Ball v. Paquin.

Clark, C. J.,

concurring: The Code, section 1826, expressly provides that a married woman can contract and thereby “affect” both her personal and real property, requiring only in some cases her husband’s “written consent” and dispensing with it in others.

*97There is no need in this ease to discuss the doctrine of “implied contracts,” for here the wife made an express contract, and in writing, with the plaintiff to place these improvements upon her property. The statute does not require her privy examination, for this was not a conveyance of her property, but only a contract. Her privy examination, however, was in fact taken. The husband’s written consent under The Code, section 1826, is amply evidenced by his joining in the contract. Jones v. Craigmiles, 114 N. C., 613.

The status of married women in North Carolina is very clearly stated in the Constitution and laws as written by the Convention and General Assembly and may be thus succinctly summed up:

Property Rights: The property, real and personal, of a married woman, whether acquired before or after marriage, “shall be and remain the sole and separate estate and property of such female.” Const., Art. X, section 6.

Right to Devise and Bequeath: By the Constitution this right cannot be restricted.

Conveyances: The only restriction placed by the Constitution upon conveyances by the wife is that there must be “the written assent” of the husband. Const., Art. X, section 6. Her privy examination is required by the Constitution only as to a conveyance of homestead by the husband (Const., Art. X, section 8), not as to conveyances by her. The statute, Code, section 1256, requires her privy examination as to any conveyance of realty.

Transfer of Personalty: There is neither written assent of the husband nor privy examination required as to the disposal by sale, gift or otherwise, by a married woman of her personal property. Vann v. Edwards, 135 N. C., 661.

Contracts: There is in the Constitution no restriction upon the power of a married woman to contract, and as her property rights remain as if she were single, with power to devise and bequeath it, and to dispose of it by sale, gift or *98otherwise, save that the “written assent” of the husband is required as to conveyances of realty, it would seem it was intended that she should be free to contract. But The Code, section 1826, provides that she can make any contract whatever “with the written consent” of her husband, though this requirement of written consent is entirely dispensed with as to contracts for her necessary personal expenses, or for support of the family, or to pay her ante-nuptial debts, or when she is a free trader (Code, section 1830,) or lives separated from her husband or is abandoned by him. Code, sections 1831 and 1832. To avoid palpable fraud the written consent of the husband has further been dispensed with by chapter 617, Laws 1901, in cases (like the present) where buildings are placed or repaired on the wife’s land by her consent or procurement. Finger v. Hunter, 130 N. C., 529.

Such is the law as the lawmaking power has made it. It is plain and simple and reasonably abreast with the spirit of the age, though in England, New York, and in most other States, the statute law does not add (as we have done) to the plain provisions of our Constitution a requirement of privy examination as to conveyances of fealty and of written consent of the husband as to some contracts. 1 Am. & Eng. Enc. (2 Ed.), 522. In none of the States adjacent to us — Virginia, South Carolina, Georgia and Tennessee — is the privy examination of the wife now required in any case whatever. It is a useless and troublesome formality handed down from the past and of most doubtful constitutionality under a Constitution which requires only the written assent of the husband to the wife’s conveyances as the sole modification upon her property rights, as a feme sole, and which expressly provides that with such assent her property may be “conveyed by her as if she were unmarried.” Const., Art. X, sec. 6.

By our Constitution and laws the status of married women is thus very plain. There is required by the Constitution only the written assent of the husband to conveyances by the wife and the statute requires privy examination of the wife only to *99convey realty, and written consent of the husband as to the wife’s contracts, except those cases specified as to which the written consent is dispensed with. That is all. Turning to 128 N. C., there will be found at pp. 431-435, in four pages of fine type, the tables wherein Professor Mordeeai has endeavored in vain to draw some order out of the confusion caused by the. doctrine of “charging in equity.” As was said by this court in Brinkley v. Ballance, 126 N. C., 396, “An examination of the Constitution, Article X, section 6, and of the statute (Code, section 1826), shows no foundation for the ‘charging’ the wife’s property. 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.” There is no statute which authorizes or recognizes a feme covert “charging her property in equity.”

The Statute (Code, section 1826,) requires no more as to the contract of a married woman, in any case whatever, than the “written consent" of the husband, and dispenses with even that in many cases. The courts should not require what the law does not. As Judge Daniel well said, “The Court cannot be wiser than the law.” The sooner they are in harmony, the better.

Overruling the doctrine of “charging in equity,” cannot possibly affect any rule of property, for to do so will not affect any title. It will not invalidate, but recognize as valid, contracts when made as the law requires “with the written consent of the husband.” In this connection, my attention has been called to the dissenting opinion in Zachary v. Perry, 130 N. C., 292. It is needless for me to say that no sort of discourtesy was intended towards the distinguished justice who wrote the opinion in Flaum v. Wallace. The phrase “charge in equity” there used, was not a quotation from that opinion.

Brown, J., concurs in result.