
    Den, on demise of Beverly Hughes vs. Bazel Shaw.
    Ejectment.
    A voluntary conveyance by a father lo a son, is subject to the dower of the wife of the bargainor, although the ostensible object was to defeat creditors.
    This was an action of ejectment, commenced by the lessor of the plaintiff against the defendant. On the trial of the cause in the court below, the plaintiff read in evidence a grant to-M’Can for 2560 acres, which covered the land in dispute; and also produced and read in evidence, a connected chain of mesne conveyances from the grantee to Lee Sullivan — a deed from Sullivan to Stephen Farmer, dated 1st May, 1810 — a deed from Stephen Farmer toLit-tleberry Farmer for 300 acres, part of said tract, acknowledged in March, 1811, and registered in April, 1811 — a deed from Littleberry Farmer to Reynard Farmer, dated 29th November, 1811 — and a deed from Reynard Farmer for the same land to the lessor of the pjaintiff.
    The defendant produced and read in evidence a record of Smith county court, by which it appeared, that at the February term, 1816, of said court, the widow of Stephen Farmer had her dower assigned out of the tract, which assignment of dower covered the land in dispute.
    The defendant also proved that Stephen Farmer married the widow of col. Cheek, and lived with her until September, 1815, about which time he died; and in September, 1816, bis widow intermarried with the defendant, and proved that Stephen Farmer lived upon the land during his life, and occupied it and used it as his own, except a part on which Reynard Farmer lived.
    It was proved that Littleberry Farmer gave his note to Stephen Farmer foi about $800; the land was proved to be worth upwards of $1900 at the time. Stephen Farmer also executed a bill of sale to Littleberry for eight negroes, and said the note for $800 would pay him for all the property he had conveyed to Littleberry, with what he had before received from him. Stephen Farmer frequently said he wished his children to have this property, and wanted it so conveyed as to prevent Cheek’s heirs from getting any part of it.
    It was also proved that Mrs. Farmer had administered upon her former husband’s (colonel Cheek’s) estate, which estate was worth about g 3000. After her intermarriage with Farmer, it was agreed between Farmer and his wife, and-Duke, who had married her daughter by Cheek, that Duke, as agent of the administratrix, should take into his possession the personal estate of Cheek, and settle it upland he entered into bond in the penalty of gl 500 well and faithfully to perform his trust.
    Stephen Farmer had become somewhat alarmed at the proceedings of Duke, and believed if he wasted the property, the $1500 (the penalty) could only be recovered by him, and his property would be liable to pay the balance to the heirs of Cheek. He frequently conversed with one of the witnesses on this subject, and wished to know of him, how, and in what manner he could dispose of his property to his children to prevent its being liable upon Duke’s failing to pay the heirs of Cheek. Reynard Farmer had loaned his father three or four hundred dollars to pay for this land, and it was in proof that Stephen Farmer and his wife lived well together.
    After the matter between Duke and Stephen Farmer had been adjusted, Littleberry Farmer, said it was well for him, that it had caused his father to make this conveyance, and that it should not be undone if he could help it. Neither Lit-tleberry nor Reynard Farmer’s visible property appeared less after the conveyance of the land to them than before.
    It was also proved by a witness, that he told the plaintiff before he purchased, that the widow had a claim of dower to the land. To which he replied, the widow was entitled to it, and he would not interfere with her.
    It was also proved that Stephen Farmer was a monied man in his lifetime, and had money to lend, and was under no necessity to have sold any of his property; and that Littleberry Farmer, at the time of the conveyance from his father to him, was not worth more than $,1000. The old man remained in possession of all the negroes conveyed, and part of the land, during his life. At the time the old man executed the conveyance to Littleberry, his wife was absent, and Littleberry endeavored to impress him with the belief that she would not return.
    It was also proved that on the 29th November, 1811, the time Littleberry conveyed to Reynard the 300 acres, Littleberry and Reynard went to the house of Daniel M’Au-lay, Esq. and requested him to draw a deed of conveyance from Littleberry to Reynard for said 300 acres. In compliance with which request, he drew the deed agreeably to the calls given in by the said Littleberry Farmer and Rey-nard Farmer; and that at the request of Reynard Farmer he counted and paid over to Littleberry Farmer, for and on behalf of the said Reynard, one thousand dollars, in full for the said described land; and upon the said Littleberry Farmer receiving the one thousand dollars, he executed a general warranty deed to the said Reynard Farmer for the same, to which deed and execution thereof he was a' subscribing witness, which deed was inclosed in his déposition.
    At the time the deed was executed, it was named by the parties that a bond was to be executed by Reynard Farmer to Littleberry Farmer to let old Mr. Farmer remain on the plantation as long as he should live — he knew not whether the bond was ever executed.
    Mr. Franklin, a witness for the plaintiff, said he moved to the neighborhood of old Mr. Farmer early in 1812, about the time that Reynard moved upon the land. He applied to the old man to rent some land of him that year; the old man replied he had to rent land himself of Reynard; he afterwards rented witness a part of the land he said he had rented of Reynard. Reynard lived upon the land during his father’s lifetime, rented some of it out, and used it as his own — the old man also lived upon it till his death. Old Mr. Farmer, after he had conveyed this land, frequently tried to purchase a tract of land which witness then owned, and said he wanted to have a home for his family, for he said he had no home but for his lifetime.
   Crabb, J.

delivered the opinion of the court. The plaintiff below, who is also the plaintiff in error, insists that the circuit judge gave erroneous directions to the jury on the questions of law arising in the cause.

He is said to have erred — 1st. In enumerating the circumstances from which the jury might infer fraud. The judge told the jury, “ that if Stephen Farmer made the conveyance to Littleberry Farmer with the intent to defraud his then wife of her dower, such conveyance, so far as it injured the rights of his wife, was void; that he thought liis principal object in making the conveyance might be to defraud creditors,and although an intention to defraud creditors is not in strictness of law the same thing as an intent to defraud the widow of her do-wer, yet they are not inconsistent with each other: that if Stephen Farmer did not get a valuable consideration for the land, and if the conveyance obviously tended to defeat her dower, if made in the absence of his wife, when he expected and believed she would not return, and said he wanted his children to have all the property, these are circumstances proper for the consideration of the jury, and if from them, and other proof in the cause, they believed the conveyance was made to defraud her of her dower, then the conveyance to Lit-berry Farmer was void.”

Although the expressions used by the judge in bis enumeration of circumstances, are not precisely the words of the witnesses; yet, as it appears to us, there is no material difference between them; and we consider this part of the charge sufficiently accurate in its explication of the law.

It docs not require argument to prove, that a man who is at once husband and debtor, may at the same moment intend, and by the same act consummate an alienation of his property, which in the eye of the law is equally a fraud against the wife and the creditor. It is no less clear, that the same circumstances which prove a fraud upon the rights of one, may often conduce to show fraud also against the other. If a man married and deeply in debt make a conveyance of all his estate to his son, no one will deny that this evidences a fraud as against his creditors. Is it not as obviously a fraud also against his wife? She is entitled by law to one third of all the lands, &c. of which the husband died seized or possessed; and he is not at liberty to deprive himself of the seizen or possession at the {iis death, with intent to defeat her of her dower, by conveyance fraudulently made to children or otherwise. Now the fact of her being defeated of dower, is conclusively demonstrated by this proof; for, the son getting all, she can get none. Is not the intent fraudulently to defeat her right shown as conclusively ? Must he not have intended that she should get none, when he conveyed all to another? and must it not have been done fraudulently as to her, as it occurred without the presence of necessity, being without any valuable consideration, and when he knew it would deprive his wife of that provision for her support which the law provides for her? There can be but one answer to these inquiries. If the fact that the husband conveyed all his property, or all his real estate to his son, affords proof so strong, that he intended fraudulently to defeat her of her dower, shall it be said that the conveyance of a large portion of it affords no proof of the same thing? Although it may be less conclusive, yet it cannot be affirmed that it does not conduce to the establishment of the same proposition. The effect of the proof increases in proportion to the amount of the estate conveyed, compared with the amount retained. If the tendency of a conveyance of all is to defeat her altogether of dower, certainly the tendency of a conveyance of part is to defeat her of dower in part. And the intention to defraud is surely shown by its being; done in privacy, in the absence of the wife, and accompa-Med with expressions indicating an updue anxiety that his children should get all of his property, in exclusion of others entitled to share with them, although he might not expressly say his wife ivas one of the persons he wished to exclude.

2d. But the part of the directions to the jury to which the plaintiff most strenuously objects is the opinion, that he could not rely successfully on the ground of his having been a purchaser from a purchaser for a valuable consideration without notice of the fraud. Several authorities have been cited on this point in the brief, and in the argument. They, with such others as we could find here relating to the subject, have been carefully examined by us, as well as the acts of assembly, particularly 1784, ch. 22, sec. 8,9,10; and the whole subject has received so much of the consideration its importance merits as was consistent with other claims upon our attention.

It is certainly true as a general rule, that the plea of purchase for a valuable consideration without notice, is a de-fence to be relied on for the protection of a person in possession against the claim of another not in possession, or in the language of some of the cases, as a shield to protect one’s own possession, but not as a sword to attack that of others.

That there is no possible case in which one out of possession can rely on this doctrine as a means of getting in, we shall not assert, but wc are convinced that such instances are of rare occurrence. Wc view this doctrine as peculiarly the creature of a court of equity, seldom introduced into courts of law, except when the necessity for its use arises out of some statutable regulation, sanctioning inquiries and examinations to be made in a court of law, which, but for the regulation, would be more properly the subject of equitable cognizance.

But without pursuing these inquiries further, and without giving any definite opinion upon the subject, we are completely satisfied that it has no application to the question before the court. We think this question depends upon the true construction of the 8 th section of the act of 1784. The section provides, “ that if any person shall die intestate, or shall make his last will and testameut, and not therein make any express provision for his wife, by giving and devising unto her such part of his real and personal estate, or some other for her use as shall be fully satisfactory to her, such widow may signify her dissent thereto before the judges of the superior court, or in the court of the county wherein she resides, in open court, within six months after the probate of said will, and then, and in that case, she shall be entitled to dower in the following manner, to wit: One third part of all the lands and tenements, and hereditaments, of which her husband died seized or possessed: Provided always, that any conveyances made fraudulently to children or otherwise, with an intention to defeat the widow of her dower hereby allotted, shall be held and deemed to be void, and such widow shall be entitled to dower in such lands, so fraudulently conveyed, as if no conveyance had been made; which said third part, shall be, and enure to her own proper use, benefit and behoof, for, and during the term of her natural life; in which said third part shall be comprehended the dWelling-house in which said husband shall have been accustomed most generally to dwell next before his death, and commonly called the mansion-house, together with the offices, out houses, buildings and other improvements thereunto belonging or appertaining.”

By the common law the widow was enitled to be endowed of all lands and tenements of which her husband was seized at any time during the coverture, and of which, any issue which she might have had might by possibility have been heir. (2 Black. Com.) This act of assembly introduces a change, and takes away her right of dower i n such lands as her husband, during his life, has bona jide conveyed without intention to defeat his widow of her dower. It is a question which merits very deliberate consideration, whether every deed made to children without a valuable consideration, is not fraudulent and void as against the rights of the widow within the meaning of this act. Or in other words, whether the conveyance is not made subject to rights °f the wife, should she survive her husband. Was it not the policy of the act to permit such alienations of real estate as might be rendered necessary in the conduct of the husband’s affairs,, but to prohibit those which would not seem to be called for by any necessity ? to permit a bona fide sale or exchange, so to speak, for a valuable consideration, but to forbid mere gratuitous donations, as well as other fraudulent transfers? The former might be peculiarly consistent with our habits and institutions, which lean towards the free and easy alienation of all sorts of property. It would be consistent with the state of the country and its population. It would often enable the husband to better the situation of his family by selling a tract of unproductive land for the payment of a debt or some other useful purpose, or by disposing of a small tract of land in a long settled part of the country, ill suited to the condition of a large and growing family, and removing to, and purchasing a larger one for the same money, in some new state or territory. But it is difficult to see how liberal and enlightened views of the public good could sanction the right of a husband to dispose of his real estate to his children to the prejudice of that proportional share which the law has designated for the wife. A different construction of the act would probably render the provision against fraudulent conveyances by the husband almost inoperative. For if the husband can legally convey some property to his children for love and affection without being subject to the complaints of the wife, how much can he convey? Can he convey half? Can he convey two thirds? Can he convey nine tenths? At what point does his power end ? Is it to be left to the conscience of the jury or the chancellor in each case to determine what quantity alienated it will require to establish a fraudulent intention on the part of the husband or the invalidity of his conveyances? If so, variable indeed will be the criterion by which the rights of widows are to be regulated. Or is a husband to possess an unresisted power of giving lands to his children, unless, indeed, it can be shewn in proof, apart from the fact of the conveyance, that he intended to defraud his wife of her dower? If so, the hopes of a widow for subsistence will rest upon a slender and precarious foundation. The husband has but to be silent — cautious not to announce in speech the fraud that he meditates, and all will be safe. He may execute as many conveyances to his children as his occasional pique or caprice, his folly or his feelings may prompt, or as their cunning may enable them to procure; yet if sufficient evidence of sayings and doings cannot be afforded to fix upon him the intention, by actual fraud, to defeat his wife of her dower, she is without redress; he may have his children rich and bis wife comparatively portionless. And all this, notwithstanding the section under consideration, professes to make an adequate provision for the support of widows, and proclaims it “highly just and reasonable that those, who by their prudence, economy and industry, have contributed to raise up an estate to their husbands, should be entitled to share in it.”

Already is a married woman subjected to sufficient hardships by the rules of our law. All her personal property becomes her husband’s absolutely immediately upon marriage. He is not at once the owner of her real estate, but he soon can, and usually does become so. It is sold or exchanged for something else, and the title of the latter vested in him. Or a deed is executed by him and his wife to a third person, and by that third person back to himself. True, the wife must be examined separate and apart from her husband as to her free consent, &c. But he who is acquainted with female nature and married life, knows that this is little more than a solemn farce. The husband is thus made owner of all his wife’s property, and upon his prudence and good fortune her fate is made entirely to depend. She may be reduced, even during his life, from affluence and ease to penury and suffering. This is bad enough. But the doctrine now contended for would go further, andwould not only subject her property to the claims of the husband’s creditors,it would also expose her expectations, even after his death, wholly to the will and caprice of her husband, acting often in an incautious moment, and under improper influ-enCGS*

We repeat then, is it not the true construction of the act that every conveyance founded merely' upon meritorious consideration, is as much fraudulent and void against the widow as if the fraudulent intention were established by positive proof?

We forbear to give any decision upon this question in this case. It has not been argued. Nor is it essentia] to decide upon it; for we have no doubt that we have nothing to do with notice in inquiring whether a case is within the provisions of this act. It provides, “ that; all conveyances made fraudulently to children, or otherwise, with an intention to defeat the widow of her dower, shall be held and deemed to be void,” &c. The words are unambiguous. The moment the conveyance is proved to have been fraudulent in its inception within the terms used, the difficulty is at an end. It is void as against the dower, whoever may claim and however he may claim under the fraudulent conveyance. Any other interpretation would render the provision in very many instances entirely nugatory. Incon-vencies may sometimes result from this construction, but they are not believed to be of the same flagrant character with those which would follow a different one.

Judgment affirmed.  