The defendants appealed from the judgment below. On the 24th day of April, 1877, the plaintiff, owning the lot of land described in his complaint, entered into an agreement with the feme defendant, wife of the other defendant, for the sale and conveyance to her of one undivided moiety thereof for the consideration of $2,190.38, and executed his bond to make title when the same was paid. He further contracted to cause to be transferred for her use a judgment recovered by the Commercial National Bank against the defendant, her husband, principal debtor and himself as surety, for about $1,800, which had been assigned to a trustee for the plaintiff's benefit. The feme defendant at the same time signed and delivered to the plaintiff her promissory note for the purchase money, to be paid on the 1st day of January of the next year. The defendants entered into possession and have since occupied the premises under said contract, and on the 3rd day of November, 1879, paid the plaintiff $500 in part of the purchase money. The residue remains still due. The plaintiff is prepared and offers to comply with all the stipulations assumed by him, on payment of the remainder of the money. These facts are alleged and admitted, and there is in the pleadings no controverted statement admitting an issue and requiring the intervention of a jury to determine it.
The plaintiff's right to relief in any form is resisted in the argument before us, on the ground of a want of capacity in the feme covert to enter into a binding contract, and on account of the omission of an averment, to be sustained by *Page 448 proof, of the plaintiff's tender of a deed, before the commencement of the suit. But the defense of coverture is not set up in the answer, nor the invalidity of the contract for that reason relied on, but on the contrary, recognized in the partial payment made under it. It is true her obligation may be repudiated, when not entered into according to the requirements and under the conditions prescribed under the statute, the disabilities of coverture remaining as before the law which secures to married women their separate estate, yet her election to do so ought to be manifested in her answer to the complaint. The obligations arising out of the agreement are mutual, and unless binding upon both, are binding upon neither of the parties. The feme defendant cannot hold the land without payment of the purchase money, the condition on which the estate was to be conveyed. The contract of the plaintiff may be enforced, and he has a plain right to have the defendant's election to annual or abide by their mutual and concurrent agreement, as an entirety and not severable in parts.
"Married women may take by purchase, unless their husband's dissent, "says TILGHMAN, C. J., in Baxter v. Smith, 6 Bin., 427.
"If a contract be made with the wife on good consideration, during the marriage, the husband may take advantage of it, and recover in an action on it, in which he may join his wife as co-plaintiff. And if he die without taking any such step, the right to sue upon it will survive to the wife." Smith Contr., 221. The same principle is asserted by PARK, B, in Gaters v.Modely, 6 M. W., 432, and fully recognized in Kornegay v. Carroway, 2 Dev. Eq., 403, where the efficacy of a deed conveying a remainder after the life estate in shares to the wife, was upheld.
The plaintiff, however, does not here demand a judgment against the feme for the full amount of her note, as a binding contract, but that the trusts growing out the agreement, *Page 449 may be closed, and if the defendants refuse to pay what remains due under the contract of sale, the land itself may be sold, and the proceeds applied thereto. This equity is clear and incontestable, and this relief only, is afforded in the judgment appealed from.
The objection based upon the failure to tender performance, is untenable in itself, and would be rendered so by the defendant's resistance to the action. Oliver v. Dix, 1 Dev. Bat. Eq., 605.
The judgment must be modified, however, so as to require the sale, if made, to be reported for confirmation, the proper practice prescribed inMebane v. Mebane, 80 N.C. 34, and in other respects must be confirmed.
This will be certified for further action in the court below
PER CURIAM. Modified and affirmed.