Harvey v. Johnson

Clabe, C. J.,

dissenting in pari. I concur with the opinion that the bond sued on is a valid indebtedness against the feme defendant, and that the fact that her personal property may not exceed $500 cannot be set up as a defense, because the judgment against her will he enforced by an execution just as a judgment against any one else, and the personal property exemption must be claimed by her against the execution and not as a defense to the action. A manned woman’s contract no more creates a lien on her property, unless it includes a mortgage or a conveyance, than does a contract by any one else. Bates v. Sultan, 117 N. C., 100. The Code, sec. 1826, permits a married woman to make any contract for the payment of which her real or personal property shall be liable if made with the written consent of her husband, except in three instances there stated, in which she may contract without his consent. Section 1828 prescribes a method by which she can contract in all cases without her husband’s assent, and section 1832 prescribes what conduct of her husband shall have the effect to authorize her to contract in all cases without his assent. Cromer v. Marsha, 122 N. C., 563; Levi v. Marsha, 122 N. C., 565, in which cases judgment before a justice of the peace was sustained. Here the contract is for money borrowed with the assent of the husband. The action is for a plain judgment to recover $110.63 and nothing more. Always *362and everywhere semper ubique, an action on contract to recover money loaned is at law. The Constitution says all actions on contract, where the sum is less than $200, shall be brought before a justice of the peace, and abolishes the distinction between law and enuity as a question of jurisdiction. In Dougherty v. Sprinkle, 88 N. C., 300, where the plaintiff sued a married woman to recover less than $200 for work done on her premises, it is true the Court held that the justice did not have jurisdiction, but the General Assembly has since enacted (1901, ch. 617) that when a building is built or repaired on a married woman’s land “with her consent or procurement * * * she shall be deemed to have contracted for such improvements.” The statute making it a contract, whether express or implied, this Court held that the married woman (if the amount was under $200) must be sued before a justice of the peace. Finger v. Hunter, 130 N. C., 532. If the case of Dougherty v. Sprinkle were now before the Court, by virtue of the act of 1901 and the last decision of this Court, it would necessarily be held that Dough-erty was entitled to his judgment before a justice of the peace, for the facts in Finger v. Hunter are exactly the same. With the statutory repeal of Dougherty v. Sprinkle, all cases built upon it disappear with it. The act was passed to change the law. The Legislature could do no more than it has done. If it had enacted that in such case a justice of the peace should (or should not) have jurisdiction, it could not confer or refuse jurisdiction, but when the Legislature said that a married woman could make such “contract” the Constitution fixed the jurisdiction in the justice of the peace when the amount is less than $200. It is so held in Finger v. Hunter, supra.

If a married woman is liable to a judgment less than $200 before a justice of the peace on an implied contract, under the act of 1901, the jurisdiction is necessarily the same upon *363an express contract which is made as authorized by The Code, section 1826. Dougherty v. Sprinkle lays down the broad principle, top of page 302; “At la.w a feme covert is incapable of making any contract of anY sort.” That is the key to it. But the Legislature authorized married women to make contracts (The Code, sec. 1828), and judgments on such contracts against them before a justice of the peace have always been held valid. It authorized contracts by them under section 1832, and it has always been held that justices of the peace could give judgments against them upon contracts thereunder, if for less than $200. The act of 1901, ch. 617, validated contracts, express or implied, by married women for repairs or buildings on their land, and this Court held that in such judgment for less than $200 must be given by a justice of the peace. This contract is equally aiithorized by section 1826. Dougherty v. Sprinkle Avas wrong in its premises, for nothing in the Constitution prohibits the Legislature from authorizing married women to contract, and this Court has recommended that it confer such authority without restriction (Bank v. Howell, 118 N. C., 273), and the General Assembly has authorized married women to contract, sometimes requiring the husband’s assent and sometimes not, but a contract authorized by statute is necessarily at law. Ilere there is no equity to assert. There is no lien to foreclose, but merely a valid contract (to pay money borrowed) binding on her. The Court so holds in this case. The money was loaned to her and she is the real debtor, as evidenced by her bond with her husband’s written assent. If she were sued on an ante-nuptial contract for $170.63 (the amount in this case), the justice of the peace would have jurisdiction; Neville v. Pope, 95 N. C., 346; Hodges v. Hill, 105 N. C., 130; and even when part of the services or goods were oN tained after marriage. Beville v. Cox, 107 N. C., 175; 11 L. R. A., 274. She can sue alone for tort; Strother v. Rail*364road, 123 N. C., 197; or for breach of contract; Shular v. Milsaps, 71 N. C., 297; and therefore can make an enforcible contract.

Here the contract, unlike that in Dougherty v. Sprinkle, is held valid by the Cburt. The statute (The Code, sec. 178) provides that a married woman may be sued. The Code, sec. 1826, authorizes her to make this contract, and it is held a valid contract. The Constitution, says actions on contracts less than $200 are within the jurisdiction of a justice of the peace. The Constitution makes no exception. We have no right to create an exception. As Daniel, J., well says: “Judges cannot be wiser than the law.” Even if we could write such exception to the jurisdiction of justices of the peace into the Constitution, what benefit can accrue therer from. ? Why not follow the Constitution ?

In a less polite age the Judges held that a husband had a right to chastise his wife, and that while a single woman (if of age) was competent to manage her own business, she suddenly became incompetent and non sui juris upon marriage, and as suddenly resumed her intelligence again upon becoming a widow. The Constitution of 1868 did away with this inexplicable and unaccountable condition of things by expressly making married women sui juris, without any restriction on their property rights save requiring the husband’s assent to conveyances by them. Some Judges, under the influence of preconceived ideas as to the universal incompetence of married women, failed to give effect to this ordinance of emancipation as to them,, by reason of which, and some others subsequently, many decisions as to married women in this State are in conflict with each other and in flat contradiction to the Constitution. The resultant confusion is set out in Vann v. Edwards, 128 N. C., 431-434, in a summary of the decisons by Professor Mordecai in three pages of fine, closely-printed type. There is no better time to return to the plain *365letter of the Constitution, which it is our duty to follow, than now. The old Judge-made law, that a husband had a right to chastise his wife, was reiterated by this Court again and again, till at last Settle in State v. Oliver, 70 N. C., 60, exploded the fiction that the wife as to her person was assimilated to the condition of a child, non sui juris, and subject to chastisement as such, by saying, “the Courts have advanced from that barbarism.” See 128 N. C., 428. In like manner the Constitution of 1868 repealed the former ruling of the Courts that as to her property rights a married woman was assimilated to the condition of a child, non sui juris, by providing as to her property she could “remain as if unmarried” save that as to her conveyances the assent of the husband should still be necessary.

In England and all her colonies and in nearly every State of this Union, by statute or constitutional provision, the emancipation of married women has been decreed, and in many instances even without the single restriction imposed by our Constitution. In this State alone have the decisions of the Courts failed to be in accord with such action of the law-making power. In this case the contract sued on having-been held valid, the Constitution fixed the jurisdiction in the justice of the peace, and in my judgment this action brought in the Superior Court for the recovery of $170.63 was properly dismissed by the Judge below, though not for the reason he gave. The jurisdiction to recover upon this bond is held to be in the justice of the peace as to the co-obligors. There is nothing in the Constitution or statute which indicates that recovery upon a valid obligation of the feme defendant is not enforcible in the same jurisdiction. Neville v. Pope and Finger v. Hunter, supra. There is no reason that when a married woman borrows ten dollars for her own use she should be suable only in the Superior Court, with the increased costs and delay, while if the husband borrows $200, recovery can *366be had before a justice of the peace. He is a party defendant in both actions.

No statute, with the utmost research, has yet been found which authorizes or suggests the “charging” of a wife’s property for her contracts. As “it is our duty to construe or expound the law and not to make it,” we should not continue a ruling which besides has been expressly overruled. In Brinkley v. Ballance, 126 N. C., 396, the Court held (Faircloth, C. J., alone dissenting) as follows: “An examination of the Constitution, Article X, section 6, and of the statute, The Code, section 1826, shows no foundation for the ‘charging’ of tire wife’s property, as laid down in some decisions of a former Cburt. The Constitution requires only the written assent of the husband to ‘conveyances,’ and section 1826 requires only the written consent of the husband to contracts affecting the wife’s ‘real or personal’ estate in certain cases, dispensing with it in others.”

The Code, section 178, authorizes a married woman to be sued; Laws 1899, ch. 78, take her out of the class of those non sui juris (who are enumerated in 'The Code, sections 148 and 163, and nowhere else), and permits the running of the statute of limitations against her; and The Code, section 443, directs that execution issue against a married woman. The provision that it shall be levied only upon her separate property can have no effect other than to exempt what she holds ex jure mariti, i. e., her contingent right of dower. There is nothing else to which the restriction could possibly apply. As a married woman can by the Constitution use her property “as if unmarried,” save that the husband’s written consent is required to her “conveyances” only; as by The Code, sections 1826, 1828 and 1832, she can contract as if unmarried, except that in some cases, mentioned in section 1826, the husband’s written consent is required (nothing more) ; as by The Code, section 178, she can sue without join-*367iug ber husband and she can be sited without joining a next friend, and by section 443 execution can be levied on all the property she owns (with the same exemptions allowed men or femes sole); as further by Laws 1899, ch. 78, the statute of limitations runs against her as if unmarried, and by Laws 1901, ch. 617, she can be held liable in an action before a justice of the peace on an implied contract, it is difficult to see upon what principle she can he held a wa\d in equity and that the doctrine of “charging” her estate can be revived without there being now, or there having ever been at any time, a statute authorizing the doctrine of “charging,” and after it has been overruled in Brinkley v. Ballance, supra.