Joyner v. JoynerAnnotate this Case
140 S.E.2d 714 (1965)
264 N.C. 27
Edith P. JOYNER v. Reese B. JOYNER.
Supreme Court of North Carolina.
March 17, 1965.
*717 Narron, Holdford & Holdford, Wilson, for plaintiff.
Harold D. Cooley, Nashville, and Vernon F. Daughtridge, Wilson, for defendant.
This is not an action by a wife to recover funds which her husband received from her as a result of the confidential relation existing between them. See Fulp v. Fulp, N.C., 140 S.E.2d 708. Rather, in this action plaintiff seeks to set aside on grounds of duress a conveyance of realty and a deed of separation, and to recover damages for the detention of personal property transferred pursuant to its property-settlement provisions.
Insofar as the provisions of the deed of separation remained unperformed, any action to set it aside was superfluous."It is well established in this jurisdiction that where a husband and wife enter into a separation agreement and thereafter become reconciled and renew their marital relations, the agreement is terminated for every purpose *718 in so far as it remains executory. * * * Even so, a reconciliation and resumption of marital relations by the parties to a separation agreement would not revoke or invalidate a duly executed deed of conveyance in a property settlement between the parties." Jones v. Lewis, 243 N.C. 259, 261, 90 S.E.2d 547, 549; accord, 2 Lee, North Carolina Family Law § 200 (3d Ed. 1963).
A reconveyance of the land would have been necessary to change the title to the realty plaintiff had conveyed to defendant. It could not be done by parol or by tearing up the papers.
Likewise, the resumption of marital relations would not invalidate the parties' division of their personal property, and evidence that defendant "tore up" the separation papers and "threw them in the trash box," without more, does not establish a new contract affecting the parties' individual personalty. Plaintiff has no pleading and no proof either that defendant withheld from her any personal property which had been allotted to her at the time the separation agreement was entered into, or that defendant subsequently transferred, or agreed to transfer, to her any interest in the personalty which was allotted to him in the division. With neither allegation nor proof to support her claim to an undivided interest in the personalty described in the complaint, plaintiff has no right to recover it, and a fortiori, no case for damages. 18 Am.Jur.2d, Conversion §§ 53, 144, 156 (1965).
Plaintiff has failed, also, to establish the allegation that her execution of the deed of separation of November 25, 1960, and that of the quitclaim deed of December 6, 1960, were involuntary."Duress exists where one by the unlawful act of another is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will. * * * Duress is commonly said to be of the person where it is manifested by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted. Or it may be of the goods, when one is obliged to submit to an illegal exaction in order to obtain possession of his goods and chattels from one who has wrongfully taken them into possession." Smithwick v. Whitley, 152 N.C. 369, 371, 67 S.E. 913, 914.
Plaintiff successfully resisted defendant's attempt to take her to a psychiatrist when she broke his hold on her wrist and went to the home of her mother. Defendant did not repeat the attempt. If there were other "assaults" and abuses which caused plaintiff to fear for her safety, the evidence does not disclose them. Upon defendant's telling her that no judge would ever award her the custody of their son, plaintiff did not accept defendant's "legal opinion" on this matter. As a result of what he said, she sought the advice of a lawyer who, her present attorney concedes, is competent and learned in the law. From then on the parties dealt with each other at arm's length, and plaintiff negotiated with defendant only through her counsel. Upon his advice she signed the agreement which, she says, she fully understood and which gave defendant full custody and control of the child except during school vacations. It would be odd indeed if plaintiff, as her present counsel now asserts, relinquished the custody of her son in the hope of obtaining it.
The deeds in question here were prepared by plaintiff's counsel, and the record is barren of any evidence that defendant ever made to plaintiff any representation, true or false, with reference to the contents or legal effect of either instrument. Upon being advised that the deed of conveyance of November 25, 1960, had not been properly acknowledged, plaintiff voluntarily, and without having seen or talked with her husband so far as the record discloses, eleven days later went to the office of the *719 justice of the peace, where she properly executed and acknowledged another conveyance of the same property.
When the wife employs an attorney and, through him, deals with her husband as an adversary, the confidential relationship between husband and wife no longer exists, 17A Am.Jur., Divorce and Separation § 898 (1957); 42 C.J.S. Husband and Wife § 593b (1944); and no presumption arises that the husband has exercised a dominant influence over the wife during such negotiations. The presence of able counsel for the wife at the conferences resulting in a separation agreement, and at the time she executes and acknowledges a deed of separation, "negatives the inference or contention that she was incompetent to understand the arrangement, and was ignorant of its terms and did not know what she was doing," Matthews v. Matthews, 24 Tenn.App. 580, 592, 148 S.W.2d 3, 11; accord, Rendlen v. Rendlen, Mo., 367 S.W.2d 596; see Hughes v. Leonard, 66 Colo. 500, 181 P. 200, 5 A.L.R. 817; Sande v. Sande, 83 Idaho 233, 360 P.2d 998; 1 Nelson, Divorce and Annulment § 13.21 (2d Ed.1945). "The courts will subject the wife's claim of fraud, duress, or undue influence to a far more searching scrutiny where she was represented by counsel in the making of the agreement and throughout the negotiations leading up to its execution." Lindey, Separation Agreements § 28.IX (1937 Ed.)
Notwithstanding that a wife is represented by counsel, G.S. § 52-12 requires the officer before whom she acknowledges a contract of separation or a deed to her husband to include in his certificate "his conclusions and findings of fact as to whether or not said contract is unreasonable or injurious to the wife." In taking the acknowledgement to the deeds under attack here, the certifying officer fully complied with G.S. § 52-12. His certificate is conclusive unless "impeached for fraud as other judgments may be." Duress and undue influence are both a species of fraud. Little v. Bank of Wadesboro, 187 N.C. 1, 121 S.E. 185. Plaintiff's evidence fails to make out a prima facie case for rescission on the grounds of fraud, duress, or undue influence.
The judgment of nonsuit was properly entered.