The lessor of the plaintiff claimed the premises as a purchaser at a sale made by the sheriff in May, 1846, under an execution issued upon a judgment rendered in November, 1844, against the defendant Seymore York; and gave evidence that York and his wife, who is the other defendant, were in possession at the time of the sale and at the commencement of the suit.
(207) On the part of the defendants a deed was then read, bearing date 20 September, 1845, from one Coffin to the defendant Bethany, whereby, in consideration of $25 paid by her as recited, he conveyed to her the premises in fee, consisting of 1 1/2 acres of land. And the defendant further gave in evidence the record of a suit brought *Page 145 in the Superior Court by the defendant Bethany in July, 1844, against her husband by petition, wherein she alleged that he had become an habitual drunkard and spendthrift, wasting his substance to the impoverishment of his family, consisting of his wife and eight children, so that he had become insolvent, and all that she and the children earned was taken upon executions against him; and she prayed that all such property as might thereafter be purchased by her own industry, or accrue to her by descent, devise, gift, bequest, or in any other manner, should be secured to her, and not be liable to the power, control, dominion, or debts of her said husband, and that she might sue and be sued, in her own name, without joining her husband: and thereupon a decree was made, in April, 1845, in her favor, in the terms of the prayer of the petitioner, as to any estate, real or personal, she might acquire, subsequent to the decree.
On the part of the plaintiff evidence was then given that in 1843 the wife contracted with Coffin for the purchase of the lot of ground in order to build a house on it, as a residence for herself and family, convenient to a factory belonging to Coffin, in which her children might be employed, and that four of them worked in the factory on wages, the eldest of whom was 14 years old, and that the conveyance was to be made when the purchase money was paid; that York and his wife lived together, and that he was a drinking man, but seldom so (208) drunk as not to be able to work, and generally engaged in doing something towards the support of his family; that the wife paid Coffin $6 towards the purchase money, and that there was then due, on account of the wages of the children, more than enough to satisfy the residue thereof, and Coffin then offered to come to a settlement therefor and make her a deed, but she declined taking it at that time, saying that she had a petition pending against her husband, to be allowed to hold the property she might acquire to her own use, and wished to put off taking the deed until she could get a decree in her favor. That she employed a person to build a house on the lot, and that her husband did not assist in the building, except in making the chimney, and that the house was worth $75; and that after the decree was made, Coffin executed the deed and left it with his clerk, to settle the account with Mrs. York, and deliver the deed, and he did so. The court instructed the jury that if they should find that the wife paid any portion of the purchase money to Coffin, however small, with money acquired by her after the decree, the plaintiff could not recover.
Under these instructions the jury found for the defendant; thereupon the plaintiff appealed. As the case is understood, the purchase money was made up of the $6 paid by the wife pending the petition, and of the wages of the infant children earned in Coffin's service, pending the petition, or at all events, prior to the making of the deed. That being established affirmatively, and no evidence being given of any other mode in which the wife paid for the land, it would seem that it was left (209) to the jury to find that some part of the price was paid by her out of her subsequent acquisitions, without any evidence on which it could be so found. But if this were otherwise, the Court is of opinion the instruction is still erroneous. It is true that, regarding the husband's interest in the land as a trust, resulting from the purchase being made with his privity and partly with his money and partly with his wife's, and especially if it was a covinous contrivance against his creditors, the creditors would be compelled to go into a court of equity for relief, and could not sell the land by execution at law, either under the Statute of Elizabeth or the act of 1812. Page v. Goodman, at this term, 43 N.C. 16. But, although the wife's legal estate is not divested by the sale, as it would be if the trust were liable to execution, it is to be inquired whether, considering the land as the wife's, in law, the husband, by virtue of marital rights, had not an estate therein as tenant by the curtesy, which passed by the sheriff's sale, made prior to the act of 1848, ch. 41. The Court is of opinion that he had, and that the lessor of the plaintiff acquired that estate, though he did not the fee. The only objection to that is that by virtue of the decree the wife held this land to her own use exclusively, and the husband had no dominion over it, and it was not subject to his debts, because she acquired it after the decree. That also would be true if this be her subsequent acquisition, in the sense of the statute. But it seems clearly not to be; for when the act and the decree founded on it secure to the wife such property as she may thereafter get by her own industry, or may accrue to her by gift, descent, or in any other manner, they certainly do not mean such property as she may derive from the husband himself. The purpose is to exclude him from the power of wasting what the wife gains with her own hands, or is bestowed on her by the bounty of friends, or cast on (210) her by law. It was not intended that he might endow her, directly or indirectly, so as to exclude his marital rights in lands of his own provision for her, and thereby defeat his creditors. Such a case is not within the purview of the act at all. It was never supposed that such a husband should have lands to convey or money to pay for them to other persons who should convey them to his wife; and it seems to be a palpable fraud on this statute for him to supply the means of making the purchase, and then take the conveyance in her name, so as to give it the false appearance of an acquisition by her own means alone or by *Page 147 the bounty of a friend. If, then, this purchase was made by the $6 paid by the wife, pending the petition, which was in law the husband's money, and the wages earned by the infant children during the same period, which also in law belonged to the father, it would be a case of fraud on the law, and the decree would not exempt the land from the marital rights of the husband and the creditors attaching to it in the same manner as if no such decree existed. That is supposed, in the instructions, to be the law, if the whole consideration moved from the husband; but it was laid down to be otherwise if any part of it, however small, were got by the wife after the decree. That, however, cannot be correct, since the advance of a trivial sum merely to give color to the transaction cannot purge the falsehood and fraud really existing. But in truth the case need not, in the opinion of the Court, go to that extent; for, according to the policy and true meaning of the act, all pecuniary dealings between the husband and wife are not the less invalid than they were at common law, as they tend, obviously, to evade the act; and in matters of fraud every evasion of the law is a violation of the law. These parties cannot deal with each other, nor can they deal together with other persons so as to invest property conveyed to the wife with the protection of (211) the decree, and make it her separate legal property, to the exclusion of the husband and the defeating of his creditors. It is not essential to the lessors of the plaintiff, therefore, that the balance of the purchase money should have been paid out of the wages earned by the children before the decree. It is the same even if they were earned afterwards; for, although the act produces the somewhat strange anomaly of a wife's living with her husband, and at the same time being independent of him, as to her personal occupations, and entitled exclusively to all she can make, it does not go the length of making her the head of the family to all intents, so as to entitle her to rule and dispose of the infant children, and take the profits of their labor also; but they still belong to the father. And the Court holds that it is likewise the same if the proportions of the price paid by the husband and wife are so unequal as to constitute the purchase substantially the husband's, as being made with his means, while the advance by the wife must, from its small amount, be regarded as colorable and evince the intent to evade the act by covering a gratuity of the husband under the semblance of an acquisition of her own and by means of her own. Such a case is out of the act altogether; and, therefore, the instructions were erroneous, and the judgment must be reversed and
PER CURIAM. Venire de novo awarded.
Cited: Winchester v. Reid, 53 N.C. 379. *Page 148
(212)