(after stating the facts.) The burden to show fraud in the deed was on appellants, and they have failed to make the proof. On the contrary, Burgie has made good by his proof the denial in his answer of the charge of fraud.
It appears that John G. B. Simms was the attorney for the ‘executrix of the estate of Curtis Garrett. He, for her, procured from the probate court the order of sale of the lands ■ in controversy. For her he conducted the sale, made report thereof, wrote the deed, and, in fact, as attorney for the executrix, attended to the whole matter of this sale. Necessarily, his relation to the transaction enabled him to testify more intelligently, and, we are disposed to think, more correctly, about it than anyone else. There are some conflicts between his testimony and that of Burgie. These have been stressed by learned counsel for appellants; also certain things which Burgie and Simms did, or failed to do, in regard to the report and confirmation of sale. All of which are urged as being inconsistent with the recitals in the deed, and as evidence of an effort to defraud Elizabeth Burgie.
We may say, in this connection, that, if there was any fraud on the part of Burgie, Simms necessarily knew and participated in it; else the deed could not have been executed to Burgie. But we do not find any evidence of fraud on the part of either. The conflicts and inconsistencies are as to nonessentials, and, instead of tending to prove collusion and fraud, as counsel intimate, to our minds, rather have the opposite effect'. They indicate that natural divergence in language and recollection of witnesses who have not concocted their story, but each, in his own way, has related the facts as he remembered them.
The testimony and conduct of both Burgie and Simms, we believe, is entirely consonant with truth and good intention. The only testimony which appellants have introduced to show that Mrs. Burgie had no knowledge of the deed to Samuel Burgie, and that she claimed the land, was that of two witnesses to the effect that they heard Mrs. Burgie say some time in 1892 or 1895 “that the place was hers.” These remarks are testified to having been made by Mrs. Burgie some twelve or fifteen years after the execution of the deed. On the other hand, more than two witnesses heard her say, long after the execution of the deed, that the land belonged to Mr. Burgie. These are not essentially in conflict; if so, the preponderance is with the appellee. But Mrs. Burgie did have dower interest in the land, and had long lived on it with her first and second husbands, and she might have spoken of the place as belonging to her, without any thought of making the impression that she was the absolute owner, but only to express the idea that she had an interest in it, and claimed it as her home, and that she would not part with her interest. That she did. not claim an absolute estate in the land is more convincingly shown by her conduct in joining in several conveyances after the deed in controversy had been executed, in which she only relinquished dower. This solemn act in writing, of record, is a more cogent argument that she knew she had only a dower interest in the land than is any mere vague and loose declaration that the “place was hers” of the fact that she knew or believed that she was the owner of the fee. So, again, the preponderance is in favor of the appellee.
Witness John G. B. Simms testified that “the recitals of the deed, as to the reasons why it was made to Samuel Burgie, instead of Elizabeth Burgie, are absolutely correct,” and we'find nothing in the record to warrant a finding to the contrary.
Second. The question then is, in view of the report and confirmation of the sale, was the deed valid?
It is reasonably clear from the evidence that Burgie furnished the purchase money for the land; and, although it appears that the bid at the sale was made in the name of Mrs. Burgie, and the sale was reported as made to her, and so confirmed, yet there is abundant proof to justify the conclusion that Mrs. Burgie intended that Samuel Burgie should have the land, and that the deed, notwithstanding the report of sale and confirmation thereof to Mrs. Burgie, was made, nevertheless, in conformity to the wishes of Mrs. Burgie and the understanding between her and her husband, by the executrix to him. Even if it can be conceded that Mrs. Burgie paid the purchase money, and the sale was made and confirmed to her; still no title passed until the deed was executed and delivered, and she had the perfect right to have the deed executed to whom she-desired. The law concerned itself for the protection simply of the estate, and to this end would see that the purchase money was paid before the deed could be executed. This done, ifwas wholly immaterial to whom the deed was made, provided it was done at the request of the purchaser. The land, in equity, after the payment of the purchase money, even it it was made by Mrs. Burgie, was her property and she could dispose of it as she saw proper. There is nothing in the law to interdict the executrix from making the deed as the purchaser directed. For the sale is in no manner affected thereby, and it is just a question at last in a court of equity whether or not the purchaser desired the deed made in the name of another. 2 Woerner, Administration, § 480, * 1067-68; II Am. & Eng. Enc. Law (2d Ed.), p. 1155; Ward v. Lowndes, 96 N. C. 367; McKee v. Simpson, 36 Fed. 248. The deed was valid.