CLARK, J., dissents, arguendo. This action was commenced before a justice of (712) the peace to recover a sum less than $200, alleged to be due the plaintiff for services as an attorney.
The summons was in favor of the plaintiff, and the command therein to the officer was "To summons W. O. Wolfe and wife, Julia E. Wolfe, to appear," etc. Defendants denied owing plaintiff anything and pleads counterclaim and set off.
Plaintiff recovered judgment, and defendants appealed to the Superior Court. In that court Julia E. Wolfe asked to be allowed to plead her coverture, but was not allowed to do so. The feme defendant then asked the Court to charge the jury that plaintiff could not recover against her, and this prayer was given. Verdict and judgment for plaintiff against W. O. Wolfe, the husband, but verdict and judgment for the feme defendant Julia E. Wolfe, and plaintiff appealed.
The error assigned is the instruction to the jury that they could not find a verdict against the feme defendant.
Where there are no written pleadings in a justice's court, the summons constitutes the complaint (Allen v. Jackson, 86 N.C. 321), and there seems to have been no written pleadings in this case. The summons is "To answer the complaint of the above-named plaintiff for the non-payment of the sum of $200 . . . due by contract and demanded by said plaintiff." If plaintiff had recovered against the feme defendant, his judgment would have been a personal judgment founded on her contract and promise to pay the plaintiff. The general rule is that a married woman cannot make a contract binding upon her. Code, section 1826. It is true that there are exceptions to this general rule, in which she can; but as they are exceptions to this (713) *Page 442 general rule, the party claiming the benefit of the exception must establish the exception. This was not done here, and it brings the case down to a matter of pleading.
If the feme defendant had plead her coverture before the magistrate or had been allowed to do so in the Superior Court, there would be no question as to the correctness of the judgment, and this appeal would not be here.
In Green v. Ballard, 116 N.C. 144, it is held that whenever it appears from the pleadings that the defendant is a feme covert, no personal judgment can be rendered against her. This opinion seems to be sustained by Pippen v. Wesson, 74 N.C. 437, and other cases. Doughertyv. Sprinkle, 88 N.C. 300, holds that no personal judgment can be given against a feme covert upon her contract; that she has no power to contract, and any contract she may attempt to make is not voidable, but is absolutely void; that where she has separate estate, she may make this liable to the payment of debts. But this is done upon equitable grounds and upon equitable principles, and not upon the obligation of her contract, which in law is void. The case of Dougherty v. Sprinkle commenced before a justice of the peace, as this did, in a court that had no equitable jurisdiction; the plaintiff could not recover. This case ofDougherty v. Sprinkle is in harmony with the well-considered opinion in Pippen v. Wesson, supra, and the authorities there cited, that thefeme must not only pledge her separate property, but that it must also appear that it was for her benefit or the benefit of her estate. And it would seem that as she is not bound by the legal obligation of her contract, and that it must be enforced in equity and upon equitable (714) principles, if enforced at all, it must be for her benefit, as it would be inequitable to take her property for the benefit of some one else. Indeed, it would seem difficult to see how this could be done in equity, leaving out of view her personal obligation. It cannot be done upon the ground of fraud, as it can be no fraud for a married woman not to do what the law says she shall not do. This protection of the law was thrown around her for the purpose of protecting her property from liability for the benefit of others. But the doctrine of Pippen v.Wesson, Dougherty v. Sprinkle, and that line of cases seems to have been abandoned in Flaum v. Wallace, 103 N.C. 296, which has since been regarded and followed as the law. And it may be that it has become too much involved in the business transactions of the State to be reversed now even if it should be considered incorrect upon principle. This doctrine has nothing to do with the enforcement of executed contracts, and only applies to executory contracts.
It appears in the summons in this case, which must be taken as the complaint, that the defendant Julia E. Wolfe was a feme covert, and no *Page 443 personal judgment could be rendered against her under Green v. Ballard,supra. The action having been commenced before a justice of the peace, and it appearing that the defendant Julia is a feme covert, the justice had no jurisdiction as to her; and the case coming to the Superior Court by appeal from the justice's court, the Superior Court had no jurisdiction the justice did not have. And no judgment could be rendered against the feme defendant. Dougherty v. Sprinkle, supra.
It appearing to the Court by the summons, which is the complaint in this case, that the defendant Julia was a feme covert, she might make this defense by answer or by demurrer, written or ore (715)tenus, or the Court might make it for her ex mero motu. The defendant's asking to be allowed to amend her answer by inserting this defense and then asking the Court to charge the jury that they could not find a verdict against her, was in effect a demurrer ore tenus. And the judge's charge that they could not find a verdict against her, whether considered as given ex mero motu or in answer to the prayer of the defendant, was correct. Baker v. Garris, 108 N.C. 218.
While the judgment of the Court in Green v. Ballard, supra, is correct and is based upon the general principle governing cases against married women, it may be, that the unrestricted language used in the opinion is not entirely accurate. And while the general rule is, as laid down in that opinion, that a personal judgment cannot be given against a feme covert, there are exceptions to this general rule, as will be found in secs. 1826, 1828, 1831, 1832 and 1836 of The Code, in which femes covert may bind themselves by contract upon which personal judgments may be had. So, it is not entirely accurate to say that, where it appears of record that the defendant is a feme covert, no personal judgment can be had against her.
But the rule should be that, where it appears from the record that the defendant is a feme covert, the trial should be proceeded with as if this defense was pleaded, whether it is actually pleaded or not; and if the plaintiff brings his case within the exceptions, or, in other words, if he show that he is entitled to judgment notwithstanding the coverture of the defendant, then he should have judgment, otherwise he should not.
We see no error, and the judgment appealed from is
Affirmed.