95 N.C. 259 | N.C. | 1886
(Liles v. Fleming,
That at the time he owed no debts; had been married since 1854, and had two children, respectively of three and two years of age, and his wife was then pregnant; that he got some cattle, sheep, horses, household and kitchen furniture through her; that soon after making the deed he was conscripted and put in the military service of the Confederate States, and remained in the army two years, and that his personal property in 1862 was more in value than the land was assessed at for taxation.
The defendant Mary, examined on her own behalf, stated that the deed was delivered to her the day it was signed; that she placed it in her trunk, and after her husband left, she took out what was in it, with other papers, and carried them to her father's, who took possession of them; that she never saw the deed afterwards until about three years ago; it had slipped down between the back of his desk and (261) the drawer, and when found she placed it in her trunk again; and that herself and family have been living on the land ever since the making of the deed.
The only issue upon the trial, of which the foregoing facts were given in evidence, was: "Is the plaintiff the owner of the land?" and the plaintiff asked a series of instructions, to-wit:
I. Upon all the evidence, the plaintiff is entitled to recover;
II. The paper executed by Willis Parish to his wife is void as to the plaintiff; *240
III. If not void, it can have no operation before December 10th, 1884, the date of its registration;
IV. Plaintiff is entitled to judgment against Willis Parish by virtue of the sale of what interest he had in the premises.
The Court declined to give these instructions, and charged the jury as follows:
"The defendant Mary Parish seeks to avoid the plaintiffs' recovery, by showing that on the 7th June, 1862, her husband executed a deed conveying to her the lands in controversy. The plaintiffs contend that as to them the deed is absolutely void. The deed made by Willis Parish to his wife Mary, in June, 1862, is void at common law, the husband and wife being treated as one person. But if at the time the deed was made and delivered, the defendant, Willis Parish, not being indebted, had the honest purpose to make a reasonable provision for his wife, Mary, out of his estate, and to create a separate estate for her, and not with any fraudulent intent to hinder, delay or defraud, the deed would be upheld by a Court of equity in favor of the wife, and the plaintiffs would not be entitled to recover. But the fact that the deed was executed in 1862, and the husband, Willis Parish, after his return from the army, lived on the land with his wife, and no registration of the deed was made, and no effort to substitute a new deed for the lost deed, and no notice was given that the wife claimed the land, is strong evidence of a fraudulent intent, and must be rebutted by the claimant, Mary Parish, else the plaintiffs would be entitled to recover."
(262) Plaintiffs excepted.
The jury returned a verdict for defendant, on which there was a judgment in their favor.
Plaintiffs moved for a new trial. Motion denied. Appeal by plaintiffs. The instrument made in the year 1862, in the form of a deed of conveyance as to its operation and effect, is governed by the law then in force, and is unaffected by the changes in the marital relations since made under the Constitution and by statute. It is of course inoperative in passing the legal estate in the land, because of the legal unity of the parties, between whom no contract, executory or executed, could be entered into. If it has any efficacy, it must be found in the principles and rules recognized and enforced in equity. *241
"In England," says RUFFIN, C. J., "it has been certainly held that a gift from the husband to the wife, without the intervention of a trustee, may be made under such circumstances as to render it valid in equity, and induce that Court to constitute the husband himself the trustee. * * * As the contract is void at law, the case in this Court must always be that of an application to aid a defective conveyance. The wife cannot have that assistance, unless she shows herself to be meritorious; and shows further, a clear intention that what was done should have the effect of divesting the interest of the husband, and of creating a separate estate for her, which she should have the immediate power to dispose of as she chose; and that the estate thus intended for her, was but a reasonable provision." Elliott v. Elliott,
The "subsequent purchasers" are defined in our statute, The Code, § 1646, to be such "who shall purchase for the full value thereof the same lands," c., without notice. Taylor v. Eatman, supra. The sale under execution was for $50, of a tract of 119 acres, which, with a piece of 20 acres sold off, was in 1862 returned at $313 for taxation, and estimated by the defendant Mary to be worth in 1882 $12 per acre.
The next enquiry is, as to the meritorious quality of the consideration of the conveyance. The relations of the husband and wife were such as became them, and she had been true and faithful to her marital duty. Her health was not good, and he was about to embark in a perilous military service, from which a return was uncertain. The care and support of three helpless children was about to devolve upon her. He was not in debt, but had received and used personal goods belonging to his wife. Under these circumstances, in the presence of two witnesses, the deed was made, he still reserving, (as he says,) personal property greater than the assessed value of the land. We think these do constitute a meritorious consideration for the provision thus made for the support of his wife and children, when he could not otherwise contribute to it. It is true, the evidence of a fraudulent intent was strong, as the Court told the jury, and must be rebutted by the defendant Mary, or the plaintiff would be entitled to a verdict. No more emphatic charge could be asked for, and the verdict declares the rebuttal sufficient.
Plaintiffs' counsel contended also, that the deed was ineffectual until registration, on December 10, 1884. In this we do not concur. The deed in form is absolute, and does not belong to the class of "marriage settlements and other marriage contracts" which are void unless registered in six months after execution. The Code, § 1269. The Sections of The Code, 1820 and 1821, apply to instruments entered into since the enactment, and pursuant to its provisions.
(265) Nor is there error in refusing to charge that the plaintiffs are entitled to recover possession of the husband by virtue of the sale under execution of his interest in the premises. The wife is defending herown title and possession, and this she may do though her husband is sued.Cecil v. Smith,
There is no error, and the judgment must be affirmed.
No error. Affirmed.
Cited: Sims v. Ray,