Askew v. Daniel, 40 N.C. 321, 5 Ired. Eq. 321 (1848)

Dec. 1848 · Supreme Court of North Carolina

40 N.C. 321, 5 Ired. Eq. 321

AMY ASKEW vs. WILLIAM DANIEL.

The deed of a married woman, without her privy examination, is so entirely void as to her, that even if an agreement be incorporated in it for her benefit, she cannot obtain a specific performance.

Cause removed from the Court of Equity of Granville County, at the Fall Term 1848.

The plaintiff’s bill alleges, that, under the will of her first husband, Merryman Barnes, she had a good title to a tract of laud, described in the bill, together with her three children, among whom was Washington L. Barnes ; that, after her intermarriage with her second husband, William Askew, they sold and conveyed to Washington L. Barnes all their interest in the land, but that she never was privily examined, whereby the conveyance wasi void.as to her, and carried nothing but the life estate of her husband, William Askew, who is since dead; and that she has brought an action of ejectment against Samuel Barnes, the tenant in possession, and to whom it was sold by her son. She further states that the object of the conveyance and its consideration was to secure to herself a comfortable subsistence for the remainder of her days, which her son promised to provide for her. This conveyance was made a part of her bill, and the consideration expressed in it is, to compromise and set. tie controversies which had arisen between the plaintiff and her children, conveying the land and other property of her former husband, Merryman Barnes, and one-dollar. The prayer is that the defendant, who is the administrator of the said Washington, upon her surrendering her title to the land, may be compelled to comply with his intestate’s, the said Washington L. Barnes’, agreement as above set forth, by paying to her such sum or sums of money as upon a reasonable allowance for her yearly support may be found justly due to her.

Gilliam and Lanier, for the plaintiff.

Badger, for the defendant.

Nash.J.

The plaintiff’s bill cannot be sustained. The deed of a feme covert is of no effect in conveying her land, until she is privily examined by the proper authorities. Until then, the deed as to her is a blank paper — the title still remains in her. But though void as to her, it .i-s good and available as to her husband and transfers his life estate. Washington Barnes, "by the conveyance from the plaintiff and her husband, acquired nothing but the life ' estate of the latter, which expired at his death. As soon as that event took place, the plaintiff, being the legal owner, was entitled to the possession of the land. She accordingly brought her action of ejectment to recover it from the tenant in possession. She says she is willing to .confirm the title of the vendee of her son, if the contract, made by her and her husband with him, is established, to*wit: a comfortable support under a decree of the Court, is provided for her. The Court has no power under that conveyance to make any such decree. The deed, which is made a part of the case, recites, that the consideration of it was the compromise of controversies, which had arisen concerning the property of her former htisbandThe cornpromise of a doubtful title is a valuable consideration to sustain a conveyance. The deed says noth*' ing of any support to be provided for the plaintiff by her son Washington.

The plaintiff never having been privily examined touching her execution of the deed, it is void as to her, and she stands as if she had newer executed if, having the same title to the land, which she had before that instrument -Was made. If the. parol agreement, attempted to be set up by the bill, had been incorporated in her conveyance to her son','-it would not alter the law — the deed was void as to her, and she, therefore, could not have obtained a specific performance.

Per Curiam.

Bill dismissed.