Witty v. . Barham , 147 N.C. 479 ( 1908 )

Defendants appealed. Ejectment by purchaser at sale under trust deeds executed by Martha Daniel of Rockingham County, in 1892, 1893, and 1894, without the joining therein or written assent of her husband, Charles G. Daniel, to whom she had been married in 1882. They had one child born alive, but since dead. The husband left her in 1883 and did not thereafter reside with her. He married Esther Lyerly, in Rowan County, in 1891, and, she dying in a few months, he married still mother wife, in Rowan, in 1894, with whom he is still living and by whom he has six children. In 1900 Martha Daniel died. The defendants are her children by a former marriage.

The introduction of the deeds in trust in making out chain of title was proper, and indeed necessary. The question of their effect was a subsequent matter and presents the real point in the case. Charles G. Daniel testified to his continuous absence from his wife from 1883 and to his two subsequent marriages above stated. The certified copy of the marriage license of Charles G. Daniel and Esther Lyerly and of the certificate (481) of marriage between them was competent to corroborate his evidence to that effect. Besides, there was the written agreement of counsel that this record should be admitted, to avoid, we presume, the expense of summoning witnesses. The evidence of the extreme destitution of Martha Daniel at the time of the execution of these deeds in trust, and that it was necessary for her to mortgage her land in order to procure means of living, while Rot necessary evidence, was certainly not incompetent. Nor was it necessary to allege in the complaint that Martha Daniel executed the deeds in trust without the written assent of her husband, because abandoned by him. That was evidential matter, arising only when objection was made to the validity of the deeds. This was not an equitable matter requiring to be set up by plea, like under influence or fraud in the treaty, but went to the legal validity of the deed, like mental incapacity to execute it or fraud in the factum, which can be put in evidence, though not pleaded. Alley v. Howell, 141 N.C. 113. The defendants did plead that the husband did not assent in writing to the trust deeds, but it was not necessary.

The witness Charles G. Daniel testified that he and his wife "could not get along together. She told me she would give me a horse if I would leave and stay. I took the horse. I cannot say why she gave me the horse, unless it was to get rid of me. I left because I thought she did not want me there after she made me the offer she did." The court, on motion of plaintiff, property struck out this evidence is abnoxious, under Revisal, sec. 1631.Bunn v. Todd, 107 N.C. 266. While the witness was not a party to the action, he is a "person interested in the event of the action," since if the plaintiff is defeated of recovery by the invalidity of the deeds in trust the husband is entitled to the enjoyment of the lands for life as tenant by the curtesy.

The court also properly excluded the testimony of one of the defendants offered to prove that she heard the aforesaid conversation (482) between her mother and said Charles G. Daniel, as that would be the "indirect testimony of an interested witness as to a transaction or communication with the deceased." Stocks v. Cannon, 139 N.C. 60. Such witness would have been competent to testify to "any substantive and independent fact" that was not "a communication or personal transaction" with the deceased, as, in Gray v. Cooper, 65 N.C. 183, that the deceased had possession and use of the slaves, or (March v. Verble,79 N.C. 19) that the deceased had owned but one bull since the war, and his value, and the numerous cases which hold that an interested witness can prove the handwriting of the deceased, but not that she saw him sign the paper sued on. Davidson v. Bardin, 139 N.C. 2.

But had the evidence not been incompetent under Revisal, sec. 1631, it would have been irrelevant and its exclusion proper. Revisal, sec. 2117, provides: "Every woman whose husband shall abandon her or shall maliciously turn her out of doors shall be deemed a free trader so far as to be competent to contract and be contracted with, and she shall have power to convey her personal estate and her real estate without the assent of her husband." This statute was held constitutional (Hall v. Walker,118 N.C. 377) and has been cited as authority. Brown v. Brown,121 N.C. 10; Finger v. Hunter, 130 N.C. 531;Smith v. Bruton, 137 N.C. 81. To constitute abandonment it is not necessary that the husband should leave the State.Vandiford v. Humphrey, 139 N.C. 65.

It is true that if husband and wife live separately by consent, that is not abandonment. But the evidence here that the husband left his wife in 1883, never thereafter visited her or communicated with her, that she was without means of support and in great destitution, was compelled to mortgage her land, and that the husband in the meantime married and lived consecutively with two other women, fully established abandonment, which would in no wise be controverted by showing that the day he left home his wife consented to his leaving and even gave him (483) a horse to go. That would show that he did not abandon her that day. But his subsequent conduct — the long years of unbroken absence and silence, without any contribution to his wife's support in her great destitution, and his two subsequent marriages during her lifetime — unquestionably proves abandonment, full, complete, and absolute, though it should be shown that the husband originally left home with his wife's consent. It does not appear whether there have been any criminal proceedings instituted for bigamy.

No error.

Cited: Harrell v. Hagan, 150 N.C. 244; S. v. Toney, 162 N.C. 637; S.v. Smith, 164 N.C. 479; Grissom v. Grissom, 170 N.C. 99.