(after stating the case). The plaintiff asks for judgment upon the verdict on the ground that the consideration of the deed executed Ivy Hannah McDowell to NJames M. Giles, the- plaintiff’s husband, on the 8th of September, 1868, was the assignment by her of her interest in a fund arising from the sale of the property of her father, who died prior to the year 1858.
The plaintiff was married to Giles before the Constitution of 1868 became a law. The husband could, therefore, have acquired the absolute title to his wife’s personal property by reducing it to possession. If the money arising from the sale of the land was allowed, by her consent, to be paid to him, it became his property. If it was invested, with her consent, in other lands, and with no request on her part that the land purchased should be conveyed to her or for her benefit, and the husband took title to himself, the land vested absolutely in him, discharged of any equity in her. Temple v. Williams, 4 Ired. Eq., 39; Black v. Justice, 86 N. C., 504; Hackett v. Shuford, 86 N. C., 144.
*202Even the right on the part of the husband to reduce to possession money due to the wife, though not exercised by him, would constitute a sufficient consideration to support a deed to him for land; and where, as in this instance, the wife joins in assigning a fund, arising in part from sale of personalty, and in part from sale of land belonging to her father’s estate, and that assignment is the consideration of the conveyance made to him, there is no resulting trust, raised in the wife as to the land conveyed.
The plaintiff excepts to the charge of his Honor, that there-was no evidence of fraud.
By a careful review of the evidence sent up, we discover no testimony tending to prove fraud. The exception, as stated in the record, did not make it incumbent on the appellate court to examine the evidence for the mere purpose of passing upon this exception, unless the plaintiff had pointed out, in the mass of testimony, that relied upon to show that the Court below was in error. It is questionable, too, whether the complaint contains a sufficient allegation of fraud, as distinguished from mistake.
The next exception was to that portion of the charge of the Court in which the law, as to the measure of proof necessary to establish an alleged mistake in a deed and entitle a complainant to a decree ordering the deed to be reformed, was stated. The plaintiff has no reason to complain of the-instructions on this point.
In the case of Harding v. Long (decided at the present term), this Court reiterated the principie (first laid down as-applicable to jury trials in Ely v. Early, 94 N. C., 1) that an. alleged mistake in a deed must be shown by clear and convincing proof, in order to justify a verdict finding that a. mistake was in fact made in drafting it.
The only remaining assignment of error is, that the Judge-erred in instructing the jury that the burden was upon the-plaintiff to show, by a preponderance of testimony only, that *203the defendants had notice of the equitable claim of the plaintiff. We cannot understand, if it is material, why such an objection and exception should emanate from the plaintiff; but it so appears of record. The general rule is, that a party to a civil action, who has the affirmative of an issue, is required to show his contention by a preponderance of testimony. The proof of notice of an equity does not constitute an exception. Besides, the jury were properly told that if they found, in response to the first issue, that there was no mistake, it would not be necessary for them to pass upon the third issue.
No error. Affirmed.