The referee, in a note, appended (119) to the conclusions of law, says: "My report is based upon the pleadings, and the evidence is not considered. It is for this reason that I have not passed on the objections to evidence and the demurrer." The ruling of the court sustaining him rests upon the principle that when some of the allegations in a complaint are not denied, or are expressly admitted in the answer, the facts conceded in either way to be true will support a judgment just as though they had been found by a jury. It is not controverted that the husband, being at the time insolvent, conveyed to John E. Woodard, for the benefit of his wife, real and personal property, worth twenty-seven hundred and fifty dollars, by deed, in which there was a recited consideration of the three thousand dollars, but that, in truth, no consideration passed at that time. This appears from paragraphs five and seven of the complaint, and the answers to them.
The defendants refused, when opportunity was offered to introduce any testimony. They failed even to put in evidence the pleadings. So that the pleadings can be considered only in so far as they establish facts by failure to deny allegations. The Code, sec. 268; Smith v. Nimocks,94 N.C. 243.
The defendants rely in their answer upon the defense that the husband, Thomas Felton, received at the time of his marriage (the date of marriage not being given) a large sum of money belonging to his wife, and after marriage received without her assent in the rents of a farm that was her separate property, a large sum, from both sources about *Page 118 two thousand dollars, all of which he invested in paying for the stock, implements, etc., conveyed to John E. Woodard, in the deed that is declared by the referee fraudulent.
2. That in addition to paying for family expenses he accumulated from the rents of her said farm, taken without her assent, about four thousand dollars, which he used in the business of Felton Scarborough before the firm made an assignment.
(120) The answer admits that the husband was in possession of the property conveyed before the deed was executed, and the law therefore raised the presumption that it belonged to him in his own right, and case upon her the onus of showing that it was paid for with finds that were her separate property. Brown v. Mitchell, 102 N.C. 371.
While the admissions, made in the joint answer of the defendants in response to the charges or allegations of the plaintiffs, are facts found, the averments of the defendants by way of evidence, and their denials, can be accepted as true only when supported by evidence and the verdict of a jury, or court of referee empowered to find the facts. But it is insisted that the referee erred, because he did not consider so much of the testimony offered for plaintiffs, or elicited on cross-examination of plaintiffs' witnesses, as tended to rebut the presumption that the husband held the personal property in his own right and bought the land with his own funds. We have carefully reviewed and considered the evidence, and, admitting the whole of it to be true, there is nothing that a court would have been compelled to submit to a jury if the issue had been tried in the usual way, as tending to rebut the presumption of ownership by the husband of the land and other property conveyed by him to his wife, while the very fact that he did convey the personalty, which he alleges was hers all the while, is a circumstance pregnant with suspicion. The material facts stated by the witness are that the husband of his wife's sister received from her guardian about nine hundred dollars as her share of her father's estate; that the male defendant Felton was very poor when he was married, but was industrious and a good practical farmer and man of business, and that he improved his wife's farm very much, adding greatly to her income from it. (121) The mere fact that he was very poor before his marriage could not be properly submitted to the jury to overcome the presumption, and we find no other testimony tending to rebut it. Such specimens as the statement of a witness on cross-examination that he did not know of any way that Felton could have made money without the use of his wife's property, would show no error in the referee's ruling, if considered by him. If it did not appear affirmatively that for years *Page 119 he cultivated his wife's farm, and, after discharging all of the expenses of his family, invested the net profits in the business of Felton Scarborough (and that averment is not supported by the evidence offered), still she would have failed to establish her right to claim the amount so applied as a debt due from the husband to her as against creditors, and which he could pay by an assignment of property.
In the case of Battle v. Mayo, 102 N.C. 438, the referee's finding that there was an express agreement on the part of the husband to pay rents to the wife was adopted by the court, and the contract between them was enforced. The Court say: "It is settled that none of the other sections of chapter 47 of The Code are to be construed as limiting the wife's power to acquire property by contracting with her husband, or any other person." In our case, there is no testimony tending to prove an express contract, nor are circumstances shown from which the law would imply that there was a contract between the feme defendant and her husband in reference to the rents of her farm.
We concur with the referee in his conclusions of law, for, whether they were predicated upon the admissions in the pleadings, or upon the whole of the testimony, or upon both, "there was no evidence to support the allegation in the answer that Thomas Felton was indebted to his wife," and, therefore, the presumption that he was the owner of the property conveyed, and that the deed was voluntary and fraudulent as to his creditors, was not rebutted. His Honor properly (122) overruled all of the exceptions, as we think, for the reasons we have already given. There is no error. The judgment is
Affirmed.
Cited: Osborne v. Wilkes, 108 N.C. 667; Blake v. Blackley, 109 N.C. 264;Walker v. Long, ibid., 514; Peeler v. Peeler, ibid., 631; McQueen v.Bank, 111 N.C. 515; Redmond v. Chandley, 119 N.C. 580; Eddleman v.Lentz, 158 N.C. 73.