These have been deemed prudent safeguards to insure freedom of volition and action on her part when she is disposing of her real property, and these are none the less necessary now, when she retains her full real and personal estate." Both before and since these decisions and through all the various cases on the law concerning the property of married women, this one thing has been steadfastly adhered to, that in order to convey a married woman's separate estate or fix a charge upon it, her privy examination is required. Bank v. Benbow, 150 N.C. 781; Ball v. Paquin, 140 N.C. 83; Smith v. Bruton, 137 N.C. 79; Harvey v. Johnston, 133 N.C. 352; Bank v. Ireland, 122 N.C. 571; Scott v. Battle, 85 N.C. 185, and authorities cited. In Bank v. Benbow the ruling is: "For a feme covert to bind her realty, to the payment of a note, she must execute a formal conveyance or some paper writing which in equity may be a charge upon her separate estate, accompanied by the written assent of her husband and her privy examination.
In the case in hand it appears upon the face of the record that error is apparent in two aspects: First: The demurrer fails to distinctly specify the grounds of objection to the answer of defendant, and may be disregarded, G.S. 1-128. Love v. Comrs., 64 N.C. 706; Heilig v. Foard, 64 N.C. 710; George v. High, 85 N.C. 99; Bank v. Bogle, 85 N.C. 203; Gross v. Waller, 90 N.C. 149; Burbank v. Comrs., 92 N.C. 257; Elam v. Barnes, 110 N.C. 73, 14 S.E. 621; Ball v. Paquin, 140 N.C. 83, 52 S.E. 410; Seawell v. Cole, 194 N.C. 546, 140 S.E. 85; Griffin v. Bank, 205 N.C. 253, 171 S.E. 71; Wilson v. Motor Lines, 207 N.C. 263, 176 S.E. 750. The statute G.S. 1-128 declares that "The demurrer shall distinctly specify the ground of objection to the complaint, or it may be disregarded."
" Baker v. Robbins, 119 N.C. 289; Bailey v. Rutjes, 86 N.C. 517; Boone v. Chatfield, supra. And a debt contracted is a debt agreed to be paid. Ball v. Paquin, 140 N.C. 83; Mfg. Co. v. Assurance Co., 161 N.C. 88, 86 S.E. 865; Weathers v. Borders, supra; Baker v. Robbins, supra; Wilkie v. Bray, supra. The debt must be such as would entitle the claimant to a personal judgment for the amount due. Weathers v. Borders, supra.
See Phelan v. Brick Company, 26 Wyo. 493. A mechanic's lien may attach to property held by husband and wife as tenants by the entirety, where the contract was made by both, but not where incurred by one alone. Ball v. Paquin, (N.C.) 3 L.R.A. (N.S.) 307; Marsh v. Alford, 5 Bush 393; Heacock v. Loder, (Ore.) 211 P. 950; Kohring v. Bowman, (Ind.) 137 N.E. 767; Wilson v. Logue, (Ind.) 30 N.E. 1079; 40 C.J. 98; Phelan v. Brick Company, supra.
In such cases she could charge her estate without the consent of her husband. This subject has been so fully discussed in numerous well-considered opinions of this Court that it is useless to do more than refer to a few of the leading cases: Flaum v. Wallace, 103 N.C. 297; Farthing v. Shields, 106 N.C. 295; Harvey v. Johnson, 133 N.C. 352; Vann v. Edwards, 135 N.C. 661; Ball v. Paquin, 140 N.C. 86; Bank v. Benbow, 150 N.C. 784. There is no evidence of any written assent upon the part of the husband of Mrs. Coats, and no evidence that she contracted this debt for her necessary personal expenses or for the support of her family.
In construing this section of our Constitution and statutes passed on the subject, it has been held that neither the constitutional provision nor the statutes referred to had the effect of enabling a married woman living with her husband to bind herself by contracts strictly in personam, but the constitutional provision declaring her property, real and personal, to be her sole and separate estate was intended and operated to enable her to charge her personal estate by contracts on the principle by which, under recognized equitable principles, she was formerly allowed to charge her separate estate in the hands of a trustee and her real estate also by contract in which her husband joined and the wife's privy examination taken. Ball v. Paquin, 140 N.C. 83; Farthing v. Shields, 106 N.C. 289; Flaum v. Wallace, 103 N.C. 296; Pippen v. Wesson, 74 N.C. 437. It was further held that the requirement as to certain classes of contracts that the husband should join in them and the privy examination of the wife taken was not in conflict with the constitutional provision that the wife's property could be conveyed with the written assent of the husband, but should be considered as establishing a form by which the husband's assent to the contract should be properly evidenced. Southerland v. Hunter, 93 N.C. 310; Ferguson v. Kinsland, 93 N.C. 337.
" This statute does not even require an express contract by her, but provides that when she "consents or procures" the building to be erected or material furnished she shall be deemed to have contracted for such improvement, and her property thereupon becomes subject to liens, if filed. In Finger v. Hunter, 130 N.C. 529, this statute was held constitutional and was enforced, and that case has been approved in Ball v. Paquin, 140 N.C. 96, and other cases. The above recital is taken from Payne v. Flack, 152 N.C. 600.
Revisal, sec. 952, provides that: "Every conveyance, power of attorney, or other instrument affecting the estate, right, or title of any married woman in lands, tenements, hereditaments, must be executed by such married woman and her husband, and due proof or acknowledgment thereof must be made as to the husband and due acknowledgement thereof must be made by the wife, and her private examination touching her voluntary assent to such instrument shall be taken separate and apart from her husband, and such acknowledgment or proof as to the execution by the husband, and such acknowledgment by the wife and her private examination shall (107) be taken and certified as provided by law." This section has been repeatedly held a constitutional and valid enactment, and authority with us is equally decisive that unless the formalities established by this statute are complied with, the deed of a married woman is absolutely void. Council v. Pridgen, 153 N.C. 443; Bank v. Benbow, 150 N.C. 781; Ball v. Paquin, 140 N.C. 83; Smith v. Bruton, 137 N.C. 79; Ferguson v. Kinsland, 93 N.C. 337; Southerland v. Hunter, 93 N.C. 310. In Council v. Pridgen, the accepted doctrine on this subject is stated as follows: "Article X, sec. 6, of our Constitution, requiring that a married woman conveying her separate real estate shall have the `written assent of her husband,' the statute law, now embodied in Revisal, sec. 952, provides the manner in which the assent of the husband must be obtained, to wit, that the deed `must be executed by such married woman and her husband and due proof or acknowledgment thereof must be made by the wife and her privy examination taken,' etc.; and thus construed, the statutes are constitutional and valid.
Summing up, the rights of married women in North Carolina as to conveyances and contracts are: As to conveyances of personalty: There is no restriction whatever upon her right to dispose of her personalty as fully and freely as if she had remained unmarried, either in the Constitution or by any statute. Vann v. Edwards, 135 N.C. 661, cited with approval by Justice Connor in Ball v. Paquin, 140 N.C. 91. As to conveyances of realty: The Constitution requires (534) only "the written assent" of the husband.
" This statute was held to be valid as to the contracts of married women with strangers, in Finger v. Hunter, 130 N.C. 529, which is approved in Ball v. Paquin, 140 N.C. 95, and we do not doubt the power of the Legislature to include contracts between husband and wife. The inquiry here is, Has it done so?