As the complaint does not distinctly allege the existence of any separate estate (Doughtery v. Sprinkle, 88 N. C., 300), and the action is not brought for the purpose of subjecting the same to an equitable charge, but is grounded upon the alleged legal obligation incurred after discover-*336ture, the only question which we can consider is the'-sufficiency of the consideration to support the promise sued upon. The note was unquestionably void when executed, and there was no new consideration subsequent to the removal of the marital disability, as in Bank v. Bridgers, 98 N. C., 67.
. It is well settled that annere moral consideration will not support a promise (Puckett v. Alexander, 102 N. C., 95), but “a qualification to this rule, however, obtains in cases where there was originally a sufficient valuable consideration upon which action could have been sustained, but where in consequence of some statute or positive rule, growing out of general principles of public policy, the right of action is suspended and the party exempted from legal liabilty. In such cases, the moral obligation is sufficient to support an express promise, though it will not raise an implied promise. * * * This exception includes all promises barred by the statute of limitations or discharged by the bankrupt or insolvent law, and promises by an adult to pay debts contracted during his infancy.” Story on Contracts, 466.
Whether such a promise made by a married woman after discoverture to pay a debt contracted during coverture falls within the limit of the above qualification, has been the subject of much anxious consideration and many conflicting decisions. The distinction taken is that the contracts of a married woman being originally void cannot support a subsequent promise, even though she has derived a benefit therefrom. Puckett v. Alexander, supra, citing Wennall v. Adney, 3 Bos. and Pul., 252.
This distinction as to void contracts is recognized in this State, and is undoubtedly sustained by the weight of authority. We hold, however, that although in the case of a feme covert her contract is void, yet if the transaction is of such a character as to have subjected her separate estate to an equitable charge during coverture, it will be recognized in a *337court of law as a sufficient consideration to sustain a promise made after disability removed. Felton v. Reid, 7 Jones, 269.
Our case, then, turns upon the question whether from the facts alleged the husband during the coverture had any equitable rights which he could have asserted against the separate estate of the wife.
It is the duty of a party seeking to subject such estate to set forth his grounds with particularity, and the Court should not be left to mere inference or conjecture as to the existence of any element which is essential to constitute such a charge. We will first consider -whether the general separate estate was chargeable with the alleged advances of the husband. It is well settled that the separate real estate cannot be thus charged except by deed'and privy examination (Farthing v. Shields, 106 N. C., 289; McMillan v. Gambill, 106 N. C., 359, and the cases there cited), and that the separate personal estate cannot be charged unless it is expressly done by the instrument evidencing the obligation, or unless such a charge arises by necessary implication growing out of a beneficial consideration. Flaum v. Wallace, 103 N. C., 296. As there is nothing to show that the wife was possessed of a separate personal estate (the language of the complaint strongly implying that her property consisted of realty alone), and there being no deed or privy examination, we are unable to see how the husband could have asserted his claims against the general separate estate. If, however, a separate personal estate had been alleged, we think from the facts stated that it would have been charged by the necessary implication arising from the nature of the consideration. It is further insisted that the husband could have charged the particular land mentioned with the amount included in the note on the-principle laid down in Hinton v. Ferrebee (decided at this-term), Burns v. McGregor, and other similar cases. There' can be no doubt that where a conveyance has been made iru *338consideration of the concurrent performance of a particular act, equity will' not permit the grantee to hold the fruits of the transaction and refuse to perform his part of the agreement. But it is contended that this principle does not apply here, because the wife, by executing the note, performed the only act agreed upon as a prerequisite to the reconveyance of the property. Conceding, for the sake of the argument, that this view is the result of too refined a construction of the real agreement of the parties, we are met with a very serious objection, which goes to the root of the plaintiff’s equity as to the land in question. The objection is that the plaintiff has not shown that he ever acquired any title from his wife. Ordinarily, where a conveyance of a feme covert is alleged, it will be presumed, upon demurrer, that it is valid and effective, but where a conveyance by the wife to the husband is made the basis upon which equitable relief is asked, the rule is different, on account of her general legal incapacity to make such a conveyance (Simms v. Ray, 96 N. C., 87), and it is therefore necessary that it should affirmatively appear, in a case like the present, that the provisions of The Code, §§ 1835, 1836, have been strictly complied with, or that the title has been acquired in some other exceptional manner.
As we are not at liberty to assume that the conveyance was executed so as to bring it within any exception to the general law, we cannot see from the complaint how the husband could have availed himself of the principle above mentioned.
Our conclusion then is, that upon the rather general statements in the complaint, the husband had no equitable rights which he could have asserted against the wife, and that there was therefore no consideration for the promise upon which this action is founded.
Affirmed.