Walton v. . Parish

Smith, C. J. (after stating the facts). 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 im equity. “ Iu England,” says RufttN, 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, 1 D. & B. Eq., 57. “ It has been long settled,” says-Battue, J., “ that a husband may, after marriage, make gifts or presents to his wife, which will be supported in equity against. *263 himself and his representatives.” Garner v. Garner, Busb. Eq., 3. The same language is repeated in Paschall v. Hall, 5 Jo. Eq., 109. In a more recent case, Rueein, J., speaking for the Court, and asserting the invalidity of such a deed at common law, proceeds to say: “ But a Court of Equity, having a greater regard to the intention and convenience of the parties, and treating the deed merely as a defective conveyance, will uphold it in favor of the wife, if a clear and present purpose on the part of the husband to make the gift, can be seen, and the gift itself appear to be no more than a reasonable provision for the wife.” Warlick v. White, 86 N. C., 141. To same effect see Smith v. Smith, Winst. Eq., 30; Liles v. Fleming, 1 Dev. Eq., 185. The same doctrine has been held in Deming v. Williams, 26 Conn. 226; Bunch v. Bunch, 26 Ill., 401; Johnson v. Hines, 31 Geo. 720; Wells v. Wells, 35 Miss., 638 ; Shepard v. Shepard, 7 John, Ch., 57. There were no creditors of the husband at the time of making the deed, though he did incur an indebtedness afterwards, topay which theland was sold underexecution, and conveyed to the purchaser for an inconsiderable sum, and thence title has passed to the plaintiffs. The plaintiffs insist that the conveyance will not be upheld as to them. This very point was passed on in the recent case of Taylor v. Eatman, 92 N. C., 601, in the opiniou in which Asi-ie, J., uses this language: “It is not pretended that the deed to Chacy Eatman was made with a fraudulent intent” (an intent negatived in the jury finding in the case before us), “and conceding it to have been only a voluntary deed, it is not void as against creditors, if the donor retained at the time, property sufficient to pay his indebtedness, out of which the claims of the creditors might be satisfied.” The principle is thus enunciated in a recent work, with.a reference to cases in its support: “All gifts from a husband to his wife are good inter se, and against all persons claiming under them; and good against all persons, if he is not in debt at the time; but such gifts are voidable as to existing creditors, if their rights are not secured, and as to subsequent purchasers *264 without notice, and creditors, if made with intent to delay or defraud them.” Kelly Cont. of Mar. Women, Chap. 6, §9, at page 137. 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 “marriagesettlements 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 her own title and possession, and this she may do though her husband is sued. Cecil v. Smith, 81 N. C., 285; Taylor v. Apple, 90 N. C., 343. The plaintiffs may take judgment by default against him, but must fail against the wife. We have treated the wife’s equity to relief under the deed, as an answer to the action and to the issue submitted, upon the principle that what a Court of equity would do, will be regarded in a defence as if done. There is no error, and the judgment must be affirmed. No error. Affirmed.