Barnes v. Black
44 A. 550
Pa.
1899
Check Treatment

Opinion by

Me. Justice Mitchell,

The main question in this appeal has been conclusively settled since the trial of the case by Flory v. Houck, 186 Pa. 263, where it was held that a deed of land from a husband to his wife, which is fraudulent as against creditors at the time it is made, cannot be sustained by relation back to an antenuptial agreement in parol. The differences in the facts between that case and this in regard to the lapse of time, etc., are not material to the principles of the decision. The cases based on the reliance of the wife on the husband’s representations, and her freedom from participation in any fraud, are not applicable, for, as was there said, the objection is not to the validity or sufficiency of the consideration of marriage, but to the conveyance of land by parol. For the same reason the absence of the 4th section of the statute of frauds, 29 Car. 2, does not change the result. The argument, further urged by appellant’s counsel, that marriage is such part performance as in equity will take the case out of the statute, was also fully considered and overruled in that case.

The deed from Barnes to appellant recited a consideration of five dollars, “ and' the further consideration of love and affection for my said wife.” The plaintiff was entitled to prove that the real consideration was the antenuptial agreement. It was not, in the language of Buckley’s Appeal, 48 Pa. 491, directly inconsistent with the consideration expressed, and it was therefore error to exclude it. But as the antenup*451tial agreement, if proved, would not have been of avail against the creditors, the error did no injury to appellant.

The third and sixth assignments must be overruled. The evidence objected to amounted to much more than mere declarations of the husband. The witnesses testified to actual money transactions in their presence, whereby the husband became indebted. But even as declarations they would have been admissible. The fact inquired into was whether the husband was in debt to the parties named at the time referred to, which was long prior to his marriage to the plaintiff and to the antenuptial agreement. At the time they were made they were adverse to his own interest and his future wife had no interest in the matter. His declarations, therefore, even as against her, stand on the same footing as those of a grantor before he has parted with his title. The legal objections are not to the competency of the facts as evidence, but to the proof of them by the husband against the interest of the wife. Cases like Martin v. Butt, 127 Pa. 380, where the declarations of the husband after marriage and post litem motam are excluded, rest on entirely different grounds.

The other assignments do not require special notice. The records were in evidence as part of the defendant’s title, and were submitted with the other evidence, with the instruction to the jury that the question for them -was the good faith of the judgments, “that is, do they represent valid debts existing at the time they were obtained? ” That was the only issue in the case, and it was properly submitted. It is the appellant’s misfortune that the jury decided it against her.

Judgment affirmed.