Moye v. . Petway

*329 PearsoN, C. J. The plaintiff moved for a new trial on the ground of misdirection. 1st. There is no error in the instructions given to the jury; on the contrary the issue upon which the parties put the case was left to the jury in a very lucid manner. 2nd. There is no error in the refusal of His Honor to charge, “that from the facts admitted in the pleadings and the evidence there was a presumption of law that it was a fraud.” So far from a presumption of fraud as a matter of law, we can see no evidence of fraud as a matter of fact to be passed on by the jury. The husband of the next of kin buys property at the sale of the administrator and is required to give his note like other purchasers. There can be no fraud in that. After-wards the husband borrows money from the administrator and gives a note. There is no fraud in that; although, it is reasonable to suppose that the husband had an expectation that his note would be taken in part payment of the amount to which his wife would be entitled upon the final settlement of the estate. Indeed we are inclined to the opinion that if there had been an express understanding between the administrator and the husband when the notes were given, that they would be accepted in part of the wife’s distributive share on final settlement, the event of the husband’s death before the settlement would as a matter of law defeat the effect of this executory agreement. The right of the wife attaches to the-fund except in case of an executed agreement, as when the administrator pays money to the husband and takes his receipt for the amount as a part payment of the distributive share. See Arrington v. Yarborough, 1 Jones Eq. 72, where all of the cases are cited and reviewed and the subject of a-wife’s right after the death of the husband is fully discussed. *330 The motion for judgment in favor of the plaintiff non ob--stante veredicto has nothing to rest on ; that practice is very •restricted and .is confined to cases where a plea confesses the -•cause of action and the matter relied upon in avoidance is Insufficient. In such cases the plaintiff may sign judgment -as on “nil dicit,'” treating the plea as “a sham one/’’ and even 'if he traverses the matter relied on in avoidance although 4he issue be found against him, he is still allowed to take judgment notwithstanding the vgrdict. This practice was -.adopted to discourage “sham pleas.” Here there is no “sham :plea” in the case. The cases Young v. Black, 7 Cranch, 565, Lamb v. Smith, 11 Wheaton 172, Gibson v. Hunter, 2 H. Blackstone, 187, cited by Mr. Isler, in his “supplemental brief,” relate to “de-murrers to evidence” which áre made by the defendant before '■verdict for insufficiency of the plaintiff’s evidence, and have ••not the slightest bearing upon a “motion for judgment non obstante,” which is made by the plaintiff after verdict for insufficiency of the defendant’s matter of qvoidance. There are no two matters of practice more entirely different in all respects. No error. JPer Curiam. Judgment affirmed.