Brown v. . Brown

Fubches, J.,

dissenting:

I do not agree with my brethren. At common law the plaintiff could not have brought and maintained this action. Pippin v. Wesson, 74 N. C., 437 . It is admitted in the opinion of the court that the-common law disabilities still exist, unless they have been removed by legislation. Section 1832 of The Code was cited and is relied on, as making the change that authorized this action, but this section provides that in cases where the wife is abandoned by her husband, she “shall be deemed a free trader so far as to be competent to contract and be contracted with, and to bind her separate property”. To make this section apply, the action must be upon contract, express or implied, or for a tort growing out of contract or connected with her separate property or for the recovery of her separate property. And I submit that this action is for neither.

Hall v. Walker, 118 N. C., 377 , holds that section 1832 of The Code is constitutional, and no more. It puts no construction upon this section.

Finley v. Saunders, 98 N. C., 462 , was an action for land, and Heath v. Morgan, 117 N. C., 504 , was an action for personal property, and I submit have no bearing upon this action.

Bitting v. Thornton, 72 N. C., 541 and McKinnon v. Morrison, 104 N. C., 354 , only established the fact that a defendant, who is entitled to an action against the plaintiff, may set up his right of action by way of counter-claim in. those cases provided for by statute. They do not apply in this case, because the plaintiff has no right of action.

*12 I am forced to this conclusion by reasoning from common law principles, and I am sustained in this conclusion by authority. 9 Am. & Eng. Enc. of Law, 834 Note 8, 9; VanArnam v. Ayers, 67 Barb. (N. Y.) 544; Westlake v. Westlkae, 34 Ohio St., 621 . For these reasons and upon these authorities I am of opinion the action cannot be maintained.