Opinion
(June Term, 1840.)
1. The act of 1829, ch. 20 (1 Rev. Stat., ch. 37, sec. 25), which enacts that no deed of trust or mortgage shall be valid to pass property, as against creditors, but from the registration thereof, embraces only those deeds in trust which are intended as securities for debts, and does not include deeds of settlement between husband and wife in which the property is conveyed to a trustee in trust for the wife, the deeds of the latter class being provided for, as to their registration, in the 29th section of the same Revised Statutes.
2. Where the subscribing witness to any instrument, except a negotiable one, becomes interested in a suit brought by him, his handwriting may be proved to establish the execution of the instrument, whether his interest was thrown upon him by operation of law or was acquired by his own voluntary act.
3. A postnuptial settlement, made between husband and wife, in which a greater interest in the property is secured to the wife than was provided for in the marriage articles, is void as against creditors, under the acts of 13 Eliz. and 1715 (1 Rev. Stat., ch. 50, sec. 1).
4. A husband is incompetent to testify in favor of his wife, and will not, therefore, be admitted as a witness to establish a settlement in her favor against his creditors; nor will his subsequent declarations be admitted for that purpose.
5. No antenuptial agreement or transaction between husband and wife can be proved to support a settlement made after marriage, to the obstruction of the husband's creditors; for the act of 1785, Rev., ch. 238 (1 Rev. St., ch. 37, secs. 29, 30), which requires "all marriages settlements and other marriage contracts" to be registered within a particular time, to make them valid against creditors, must necessarily exclude all such contracts as in their nature do not admit of registration.
UPON a treaty of marriage between Hector C. Homer, and Eliza Savills, they entered into written articles, bearing date 19 June, 1837, whereby it was agreed that all the estates, real and personal, of the intended wife should be settled to her sole and separate use, during her life, with remainder after her death to the intended husband in absolute property. The marriage took effect shortly thereafter. The articles were attested by the present plaintiff alone, and were proved by his oath in August, and registered in September, 1837. On 1 February, 1839, Mr. and Mrs. Homer united in a deed of settlement between themselves of the first part and Edward Saunders, the (98) present plaintiff, of the second part, in which, after a reference to the articles by their date, it is recited that by the same he, the husband, covenanted that all the property, real and personal, then belonging to the said Eliza should, after the marriage, be and remain her property during her natural life, and free from any claim, right, or title of said Hector; and it is thereby witnessed, "that for the more effectually carrying the said agreement into execution, and for the purpose of providing for the said Eliza," they, the husband and wife, convey to the plaintiff, as trustee, in fee a tract of land, and also five slaves and other personal chattels, all of which had belonged to the wife, "in trust for the sole and separate use of the said Eliza, and at her sole and separate disposal; with power to the said Eliza, by her last will, or any writing by her duly executed, to give away or dispose of any part or all of the said land, negroes, and goods." This deed was executed by all the parties, and was proved in February, and registered on 8 March, 1839.
In 1838 the husband contracted debts for which judgments were rendered; and executions issued, bearing teste before 8 March, 1839, and were delivered to the defendant, the sheriff of Camden County, who seized some of the slaves conveyed by the settlement. The plaintiff then brought this action of detinue, which came on to be tried at CAMDEN, on the last circuit, before Pearson, J., on the general issue.
After reading the deed to himself, the plaintiff proposed to give in evidence the articles of 19 June, 1837; and for the purpose of establishing the execution thereof he offered witnesses to prove his own handwriting as the subscribing witness. To that evidence the defendant objected; but it was received by the court, and the articles were thus proved and read to the jury.
The defendant thereupon insisted that the deed of settlement was void as against the creditors, notwithstanding the articles, inasmuch as by the settlement the whole property is secured to the wife, and to be at her disposal, and by the articles she was to have only a life estate, (99) and the remainder, in both the realty and personalty, was to inure to the husband. And thereupon, for the purpose of removing the ground of that objection, the plaintiff offered to prove by witnesses that the said Hector did, before the marriage, verbally agree with the said Eliza to settle upon her, absolutely, all her estates, including the negroes now sued for. To this evidence the defendant also objected, but it was admitted by the court.
The plaintiff then further offered Hector C. Homer as a witness to prove that he did make such an agreement with his intended wife as that last alleged, and that he purposely drew the said articles variant from the said verbal agreement, and fraudulently procured her to execute the same, without letting her know of the difference between them. To this evidence the defendant also objected, but it was received by the court.
The plaintiff then further offered to prove by witnesses the declarations of the said Hector C. Homer to the same effect with the evidence by himself given as above, to which also the defendant objected, but the court received it.
The counsel for the defendant then moved the court to instruct the jury that the deed to the plaintiff was void as against the creditors, because the executions were tested before the deed was registered, which instruction the court refused to give. The jury found for the plaintiff, and from the judgment the defendant appealed.
(100) Badger for defendant.
J. H. Bryan for plaintiff.
As the last point is unconnected with the others, it may be disposed of at once. From the terms of the exception we must take it that the executions, though prior to the registration, were tested after the execution of the deed. The objection is, therefore, founded exclusively on the Rev. Stat., ch. 37, sec. 24; Laws 1829, ch. 20, which enacts that no deed of trust or mortgage shall be valid to pass property as against creditors but from the registration. Our opinion is that the act does not embrace every deed in which a trust happens to be declared, and that the instrument before us is not within it. The object was to give notice of encumbrances, and the "deed of trust" meant in the act is that species which, though of recent origin, has grown into general use as a security for debts, in the nature of a mortgage with a power of sale. This results from the manner in which the two kinds of conveyance, "deed of trust" and "mortgage," are associated in that section of the act. But the special provision in section 29 of the act, as now digested in the Revised Statutes, for the probate and registration of marriage contracts, prevents the application to them of the general words of section 24. This particular species of "deed of trust" is to be governed by its own peculiar regulations. This exceptions is, therefore, unfounded.
Another exception on the part of the defendant, as to the proof of the articles by testimony to the handwriting of the plaintiff as the subscribing witness thereto, we likewise deem to be unfounded. It was admitted at the bar that the evidence would have been proper if the law had, after his attestation, thrown the interest on the plaintiff. But it was contended that, in a suit brought by the witness himself, the evidence is not competent when the plaintiff acquires the interest by his own act. Were the question new, we should at least hesitate on it, as the distinction seems to have much reason in it; and, indeed, with respect to indorsements to subscribing witnesses to negotiable instruments, (102) it is established at law. Hall v. Bynum, 3 N.C. 329. But the rule seems to be confined to that particular case. The books contain many instances, in recent times, in which proof has been received of the handwriting, where the subscribing witness had become the administrator of the obligee, or the executor of the obligee, or where the obligee and witness had intermarried. From these cases we cannot distinguish the present in principle; and, therefore, we think the articles well proved.
But the important consideration is whether the articles, after they were established, are sufficient to sustain the settlement under which the plaintiff claims title. Upon, that, the defendant's objection at the trial is unanswerable. Valid antenuptial contracts will undoubtedly support a settlement made after marriage in conformity to them. There are both a moral and an equitable obligation which render the articles a good consideration for the settlement. But without such articles, a postnuptial settlement is voluntary and void under the Stat., 13 Eliz., see 1 Rev. stat., ch. 50, sec. 1, as has long been settled. So it necessarily must be when by the settlement the husband secures to the wife or issue of the marriage more than by the articles he engaged. This settlement goes much beyond the articles, and deprives the husband of a valuable interest which the articles, not only left in him, but expressly secured to him. For that excess, then, at the least, the deed to the plaintiff must be invalid; that is to say, if the case is to rest on the articles by themselves. But it thence follows, on a settled principle, that the settlement is not good even for the life of the wife. The deed is avoided by the act of 1715, or 13 Eliz., as being, at least in part, not founded on a valuable consideration, but voluntary. There is but one trust declared in this deed, and that is in favor of Mrs. Homer. In such a case the Court cannot apportion the operation of the instrument to its considerations, and hold it in part bad and in part good, as at common law; but must execute the stern condemnation of the statute, which says it shall be utterly void.
(103) But the plaintiff asks to supply the defect in the articles in this respect by the verbal agreement between the parties, and the alleged fraud by Homer on his intended wife. Although not necessary to the decision of the cause, yet, as the parties have raised the question in the record and in the argument, it is perhaps our duty to dispose, in the first place, of the objections as to the modes of proof on those points.
We have so lately had occasion to say, in a similar case, that husband and wife cannot be witnesses for each other, that we need now only refer to that decision. Pearson v. Daniel, 22 N.C. 360.
Still less, if possible, are the husband's subsequent declarations competent against his creditors. They are not privies with him, but claim against, and not merely under, him. Briley v. Cherry, 13 N.C. 2.
The remaining part of the defendant's objection to the proposed evidence of the plaintiff is to its insufficiency or irrelevancy. If the supposed parol agreement and fraud, though established, would not tend to sustain the deed, it is useless and illegal to hear the proof. Against the husband, or those claiming under him as volunteers, equity would set up such a parol agreement, unless it be specially required by statute to be in writing; as in England is the case by Stat. 29, Charles II.; and a fraud in obtaining from the woman the execution of an instrument, which purposely omitted a material part of the agreement, would doubtless be redressed, notwithstanding such a statute. But in respect of creditors, the act of 1785, Rev., ch. 238, see 1 Rev. Stat., ch. 37, secs. 29, 30, establishes, we think, a different and opposite principle. The effect of that act is to prevent any verbal agreement or transaction between the intended husband and wife from obstructing a creditor. It is entitled "An act directing that marriage settlements and other marriage contracts shall be registered, and for preventing injury to creditors." After reciting that marriage settlements and other marriage contracts have been frequently made and kept secret, whereby the possessors, upon the credit of the apparent property, have been enabled to contract great debts, to the manifest deception and injury of their creditors: for remedy whereof for the future, it is enacted that all marriage (104) settlements and other marriage contracts whereby any estate shall be secured to the wife or husband shall be proved and registered as therein mentioned; and all not so proved and registered shall be void against creditors. This language shows clearly an intention of the Legislature that as to his creditors the vesting of the property of the wife in the husband, jure mariti, should not be prevented by any secret agreement, whether written or verbal. The secrecy of the agreement is the evil on which the preamble dwells, as tending to deceive creditors. The act designs to take from the parties all opportunity of practicing such deception, and thus to "prevent injury to creditors," by giving to all such arrangements that degree of publicity which can be derived from registration. The enactment, therefore, is that if not proved within six months, and registered within one month thereafter, they shall be void. It is not sufficient that the settlement should be written and registered. That requires, as has been before mentioned, the support of the agreement before marriage; and the act requires that agreement, as well as the settlement, to be registered — using the words "all marriage settlements and other marriage contracts." We are to go back, therefore, to the first agreement; and if that be found defective, the postnuptial settlement made in execution of it cannot stand. The proposition is self-evident that those agreements must be in writing, because in that form alone do they admit of registration. And the law must be the same when there is an attempt to vary a written and registered agreement by parol to the prejudice of creditors. To allow it would amount to a repeal of the act. Gregory v. Perkins, 15 N.C. 50.
It is true, this shuts the door against correcting mistakes in drawing those instruments, and leaves an opening for practicing frauds on confiding women. Generally, however, they have the advantage of friends and counsel in such treaties; and, therefore, there is not great danger of their being overreached. But the answer is, that the Legislature must have been aware of those possibilities; and, being aware of them, thought they would so seldom occur as, practically, not to amount to a grievance, or, at least, to one at all comparable to those arising (105) out of "the frequent secret contracts" between intended husbands and wives. Therefore the act makes a registered and, of course, a written instrument the only evidence against the husband's creditors that "any estate has been secured to the wife."
Our opinion, therefore, is that the deed to the plaintiff does not pass the title of the slaves to him, and that no evidence of the verbal agreement of fraud alleged ought to have been admitted. The remedy of Mrs. Homer is, upon the articles, in equity, where, for anything now seen to the contrary, they will be specifically decreed in their present form.
PER CURIAM. Error.
Cited: Smith v. Castrix, 27 N.C. 520; Doak v. Bank, 28 N.C. 330; Sanders v. Smallwood, 30 N.C. 130; Ballard v. Ballard, 75 N.C. 192; Sullivan v. Powers, 100 N.C. 26.
(106)