1. Divorce and Alimony 13 — A deed of separation legalizes the separation, and neither party may attack its legality on account of the prior misconduct of the other.
2. Husband and Wife 12; Cancellation and Rescission of Instruments 2 — Allegations and evidence that the wife signed the deed of separation providing for the support of the children of the marriage in desperation because of her destitution held insufficient for the cancellation of the agreement, since a threat to withhold that which a party has an adequate remedy to enforce cannot constitute duress.
PER CURIAM.
When a husband and wife execute a valid deed of separation and thereafter live apart, such separation exists by mutual consent from the date of the execution of the instrument. Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525. As long as the deed stands unimpeached, neither party can attack the legality of the separation on account of the misconduct of the other prior to its execution. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235.
Recognizing this rule, defendant attempted to avoid the deed of separation on the ground that it was obtained by duress. However, neither the facts alleged nor the proffered proof are sufficient to invalidate the contract which was not executed until nine months after the parties had separated. Plaintiff's duty to support his children was an obligation which defendant could have forced him to perform under both the criminal and the civil law. "A threat to withhold from a party a legal right which he has an adequate remedy to enforce will not constitute duress . . ." 17 C.J.S. Contracts 172. Defendant has acquiesced for over seven years in the deed of separation which she would now avoid. She has shown no ground for rescission.
In the trial below we find
No error.