23 N.C. 97 | N.C. | 1840
As the last point is unconnected with the others, it may be disposed of at once. From the terms of the exception we must take it that the executions, though prior to the registration, were tested after the execution of the deed. The objection is, therefore, founded exclusively on the Rev. Stat., ch. 37, sec. 24; Laws 1829, ch. 20, which enacts that no deed of trust or mortgage shall be valid to pass property as against creditors but from the registration. Our opinion is that the act does not embrace every deed in which a trust happens to be declared, and that the instrument before us is not within it. The object was to give notice of encumbrances, and the "deed of trust" meant in the act is that species which, though of recent origin, has grown into general use as a securityfor debts, in the nature of a mortgage with a power of sale. This results from the manner in which the two kinds of conveyance, "deed of trust" and *81 "mortgage," are associated in that section of the act. But the special provision in section 29 of the act, as now digested in the Revised Statutes, for the probate and registration of marriage contracts, prevents the application to them of the general words of section 24. This particular species of "deed of trust" is to be governed by its own peculiar regulations. This exceptions is, therefore, unfounded.
Another exception on the part of the defendant, as to the proof of the articles by testimony to the handwriting of the plaintiff as the subscribing witness thereto, we likewise deem to be unfounded. It was admitted at the bar that the evidence would have been proper if the law had, after his attestation, thrown the interest on the plaintiff. But it was contended that, in a suit brought by the witness himself, the evidence is not competent when the plaintiff acquires the interest by his own act. Were the question new, we should at least hesitate on it, as the distinction seems to have much reason in it; and, indeed, with respect to indorsements to subscribing witnesses to negotiable instruments, (102) it is established at law. Hall v. Bynum,
But the important consideration is whether the articles, after they were established, are sufficient to sustain the settlement under which the plaintiff claims title. Upon, that, the defendant's objection at the trial is unanswerable. Valid antenuptial contracts will undoubtedly support a settlement made after marriage in conformity to them. There are both a moral and an equitable obligation which render the articles a good consideration for the settlement. But without such articles, a postnuptial settlement is voluntary and void under the Stat., 13 Eliz., see 1 Rev. stat., ch. 50, sec. 1, as has long been settled. So it necessarily must be when by the settlement the husband secures to the wife or issue of the marriage more than by the articles he engaged. This settlement goes much beyond the articles, and deprives the husband of a valuable interest which the articles, not only left in him, but expressly secured to him. For that excess, then, at the least, the deed to the plaintiff must be invalid; that is to say, if the case is to rest on the articles by themselves. But it thence follows, on a settled principle, that the settlement is not good even for the life of the wife. The deed is avoided by the act of 1715, or 13 Eliz., as being, at least in part, not founded on a valuable consideration, but voluntary. There is but one trust declared in *82 this deed, and that is in favor of Mrs. Homer. In such a case the Court cannot apportion the operation of the instrument to its considerations, and hold it in part bad and in part good, as at common law; but must execute the stern condemnation of the statute, which says it shall be utterly void.
(103) But the plaintiff asks to supply the defect in the articles in this respect by the verbal agreement between the parties, and the alleged fraud by Homer on his intended wife. Although not necessary to the decision of the cause, yet, as the parties have raised the question in the record and in the argument, it is perhaps our duty to dispose, in the first place, of the objections as to the modes of proof on those points.
We have so lately had occasion to say, in a similar case, that husband and wife cannot be witnesses for each other, that we need now only refer to that decision. Pearson v. Daniel,
Still less, if possible, are the husband's subsequent declarations competent against his creditors. They are not privies with him, but claim against, and not merely under, him. Briley v. Cherry,
The remaining part of the defendant's objection to the proposed evidence of the plaintiff is to its insufficiency or irrelevancy. If the supposed parol agreement and fraud, though established, would not tend to sustain the deed, it is useless and illegal to hear the proof. Against the husband, or those claiming under him as volunteers, equity would set up such a parol agreement, unless it be specially required by statute to be in writing; as in England is the case by Stat. 29, Charles II.; and a fraud in obtaining from the woman the execution of an instrument, which purposely omitted a material part of the agreement, would doubtless be redressed, notwithstanding such a statute. But in respect of creditors, the act of 1785, Rev., ch. 238, see 1 Rev. Stat., ch. 37, secs. 29, 30, establishes, we think, a different and opposite principle. The effect of that act is to prevent any verbal agreement or transaction between the intended husband and wife from obstructing a creditor. It is entitled "An act directing that marriage settlements and other marriage contracts shall be registered, and for preventing injury to creditors."
After reciting that marriage settlements and other marriage contracts have been frequently made and kept secret, whereby the possessors, upon the credit of the apparent property, have been enabled to contract great debts, to the manifest deception and injury of their creditors: for remedy whereof for the future, it is enacted that all marriage (104) settlements and other marriage contracts whereby any estate shall be secured to the wife or husband shall be proved and registered as therein mentioned; and all not so proved and registered shall be void against creditors. This language shows clearly an intention of the Legislature that as to his creditors the vesting of the *83
property of the wife in the husband, jure mariti, should not be prevented by any secret agreement, whether written or verbal. The secrecy of the agreement is the evil on which the preamble dwells, as tending to deceive creditors. The act designs to take from the parties all opportunity of practicing such deception, and thus to "prevent injury to creditors," by giving to all such arrangements that degree of publicity which can be derived from registration. The enactment, therefore, is that if not proved within six months, and registered within one month thereafter, they shall be void. It is not sufficient that the settlement should be written and registered. That requires, as has been before mentioned, the support of the agreement before marriage; and the act requires that agreement, as well as the settlement, to be registered — using the words "all marriage settlements and other marriage contracts." We are to go back, therefore, to the first agreement; and if that be found defective, the postnuptial settlement made in execution of it cannot stand. The proposition is self-evident that those agreements must be in writing, because in that form alone do they admit of registration. And the law must be the same when there is an attempt to vary a written and registered agreement by parol to the prejudice of creditors. To allow it would amount to a repeal of the act. Gregory v. Perkins,
It is true, this shuts the door against correcting mistakes in drawing those instruments, and leaves an opening for practicing frauds on confiding women. Generally, however, they have the advantage of friends and counsel in such treaties; and, therefore, there is not great danger of their being overreached. But the answer is, that the Legislature must have been aware of those possibilities; and, being aware of them, thought they would so seldom occur as, practically, not to amount to a grievance, or, at least, to one at all comparable to those arising (105) out of "the frequent secret contracts" between intended husbands and wives. Therefore the act makes a registered and, of course, a written instrument the only evidence against the husband's creditors that "any estate has been secured to the wife."
Our opinion, therefore, is that the deed to the plaintiff does not pass the title of the slaves to him, and that no evidence of the verbal agreement of fraud alleged ought to have been admitted. The remedy of Mrs. Homer is, upon the articles, in equity, where, for anything now seen to the contrary, they will be specifically decreed in their present form.
PER CURIAM. Error.
Cited: Smith v. Castrix,
(106)
