dissenting: The deed in question was signed by Nancy Butler, the owner in fee of the land, and her acknowledgment and privy examination were duly taken. Later the justice of the peace finding that he had omitted to certify, as he mistakenly thought Rev., 2107, required, that “the conveyance was not unreasonable or injurious to her,” amended his certificate to embrace such finding before any rights had accrued to purchasers or others for valuble consideration. This finding was necessarily based on the original examination, for Mrs. Butler was dead when the amendment was made.
It would seem that this should cure any defect, if there had been any. It is common knowledge that, especially prior to the passage of the Connor Act, as to a large number of deeds, there were defects in the privy examination or acknowledgment which were cured in this way. This was consonant with justice, and if called in question, even now, would' shake many titles unless protected by the lapse of time.
But for a far stronger reason this title is valid. The belief held by men in a ruder age of the incompetence of women, and especially of married women, leading in the growing enlightenment of a politer and juster age, to sharp differences, the matter was settled in this State, as it has been in all others, by constitutional or statutory measures. In our State the Constitution of 1868, Art. X, sec. 6, provides:
*595“The real and personal property of any female in this State, acquired before marriage, and all property, real and personal, to which she may, after marriage, become in any manner entitled, shall be and remain the sole and separate estate and property of such female, and shall not be liable for any debts, obligations or engagements of her husband,* and may be devised and bequeathed and, with the written assent of her■ husband, conveyed by her as if she were unmarried.”
It cannot be questioned that if Mrs. Butler had been single at the time of this conveyance to the man who was her husband, the deed would have been valid. This conveyance, therefore, must be valid, when made to the same man, for she had a constitutional right to “convey it as if unmarried.” The devise of it thereafter by her husband was his written assent in the most formal manner.
We are citd to Kearney v. Vann, 154 N. C., 311, in which it was held by a divided Court that the amendment to Rev., 2016, which gave a lien on the property of a married woman for buildings, or repairs thereto, put on her land, with her consent or procurement, because she should (said the act) be “deemed to have contracted for such improvement,” should not be such lien where she contracted with her husband to make such repairs and a material man had furnished the material through him. This amendment had been passed to change the ruling which had been made in Weir v. Page, 109 N. C., 220, and like cases. The decision in Kearney v. Vann, supra, materially restricted the effect of the amendment, but it was put upon the ground that it should be read in connection with section 2107, which restricted the right of a married woman to contract with her husband, without the certificate of a justice of the peace. That decision, therefore, dealt solely with contracts between husband and wife, and not with reference to conveyances, which are not mentioned in section 2107.
In Rea v. Rea, 156 N. C., 529, we have a thoroughly considered opinion (for two judges dissented), which held (pp. 531 and 532) that Rev., 2107, applied, as its terms expressly state, to contracts only, and not to conveyances, and that a gift to her husband by a married woman (if there is no fraud or duress) is valid. It would have been 'in violation of the Constitution to require for a deed by a married woman more than the constitutional “written assent of her husband,” and the statute (Rev., 2107) does not require it. Besides, if it applied'to conveyances, it would forbid all gifts by wives to husbands, for no justice could certify that such diminution of the wife’s estate was “for her advantage.” There is no statute forbidding a gift by the husband to the wife.
The objection to this deed cannot be sustained, for two reasons: Because the statute (Rev., 2107) does not require any certificate by the justice that the deed is for her benefit, and it would be contrary to the *596Constitution if it did. That section applies only to contracts, and does not refer to conveyances. Every lawyer and, indeed, every man, whether lawyer or not, is presumed to understand that there is a wide distinction between contracts and conveyances. The object of the statute was to prohibit married women from assuming liability for their husbands, but we are not to presume that the Legislature intended to violate the Constitution by putting an inhibition upon their conveyances, when it does not use the word. The provision in the Martin Act, ch. 109, Laws 1911, authorizes married women to contract and deal so as to affect their real and personal property in the same manner and with the same effect as if they were unmarried. In Council v. Pridgen, 153 N. C., 443, the Court held that the Martin Act applied to conti’acts and not to conveyances. It is true, it still requires her privy examination, but if that provision is deemed valid, it is to be noted that the exception is only as to the privy examination, and the Martin Act does not purport to amend the Constitution by adding to it this additional requirement of the opinion of a justice of the peace.
This whole matter was thoroughly gone into in Rea v. Rea, 156 N. C., 530, which was fully considered by the Court, for each judge expressed his opinion.
The opinion in chief says: “If Rev., 2107, had included conveyances . . . it would have been invalid as to conveyances of realty, because requiring the assent of a third person over and above the ‘written assent of the husband,’ which is the only requirement of the Constitution, and an addition to the privy examination required by statute, which has been held a mere regulation and not a restriction.. upon the right of the woman to convey.” It may be added here that this last proposition has often been dissented from as a violation of the Constitution, and was here only quoted as having been held. The opinion in Rea v. Rea, supra, further goes on: “In this case the husband actually witnessed the transfer in writing, which, under the authority of Jennings v. Hinton, 126 N. C., 51, is a sufficient compliance with the requirement of the written assent of the husband to conveyance of realty.” Here the subsequent devise by the husband is certainly such written assent.
The opinion in Rea v. Rea, supra, further says: “In this case there does not appear to have been any consideration, and the assignment was not only a conveyance, but a gift. No magistrate could certify that a gift by a woman to her husband is for her benefit, or does not diminish her estate. It would be a startling proposition that a married woman who, by our Constitution, has as full control of her property as if unmarried, cannot make a present to her husband if she sees fit.” This opinion, on pp. 531 and 532, fully discusses the proposition that Rev., 2107, applies only to contracts and not to conveyances, and that opinion was the opinion of the Court.
*597In Rea v. Rea, Walker, J., concurring, says (p. 535), summing up the rights of a married woman:
“1. Sbe may will her property without the consent of her husband, as if she was a feme sole. ... 2. She may convey her real property, with the written consent of her husband evidenced by her privy examination. 3. She may dispose of her personal property by gift or otherwise without the assent of her husband, as if she were unmarried. Vann v. Edwards, 135 N. C., 661; Laws 1911, ch. 109. 4. By virtue of the Martin Act, Laws 1911, ch.. 109, she may now contract and deal so as to affect her real or personal property in the same manner and with the same effect as if she were unmarried, unless the contract belongs to the class of those described in Eev., sec. 2107, or unless it is a conveyance of real property, when the formality is required by the existing law, for its validity must be observed. Those two cases being expressly excepted in the act of 1911.”
By reference to said Eev., 2107, it will be seen that it refers only to contracts, and reference to Martin’s Act shows no reference to conveyances, except that conveyances by a married woman must be “with the written assent of the husband,” and the only “formality” named is the privy examination. There is no attempted extension of Eev., 2107, to conveyances.
Eev., 2107, comes under subhead 3, entitled "Contracts between husband and wife,” and provides: “No contract between a husband and wife during coverture shall be valid to affect or charge any part of the real estate of the wife or the accruing income thereof for longer time than 3 years next ensuing the making of such contract, or to impair or charge the body or capital of the personal estate of’ the wife or of the accruing income thereof for a longer time than 3 years next ensuing the making of such contract, unless such contract shall be in writing, and be duly proved as is required for conveyances of land; and upon the examination of the wife, separate and apart from her husband, as is now or hereafter may be required by law in the probate of deeds of femes covert, it shall appear to the satisfaction of such officer that the wife freely executed such contract, and freely consented thereto at the time of her separate examination, and that the same is not unreasonable or injurious to her. The certificate of the officer shall state his conclusions, and it shall be conclusive of the facts therein stated. But the same may be impeached for fraud as other judgments may be.” Rea v. Rea, supra, after setting out the above section in full, says: “An examination of section 2107 shows that it applies solely to contracts, and not to conveyances; indeed, the word 'contractV is used 5 times in that section, besides in the heading. The object of the Legislature was Jclearly to prevent the wife making any contract with her husband *598whereby she should incur liability against her estate which in future might prove a burden or charge upon it, or cause a charge upon or impairment of her income or personalty. To that end not only a privy examination was required, but the certificate of the magistrate that the contract was not unreasonable or injurious to her. This provision does not attempt to add as to conveyances by her, as to which the act of 1911 retains the constitutional restrictions in regard to realty, that there must be the written assent of the husband and statutory privy examination, any further restriction, such as the approval of a third person.” Adding that if it did' it would be unconstitutional.
Laws 1911, ch. 109 (the Martin Act), provides: “Subject to the-provisions of Rev., 2107, every married woman shall be authorized to contract and deal so as to affect her real and personal property in the same manner and to the same effect as if she were unmarried; but no conveyance of real estate shall be valid unless made with the written assent of her husband, as provided by section 6, Article X of the Constitution, and a privy examination as to the execution of the same, taken and certified as required by law.” Rea v. Rea, supra, (p. 531), after quoting the above, says: “This recognizes that section 2107 applies to contracts, and that the only restriction upon conveyances by a married woman is the constitutional one, requiring the written assent of her husband.”
In Rea v. Rea, supra, Brown, J., says, p. 536: “By the Martin Act (introduced by Senator J. C. Martin in the General Assembly of 1911) the wives have been emancipated and are placed on an equal footing with their single sisters, except that in order to convey their real estate they must still have the written consent of their husbands.” Nothing is said by him as to supervisory judgment of a justice protecting the incompetence of wives from the presumed fraud or duress of husbands.
Laying aside preconceived opinions and taking the law as it has been really and plainly and unmistakably written in the Constitution and the statutes, we find that the Constitution guaranteed to married women the absolute right to convey with no other restriction than the written assent of their husbands.
We find also that Rev., 2107, which requires a justice of the peace, in the great wisdom of that officer, to supervise the contracts of married women with their husbands, does not attempt to violate the Constitution by adding restrictions to their freedom in making conveyances, but by its terms applies only to contracts by them, and is intended to protect them from incurring liabilities for the debts of their husbands. Rea v. Rea, 156 N. C., p. 531.
By reference to the Martin Act, ch. 109, Laws 1911, we find that by it married women were given full liberty to contract, except with their *599husbands under 2107, as if unmarried, but restricted their conveyances with the written assent of the husband by adding only that there must be a privy examination.
"We are cited, however, to Singleton v. Cherry, 168 N. C., 402, as an opinion without any dissent. A very great lawyer said that he paid “less attention to an opinion where there was no dissent than when there was, because the former was more likely to be an inadvertence, or not fully considered.” But whether that is a witticism or a truism, an opinion, whether unanimous or inadvertent, cannot stand when it is contrary to the Constitution, by requiring restrictions on conveyances which were abolished by the Constitution, and the opinion is based solely upon a statute which refers only to contracts.
It may be repetition, but it is none the less true, that the Constitution having guaranteed to married women the right to convey merely “with the written assent of the husband,” the requirement of a privy examination is adding a restriction in violation thereof. It is a survival of antiquated ideas as to the thorough incompetence of married women which the Constitutions of this and all other States have now repudiated. To require the privy examination since the Constitution of 1868 is to go back to the exact requirement for conveyances by married women prior to the Constitution. The former statute is brought forward, it is true, in the Eevisal, but even treating the constitutional provision as of no more vigor than the legislative enactment, in such cases the later law governs.
The Constitutional Convention was not inadvertent to the fact that they were abolishing the privy examination, for to require it would have made useless the right to convey “with the husband’s assent,” and the Constitution requires the privy examination as to the wife’s joinder in a conveyance of the husband’s homestead, after it is allotted, thus permitting it in that case only. It may be added that North Carolina is one of only five States that still require the privy examination, and in none other of those is the Constitution as explicit in freeing women from the shackles of the common law as to their conveyances as is our Constitution. However, in this case the privy examination was duly taken.
In conclusion — the Constitution forbids any restriction upon the absolute freedom of married women in disposing of their property by will or deed, save that in conveyances of realty there must be the written assent of the husband.
No statute imposes any restriction on conveyances by married women over and above such written assent, except the privy examination, already discussed. Bev., 2107, is expressly limited to contracts, and. does not mention conveyances.
*600The Martin Act, Laws 1911, cb. 109, frees married women from restrictions as to contracts, except with the husband, which it retains, as set out in Rev., 2107, and it has a proviso retaining (unconstitutionally, as I believe) the requirement of a privy examination — -but nothing more. Anything beyond the above provisions of the Constitution and the statute is of judicial origin and in accordance with preconceived opinions, for which there is no foundation in the statute, and is forbidden by the clear, unmistakable language of the Constitution.
The status of the inferiority of women was not created by statute, but by judicial decision of ancient judges in England, who were thoroughly .steeped in that belief, and especially of the incompetence and incapacity for control of property by those women who were so ill-advised as to marry — whom, indeed, the judges held to be the chattels of their husbands. This has long ago been corrected by statute in England, which recognizes the full right of women, whether married or single, to the absolute control of their own property. For 40 years there has been no privy examination required of a married woman in England, and in very few of our sister States do they retain the requirement of our Constitution that the husband shall give his written assent to his wife’s conveyance. With that single restriction our Constitution of 1868 recognized the full property rights of mhrried women, and we should -accept the view of their rights and capacity now so plainly recognized and written in our Constitution and laws.
When a statute can be construed in a way that reconciles it with the Constitution, this should be done. Rev., 2107, by its terms, six times repeated therein, applies to contracts, and in that light no one can question its constitutionality, whatever criticism there may be of the implied presumption of incapacity on the part of wives and of duress or fraud on the part of husbands; for, otherwise, the presumption would be, as in other contracts between persons sui juris, of the validity of contracts unless incapacity or fraud or duress are shown. If the statute, Rev., 2107, had attempted to go further, and had added to the “written assent of the husband,” which the Constitution fixes as the sole restriction upon the jus disponendi in the conveyance by a married woman of her realty, the requirement that some justice of the peace should weigh the trade and give his wise approval, this would repeal the constitutional provision. This the statute did not do, and it should not be so construed. •
If to the sole constitutional requirement of the “written assent of the husband” there can be added the further requirement that a justice of the peace must approve the action of the wife, as to this class of deeds, this could be required as to every deed by her. If the approval of a justice of the peace (or other restriction) can be imposed as to deeds *601by married women, it can be required as to wills by them, thus destroying entirely, effectively, and altogether, the freedom of the disposition of their property, real and personal, “as fully as if unmarried” which was solemnly guaranteed to all married women by the Constitution, with the sole exception that as to their conveyances there should be the written assent of the husband.
If the approval of a justice of the peace or a privy examination can be added to the constitutional requirement as to deeds by married women, the same or any other restriction can be required as to wills by them.
The constitutional provision made married women sui juris in every respect, save that one restriction, of requiring assent of 'the husband to conveyances. Good faith has not been kept with the mothers and wives of North Carolina. The guarantee that they should, with such assent, convey “as if unmarried” is not kept when unmarried women can convey without the wise approval of a justice of the peace, and when a man can convey without his privy examination being taken. We are governed by preconceived opinions and the dead hand of the past, and not by the provisions of a written Constitution.