dissenting: I dissent in this case upon the ground so strongly and clearly stated in the dissenting opinion of Justice Brown, in Warren v. Dail, 170 N. C., 406, at p. 415, in which I concurred. He *318there says: “If any legal question has ever been settled by repeated decisions of this Court it is that the deed or contract of a married woman charging her real estate in this State is a nullity unless her husband joins and her privy examination is taken. Scott v. Battle, 85 N. C., 184; Farthing v. Shields, 106 N. C., 289; Ball v. Paquin, 140 N. C., 83; Clayton v. Bose, 87 N. C., 106; Bank v. Benbow, 150 N. C., 781; Council v. Pridgen, 153 N. C., 443. The assent of the husband is a constitutional requirement. The necessity for the privy examination is not only required by Rev., 952, as to all her lands, and by the Constitution as to the homestead, but it is made a necessary requisite by the so-called Martin Act itself. So.carefully has this Court guarded this protection to married women that in Smith v. Bruton, 137 N. C., 79, it is held that a married woman cannot bind herself by agreeing to arbitrate the question of title to land owned by her. It might result in conveying away'her land by an award of arbitrators without the necessary assent of her husband and privy examination. . . ’. In this case the attempt is being made to give force and vitality to a contract that has never had legal existence.”
In this case there was no assent of her husband to the deed she is alleged to have made, and no valid privy examination. It was, therefore, void — an absolute nullity and incapable of ratification by anything she has since done and relied on as such. She has done nothing to prejudice any one’s rights. The mere advertisement under the power contained in the mortgage is not sufficient to estop her or to bind her by ratification, admitting that the void deed is susceptible of ratification by an act of hers sufficient for that purpose. How was anybody hurt by her advertisement? She withdrew it and stood upon her rights under the law before there was even any equitable estoppel by completing the sale, making a deed and receiving the purchase money. There is no contention that any other kind of estoppel prevents her from claiming her land.
In Bank v. Bridgets, 98 N. C., 67, Mrs. Bridgers, whose original note was held to be void because given during her coverture, gave -a new note after she become discovert, which was founded upon a fresh consideration. She was held to be bound by the second note because it was a new transaction, based upon a sufficient legal consideration.
The Martin Act, when properly considered, in my judgment, is not applicable to the facts of this case. It is conceded that the deed of this lady, who was a married woman when it was executed, is void, not having the assent of her husband, and her valid privy examination not having been taken, and yet it is proposed to hold her bound by it as a contract and to compel her to do by our decree what the law plainly and positively forbids. This is not an action for damages, but we are now deal*319ing directly with ber land, with a view of taking it from her, whether by deed or decree, without the formalities and ceremonies, which the law expressly and imperatively requires to be observed. "What is forbidden to be done directly cannot be done indirectly. The anomaly thus presented was surely not contemplated by the act of 1911, and was not in the mind of its able and-learned author when he formulated it. Her deed is absolutely void, and is a nullity. Ex nihilo nihil fit.
It is suggested that this instrument, in form and substance a deed, may operate as a contract to sell; but if this be so, and I must deny its correctness, it makes no difference in the result, because by the statute, Eevisal, secs. 952 and 953, a contract to sell the wife’s land without the written assent of the husband is just as void as if it is treated only as a deed. - The husband and wife cannot execute the deed or contract by separate instruments. They must execute it jointly, and then the probate, as to both, can be taken by different officers at different times and places. But here there was no good execution, and whether treated as a deed or a contract the instrument was an absolute nullity, or, as the Court says in Scott v. Battle, supra, it is so utterly void that it has np more force or effect than a “blank piece of paper.” I am unable to see how a paper absolutely void can be vitalized by the husband’s death, without anything being thereafter done by the wife, which, in law, imparts life to it. The mere fact of the husband’s death does not by any principle of law known to our jurisprudence, produce any such effect. The “Martin Act” is far from warranting the assumption that the deed of a married woman can thus be made to operate as her contract. And a majority of the Court, as I understand it, take this view, the disagreement between them being only as to whether there was a ratification.
But it is now strenuously urged that she is bound by her void deed, even as a deed, and not merely as an executory contract, because she has ratified it after her discoverture. How and why? Judge Guión took no such position when he entered judgment upon the agreed facts. He held her bound by it, not as a deed, but as a contract to convéy, which fell within the operation of the Laws of 1911, ch. 109; but that view does not meet with the concurrence of a majority of this Court, and the judgment cannot be affirmed unless the feme is equitably estopped, by her acts or conduct, to allege the invalidity of her deed, or, for the same reason, she has ratified the' same. A naked ratification or admission of her liability by words will not do, if it is oral, because as all the cases show, it would be void by the statute of frauds, and we would permit her land to pass to another in clear violation of all our statutes (Price v. Hart, 29 Mo., 171) ; and besides, it would contain no element of an equitable estoppel. Brown v. Bennett, Pa. St., 420.
*320I have examined tibe authorities upon this subject carefully and exhaustively and find that in every case where it was held that a married woman, who had become discovert, was bound, because of ratification, there was some element of fraud or, at least, of an estoppel, which made it inequitable that she should be allowed to disavow, or repudiate, her deed, or there was formal ratification by a binding written instrument.
It is said in Price v. Hart, supra: “That deed, not having been acknowledged according to law, had no validity as a deed against Mrs. Collins, and, as a contract, could not bind her as she was at the time of its execution feme covert. Although a nullity in the law, it had however a physical existence; and as it contained a distinct account of the sale of the land, a minute description of the land itself and a specification of the terms of sale, it might very well have been adopted, or ratified, by a subsequent agreement, if that subsequent agreement was in the form required by the law. In such case it is obvious that the binding force of the contract is in the subsequent agreement and not in the deed, and the agreement must therefore be in writing. If the deed can be adopted or set up by a mere parol declaration, made by Mrs. Collins after the removal of her disability of coverture, it would seem to let in all the evils which the statute was designed to guard against.” In order to bind the feme by her deed, which was an absolute nullity when it was executed, as all our cases admit, there must either be a new consideration for her promise to ratify it (Bank v. Bridgers, supra), or she must be prevented from setting up its invalidity by an estoppel en pais, but she is not estopped where she has done nothing which has misled another into acting to his prejudice.
- “Estoppel by misrepresentation, or equitable estopj)el (which is estoppel in pais), grows out of such conduct of a party as absolutely precludes him, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who in good faith relied upon such conduct, and has been led thereby to change his position for the' worse, and who on his part acquires some corresponding right either by contract or of remedy. This estoppel arises when any one, by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist, and such other rightfully relies and acts on,such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. It consists in holding for truth a representation acted upon, when the person who made it, or his privies, seeks to deny its truth and to deprive the party who has acted upon it of the benefit obtained.” 16 Cyc., 722; Boddie v. Bond, 154 N. C., 359 (S. c., 158 N. C., 204); Patillo v. Lytle, 158 N. C., 95.
*321“Tbe representation- must have been acted upon to tbe damage .of tbe party acting. It is not enough tbat tbe representation lias been barely acted upon, for if no substantial prejudice would result by admitting tbe party wbo made it to contradict it, be will not be estopped.” Bigelow on Estoppel, 23.
“Tbe law does not favor estoppels, and as to estoppels by matter in pais, it may be said tbat unless a person bas induced another by representations or declarations to alter bis position injuriously to himself, be will not be estopped. Tbe fundamental principle on which tbe doctrine of estoppel rests is an equitable one — a principle which is intended to suppress fraud and to compel just and fair dealings with all. On no principle of fair dealing and equity can it be held tbat one should be estopped to protect bis rights in a matter because of bis conduct in reference thereto and upon which another bas acted, but without prejudice to bis rights and interests. It cannot be said, with consistency, tbat a man bas taken advantage of bis own wrong where bis statements have not damaged or injured another.” Rainey v. Hines, 120 N. C., 376; Lovelace v. Carpenter, 115 N. C., 424; Eaton’s Equity, p. 169.
There bas been no formal ratification in writing. What, then, bas been done to validate her deed? Tbe act of advertising did not, as it prejudiced no one, having been withdrawn before any sale. I have not been able to recall any legal principle tbat bolds her bound by these acts, as a ratification, or an estoppel, and she bas not ratified otherwise. Tbe tender of tbe money surely could not have tbat effect, because tbat was not her act, but tbe gratuitous act of tbe defendant, and she declined to accept tbe tender and receive tbe money, which was a distinct repudiation of her void deed, instead of being a ratification of it.
Tbe Court may require her to surrender tbe note and mortgage, as was suggested in Scott v. Battle, supra, at p. 192, if she bas them in her possession, or under her control, but there is no reason either in law, or in equity, why it should go beyond this requirement, which will place all parties in stdtu quo and no prejudice will be done any .one.
It is manifest tbat tbe plaintiff withdrew tbe property from sale, because, at tbe time she advertised tbe same she was not aware of her rights, but supposed tbat her deed was valid, and as soon as she discovered her mistake she promptly asserted her right by refusing to accept tbe money tendered and discontinued tbe prosecution of tbe sale. This was a repudiation of tbe deed, rather than a ratification of it, and she has misled or deceived no one, and’certainly no prejudice bas resulted, and none will follow if tbe papers are surrendered. Tbe Court, in its judgment, can make this a condition precedent to a recovery or a writ of possession.
*322It must be remembered that the opinion in Warren v. Bail, supra, was confined strictly to the question whether action for damages would lie on a broken contract to convey land made by a married woman, and it was recognized by the learned justice, who spoke for the Court, that the doctrine there considered would not apply to her deed, or so as to compel her to execute a deed for the land, under her contract to do so.
Justice Hob:e concurs in this dissenting opinion.