8 Tenn. 323 | Tenn. | 1827
delivered the opinion of the court. The plaintiff below, who is also the plaintiff in error, insists that the circuit judge gave erroneous directions to the jury on the questions of law arising in the cause.
He is said to have erred — 1st. In enumerating the circumstances from which the jury might infer fraud. The judge told the jury, “ that if Stephen Farmer made the conveyance to Littleberry Farmer with the intent to defraud his then wife of her dower, such conveyance, so far as it injured the rights of his wife, was void; that he thought liis principal object in making the conveyance might be to defraud creditors,and although an intention to defraud creditors is not in strictness of law the same thing as an intent to defraud the widow of her do-wer, yet they are not inconsistent with each other: that if Stephen Farmer did not get a valuable consideration for the land, and if the conveyance obviously tended to defeat her dower, if made in the absence of his wife, when he expected and believed she would not return, and said he wanted his children to have all the property, these are circumstances proper for the consideration of the jury, and if from them, and other proof in the cause, they believed the conveyance was made to defraud her of her dower, then the conveyance to Lit-berry Farmer was void.”
Although the expressions used by the judge in bis enumeration of circumstances, are not precisely the words of the witnesses; yet, as it appears to us, there is no material
It docs not require argument to prove, that a man who is at once husband and debtor, may at the same moment intend, and by the same act consummate an alienation of his property, which in the eye of the law is equally a fraud against the wife and the creditor. It is no less clear, that the same circumstances which prove a fraud upon the rights of one, may often conduce to show fraud also against the other. If a man married and deeply in debt make a conveyance of all his estate to his son, no one will deny that this evidences a fraud as against his creditors. Is it not as obviously a fraud also against his wife? She is entitled by law to one third of all the lands, &c. of which the husband died seized or possessed; and he is not at liberty to deprive himself of the seizen or possession at the {iis death, with intent to defeat her of her dower, by conveyance fraudulently made to children or otherwise. Now the fact of her being defeated of dower, is conclusively demonstrated by this proof; for, the son getting all, she can get none. Is not the intent fraudulently to defeat her right shown as conclusively ? Must he not have intended that she should get none, when he conveyed all to another? and must it not have been done fraudulently as to her, as it occurred without the presence of necessity, being without any valuable consideration, and when he knew it would deprive his wife of that provision for her support which the law provides for her? There can be but one answer to these inquiries. If the fact that the husband conveyed all his property, or all his real estate to his son, affords proof so strong, that he intended fraudulently to defeat her of her dower, shall it be said that the conveyance of a large portion of it affords no proof of the same thing? Although it may be less conclusive, yet it cannot be affirmed that it does not conduce to the establishment of the same proposition. The effect of the proof increases in proportion to the amount of the estate conveyed, compared with the amount retained. If the tendency of a conveyance of all is to defeat her altogether of dower, certainly the tendency
2d. But the part of the directions to the jury to which the plaintiff most strenuously objects is the opinion, that he could not rely successfully on the ground of his having been a purchaser from a purchaser for a valuable consideration without notice of the fraud. Several authorities have been cited on this point in the brief, and in the argument. They, with such others as we could find here relating to the subject, have been carefully examined by us, as well as the acts of assembly, particularly 1784, ch. 22, sec. 8,9,10; and the whole subject has received so much of the consideration its importance merits as was consistent with other claims upon our attention.
It is certainly true as a general rule, that the plea of purchase for a valuable consideration without notice, is a de-fence to be relied on for the protection of a person in possession against the claim of another not in possession, or in the language of some of the cases, as a shield to protect one’s own possession, but not as a sword to attack that of others.
That there is no possible case in which one out of possession can rely on this doctrine as a means of getting in, we shall not assert, but wc are convinced that such instances are of rare occurrence. Wc view this doctrine as peculiarly the creature of a court of equity, seldom introduced into courts of law, except when the necessity for its use arises out of some statutable regulation, sanctioning inquiries and examinations to be made in a court of law, which, but for the regulation, would be more properly the subject of equitable cognizance.
But without pursuing these inquiries further, and without giving any definite opinion upon the subject, we are
By the common law the widow was enitled to be endowed of all lands and tenements of which her husband was seized at any time during the coverture, and of which, any issue which she might have had might by possibility have been heir. (2 Black. Com.) This act of assembly introduces a change, and takes away her right of dower i n such lands as her husband, during his life, has bona jide conveyed without intention to defeat his widow of her dower. It is a question which merits very deliberate consideration, whether every deed made to children without a
Already is a married woman subjected to sufficient hardships by the rules of our law. All her personal property becomes her husband’s absolutely immediately upon marriage. He is not at once the owner of her real estate, but he soon can, and usually does become so. It is sold or exchanged for something else, and the title of the latter vested in him. Or a deed is executed by him and his wife to a third person, and by that third person back to himself. True, the wife must be examined separate and apart from her husband as to her free consent, &c. But he who is acquainted with female nature and married life, knows that this is little more than a solemn farce. The husband is thus made owner of all his wife’s property, and upon his prudence and good fortune her fate is made entirely to depend. She may be reduced, even during his life, from affluence and ease to penury and suffering. This is bad enough. But the doctrine now contended for would go further, andwould not only subject her property to the claims of the husband’s creditors,it would also expose her expectations, even after his
We repeat then, is it not the true construction of the act that every conveyance founded merely' upon meritorious consideration, is as much fraudulent and void against the widow as if the fraudulent intention were established by positive proof?
We forbear to give any decision upon this question in this case. It has not been argued. Nor is it essentia] to decide upon it; for we have no doubt that we have nothing to do with notice in inquiring whether a case is within the provisions of this act. It provides, “ that; all conveyances made fraudulently to children, or otherwise, with an intention to defeat the widow of her dower, shall be held and deemed to be void,” &c. The words are unambiguous. The moment the conveyance is proved to have been fraudulent in its inception within the terms used, the difficulty is at an end. It is void as against the dower, whoever may claim and however he may claim under the fraudulent conveyance. Any other interpretation would render the provision in very many instances entirely nugatory. Incon-vencies may sometimes result from this construction, but they are not believed to be of the same flagrant character with those which would follow a different one.
Judgment affirmed.