The agreed statement of facts was as follows:
Martha J. Hall, Thomas J. Walker and James B. Warren, parties to a question in difference, which might be the subject of a civil action, agree upon the following facts, upon which the controversy depends, *Page 234 and submit the same to Coble, J., riding the Fifth Judicial District, as follows, to-wit:
On 11 August, 1894, Martha J. Hall, in writing, leased her farm, containing 155 1/4 acres, in Orange County, North Carolina, near University Station, adjoining B. N. Duke, Mrs. McCaulay and others, for the term of three years, to Thomas J. Walker and James B. Warren, and in exchange for the said lease of said land, said parties leased to Martha J. Hall for a like period a house and lot in Durham city, on Morgan Street, where she and her family now reside, she at once taking possession of said city lot and they taking possession of the said farm, under said contract of lease; that among other provisions of said lease was the following: "And said parties of the first part hereby agree and bind themselves and their heirs that at any time during the continuance of this contract, upon the delivery of a good and sufficient deed to them conveying to them and their heirs or assigns the land first above-mentioned as having been leased to them by said party of the second part, they will make and execute or cause to be made and executed to said party of the second part and her heirs and assigns a good and sufficient deed, with the usual covenants of warranty, conveying to her and her heirs the land (379) herein particularly described and hereby leased to her." That said Martha J. Hall is very desirous of availing herself of the above provision and of exchanging her farm for said house and lot in Durham; that her farm is worth ten or eleven hundred dollars and said house and lot is worth about the same; that the said 155 1/4 acres is her own individual and separate estate, heretofore acquired by her; that she has executed and tendered to said Thomas J. Walker and James B. Warren a deed in fee to said 155 1/4 acres, with the usual covenants of warranty, said deed dated 22 February, 1896, and has demanded of them a deed in fee to said house and lot in Durham. Said Walker and Warren decline and refuse to accept said deed, for this reason, and for this alone: said Martha J. Hall is a married woman and her husband has not joined in the execution of said deed. The facts relative to said matters are these: Martha J. Hall was deserted and abondened [abandoned] by her husband, Thomas J. Hall, five years ago; he has since said time been continuously out of the State, nor has he since then in any way contributed to her support or to that of her family, nor has she seen him or heard of him or from him.
Said Martha J. Hall contends that she has complied with her part of her contract, as provided by law (section 1832 of The Code), and that she can make a good and legal title to said land without the assent of her husband, if he be alive, and that she is entitled to have specific performance of the said contract by said Walker and Warren, and *Page 235 that she is entitled to a deed to said Durham city lot. The said Walker and Warren contend the contrary, and refuse and decline to execute a deed for said Durham city lot to her, under the circumstances.
His Honor adjudged "that section 1832 of The Code is constitutional, and that the defendants Thomas J. Walker and James B. Warren do execute and deliver to the plaintiff, Martha J. Hall, a deed (380) to the house and lot in Durham, N.C. on Morgan Street, where she now resides, with such covenants and conditions as are contained in the contract between the parties, dated 11 August, 1894, and pay the costs of this proceeding."
From this judgment Walker and Warren appealed. The Code, sec. 1832: "Every woman whose husband shall abandon her or shall maliciously turn her out of doors shall be deemed a free trader, so far as to be competent to contract and be contracted with and to bind her separate property, * * * and she shall have power to convey her personal estate and her real estate without assent of her husband."
In this controversy without action the sole question is whether the above section is constitutional. The plaintiff's husband five years ago deserted and abandoned her, and has been continuously out of the State and has not been seen or heard from by her, and he has in no way contributed to the support of herself or family.
At common law a wife and her husband could not by deed convey title to her own land, nor in any other mode, except by uniting with him in levying a fine. But our statute prescribes a more simple method, to-wit, by deed and private examination, which must be strictly according to the terms of the statute.
There is no constitutional inhibition on the power of the Legislature to declare where and how the wife may become a free trader. Article X, section 6, was not intended to disable, but to protect her.
In Troughton v. Hill, 3 N.C. 406, it was held that when the husband became an alien the wife became a feme sole for (381) the purpose of contracting, and might acquire and transfer property. Chancellor Kent, referring to this subject, said: "Though the husband be not an alien, yet if he deserts his wife and resides abroad permanently the necessity that the wife should be competent to obtain credit and acquire and recover property and act as a feme sole exists in full force," and that the "distinction between husbands who are aliens and who are not aliens cannot long be maintained in *Page 236 practice, because there is no solid foundation in principle for the distinction." 2 Kent Com., 157. It would be a distressing rule of law if the wife, because of her husband's neglect and desertion, could not control her separate property for the support and comfort of herself and family. It is her property. Why may she not sell or exchange it?
Affirmed.
Cited: Brown v. Brown, 121 N.C. 10, 11; Bazemore v. Mountain,126 N.C. 318; Finger v. Hunter, 130 N.C. 531; Smith v. Bruton,137 N.C. 81; Vandiford v. Humphrey, 139 N.C. 67; Witty v. Barham,147 N.C. 482; Scott v. Ferguson, 152 N.C. 348; Council v. Pridgen,153 N.C. 450, 452; Bachelor v. Norris, 166 N.C. 508.