Smith v. Ingram.

Clark, C. J.,

dissenting. Refers, without repeating them, to the views expressed in the dissenting opinion at the former hearing, Smith v. Ingram, 130 N. C., 108-115, and to the opinion of the court in Wood v. Wheeler, 111 N. C., 231, and Taylor v. Sharp, 108 N. C., 377. Also to what is said in the concurring opinion in Vann v. Edwards, 128 N. C., pp. 425-435, and the dissent (concurred in by two members of the court) in Williams v. Walker, 111 N. C., p. 613. There are some decisions of this court as to the rights of married women which are hard to be reconciled with the liberal provisions of Section 6, Article X, of the Constitution, which has been owing doubtless to the fact that the judges who occupied this bench in the years first succeeding its adoption, had been' thoroughly imbued with the common law ideas as to the incapacity of married women and the failure of the Legislature to change the language of one or two provisions in statutes which had been passed in conformity with the former Constitution, but which are repugnant both to the spirit and the letter of the present Constitution. This has not escaped the notice of the court in Bank v. Howell, 118 N. C., 273; Finger v. Hunter, 130 N. C., 529, and other cases, and has been discussed in the dissenting opinion in Weathers v. Borders, 124 N. C., 615-619, and Walton v. Bristol, 125 N. C., pp. 426, 432, to which reference is made without repeating what is there said.

By Chapter 78, Laws 1899, the General Assembly took married women out of the class of incompetents and from the companionship of “infants, idiots, lunatics and convicts,” in which they had been placed by the Statute of-Limitations *968 (The Code, Secs. 148 and 163), and a further approximation to the Constitution was made by Chap. 617, Laws 1901. Finger v. Hunter, 130 N. C., 529. The Constitution, Article X, Section 6, in its terms would take them out of the class of those non sui juris in all respects, as has been done in England (where the conception of these disabilities first arose) and in so many of the States of this Union, among them our neighboring States, Virginia and South Carolina, in which last this contract was ijtÉle.

The majority of the court being of opinion that the plaintiff should recover back this land it would seem elementary justice and equity that she should pay for the betterments placed thereon, Thurber v. LaRoque, 105 N. C., 301, and indeed should render compensation for the enhanced value of the land, Railroad v. McCaskill, 98 N. C., 526; Preston v. Brown, 35 Ohio St., 18, though these matters are not now before us. Certainly this should be so here, for the plaintiff received the money for the land under a contract made while residing in a State where she was sui juris, and liable upon her contracts as if a feme sole. Upon her repudiation of the conveyance, she should not profit by her breach of contract, but should be held liable for the damage caused thereby, like all others who are sui juris.

She sold the land living where she had the unrestricted right to sell it, and received the agreed price, $130, her husband joining in the deed. She now wishes to recover the town of Star which has been built upon the land, with all the houses and other improvements placed upon it and bene-fitting further by the enhanced value given to the land, upon the technical ground that her privy examination was not taken when as a matter of fact, the sale was her free act and deed and she has acquiesced in such sale since 1878, when it was made. There is not a tittle of evidence nor any suggestion even that she did not understandingly and wittingly *969 make the sale of her own will and it was the law at the place of contract that she could make this sale even without the consent of her husband- — though this was bad. Should she recover the land under these circumstances, she should account for betterments and enhanced value and receive back the land, only after paying the value of these additions and returning the $130. Burns v. McGregor, 90 N. C., 222.