The opinion of the court was delivered by
Kingman, C. J.:The defendant in error having obtained a divorce from her husband, and a judgment for alimony against him, and an execution that issued upon the judgment having been returned “No property found,” she brought an action to set aside a deed from her former husband, Thomas Anderson, to his brother, Daniel Anderson, to a certain quarter-section of land in Brown county. The land was owned by Thomas Anderson, and was occupied by himself *115and 'family, including defendant in error, at the time the deed was made. She alleged that her signature to the deed was obtained by duress. The evidence is not all in the record,. but sufficient to show the questions raised. The land sold was the homestead of the family. To alienate it the joint consent of the husband and wife was required. Prima fade that consent was shown by the deed. The defendant in error (plaintiff below) must show that her signature to the deed was made under such circumstances as could not be held to indicate her consent. In support of this point in her case she testified in her own behalf, and in her testimony there is the following, which was admitted over the objections of plaintiff in error:
“A short time before the deed was executed my husband, Thomas Anderson, came into our house on the place, which was our homestead, and asked me, no one being present but us and our little girl, if I was going to sign that deed ? I told him I was not—-you have promised to keep it as a homestead. He came and struck me with his fists, first on one side of my head, and then on the other, three times, and pulled my hair. He said if he did not get the deed signed one way he would another. I was in poor health; he had been talking to me before about signing the deed. I told him at the first conversation that I did not want to sign the deed. He said- nothing further until evening, when he brought the axe in, and sharpesed-a large knife; said nothing, but looked very angry; said he was going in the morning to get ’Squire Streeter to take the acknowledgment of the deed. No one was present but us and our little girl.”
The rule by which the admissibility of this testimony is to be determined is certain, and is not obscure. It is found in the latter part of the third clause of § 323 of the code, and is as follows: “But in no case shall either” (that is, husband or wife,) “ be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterwards.” This is but declaratory of the rule of the common law, and the difficulty grows out of the application of the law to the facts, and not from any uncertainty as to the law that is to control. The *116testimony as quoted is in direct response to the question aslted, and the question itself was objected to on the same .grounds that are urged against the admissibility of the evidence. The question then is, does the testimony disclose any communication made to the wife by the husband .while the marriage relation subsisted between them ? To this question we are constrained to make answer in the affirmative. It seems a peculiar hardship to allow a husband to shield himself tinder the protection of the law from the consequences of his own outrages. But the rule of law is absolute, and is founded in wisdom, and it would be a great evil to weaken its universal- application to meet the exigencies of a single case, however much that case may appeal to our sense of justice.
The only other error urged in this court is as to the instructions. But little of the evidence is in the record, and there is nothing in the scraps preserved that tends in any way to show that the plaintiff in error was not a bona fide purchaser for a valuable consideration. So far as we can perceive the jury decided the case on the ground that defendant in error signed the deed under duress. If she did so, she never gave that consent to the alienation of the homestead that the constitution requires, and the court submitted this question fairly to the jury under proper instructions. As we understand the law on this point the good faith of the purchaser cuts no figure, and the court correctly refused the first instruction asked by plaintiff in error. The second instruction asked is not law in any case, and was therefore properly refused.
For the error in the admission of the testimony, the judgment must be reversed, and the case remanded for further proceedings.
All the Justices concurring.