Opinion
(February Term, 1893.)
Deed from Husband to Wife — Action to Set Aside — Fraudulent Intent — Evidence.
1. Where a husband purchased land with his wife's separate estate, taking deed to himself with her consent and agreeing to convey to her at her request, and did so convey to her just before making a general assignment for benefit of creditors: Held, that in an action by creditors to set aside the deed, it was immaterial to inquire as to whether the intent of the husband in making the deed to his wife was to hinder and delay his creditors.
2. Costs were properly awarded to the grantee in a deed in an unsuccessful action to set aside such deed.
3. Counsel fees, although provided for in a note, cannot be recovered in an action on the note.
ACTION tried at Spring Term, 1892, of McDOWELL, before Graves, J.
(676) Gudger Pritchard and P.J. Sinclair for plaintiffs.
W. H. Malone for defendants.
The jury have found that the land conveyed to his wife by Benjamin Aldridge by his deed of 10 July, 1889, was purchased with her separate estate and moneys, and the title was put in him by consent of his wife upon an agreement then made that he would convey said land to her when requested. Upon this state of facts the husband held the land as trustee for the wife ( Lyon v. Aiken, 78 N.C. 258; Kirkpatrick v. Holmes, 108 N.C. 206), and her rights in it were in effect the same before the execution of the deed, which is alleged to have been made with fraudulent intent, as they were after its execution and delivery. Its effect was merely to vest in her the legal title to the land of which she was before the equitable owner, her title being such as to enable her, upon the strength of it, to recover the land from her husband or from any one purchasing of him with notice of her rights ( Lyon v. Akin, supra), or from any one who had bought the land at a sale under execution against her husband, for such purchaser would acquire only such title as the husband had.
Hence, these facts being established, it became immaterial to inquire with what intent the deed was made and accepted, for the substantial rights of none of the parties have been changed thereby.
We agree with his Honor that there was no evidence that Millie Aldridge consented that the title to this land might remain in her husband in order that he might thus acquire a fictitious credit and be enabled to defraud the plaintiffs. There was no attempt to prove any act or word of hers that in any way could affect her title or estop her from asserting it against the plaintiffs or any other of her husband's creditors. (677)
The first and second assignments of error cannot, therefore, be sustained.
There was no error in adjudging costs in favor of the feme defendant. The Code, sec. 527.
The plaintiffs had judgment for the amount of the debt claimed by them, with interest. Hence it is not necessary to consider the fourth assignment of error. They were not entitled to recover the ten per cent for counsel fees provided for in the note, even if it had been adjudged to be the note of the defendant Aldridge. Tinsley v. Hoskins, 111 N.C. 340.
No ERROR.
Cited: Turner v. Boger, 126 N.C. 302; Ray v. Long, 128 N.C. 91; Bank v. Land Co., ib., 195; S. c., 132 N.C. 892.