It had been referred to Commissioner J. J. Davis, who reported the facts, and the case was tried in the Court below on exceptions to that report. His Honor being of opinion with the plaintiff, decreed accordingly, from which decree the defendants appealed.
In this Court, the principal inquiry was as to the equities of the femecovert defendant, to the fund reported; and all the facts bearing on that question are fully set out in the opinion of Justice RODMAN, and in the dissenting opinion of Justice BYNUM. The fund in controversy represents by agreement of the parties, a certain lot in Raleigh and certain furniture. The plaintiff claims title by purchase at a sale under execution at the instance of one Holleman, who recovered judgment against Thomas E. Skinner at March Term, 1867, of Wake Superior Court. The (540) sale was on 30th March, 1868. The plaintiff is also a judgment creditor of Thomas E. Skinner and of Charles W. Skinner.
This is the plaintiff's title, and it is clear, that if the property was legally in Thomas E. Skinner, as plaintiff contends it was, his title is good, unless it is defeated by some equity which the law will uphold against him. It must be borne in mind that he is a purchaser at execution sale, and that such a purchaser does not occupy in this State, the same ground that a purchaser of the legal title for value, and without notice, does. Such a purchaser gets a title unaffected by any contrary equity; but a purchaser under execution, buys subject to all equities against the defendant, whether he knows of them or not. If therefore there had been no conveyance to Womble, and the legal title had been in Thomas E. Skinner at the time of the plaintiff's purchase, he would have bought just as he did, subject to all equities against Thomas E. Skinner. Freeman v. Hill,21 N.C. 389; Polk v. Gallant, 22 N.C. 395; Vannoy v. Martin, 41 N.C. 169;Johnson v. Lea, 45 N.C. 43.
Of course this does not mean literally all equities which would be good against the defendant in the execution. It must be limited to equities bonafide created by him, and not fraudulent either in fact or by construction of law, as to his creditors. Davidson v. Cowan, 16 N.C. 470.
The defendant, Mrs. Anne E. Skinner, contends that she had an equitable claim to the property, which was valid against her husband, Thomas E. Skinner, which was bona fide, and not fraudulent as to his creditors; and which was consequently valid against them, and will be upheld against the title of the plaintiff.
This equity she bases upon the facts found by the referee; and in order to pass on it, it will be necessary to review the material facts which he finds.
The lot was conveyed to Thomas E. Skinner in September, 1859, by deed from A. M. Lewis and others. The consideration (541) recited is $6,000. We will not stop here now to consider with whose money this consideration was paid, or any consequences which may flow from its payment by one person or another. On 30th October, 1865, Thomas E. Skinner conveyed the lot and certain furniture then in the dwelling on it, to Jordan Womble in trust for the separate use of the said Anne, his wife. At that time Thomas E. Skinner was insolvent, and the plaintiff contends that this deed was fraudulent and void as to *Page 426 his creditors, as being either without consideration, or upon a false and fraudulent consideration.
Without going at present, into a farther statement of the facts on which Mrs. Skinner grounds her equity, we stop here to examine this deed to Womble, and ascertain its exact weight and bearing in this controversy. The deed (which is made an exhibit) recites, in substance, that "Whereas, when Thomas E. Skinner contracted to buy the lot, and to build thereon, it was agreed between him and his wife, that she should furnish the funds to pay for the same out of her separate estate, secured by a marriage settlement dated 8th May, 1854, and that the lot should be secured to her separate use, which was never done, but the deed was by oversight made to him. Andwhereas, the furniture was purchased with her money, and as her sole property.
"And whereas," his father, Charles W. Skinner, had assigned to Womble, as trustee for the said wife, certain notes made by him (Thomas E. Skinner) as principal, and by Charles W. Skinner, Jr., as his surety of large amount, and certain other notes to which Charles W. Skinner, Jr., was principal, and Thomas E. Skinner, surety, and the said wife had agreed to surrender said bonds to said Thomas E. Skinner, and to release him from the same.
"Therefore, he (Thomas E. Skinner) conveys to Womble the said lot and furniture, in trust for the sole and separate use of his said wife Anne," etc.
The plaintiff contends that so much of the consideration recited (542) as consists of the surrender of the notes of Thomas E. Skinner is fraudulent and part of the conspiracy between the parties to defraud the creditors of Charles W. Skinner.
It is clear and is conceded that the assignment of the notes of Thomas E. Skinner to Womble by Charles W. Skinner, who was insolvent at the time, was voluntary, and was therefore fraudulent and void as to his creditors. Neither Womble or Mrs. Skinner owned or could lawfully release or surrender the notes. The surrender which was actually made was void, and the parties to the notes, (notwithstanding they have probably been destroyed,) are still liable to the personal representative of Charles W. Skinner for the benefit of his creditors. To that extent the consideration for the deed failed. But the agreement to surrender the notes was not a fraud upon any party to the deed nor upon the creditors of Thomas E. Skinner, whichcharacter alone the plaintiff claims in this action. It is clearly distinct and separate from the other consideration recited, viz.: the equity of Mrs. Skinner, and did not necessarily infest and vitiate the whole deed. It neither supported or impaired the deed. If Mrs. Skinner had an equity by virtue of which a Court would have enforced the execution of a settlement of the property to her separate *Page 427 use, she did not lose that equity, because in the deed by which her husband undertook to do what a Court of equity would have compelled him to do, he recited a false consideration in addition to the true one. With that recital she had nothing to do. If, on the contrary, Mrs. Skinner had no equity for a settlement which a Court would have enforced, then it is admitted that the deed to Womble was voluntary, and therefore fraudulent and void as to the creditors of her husband.
It is thus seen that the deed to Womble may be put out of the way as not affecting the real merits of the controversy.
The main question is, did Mrs. Skinner have an equity to have this property settled on her?
That question we proceed to consider. The material facts concerning it are fully reported by the referee, whose report we take occasion to say is creditable to his ability and industry. In brief (543) they are these:
On 8th of May, 1854, Thomas E. Skinner being about to marry Anne S. Ludlow, then a resident of New York, the two entered into a written contract, by which (in substance and as accurately as there is any occasion here to state it,) he agreed that her property should continue hers, notwithstanding the marriage, and that she should have power to control and dispose thereof as if she were a feme sole. The property consisted exclusively of bonds and mortgages, which were in the possession of her guardian, who was her father and resided in New York.
The marriage took place in New York on the day of the execution of the contract. The contract was duly recorded there. It gave to the wife substantially or precisely the rights in and over her property which she would have had by the laws of New York if no express contract had been made. It was never registered in North Carolina, but contained no provision unlawful in that State, or contrary to its policy.
The domicil of origin of Thomas E. Skinner was North Carolina, and that domicil remained unchanged at the marriage. There is no evidence that the parties contemplated or contracted in reference to any particular domicil or place of residence after marriage. The husband had just become a licensed minister, and was probably open to any acceptable call from any quarter. He and his wife did in fact go to Petersburg and remained there for a year before coming to North Carolina. It must be held, however, that upon the marriage, the domicil of the wife by construction of law, became that of the husband, viz.: North Carolina. Smith v. Morehead, 41 N.C. 360; Story Confl. of Laws, Sec. 195; Ford v. Ford, 14 Mart. La., 574.
In 1855 the husband and wife took up their residence in Raleigh, North Carolina. In 1856 she executed to him a power of attorney to *Page 428 collect all debts due to her, and under this he did receive at various times up to 4th December, 1860, sums amounting in all to (544) $45,469.62. The first time the husband received any of the wife's money was on 8th May, 1857.
We pause here again in the statement of the facts, for the purpose of determining what was the effect of the ante-nuptial contract of May, 1854, upon the property of the intended wife.
It is admitted that it was valid in New York to all intents and purposes. By force of it, as well as of the general law of that State, the estate of the wife in her choses in action remained just what it was before her marriage. The husband was not even a trustee for his wife. He acquired no estate legal or equitable. He was not authorized to receive payment of her choses in action except by her consent, and as her agent.
It is also admitted that it was binding on the parties everywhere. Story Confl. Laws, Sec. 184, 1, Sec. 241. Trimbey v. Vignier, 1 Bing., N.C. 151.
It must also be admitted, and we suppose it to be, that but for the act of 1785, (Rev. Stat., Chap. 37, Sec. 29,) the contract in question would have had the same force and effect in North Carolina, after the removal of the parties and of the property here, which it had in New York.
We conceive that it must also be admitted that if the wife had personally, or by any agent, brought her money to this State, and purchased land with it, taking a deed to her separate use, such deed would have been valid.
The learned counsel for the plaintiff contends however:
1. That the matrimonial domicil of Thomas E. Skinner and of his wife was North Carolina.
2. That the ante-nuptial contract is presumed to have been made in reference to the laws of this State, and to have been intended to be, and was governed by the laws of this State in reference to its construction, and also as to the formalities of its proof and registration; and
3. That as it was not registered in North Carolina, by the act of 1785, it was void as to the creditors of Thomas E. Skinner, and that the property of the wife was brought into this State and put (it must be with or without her consent) in a tangible shape so as to be (545) susceptible of levy under execution, it became liable to such levy for the debts of her husband.
We have already said that upon the marriage the domicil of the husband became by construction of law, that of the wife.
The rule of law is, that the construction of a contract is in general to be governed by the law of the place where it is made. Story Confl. *Page 429 Laws, s. 278 and 278a. But if it appears clearly to have been intended to be performed elsewhere, then the construction is to be governed by the law of the place where it is intended to be performed. Le Beton v. Miles Paige, 261; Le Beton v. Nourchet, 3 Marl. La., 60. But this means nothing more than that where it can be gathered from the terms of the contract, or from the circumstances attending it, that the parties intending it to be governed by the law of some certain place other than that of its making, the law of such place as to its construction, becomes a part of the contract as if it had been inserted in it. It is only a question of intent, and not one of positive law.
I am not aware of any case that holds that where the domicil of the husband becomes merely by construction of law that of the wife, and there is no other evidence that the law of his domicil was looked to as the place where the contract was to be performed, such domicil governs the construction of the contract.
The question however here is not one of construction, but of registration; and not only am I not aware of any authority that the law of the constructive matrimonial domicile governs in that respect, but I think there is some authority, and conclusive reason, to the contrary, and that as to such matters, the lex loci contractus governs. Story Confl. Laws, s. 242, (1) 242a. Trimbey v. Vignier, 1 Bing. N.C. 151; Waunder v. Waunder, 9 Bligh. R. III; Story Confl. Laws, s. 276, 276a; 372, 372a.
In s. 282, Story says: In general it may be said that if no place of performance is stated, or the contract may indifferently be performed anywhere, it ought to be referred to the lex loci contractus. (546)Don v. Lipman, 5 Clarke Fin. R., 1.
In Wilder, succession of 22 La., An. 219, the husband was domiciled in Louisiana and the wife in Mississippi where the marriage took place. Immediately after the marriage they removed to Louisiana, and resided there until the husband's death. The Court say that the form of the contract was to be governed by the lex loci actus, but its effect by that of Louisiana.
In Wharton, Confl. Laws, s. 419, it is said, "Where by local legislation certain forms are necessary to the validity of certain contracts (2, 9, registry, enrollment, acknowledgment before a magistrate or notary,) there the place where those forms are complied with, is to be regarded as the place of contract." He cites Lavigny VIII, 371. In Sect. 429 he says, where there are several possible local laws, that is to be applied which is most favorable to the contract. In Sec. 676 he says, that all modern jurists concur, that it is sufficient if a contract be authenticated according to the law of the place where it is made.
In the United States Bank v. Lee, 13 Peters, the Supreme Court of *Page 430 the United States expresses the opinion that a statute of Maryland similar in its supposed effect to ours of 1785, was not intended to operate on contracts made out of the State.
See also Adams v. Hayes, 24 N.C. 361.
Now as to the reason of the proposition. Where there is a place clearly fixed by the contract in which it is to be performed, it may not be unreasonable to suppose that the parties intended to authenticate it according to the law of that place, and if they have omitted to do so, it may be because they have abandoned the contract. But where no such place is fixed in any way, and the contract is one which by its nature must be performed wherever the parties may at any time be, no such presumption of intent can be made. To hold that the law of the constructive domicile after marriage governs the authentication and publication of an ante-nuptial contract, as by registration, would in most cases be a fraud upon the wife. She is presumed to know (547) the law of the State of her domicil at the time she contracts, but she cannot be presumed to know the law of another State, because it is the domicil of her intended husband. The marriage may not take place for months after the execution of the contract, and in the meanwhile the actual domicil of the husband may change without her consent, or even knowledge, and she cannot justly be held to contract with an intent to subject the contract to the law of a place which she may not know.
We conclude that the contract did not require registration in North Carolina, to make it valid here, but was governed in that respect by the law of New York where the domicil of the wife was when it was made.
This point being established, it is an adjudged question, that the removal of the property by the parties to North Carolina in 1855, did not invalidate the wife's right.
The question was decided in United States Bank v. Lee, 13 Peters, 107. In 1809 Richard Bland Lee and his wife Elizabeth resided in Virginia. He was then largely indebted to Judge Washington, and he and she joined in a deed whereby she relinquished her right of dower in certain lands belonging to him, and also conveyed lands belonging to her to trustees to secure that debt, which was afterwards paid by a sale of her land. In consideration of her execution of that deed, the husband conveyed to trustees certain slaves for her separate use, and this deed was duly recorded in Virginia. In 1814 Lee and his wife removed to the District of Columbia, taking with them the slaves, which remained in his apparent possession with the acquiescence of his wife, and he obtained credit upon their supposed ownership. Some of them he sold to supply the wants of his family, with her like silent *Page 431 acquiescence. In 1817 he borrowed $6,000 from the U.S. Bank, and gave a deed in trust on the slaves to secure it. He died insolvent in 1827, and in 1834, the Bank filed a bill against Mrs. Lee and her trustees to compel a surrender and sale of the slaves to pay the debt to it. It was contended, and although the deed of 1809 was valid in Virginia, (548) yet when the parties removed with the property to the District of Columbia, the property became liable to the creditors of the husband in the District, because of a law of Maryland in force in the city of Washington, (where the parties and the slaves lived,) which declared that no goods, etc., whereof the vendor shall remain in possession shall pass, or any property therein be transferred to a purchaser, etc., unless the sale be by writing proved and recorded in the county where the seller resides within twenty days after the making thereof. (Act of Maryland 1729, Chap. 8, Sec. 5.)