Royal v. Southerland, 168 N.C. 405 (1915)

March 17, 1915 · Supreme Court of North Carolina
168 N.C. 405


(Filed 17 March, 1915.)

1. Husband and Wife — Wife’s Separate Property — Suretyship of Wife — Direct Obligations — Interpretation of Statutes.

A wife by becoming surety on the obligations of her husband creates a direct and separate liability to the creditor of the husband which makes her personally responsible, under chapter 109, Public Laws of 1911, known as the Martin Act, without requiring the statutory formalities necessary to the validity of certain contracts made directly between the wife and her husband.

2. Same — Constitutional Law.

The State Constitution, Art. X, sec. 6, providing that the separate property of the wife shall not be liable for the debts of the husband, has no application to the obligation of the wife as surety of her husband, such obligation being regarded as a direct one between the creditor and herself within the intent and meaning of the Martin Act, ch. 109, Public Laws of 1911.

3. Husband and Wife — Wife as Surety — Fraud—Trials—Evidence.

In an action to recover on a note given under seal by the husband as principal and his wife as surety, representations made to the wife by the husband, unknown to the creditor, can afford no evidence of fraud in the procurement of the instrument set up by the wife as a defense.

4. Husband and Wife — Wife as Surety — Contracts, Written — Parol Evidence —Statute of Frauds. ®

Where the wife signs as surety on a note of her husband, which she fhrther secures by a mortgage on her lands, evidence on behalf of the wife that she only intended to pledge her land for the payment of the debt is in contradiction of the note, and is incompetent as contradicting the written instrument by parol evidence.

5. Husband and Wife — Married Women — Actions—Parties.

Chapter 109, Public Laws of 1911, known- as. the Martin Act, in conferring on married women the right of freedom of contract, carries with it the privilege of suing and being sued alone.

Appeal by feme defendant from Daniels, J., at August Term, 1914, of SAMPSON.

Civil action to recover balance due on a note under seal, executed by /erne covert defendant with, ber busband, R. B. Southerland, as bis surety. Tbe note was given for $1,000, and to secure same a second mortgage on tbe wife’s land was also executed. Tbe land having been sold under decree of foreclosure, tbe sum of $751.50 was realized thereon as tbe portion applicable to tbe present note, and this sum having been properly entered as a credit, there was recovery against tbe feme defendant for tbe balance due. Judgment on tbe verdict for balance due on note, and defendant excepted and appealed, assigning a number of errors.

*406 B. II. Grumpier for plaintiff.

John D. Kerr for defendant.

Hoke, J.

Tbe statute of 1911, cb. 109, known, as tbe Martin Act, ■ authorizes married women to contract and deal as if they were unmarried except in reference to conveyances of real estate and as to contracts between tbe busband and tbe wife, in both of wbicb cases certain formalities are required to' make these conveyances and contracts, efficient and binding.

It is tbe obvious intent and meaning of tbe statute that a feme .covert may bind herself by her ordinary contracts (Lipinsky v. Bevell, 167 N. C., 508), and we see no reason why tbe privilege or capacity does not extend to contracts of suretyship for her busband when tbe same are otherwise valid; and tbe same view has prevailed in other States having laws of similar import. Pelzer v. Campbell, 15 S. C., 581; Major v. Holmes, 124 Mass., pp. 108-109; May v. Hutchinson, 57 Maine, 547.

This is not primarily a contract between tbe busband and tbe wife, but, so far as 'this statute is concerned, is to be properly considered as one between tbe busband and wife on tbe one part and tbe creditor on tbe other.

It is urged that to allow recovery on tbe facts presented would be in contravention of Article X, sec. 6, of our Constitution, wbicb provides thá?t tbe “real and personal property of any female in this State, acquired before marriage, and all property, real and personal, to wbicb she may, after marriage, become in any manner entitled, shall be and remain tbe sole and separate estate and property of such female and shall not be liable for any debts, obligations, or engagements of her busband,” etc.

Tbe purpose of this section was to protect tbe estate of tbe wife from liability for her husband’s debts arising under tbe common law by reason of tbe coverture, but it was not intended by that section to protect tbe property from her own obligations. Vann v. Edwards, 135 N. C., 661; Brinkley v. Balance, 126 N. C., 393.

By tbe enactment of tbe Martin Act, conferring tbe capacity to contract1 on married women as if they were femes sole, when she signs and delivers a note, though it may be as surety, in reference to tbe creditor or bolder tbe obligation is hers and not bis, and tbe constitutional provision referred to has no application.

It was further contended that bis Honor committed error in excluding testimony tending to show certain representations on tbe part of tbe bus-band to tbe wife as to tbe effect of putting her signature on tbe note, but there is no claim or suggestion that these representations were made known to tbe payee of tbe note or that be bad any part in them.

*407The note is under seal and given for valuable consideration, and, under the circumstances appearing, the representations to the wife by the husband may not be allowed to affect the creditor.

Again, it is insisted that error was committed in not allowing the feme defendant to testify that in signing the note and mortgage to secure the same she only intended to pledge her land for the debt, and did not intend to come under any further obligation; but this would be in express contradiction of her written note, and it is well understood that when the entire agreement is in writing and the language is clear and meaning plain, the same may not be contradicted or varied by parol. In such case, and in the language of the Chief Justice in Walker v. Venters, 148 N. C., 388, “The written word abides.” Deering v. Boyles, 8 Kans., 529.

There seems to be no question of parties raised in the record, but there is high authority for the position that in conferring on married women the absolute freedom of contract the right carries with it the privilege and liability of suing and being sued alone. Paterson v. Franklin, ante, 75; Lipinsky v. Revell, 167 N. C., 508; Worthington v. Cooke, 52 Md., pp. 297-309.

We find no error in the record, and the judgment in plaintiff’s favor is