The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-29
MARRIED WOMEN
MAY CONTRACT
Court Brushes Past Old
Landmarks.
"CHARGES IN EQUITY"
Opinion of Ball VS.. Paquin Does AWAY
With Old Doctrine of the Courts.
Legislation Recommended.
Judge CIark's Vigorous
Concurring Opinion.

NUHCuttIHy OpthiOH'
A very important and interesting
decision to the profession was handed
down yesterday in the opinion of the
court by Justice Connor and con-
curing opinion by the Chief Justice
in the case of Ball VS.. Paquin, from
Buncombe, which has the effect of
taking long step towards the needed
simplification of the law as regards
tine powers of married women with
respect to their separate real estate.
The main question decided, and
really the only one in the case, is that
Il married woman may with the writ
ten consent of her husband and by
prlVy examination taken, engage her
self in a contract by which she may
subject her separate real property TO
execution for the debt, without a di-
rect charge thereon.
Simply stated the circumstances out
of which the case arose were that
the feme defendant and her husband
entered into a contract for the i'm
provement of the real property of
such fcme covert with the formaiities
OF written consent of the husband and
priVy examination.
The defense was that no such charge
could be made except in the form oil
a conveyance by way of mortgage.
Although the court states that there
has heretofore been no direct decision
on the point, there have been a num-
Der of decisions in which there have
occurred expressions of the court
seeming to indicate that such a charge
of real property could be made by q
married woman only with the formali-
ties of a deed or by a charge in
equity"
During the course of a long opinion
in which there is a full discussion of
the married woman's law and the de-
cisions thereupon, Justice Conner,
speaking for the court, strongly urges
legislation which will put all women
upon a simply understood contractural
basis with respect to their separate
property
The case decided arose In 1900 be-
fore the passage of the law of 1901
with respect to mechanics liens which
would have operated to give the plain
tiff a right of recovery outside of the
question decided in this appeal.
In referring to the leading case of
Pippen VS.. Wesson, IA n. c.. ABB,
Judge Conner says:
1T is not our purpose to do more
than say that this decision was based
upon the view that neither the con-
stitution nor the statute enlarged her
common Jaw contractural capacity and
that the statute was disabling, rather
than enabling in its provisions, excep-
tionS to the class specified. Whatever,
in the light of thought and experience
of thirty years, may be said of this
decision, it became the accepted law
of the State, and its fundamental
b principle with. some modification, has
been followed. A number of impor-
tant and disturbing results have flown
from it. A constant struggle has been
going on to find some adjustment of
the law to the inevitable result of the
radical change made by the COnStitu-
ton Married women today are the
owners of property, both real and per-
sonal. worth millions of dollars. They
employ tenants and choppers and Gull
tivate thousand of farms. engage in
merchandise conduct hotels. boarding
houses and almost every kind Of bust
ness suited and sometimes unSuited
to their mental and physical capacity.
The largest possible powers have been
conferred upon them in respect to the
control of their property, as in Man
ming VS. Manning, 10 y. c.. 293, and
many other cases. It has been found
by the experience of thirty years that
the most unexpected and often start
ling results have come from this con-
dition. LAs a matter of every day ex-
perience, we know that a very large
portion OF the INDUSTRIAL etHu COIi-
mercial life of the State is under the
control and subject to their Judgment
and opinion. 1t is possible that nine
tenths of the contracts entered into
by them are not enforcible in the
courts
Again Justice Conner says: 'The de-
cisions, while not in all respects har-
monious. indicate a movement of the
court towards bringing the law in this
respect into harmony with our social,
Industrial and commercial conditions.
The legislature. to some extent, mas
responded to this demand. And in so
FAR as it is within our province to do
so. we desire to express our unani-
nous opinion that il is desirable that
the legislature simplify the subject by
giving to married women full power to
enter into executory contracts. bind
ing their property. real and personal,
as If Notwithstanding all doubt
and uncertainty either as to the form
of the contract or it's execution"
Charges in Equity an Ungodly Jum-
BILE"
In the course of very able concurr-
ing opinion. the Chief Justice in at
lacking the doctrine of Charges in
equity says in part:
'"rhe 'ungodly tumble which Crom-
we'll irreverently but most truthfully
applied to the laws of England in