Opinion
(Decided 3 May, 1898.)
Motion to Issue Execution on Dormant Judgment — Defenses — Married Woman — Consent Judgment Against Married Women.
1. Upon a judgment creditor's motion to revive a dormant judgment and issue execution thereon, the defendant may set up grounds he has in opposition to the motion.
2. A personal judgment cannot be rendered against a married woman, not a free trader, for her husband's debt.
3. Where a married woman, pending an appeal by her from a personal judgment rendered against her and her husband on notes given for property bought by her husband and secured partly by a mortgage on her land, consented to withdraw the appeal and to allow a compromise judgment to be entered against her husband for a certain amount payable in installments: Held, that she had no power to consent to such judgment, and it has no binding force on her although she was personally present and represented by counsel of her own selection at the time of its rendition.
CLARK, J., dissents, arguendo, in which MONTGOMERY, J., concurs.
MOTION for leave to issue execution on a judgment, heard on appeal from an order of the Superior Court clerk directing the issue of such execution, before McIver, J., at Fall Term, 1897, of ROBESON. At the same time the feme defendant moved to set aside the judgment as to her. His Honor affirmed the order of the clerk, and denied the motion to set aside the judgment. The feme defendant then appealed.
N. A. McLean for plaintiff.
T. A. McNeill for defendants.
It seems that in 1882 Pope McLeod sold a steam sawmill, boiler, engine, and fixtures to the defendant Warren Williams at the price of $3,000, for which sum three notes of $1,000 each seem to have been given; and a mortgage was also made to Pope McLeod on the tract of land upon which said milling property was to be located, and two other tracts of land, to secure the payment of these notes. It does not appear from the case whether the feme defendant signed the notes or not, but she joined in the mortgage with her husband, and a part of the land therein conveyed was her land, inherited from her father.
In 1886 the plaintiff McLeod, having become the sole owner of these notes and mortgage, two of which had not been paid, brought suit against the defendants and recovered judgment by default for $2,000, and a foreclosure of the mortgage. This judgment not being satisfied, at January Term, 1891, the feme defendant made a motion to set it aside as to her, which motion was refused, and she appealed to the Supreme Court. At May Term the parties came to an agreement by which the said defendant was to withdraw her appeal to the Supreme Court, and the plaintiff was to take judgment for $2,000, to be paid in five annual installments of $400 each. The record shows that the judgment of May Term, 1891, was rendered under the following state of facts:
"That at the time the final judgment, which Ann E. Williams asked to have set aside, was taken, she was before the court with her husband, Warren Williams, and she was represented by Messrs. French Norment, counsel of her own selection, who were also counsel for her husband; that said judgment was taken by agreement of herself and her counsel, as well as by consent of her husband, and was a compromise judgment, the terms of which were suggested by herself and her husband and their counsel; that the feme defendant owns other separate real estate (453) outside of that included in the mortgage made by Warren Williams and Ann E. Williams to A. H. McLeod."
This judgment of 1891 having become dormant, the plaintiff filed an affidavit and gave notice of a motion to revive it and to have execution on 29 April, 1897.
On 8 May, 1897, the feme defendant filed an affidavit alleging the irregularity of the judgment against her, and opposed the plaintiff's motion for execution. This motion was decided against her, and she appealed to the judge, and at once gave notice of a motion to set aside the judgment. The two motions were heard together at Fall Term, 1897, and decided against her, and she appealed. Upon the plaintiff's motion for execution the defendant had the right to set up any grounds she had why it should not be granted. McDonald v. Dickson, 85 N.C. 248; Lytle v. Lytle, 94 N.C. 683.
Under Green v. Ballard, 116 N.C. 144, this judgment cannot stand as to the feme defendant. But it is contended that Green v. Ballard is not in harmony with Neville v. Pope, 95 N.C. 346, and Vick v. Pope, 81 N.C. 22. And it appears to the Court that it is not necessary to decide that question, as there is another upon which it depends; and the Court prefers to put its judgment upon that.
It appears that the debt is the husband's debt, and if the feme defendant signed the notes (and it does not appear that she did) this created no personal liability on her. Sherrod v. Dixon, 120 N.C. 60. The judgment which the feme defendant seeks to set aside is a contract judgment, and cannot stand unless the party making the contract (454) had the right to contract. Bank v. Comrs., 119 N.C. 214.
The defendant Ann E. Williams, being a feme covert and not a free trader, had no power to contract so as to bind her personally or her property. Loan Assn. v. Black, 119 N.C. 323. The only difference between this obligation and her note or promise to pay is that this is in the form of a judgment under the sanction of the Court, and the promissory note would not be. If the plaintiff had the individual note of the feme defendant, and was suing upon it, it could hardly be contended that he could recover against her.
There was error in allowing the plaintiff's motion to renew this judgment as to her, and in refusing to vacate the judgment against the defendant Ann E. Williams, except as to the foreclosure of the mortgage.
Error.