, sanctions this mode. But it is for the General Assembly to provide the method by which- this right may be exercised, as it has done heretofore when her real estate was not less her own, and when she was permitted to convey it only by observing a prescribed form. The requirement that the husband should execute the same deed with his wife was to afford her his protection against the wiles and insidious arts of others, while her separate and private examination was to secure her against coercion and undue influence from him. These have been deemed prudent safeguards to insure freedom of violation and action on her part when sbe is disposing of ber real property, and these are none the less necessary now, when she retains her full real and personal estate. The statute in force when the deed was made comprehends her sole and separate estate in land, retained under the Constitution, as well as that she held before, after entering into the marriage relation. It_ no more abridges her rights of property, and is but a legislative direction as to the manner in which it may be exercised. The consent necessary under the Constitution must be given in the manner provided by law, and whether by the husband’s writing in the deed or by a separate writing as attempted here, it equally restricts her capacity of disposal, and is alike exposed to the imputation of being in conflict with the Constitution.”

The statute has been changed since these decisions to permit the acknowledgment of the husband to be taken after that of the wife and before a different officer (Revisal, sec. 953), but section 952 still requires the acknowledgment of the husband or proof of his execution of the deed to pass the title or interest of the wife; and the principle announced, that the General Assembly has power to prescribe the form in which the assent of the husband to the execution of a deed by the wife shall be evidenced, is unimparied, and was fully recognized in Warren v. Dail, 170 N. C., 409.

The case of Southerland v. Hunter, 93 N. C., 310, which has been approved on this point in Lineherger v. Tidwell, 104 N. C., 511, and in Slocomb v. Ray, 123 N. C., 574, construes section 1256 of The Code (1883), now Revisal, sec. 952; and it is there held that a deed signed by the husband, but not proved as to him, was ineffectual to pass the title of the wife, although her acknowledgment and private examination were taken, which is the precise question now before us.

The fact that the General Assembly saw fit- to change the statute requiring proof as to the husband and wife to be taken before the same officer, and that proof as to the husband should precede proof as to the wife, after the decisions of McGlennery v. Miller and Ferguson v. Kinsland, and left the statute unchanged as to the requirement that the deed must be proved as to the husband to pass the title or interest of the wife, after the decision in Southerland v. Hunter, furnishes the strongest possible evidence that the General Assembly thought the latter a safeguard which ought to be retained.

The case of Jennings v. Hinton, 126 N. C., 48, does not deal with the statutes prescribing the forms for conveying the real estate of a married woman, as there was no land involved in the action,'and the question for decision was the validity of an assignment of an insurance policy.

It follows, therefore, that as the mortgage under which the plaintiff claims was not acknowledged by the husband, nor proof made as to his execution thereof, it does not operate to pass the dower interest of. the wife, and that there was error in the judgment.

Reversed.

Clark, O. J.,

dissenting: D. N. Black and Sarah J., his wife, joined in a conveyance of land which belonged to the husband, to secure a debt of the wife to the plaintiff. This mortgage was not probated as to D. N. Black, but was duly probated as to the wife, whose privy examination was taken, and registered. Thereafter D. N. Black died. No dower has been allotted or demanded.

The court, held that the mortgage conveyed the dower interest of Sarah J. Black in the lands in controversy to the plaintiff, and enjoined the defendant, a subsequent mortgagee, from selling such dower interest during the lifetime of the widow.

There is no question as to the due execution of the mortgage by Sarah J. Black. The proof of the deed as registered necessarily included the signing by the husband, as shown on its face, but no delivery by him as his deed. There, is no claim that the interest of the husband passed. It has been often held that when the conveyance is executed by the husband and not by the wife, or defectively executed by her, that the conveyance is good as to the husband. Here, where the conveyance was duly and fully executed, probated, and registered as to the wife “with the written assent of the husband” proven as part of the deed, for the same reason it passes the wife’s dower interest, and she is estopped by her deed to assert title against the mortgagee.

The mortgage on its face (and it is duly probated and registered) shows that the husband gave his written assent to his wife joining in the conveyance. The statute does not require the husband’s privy examination, and it has been often held that his signature appearing to the conveyance, which is duly probated, is a sufficient “written assent of the husband.” Jennings v. Hinton, 126 N. C., 48. In that case the husband signed the deed only as a witness, and it was held that this was a sufficient assent. This case cites Farthing v. Shields, 106 N. C., '289, which held that the husband “signing his name to the paper was a writing, and his assent would be inferred.” It also cites Jones v. Craigmiles, 114 N. C., 613, and Bates v. Sultan, 117 N. C., 94. There are other cases to the same effect.

In McGlennery v. Miller, 90 N. C., 215 (in 1884), and Ferguson v. Kinsland, 93 N. C., 337, it was held that a deed must be probated as to the wife after its execution had been proven as to the husband. This was changed by the act of 1899, now Revisal, 953, which provides that the deed may be acknowledged by tbe wife at a different time and place and- before a different officer from tbe acknowledgment by tbe bus-band, and in taking tbe probate of sucb instruments executed by tbe busband and wife, including tbe private examination of tbe wife, it shall not be material whether tbe execution of tbe instrument was proven as to, or acknowledged by, tbe busband before or after tbe acknowledgment and private examination of bis wife.”

This mortgage, therefore, being duly and legally probated as to tbe wife, tbe failure to have it probated as to tbe busband and recorded before registration of tbe second mortgage makes it invalid only as a conveyance by him. It is complete as a conveyance by tbe wife.

Tbe Constitution,, Art. X, sec. 6, provides that tbe wife may convey her realty “with tbe written assent of her busband as if she were unmarried.”

Eevisal, 952, it is true, does provide in tbe first part that tbe conveyance must be executed by tbe married woman and ber busband and due proof and acknowledgment must be made as to tbe busband and also by tbe wife with ber privy examination (wbicb was bad here). This part of tbe statute was referring to a complete conveyance by botb. for tbe second paragraph of tbe section provides: “Any conveyance . . . executed by any married woman in tbe manner by this chapter provided [wbicb was done], and executed by ber busband also, shall be valid.” It was executed by him, though not proven as bis conveyance. It certainly was not intended by this section to repeal tbe provision of tbe Constitution wbicb authorized a wife to convey land “with tbe written assent of ber busband.” At most it meant only that ber privy examination was still requisite. Whether that requirement is constitutional or not does not arise here, for ber privy examination was duly taken. There being also tbe written assent of ber busband, as is shown by tbe deed itself as proven and recorded, tbe conveyance is complete and valid as tbe act of tbe wife. In Jennings v. Hinton, supra, tbe busband signing tbe deed as a witness was held sufficient as bis “written assent,” though, of course, such deed was not, and could not be, probated as bis deed. Tbe Constitution does not require that bo should join in tbe deed, but requires only bis written assent, wbicb duly appears. In Hatcher v. Hatcher, 127 N. C., 200, there was no signing to show tbe “written assent of tbe busband.”

In this mortgage tbe words used by tbe wife were a conveyance, absolute in its terms, and not a mere release of ber dower interest. Whether, if it bad been in tbe latter form, it would have been as effective, the judgment of Devin, J., in this case is in accordance with tbe Constitution and tbe precedents.

Tbe decisions in Southerland v. Hunter, 93 N. C., 310 (1885); Lineberger v. Tidwell, 104 N. C., 511 (1889); and Slocumb v. Ray, 123 N. C., 574 (1889), were all prior to chapter 235, Laws 1899, now Revisal, 953, which was passed for the very purpose of correcting those decisions. Previous statutes had been passed curing the first two of those decisions as to past conveyances, but after the decision in Slocumb v. Ray, the act of 1899 was passed, and soon thereafter Jennings v. Hinton, 126 N. C., 48 (Feb., 1900), held the signature of the husband as a witness to a deed was a sufficient “written assent.” Revisal, 953, was enacted thirty years after Revisal, 952, and in the light of the above decisions must be taken as limiting Revisal, 952, as both must be construed together.

The privy examination in this case recites and probates the joinder of the husband, which is therefore proven as a written assent, though his execution of the deed as his conveyance is not.

It has been forty-eight years — nearly half a’ century — since the Constitution guaranteed to every married woman that her property rights should “remain as if she had remained single,” save only that her husband should give his written assent to her conveyances of realty. In this case the wife conveyed her dower interest by apt and appropriate words in a deed with the written assent of her husband, all duly proven, probated, and registered in accordance with the constitutional requirement, Revisal, 953, and the decision in Jennings v. Hinton, supra. There is also superadded her privy examination, which is not required by the Constitution. What more could the grantee require of her?  