Hart v. . Hart

Merrimon, C. J.: Passing by any question as to the sufficiency of the deed from the defendant husband to the plaintiff, his wife, as an unregistered deed, we think the defendant is entitled to a new trial upon another and different ground. The defendant alleges in his answer that at the time he executed the deed in question, he was largely indebted to divers persons; that he was then insolvent and financially embarrassed, and that this deed was executed in fraud of and to defraud his creditors; that it was executed for that express purpose, and the plaintiff so well understood; that *372 she was so “fully advised and with the understanding (between the plaintiff and defendant) that she would, at any and all times, convey the land according as the defendant should direct,” and that it was understood by the parties that the deed was to be registered “only in the event that judgments by creditors should be recovered or threatened.” It appeared on the trial that the deed was not offered for registration until August, 1889, long after the execution of a deed to Lomax, in which the plaintiff joined in order to conclude her as to her right of dower. The defendant was a witness in his own behalf, and offered to testify that he was pecuniarily embarrassed, and that the deed was made for the fraudulent purpose as alleged by him; but the plaintiff objecting, the proposed evidence was rejected. In this there is error. The evidence should have been received. The plaintiff’s right is founded upon this deed.. If it is fraudulent, as alleged, and therefore void, she is not entitled to the money she seeks to recover. Her claim springs out of and is founded in a fraudulent transaction, and the defendant, a party to it, having the money, the fruit .of it, the Court will not help .her to recover it from him. That the plaintiff is a married woman and the wife of the defendant cannot help her or alter the case. A married woman can acquire, hold and dispose of property in a large sense as a feme sole. She has capacity to perpetrate and participate in a fraud — the fraudulent purposes and transactions of her husband. She has no right, or privilege, or disability that excuses her as to such fraudulent transactions in which she participates, nor that protects her against their consequences, not even as against her husband, when she must invoke the aid of the Courts to assert her claim. She has privileges and immunities in some respects, but not such as will help her to share in a fraud with impunity when she must go into a court of justice to enforce her claims growing out of it. The law abhors fraud and will not help any person to *373 take advantage of and have benefit of it. It would be singular and monstrous — a great reproach to the courts of justice — if a husband and his wife could perpetrate a fraud upon his creditors and the Courts would afterwards help her to assert a claim against her husband growing out of that fraud! In such case the wife must be on the same footing as a feme sole, and treated as such. Burns v. McGregor, 90 N. C., 222; Walker v. Brooks, 99 N. C., 207; Loftin v. Crossland, 94 N. C., 76; Boyd v. Turpin, Id., 137. The evidence rejected was relevant and pertinent — it tended directly to prove the fraud as alleged. If it be said that it did not go to prove that the plaintiff had knowledge of and participated in the same, the answer is, it was relevant and competent and ought to have been received. It may be that the defendant would have testified that the plaintiff had such knowledge, or it might be that he would have proven such knowledge by some other witness, or in some other way. But why should he do so after the Court had excluded the proposed evidence of fraud ? Besides, there was some evidence of the plaintiff’s knowledge of it. The deed was executed in 1873. She did not offer it for registration until 1889, more than fifteen years having elapsed, and in the meantime, in 1875, she joined her husbaud in executing a deed conveying the land, in which it was recited that she did so in order to relinquish her right of dower. This recital, perpaps, did not conclude her as to any other right she might have, but it was some evidence that she did not, at that time, regard the deed in question as having been made as-a bona fide conveyance of the land to her. There is error. The defendant is entitled to a new trial, and we so adjudge. Error. Shepherd, J., dissents.