Opinion
August Term, 1855.
Upon the question of the bona fides of a deed, alleged to be in fraud of a contemplated marriage, what the husband, the grantor, said in favor of the deed, even before the marriage, is not admissible: because the wife claims by act of law paramount to the husband.
THIS was a petition for DOWER, tried before his Honor Judge BAILEY, at the Special Term of the Superior Court, held for the county of Buncombe, July 1855.
N.W. Woodfin and Bynum, for plaintiff.
J. W. Woodfin, for defendant.
This case was before the Court at the August Term, 1853, (Busbee's Report 475,) and the same issue of fact was submitted as at the former term, to wit, "whether the husband of the petitioner, William Pinner, was seized of the premises?" On this trial, as on the former, it was alleged by the defendant, (his daughter Nancy) that previously to his intermarriage with the petitioner, the said William Pinner had made to her a conveyance for the land in question. A deed was produced by her, bearing date in 1827, which was attacked on the ground, that it was in fraud of the petitioner's right to dower, and defendants' counsel offered to prove by the witness, that previously to William Pinner's intermarriage with the petitioner, he told the witness he had made his daughter a deed for the land. This testimony was ruled out by the Court, for which the defendant excepted.
A verdict was rendered for the plaintiff, and an appeal taken by the defendant to this Court.
The case as now presented to us differs from the one formerly here, in one particular only. The witness, Lanning, upon that occasion, stated that the declaration of William Pinner, as to his gift of the land to the defendant, was made about a month before his death, and consequently after his marriage with the plaintiff. See the case in Busbee 475. In the present case the defendant offered to prove the same declarations made before his marriage, which were ruled out by the Court. In the former case, this Court decided that the evidence of Lanning, of declarations of the husband made at the time of the delivery of the deed, was competent as part of the res gestae, but that no declarations then made of what he had done at a prior period, as to the making of a title to the defendants were admissible. The reason assigned was, that the widow claims her right of dower, not under her husband, but under the law. If the reason assigned by the Court for its decision be correct, then it makes no difference at what time the husband's declarations were made as to the prior delivery; they cannot affect his widow, as she does not claim under him. Her claim to dower is above and beyond him; and so sedulously does the law guard her right, that it makes void all conveyances made by the husband with the fraudulent intent to deprive her of her dower, and places her dower beyond the reach of her husband's creditors.
PER CURIAM. His Honor committed no error in rejecting the evidence. Judgment affirmed and this opinion will be certified.