35 N.C. 206 | N.C. | 1851
The lessor of the plaintiff claimed the premises as a purchaser at a sale made by the sheriff in May, 1846, under an execution issued upon a judgment rendered in November, 1844, against the defendant Seymore York; and gave evidence that York and his wife, who is the other defendant, were in possession at the time of the sale and at the commencement of the suit.
(207) On the part of the defendants a deed was then read, bearing date 20 September, 1845, from one Coffin to the defendant Bethany, whereby, in consideration of $25 paid by her as recited, he conveyed to her the premises in fee, consisting of 1 1/2 acres of land. And the defendant further gave in evidence the record of a suit brought *145 in the Superior Court by the defendant Bethany in July, 1844, against her husband by petition, wherein she alleged that he had become an habitual drunkard and spendthrift, wasting his substance to the impoverishment of his family, consisting of his wife and eight children, so that he had become insolvent, and all that she and the children earned was taken upon executions against him; and she prayed that all such property as might thereafter be purchased by her own industry, or accrue to her by descent, devise, gift, bequest, or in any other manner, should be secured to her, and not be liable to the power, control, dominion, or debts of her said husband, and that she might sue and be sued, in her own name, without joining her husband: and thereupon a decree was made, in April, 1845, in her favor, in the terms of the prayer of the petitioner, as to any estate, real or personal, she might acquire, subsequent to the decree.
On the part of the plaintiff evidence was then given that in 1843 the wife contracted with Coffin for the purchase of the lot of ground in order to build a house on it, as a residence for herself and family, convenient to a factory belonging to Coffin, in which her children might be employed, and that four of them worked in the factory on wages, the eldest of whom was 14 years old, and that the conveyance was to be made when the purchase money was paid; that York and his wife lived together, and that he was a drinking man, but seldom so (208) drunk as not to be able to work, and generally engaged in doing something towards the support of his family; that the wife paid Coffin $6 towards the purchase money, and that there was then due, on account of the wages of the children, more than enough to satisfy the residue thereof, and Coffin then offered to come to a settlement therefor and make her a deed, but she declined taking it at that time, saying that she had a petition pending against her husband, to be allowed to hold the property she might acquire to her own use, and wished to put off taking the deed until she could get a decree in her favor. That she employed a person to build a house on the lot, and that her husband did not assist in the building, except in making the chimney, and that the house was worth $75; and that after the decree was made, Coffin executed the deed and left it with his clerk, to settle the account with Mrs. York, and deliver the deed, and he did so. The court instructed the jury that if they should find that the wife paid any portion of the purchase money to Coffin, however small, with money acquired by her after the decree, the plaintiff could not recover.
Under these instructions the jury found for the defendant; thereupon the plaintiff appealed.
As the case is understood, the purchase money was made up of the $6 paid by the wife pending the petition, and of the wages of the infant children earned in Coffin's service, pending the petition, or at all events, prior to the making of the deed. That being established affirmatively, and no evidence being given of any other mode in which the wife paid for the land, it would seem that it was left (209) to the jury to find that some part of the price was paid by her out of her subsequent acquisitions, without any evidence on which it could be so found. But if this were otherwise, the Court is of opinion the instruction is still erroneous. It is true that, regarding the husband's interest in the land as a trust, resulting from the purchase being made with his privity and partly with his money and partly with his wife's, and especially if it was a covinous contrivance against his creditors, the creditors would be compelled to go into a court of equity for relief, and could not sell the land by execution at law, either under the Statute of Elizabeth or the act of 1812. Page v. Goodman, at this term,
PER CURIAM. Venire de novo awarded.
Cited: Winchester v. Reid,
(212)