G. L. ROBERSON and wife Reva B. Roberson, et al.
v.
Mackey O. PENLAND.
No. 93.
Supreme Court of North Carolina.
November 20, 1963.Williams, Williams & Morris, by Robert R. Williams, Jr., Asheville, for plaintiff appellants.
Don C. Young and W. W. Candler, Asheville, for defendant appellee.
HIGGINS, Justice.
The plaintiffs seek to have the Court rescind the deed and the consent judgment by which the parties settled their respective claims in the property owned by Mrs. Gertrude Roberson Penland who died without lineal descendants on August 14, 1961. The defendant was the husband of the testatrix. By (a) of Item 2 of the will he was given a legacy of $2,000.00. The remainder of the not inconsiderable estate was devised to the plaintiffs as shown by (b) of Item 2.
After the probate of the will the defendant filed a dissent. Thereafter long negotiations consisting of proposals and counterproposals between the parties and their counsel followed. All assumed the husband had a legal right to dissent from the will. The negotiations for a settlement culminated in the consent judgment which specified what properties the defendant should receive and that the remainder should go to the plaintiffs who implemented the settlement by executing a warranty deed. The defendant in the consent judgment released all further claim in his wife's estate, including the $2,000.00 bequest.
However, subsequent to the settlement as set forth in the judgment and deed, this Court, in Dudley v. Staton, 257 N.C. 572, 126 S.E.2d 590, held unconstitutional the Legislative Act permitting a husband to dissent from his wife's will. The consent judgment had already been signed and approved by the court. The warranty deed had been executed, delivered, and recorded. At the time of the settlement all interested parties were sui juris. They were represented by eminent counsel. They were *208 dealing at arm's length upon a lawful subject. There is no suggestion of any unfair advantage. True, all parties made the agreement in the mistaken belief the husband, by his dissent, became entitled to share in his wife's estate as if she had died intestate. The Legislature had so provided. The provision carried a presumption of its constitutionality. With this presumption on the part of counsel, all parties entered into the settlement of the estate and completed the settlement by judgment and deed. May these be canceled by the court upon a showing the attorneys did not anticipate this Court would hold unconstitutional the provision that a husband may dissent from his wife's will? The question presented goes deeper than a mistake of law on the part of attorneys. Solemn documents fixing property rights are involved. These documents were executed in the exact form which the parties intended. On this subject, Justice Pearson used this language: "But however this may be, the plaintiff by her assent to the legacy vested the legal title in the defendant; and the question is, does the bill disclose any ground upon which she can ask this Court to undo what she has done, so as to relieve her from the legal effect of her assent? * * * It is settled that mere ignorance of law, unless there be some fraud or circumvention, is not a ground for relief in equity whereby to set aside conveyances or avoid the legal effect of acts which have been done." Foulkes v. Foulkes, 55 N.C. 260.
The plaintiffs rely for a reversal upon a long line of cases, some by this Court, holding that an unconstitutional statute is a nullity ab initio, confers no rights, imposes no obligations, bestows no power, and justifies no acts performed under it. Board of Managers of the James Walker Memorial Hospital of Wilmington v. Wilmington, 237 N.C. 179, 74 S.E.2d 749; Norton v. Shelby County, 118 U.S. 425, 6 S. Ct. 1121, 30 L. Ed. 178; Cooley, Constitutional Limitations, 8th Ed., (1927) p. 382.
The Norton case was decided in 1886. Its sweeping statements have been narrowed by later decisions. In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S. Ct. 317, 84 L. Ed. 329, the Court said: "It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,with respect to particular relations. * * * it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."
In McLean Coal Co. v. Pittsburgh Terminal Coal Co., 238 Pa. 250, 195 A. 4, the Court held: "The unconstitutionality of a statute is a defense to an action only when the liability is created by the statute in question; the invalidity of an act is of no avail when the liability arises from acts indicating the assumption of liability by parties who may, it is true, be acting only because the statute was passed, but who are, nevertheless, voluntarily assuming a relationship which creates a liability." See also, 49 Yale Law Journal, 959.
In this case the rights of the parties are fixed by solemn warranty deed and consent judgment. These may not be set aside merely because eminent lawyers were unable to anticipate that this Court would strike down the Act of the General Assembly which permitted the dissent. The rights of the parties are fixed by the judgment and the deed. These documents provide road blocks which the Court may not remove merely because the parties were mistaken as to one or more of the factual considerations which induced them.
The judgment of the Superior Court of Buncombe County is
Affirmed.