Brinkley v. Brinkley.

Cook, J.

Upon the trial -in the Superior Court, judgment as in ease of nonsuit was rendered against the plaintiff, upon motion of defendants, under’ ch. 109, Acts 1897, as amended by ch. 131, Acte 1899, and plaintiff excepted and appealed.

The plaintiff contends that by reason of the promise of Joeeph H. Brinkley to convey to her the interest in the land as stated, she became a creditor of his and that the voluntary deed executed by Joseph H.Brinkley to his minor children (all of whom are now defendants, except one), after a contract of marriage had been entered into between herself and siaid Joseph H. Brinkley, and without her knowledge and consent, was a fraud upon her marital and contract right® and void as to her; and that she is entitled to recover the interest in the land conveyed to- her by reason of the deed executed to her in April, 1900, pursuant to the promise miade her by said Joseph wh-e-n she consented to marry him in June, 1884.

The defendants (other than Joseph II. Brinkley) claim title under the voluntary deed executed to them in July, 1884. and while denying the parol promise, alleged by the plaintiff, contend that itb was void under the Statute of Frauds ; that the deed executed to- the plaintiff in April, 1900, conveyed no interest to her — wias voluntary and without valuable consideration ; that she had actual knowledge at the time and long before its execution, and insist that she has no- title to the land and is not entitled to recover.

It 'appears from the case on appeal that defendants introduced evidence contradicting tibe plaintiff’s, bat none appears in the record; and the motion of defendants having been made “upon the whole of the testimony,” the case must be considered by this Court, only upon that which appears in the record, which, for the sake of tire motion, must be accepted as true.

While the contention of the plaintiff, as to being a creditor of Joseph II. Brinkley, by reason of the piarol promise to convey 'the land, is without merit, yet her contention that the voluntary conveyance of the land to his children was a fraud upon her marital rights, presents a very serious question. The contract of marriage entered into between the plaintiff and Joseph H. Brinkley in June, 1884, was based upon a valuable consideration. She had not only a right to expect the benefits to be derived from the marriage in her suitor’s property to be oast upon her by operation of 'the law, but also had his express verbal 'promise to convey to her one-half un divided interest in his tract of land (which was substantially all the property 'that he then owned) immediately after their marriage. Relying upon these rights and his promise, and after many years sharing with him the toils of life, nurturing, caring for and raising Ms minor children by his former wife, bearing children to him and being a true and faithful wife, she suddenly finds herself, her husband and several children of tender age, ousted of her home, to which she was carried when a bride, and then informed that her marital rights and contracts had been supplanted by a voluntary deed, executed by a man whom she had consented to, and bad married, and that his promise not being in writing, was void and of no effect.

But Ms piarol promise to convey land was not void, only voidable, and between the parties could have been enforced unless the Statute of Erauds were pleaded (Hemmings v. Doss, 125 N. C., 400; Williams v. Lumber Co., 118 N. C., 928; Loughran v. Giles, 110 N. C., 423), which can not be material in 'this 'action, since the deed wias, before the institution of this action, duly executed, with full recitals of the original promise — thalt statute applying to> executory and not to executed contracts. Hall v. Fisher, 126 N. C., 205; McManus v. Tarlton, 126 N. C., 790; Choat v. Wright, 13 N. C., 289. And while it has the effect of a post-nuptial settlement, yet it is valid except as to creditor» and purchasers for value and without notice. Rogers on Domestic Relations, sec. 255, page 217. The defendants (other than Joseph) claim title by reason of this voluntary deed executed to them by their father after he had induced the plaintiff to consent to become his wife, and without her knowledge or consent. For what purpose wias this deed then executed ? If for the love and effecition he had for his children, why did he wait until after the courtship and engagement ? Why did he hold it as a basis of credit, and after securing a promise for his prize, place it as he ithought beyond the reach of the woman whose consent he had obtained to share with him the vicissitudes of life for weal or for woe? If he had changed his mind and concluded not to convey to her the interest in the land, as he had promised her to do, then why did he not so inform her to the end that she might exercise the privilege of changing her mind as to the marrilage?

He admits in his answer (which was put in evidence) the agreement as stated in the complaint, to be true. It is admitted for the sake of tire motion, by defendants, that the plaintiff did not know of tire voluntary deed until many years after the marriage, that it was executed without her knowledge or consent. While it is true that a man or woman, before marriage; is at liberty to dispose of his or her property at will and pleasure, yet it must not be done with an improper motive. If it he done to' deceive the person who is them in treaty of marriage, it is a fraud. The courts have uniformly held that a voluntary deed made by a woman in contemplation of m’airriag'e, afterwards consummated, and without the existence of the deed being made known to the intended husband, is in law a fraud upon him. Strong v. Menzies, 41 N. C., 544; Baker v. Jordan, 73 N. C., 145; Roper on Husband and Wife, Vol. 1, pages 163, 164; Poston v. Gillespie, 58 N. C., 258; 75 Am. Dec., 427. Then why should not the same rule apply to the intended husband, who gave to his children his property without the knowledge or consent of his fiancee ? She, under our laws, acquires valuable interests and rights in his property, while on the one hand the husband in addition h> the personal services and earnings of the wife, acquires the right of a curtesy estate, absolutely owns all of the personalty in case of intestacy, etc.; on the other hand the wife obtains a security in respect to her future support, and has the rights of dower, homestead, year’s support at the death of the husband (which can not be defeated by his will or creditors), a distributive share of his personalty, etc. Schouler Domestic Relations (3d Ed.), sec. 181.

Nor clan the constructive notice of registration avail the defendants. In the case of Spencer v. Spencer, 56 N. C., 404, in which case the intended wife had, previously to marriage -and affcea’ engagement, made a voluntary deed to her property, it is held: “But if, after the courtship begins, the court of equity recognizes an inchoate right in the intended husband at all, it follows that it Can not be disposed of by the intended wife without his direct knowledge arid acquiescence. In a case like the present, there is no place for a constructive notice. That is always resorted to for the purpose of preventing the person who has it from doing an act to the injury of another. Here, the husband clan injure no other person. He has rights which the rule protects by preventing another person from injuring him.”

In Taylor v. Rickman, 45 N. C., 278, the husband actually signed the contract, but it was avoided upon the ground of surprise, because the paper was presented to him after the parties had met together for the purpose of being married.

And in Poston v. Gillespie, supra, it was held that, after the contract of marriage is made, neither can give away his or her property without the consent of the other, and notice before the marriage of such a gift does not hinder the party injured from insisting upon its invalidity.

True it is, from the testimony in the case, that the defendants were minors and innocent, but that can not avail them now. “Though not a party to any imposition, whoever receives anything by means of it, must take it, tainted with the imposition, leit the hand receiving it be ever so< chaste, yet if it comes through a polluted channel, the obligation of restitution will follow it.” Tisdale v. Bailey, 41 N. C., 358.

Upon all 'the evidence submitted, it is clear to the Court that the execution of the deed, under which the defendants (other than Joseph) claim was fraudulent and void as to the plaintiff’s marital rights, and there is

Error.

Douguas, J., dubitante.