An examination of the brief filed by counsel (254) for the appellant in Hardy v. Holly, 84 N.C. 661, will show that the argument in that case fully covered the ground upon which we are asked to review the decision of this Court (Kirby v. Boyette,116 N.C. 165), and with it to overrule a line of cases extending over fifteen years past. The exhaustive brief of the learned counsel who appeared in that case, and the questions raised by the appeal, invited and demanded at that juncture a review of the previous cases in which the doctrine of the respective rights and powers of (255) married women and trustees, holding for their sole and separate use, in selling and disposing of the separate property. The learned Justice (Ruffin) who delivered the opinion started out in the discussion by stating the English doctrine, that a married woman was regarded as a feme sole as to any estate conveyed to her separate use, except in so far as she was restrained by the positive prohibition in the instrument creating the estate.
After a cursory review of the previous cases in our reports bearing upon the subject, the Court said, in Hardy v. Holly, supra: "When the question next arose, in Knox v. Jordan, 59 N.C. 175, the Court, as then constituted, without division and without any sort of reservation, repudiated the doctrine of the English courts and adopted that which prevails in most of the courts of the States; and whether this was wisely done or not, that case has been too often approved, and doubtless too often acted upon in matters intimately connected with the interest and comfort of families, to admit of its correctness being now called in question." The Court then proceeded to crystallize the law as they understood it to have been declared in Knox v. Jordan. It is insisted that this statement of the rule, established by previous decisions, was a dictum as well as a departure from the doctrine theretofore laid down by our own and other courts of this *Page 150 country. It may aid us in disposing of this contention to reproduce the rule which it is insisted was a dictum, followed by the language used in Knox v. Jordon, cited as authority to sustain it. In Hardy v.Holly the court said: "We must take it to be the settled law of this State, at least, that a married woman, as to her separate property, is to be deemed a feme sole only to the extent of the power expressly given her in the deed of settlement. Her power of disposition is not (256) absolute, but limited to the mode and manner pointed out in the instrument, and when that is silent she is powerless." The same principle was stated by Manly, J., under the inspiration of a Court constituted differently, twenty-one years before, as follows: "We prefer adhering as closely as may be, consistently with decided cases, to the rule that a separate estate for the support of a married woman does not confer any faculties upon her, except those which are found in the deed of settlement, and that in all other respects she is a femecovert and subject to the usual disabilities." It is difficult to distinguish between a rule that a married woman, as to property limited to her sole and separate use, is a feme sole, except as to "faculties" or powers "found in the deed," and the proposition that her power of disposition is not absolute, but limited to the mode and manner pointed to (instead of the powers found) in the instrument creating the trust, and "when that is silent she is powerless." If the rules are plainly expressive of the very same principle as the Court, in Hardy v. Holly, held that they were, the lapse of fifteen years since its reiteration would enhance the probability that it had been too often acted upon to be disturbed, if the subject had never been since discussed. But inKemp v. Kemp, 85 N.C. Justice Ruffin, again speaking for the Court, said: "A married woman is to be deemed a feme sole as to her separate estate, only to the extent of the power conferred upon her in the deed of settlement, and if no power of disposition be given in that instrument she is altogether without such power." In Mayo v. Farrar,112 N.C. 66, the same rule was again substantially reiterated, and the Court cited 2 Pomeroy Eq. Jur., sec. 1105, where the author classifies this Court as one of those where the wife's power over the estate conveyed to a trustee for her separate use is made to (257) depend solely upon the permissive provisions of the instrument creating such estate. 2 Pomeroy, supra, note 1, p. 1651. Again, in Monroe v. Trenholm (at the same term), 112 N.C. 634, the Court laid down the rule that where land was conveyed to a trustee for the sole and separate use of a married woman she had "no power of disposition except such as is clearly given in the instrument." With the explanation that the restriction would not continue as a rule when the married woman should become discovert, the opinion in the case *Page 151 last mentioned was affirmed on the rehearing (114 N.C. 590). The doctrine of Hardy v. Holly was also approved in Broughton v. Lane,113 N.C. 16. There was, therefore, a line of decisions sustaining the principle governing this case, which extended over thirty-five years, when it was first heard. If it were conceded that every opinion sinceKnox v. Jordan, supra, in so far as it incorporated this rule restricting the powers of married women, was a dictum, still that case would remain with its plain and forcible announcement of the solution of a vexed question which the Court had, upon careful consideration, promulgated as the law. Can this Court, consistently with its constitutional obligation to adhere to decisions which may have become a rule of property, alter or modify the principle upon which the people of the State have been invited to invest their money for so long a period? The proposition upon which the contention of the petitioner to rehear is based is unsound in law, and cannot be acted upon without grave danger to the rights acquired under a well-founded confidence in the stability of judicial decisions. The theory is that if a Court, in the elucidation of the questions involved in any given controversy, finds it necessary to crystallize the law upon the subject into a clean-cut rule, which will prove a guide to the profession, such rule (258) may be abrogated, after it has been acted on for over thirty years, because the case in hand might have been decided by stating the principle governing the particular case, instead of the broader one, founded upon the reason of the thing, but decisive also of other cases as well as that at bar. To lend our sanction to such a view of the law would be to imperil the security of many principles upon which titles have been acquired under the advice of the most competent counsel. A due regard for vested rights necessarily constrains a court to reject such a theory as little short of revolutionary.
It is true that the Court of Appeals of New York is among the appellate tribunals of this country which have adopted the English doctrine. Counsel called attention to the fact that the case of Methodist Church v. Jacques, 3 Johnson Ch., 78, in which Chancellor Kent held that a married woman must, as to separate property settled on her, be considered a feme sole only to the extent of the power expressly given her in the marriage settlement, was subsequently overruled by the higher Court. That fact was noticed in Hardyv. Holly, supra, and the Court expressed its approval of the doctrine, as announced by the learned chancellor, and its dissent from the views of the higher Court.
The suggestion that the constitutional provision (Art. X, sec. 6) was intended to abrogate the right to restrict the wife's power of alienation by deed of settlement is not a new question. The brief of appellant's counsel, in Hardy v. Holly, shows the contention of the *Page 152 defendants there to have been that the Constitution of 1868, Art. X, sec. 6, substituted the husband in the place of the trustee in all marriage settlements so far as to establish it as the universal rule that (259) the wife could, with his assent, make a good title to realty, regardless of the wishes of a trustee. The contention was that the Constitution restricted her right of disposition in no way beyond the requirement that the assent of the husband should be given, and that any attempt to impose further limitations by deed upon her power of alienation was an invasion of her constitutional rights. The court uttered no dictum in answering the contention, as it did, when it announced its holding to be not only that the constitution was not to be construed as a universal enabling act for the benefit of married women, but that in all cases where the legal estate was vested in a trustee to hold for the sole and separate use of a feme covert the intent of the grantor would prevail, and such deeds would be construed as indicative of an intention to protect her against the solicitations of a possibly imprudent husband by placing her under common-law disabilities, except in so far as the instrument emancipated her from them. Knox v. Jordan, supra. A principle which a court finds it necessary to announce in order to meet the contentions of an appellant and to constitute the basis of one of the stages by which it reaches the opposite conclusion is in no sense a dictum. The application of it to the case in hand does not destroy its weight as the bed rock upon which the adjudication rests. No matter what would be the view of this Court, were the matter now before it res nova, it cannot disturb a rule of property announced fifteen years ago and declared to be but an affirmance of the principle laid down over twenty years before. Wills Res Adjudicata, secs. 598-603.
Some time after the enactment of the statute of uses the courts of England held that it did not transfer the possession to the use, where the trustee was charged with a special duty, such as paying over the rents, which could not be performed if he were deprived of the legal estate. When the courts of England subsequently held that a (260) married woman, to whose sole and separate use an estate had been limited, was to be deemed a feme sole, except in so far as her power to do so was restricted in the deed of settlement, it followed, of course, under such a theory, that in the absence of restrictions the legal estate was transferred by the operation of the statute. The English construction of such deeds was based upon the idea that if the grantor intended to restrict her powers he would give expression to his purpose in the deed. The American courts, which have followed the lead of the English tribunals, have proceeded upon the same rule for ascertaining the intent. But in Knox v. Jordan, 58 N.C. at *Page 153 p. 176, the Court finally settled down upon and adopted exactly the opposite theory as the true exposition of the law. After Harris v. Harris,42 N.C. 111, had been in effect overruled, the rule which was afterwards gathered from that opinion by the judge who wrote Hardy v. Holly was upheld, upon the ground that it was not willing "to depart further from the principles of the common law in relation to the disabilities of married women, and run into the labyrinth of difficulties which allows the doctrine whereby they are treated as femes sole."
The difference in the two lines of authorities grows out of the fact that deeds of settlement are interpreted under different rules of construction. The theory upon which this Court has heretofore acted is that grants, like statutes, will be construed strictly in determining whether they abrogate a common-law rule. The idea present in the mind of this Court was that, while the right of the grantor to enlarge the powers of a feme covert was conceded, his intent to do so must be plainly expressed, in order to prove operative in relieving a woman from her common-law disability. Chancellor Kent said, in MethodistChurch v. Jacques, supra, at p. 113: "Her (the wife's) incapacity is general, and the exception is to be taken strictly (261) and to be shown in every case, because it is against the general policy and immemorial doctrine of the law. These very settlements are intended to protect her weakness against her husband's power, and her maintenance against his dissipation. It is a protection which this Court allows her to assume or her friends to give, and it ought not to be rendered illusory."
It is like putting new cloth upon old garments to attempt to fit the English doctrine, or any rule that grows out of it as a logical sequence, to the principle adopted here. If, as Chancellor Kent says, supra, "the very settlements are intended to protect her weakness against her husband's power, and her maintenance against his dissipation," it must follow that the duty of shielding her from such evils devolves upon him, ipso facto, by the limitation of an estate to him as trustee for the sole and separate use of a feme covert. If the special duty and authority of protecting her by the exercise of the veto power upon attempted sales by her with the joinder of the husband are imposed upon him by the grantor, then it follows that the statute of uses does not transmit the legal estate and thereby disable the trustee to give the contemplated protection, and if it does not pass out of him by force of the statute it can only pass by his joinder in a deed. It is not sufficient to cite authorities from the English and other courts where it is held that no special duty devolves upon the trustee outside of what is specifically mentioned in the deed of settlement, for under that theory, of course, the trustee is charged with no special *Page 154 trust, and the legal estate passes to the feme covert. The rule that where, in a conveyance to uses, the grantee is charged with a special duty in reference to the property, a trust is created, is universal, whatever may be the differences in its application. But when (262) we hold that a special trust is created by certain language, and the English courts or others in this country hold that it gives rise only to a naked trust, it must follow that under one theory the legal estate is put into the trustee for the protection of thecestui que trust, while under the English doctrine it is transmitted by the statute.
"The same considerations (says Dr. Minor, 2 Inst., 187, 213) which, before the statute, induced the courts of equity to decline to interfere with the possession of the person seized, namely, because such possession was requisite for the purposes of the transaction, led to the construction that special trusts were not executed by the statute, but remained, as before, equitable estates only."
Before the passage of 27 Hen. VIII. the cestui que use could as a general rule invoke the aid of the Ecclesiastical court to compel a recusant feoffee to uses to convey the legal estate to him or to any other person he might designate [2 Minor's Inst., 211 (185)]; but where the conveyance to the cestui que trust would disable the feoffee from performing or prevent the performance of a duty which it was intended by the feoffor, as evidenced by the very terms of the declaration made contemporaneously with the livery, should devolve upon the feoffee, the court of equity refused to aid in defeating instead of carrying out the intention of the feoffor. Washburn, in explaining the nature of indirect trusts arising from the failure of the statute to execute, says: "Thus, for illustration, a grant or devise to A in trust for B, or to permit B to take rents and profits, would be an executed trust in B, unless B was a feme covert, when, in order to carry out the grantor's or devisor's intent, it would be a trust or use not executed." 2 Wn. Real Prop., 488 (163). Acting upon the rule laid down in Knox v. Jordan, that a feme covert was emancipated from her (263) common-law disabilities only to the extent that the deed of settlement expressly clothed her with greater power, and upon the doctrine of Chancellor Kent, approved in Hardy v. Holly, that the conveyance to the sole and separate use of a married woman, ex vitermini, implied a purpose on the part of the grantor to protect her against the solicitations of a thriftless husband, this Court could not have reached any other conclusion than that the transmission of the possession to the wife, where it vested in the trustee for a special purpose, would tend to defeat the express object of the grantor, and that it would be divested only by a conveyance in which he and the cestui *Page 155 que trust should join. The statute of uses, substituted for 27 Hen. VIII. (The Code, sec. 1330), provides that the possession of the bargainee shall be transferred to the bargainee as perfectly as if the bargainee "had been enfeoffed at common law with the livery of seizin of the land intended to be conveyed," etc. The case ofWilder v. Ireland, 53 N.C. 85, was one in which the distinction, which was familiar to those who enjoyed the privilege of his instruction, was sharply drawn by Chief Justice Pearson as to the operation of this statute in transferring the legal estate, where the conveyance was for the use of a feme covert. There the Court held that where a devise was to a trustee, "to the use and benefit of my daughter, E.," for life, the statute executed the use by transferring the legal estate to her for life. But in the discussion the learned Chief Justice, for the Court, said "Where one person is seized to the use of another, the statute carries the legal estate to the person having the use. But three classes of cases are made exceptions to its operations, i. e., (1) where a use is limited on a use, (2) where a trustee is not seized but only possessed of a chattel interest, and (3) where the purpose of the trust make it necessary for the legal estate and the use to remain separate, as in the case of land conveyed for the separate use and maintenance of a married woman. This is familiar learning. (264) See Black. Com." If the statute executed the use, though the husband and wife were deemed to be jointly seized, the rights of the wife were so merged by the coverture that the husband alone was at common law entitled to the rents and profits. 1 Wn., supra, star p. 276. The same author (star p. 278) adverts to the fact that in some of the States the English rules of chancery are adopted, while "in others the wife is not permitted to go beyond the power expressly given by the deed of settlement." In a note, South Carolina, Mississippi, Tennessee, Virginia and Rhode Island are enumerated along with Pennsylvania as among the States adhering to the American rule, though he failed to mention the fact which Pomeroy notices that North Carolina belongs to the same class.
Upon the direct authorities cited from our own reports, as well as upon the fundamental principles as interpreted by this Court, we conclude:
1. That where a woman acquires the title to land, before or after marriage, without any qualification of or restriction upon her right of alienation, she can dispose of it during her lifetime only in the way pointed out in the Constitution (Art. X, sec. 6).
2. That the Constitution imposes no limitation upon the right of a grantor or devisor to restrict or enlarge, by the terms of the instrument through which title passes, her jus disponendi. *Page 156
3. That the words "for the sole and separate use," or equivalent language qualifying the estate of a trustee for a married woman, must be construed as manifesting the intent on the part of the grantor to limit her right of alienation to the mode and manner expressly (265) provided in the instrument by which the estate is created. In the former opinion the case of Norris v. Luther was referred to, and some obvious distinctions between the facts there and in other authorities cited were mentioned. But there was a broad intimation that, in so far as the opinion in that case could be construed as antagonizing the doctrine of Knox v. Jordan, Hardy v. Holly and the later adjudications, it must be considered as modified. The petition is
Dismissed.
Cited: Narron v. R. R., 122 N.C. 859; Perkins v. Brinkley, 133 N.C. 160;Cameron v. Hicks, 141 N.C. 23; Hill v. R. R., 143 N.C. 576; Owensv. Wright, 161 N.C. 135; Threadgill v. Wadesboro, 170 N.C. 644.