This was a Civil aotioN, tried upon appeal from a Justice of the Peace at Fall Term, 1894, of Ashe Superior Court, before W. B. Allen, Judge presiding, a jury being waived by both parties. Held: and the plaintiff excepted and submitted to judgment of nonsuit, and appealed.
Cited by 1 later decisions — most recently November 1903
1 state decisions
Key passage — most relied on by later courts
“It (the contract) purports neither to charge her separate estate nor to be for her benefit; and if it had, the court of a justice of the peace would have had no jurisdiction in the matter,”
¶1
The defendant Nancy Arnold, while she was the wife of Joseph Tyre, executed, together with him, the note upon which suit was brought before a Justice of the Peace and which constitutes the basis of this action. It purports neither to charge her separate estate nor to be for her benefit; and if it had, the Court of a Justice of the Peace would have had no jurisdiction in the matter.
Dougherty
v.
Sprinkle,
88 N. C., 300. The note as an executory contract had no validity. In
Farthing
v.
Shields,
106 N. C., p. 289, this Court said, Justice Shepherd delivering the opinion, “It is well settled by the uniform decisions of this Court that, except in the cases mentioned in
The Code,
Sections 1828, 1831, 1832,'1836, a
feme covert
is, at law, incapable of making any executory
*711
contract whatever. Accordingly it has been determined that
The Oode,
Section 1826, requiring the written consent of the husband in order to affect her real or personal estate, did not confer upon her (even when such written consent was given,, or when the liability was for her personal expenses, etc.,) the power to make a legal contract. Its object was to require the written consent of her husband, in order to charge in equity her statutory separate estate, on the same .principle which requires the consent of the trustee when the separate estate is created by deed of settlement.
Pippen
v.
Wesson,
74 N. C., 437;
Flaum
v.
Wallace,
103 N. C., 296.”
¶2
The cases of
Vick
v.
Pope,
81 N. C., 22, and
Neville
v.
Pope,
95 N. C., 346, have no bearing on this case. In both of them the
femes covert
made no defence to the actions and allowed judgment to go against them by default. They became bound by the judgments.
¶3
The attempt of the plaintiff to hold the defendant liable on a new promise cannot be successful. His testimony and that of G-oodman on this point was not sufficient to go to the jury ; and if the promise had been proved it would be
nudum pactum
for the reason that there was no present consideration for the promise, and'the consideration of the note was not for the benefit of her sole and separate estate.
¶4
There is no error, in the ruling of the Court below and the judgment is affirmed.
