Ferebee v. . Pritchard

Shexu-ieud, C. J.: “It is now clearly settled in this State that a voluntary conveyance of hex property bj a woman in contemplation of a marriage which afterwards takesi place, is a fraud upon the husband, if he be not apprised of the existence of the deed.” Spencer v. Spencer, 3 Jones” Eq., 404; Logan v. Simmons, 3 Ired. Eq., 487; Tisdale v. Bailey, 6 Ired. Eq., 358; Poston v. Gillespie, 5 Jones’ Eq., 258; Goodson v. Whitfield, 5 Ired. Eq., 163; Baker v. Jordan, 73 N. C., 145. In the present case it is found by the jury that on the 27th of August, 1866 (the date of the execution of the deed from Mary J. Northern to her children by a former marriage), there was a subsisting contract of marriagfe between the said Mary and the defendant E. W. Holt, which contract was consummated on the 22d day of the following month. It is further found by the jury that the said Holt had no knowledge, at the time of his marriage, of the said deed and that he has never assented *87 to the same. Under these circumstances it would seem very plain that the deed is voidable by the husband as a fraud upon his marital rights; but it is insisted that, as it was registered some fourteen days before the marriage, the husband was affected with constructive notice and that the principle deducible from the foregoing authorities is therefore inapplicable. The plaintiffs’ counsel was unable to produce any authority to show that the doctrine of constructive notice has been extended to cases of this character. On the contrary, it has been decided by this Court (Poston v. Gillespie, supra) that even actual notice before the marriage will not affect the husband’s rights, provided the deed be made without his consent after the engagement .In this case the deed was executed after the engagement, and, as actual notice would not have prevented the husband from avoiding it, a fortiori constructive notice could not have that effect. It is next insisted that there is a distinction in cases where the deed is made for the benefit of children by a former marriage who have no knowledge of the fraud. It is sufficient to say that this Court has repeatedly held the law to be otherwise. In Tisdale v. Bailey, supra, Ruffin, C. J., in reference to this very question, remarked: “As to the idea that the children can hold under the deed upon the ground of their innocence of any fraud, it is altogether inadmissible. Lord Chief Justice AVilmot said, in Bridgeman v. Greene (Wilson’s Notes, 64), that, though not a party to an imposition, whoever receives anything by means of it must take it tainted with the imposition: partitioning and cantoning it out among relations and friends will not 2>urify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, said he, if it comes through á polluted channel, 'the obligation of restitution will follow it.” Goodson v. Whitfield and Logan v. Simmons, supra. *88 The exceptions to the' charge of the Court cannot be sustained. There was no' evidence that the husband had notice of or consented to the execution of the deed before his marriage; nor does it appear that he has, since the death of his wife, ever unequivocally consented to the same or done any other act by which he is precluded from relief. We are also of the opinion that the testimony of A. J. Davis and the letter of Mrs. Northern to E. W. Holt were sufficient'to warrant the jury in-finding that there was a contract of marriage between the parties at the date of the execution of the deed. The objection that Holt was incompetent as a witness to prove that the signature to the letter, in which Mrs. Northern promised to marry him, was in her handwriting, cannot be sustained. It was not a “transaction ” with a deceased person within the meaning of section 590 of The Code. Rush v. Steed, 91 N. C., 226. As to the motion for a new trial on the ground of newly discovered evidence,- we have carefully examined the affidavit of the plaintiffs and after due consideration have concluded that it does not present a case which calls for the intervention of the Court. In Brown v. Mitchell, 102 N. C., 347, we stated “that this Court will as a rule, in future, grant or refuse such motions without discussing the facts embodied in the petitions or affidavits of the 'moving- party, as we cannot see that any good will bo accomplished by contributing another to the volumes that have been written upon the exercise of legal discretion in deciding questions raised by applications for new trials.” Upon an examination of the whole record we are unable to find any error. The judgment must therefore be Affirmed.