HALL v. CHANG AND ENG.

REUBEN HALL AND WIFE v. CHANG AND ENG BUNKER, the Siamese Twins.

A deed made by husband and wife to one who dies previously to the probate and privy examination of the wife is good from the time of its execution and delivery to the bargainee, provided, after his death, it is duly acknowledged and the privy examination of the wife taken and the deed registered.

PETITION for dower, tried before his Honor Judge Manly, at Fall Term, 1854, WILKES Superior Court.

The only question in this case was as to the effect of a deed made in the life-time of the husband of the petitioner by a feme covert (with her husband) but not acknowledged and registered until after the death of the bargainee. His (441) Honor was of opinion that it took effect from its delivery, and, therefore, that he was seized at his death so as to entitle his widow to dower, and gave judgment accordingly; from which defendants appealed.

Boyden, for plaintiffs.

Mitchell, for defendants.

NASH, C. J. David Yates was the owner of several tracts of land, of which one was the tract now in controversy in this suit. By their plea the defendants admit that David Yates died seized and possessed of the other tracts, but deny he did die so seized and possessed of the one now in controversy. David Yates, by deed, conveyed the land in question to his daughter Jerusha Yates, wife of Robert Yates, and by a deed of conveyance, bearing date 3 June, 1848, Robert Yates and his wife Jerusha re-conveyed the land to David Yates. The privy examination of Jerusha Yates was informally taken by the County Court before the death of David Yates, and subsequent to his death her privy examination was duly taken before his Honor Judge Settle. On the part of the defendants it was insisted that the last examination took effect only from the time it was had, and could not refer back to the date of the deed of re-conveyance. It was proved that David Yates died in possession of the land in question.

In support of their position, the case of a sheriff's deed, made upon the sale of land under execution, was cited as

BROWN v. KYLE.

having no relation back. The difference is obvious. The claim of a purchaser at a sheriff's sale is under the deed of the officer, which has no validity until its delivery. Here the deed was made some years anterior to the privy examination of the feme covert. The privy examination is evidence only of the wife's previous act, and was necessary under the law to its due registration; when taken, it validates the conveyance and completes the title of the person to whom made, who has the legal title, not under the privy examination, but under the deed. The efficacy of the deed, therefore, relates back to the time when it was executed and delivered. (442) Half the deeds of conveyance of land made in this country are proved years after their execution; it has never been doubted but that when so proved and registered as directed by law they relate back to the time when executed. Nor does the statute requiring a privy examination limit any time within which it may be taken.

PER CURIAM.

There is no error in the judgment below, which is affirmed.

Doe on demise of MICHAEL BROWN v. JAMES KYLE.

Where it appears from the record sent to this Court, that on the trial below, a question of law was reserved by the Court, to which the verdict was subject, and that question was decided in favor of the appellee, the verdict set aside and a nonsuit ordered, but the Judge fails to state what the question was, there must be a venire de novo.

EJECTMENT, tried before his Honor Judge Saunders, at Fall Term, 1854, ROWAN Superior Court.

The record in this case sets forth that the case was submitted to a jury; that the jury found a verdict for the plaintiff and assessed substantial damages; then follows this entry:

"The Court being of opinion with the defendant upon the question of law reserved, directed the verdict to be set aside and a nonsuit entered.

"From the above judgment the plaintiff prayed an appeal to the Supreme Court."

No case was sent up by his Honor.

Boyden, for plaintiff.

BROWN v. KYLE.

H. C. Jones, for defendant.

BATTLE, J. The case of Dunett v. Barksdale, 13 N. C.,

251, to which the plaintiff's counsel has referred us, (443) is a direct authority in favor of the new trial for which he asks in the alternative, provided we do not give him the judgment for which he first moves. That judgment we cannot grant, for the reason assigned by Hall, J., in delivering the opinion of the Court in the above-named "From the records," says the Judge, "it appears that the rights of the parties litigant depended upon a question reserved; and that question was submitted to this Court for its decision. To decide for either of the parties, when that question cannot be understood, would be to decide in the dark without regard to their rights.'

case.

As no statement of the case or bill of exceptions accompanies the record proper, the defendant's counsel contends. that the judgment of nonsuit must be affirmed, upon the ground that every judgment is presumed to be right unless it is shown to be erroneous, and that nothing appears upon this record to show that it is erroneous; and for this he has cited a great number of cases: Picket v. Picket, 14 N. C., 6; Harry v. Graham, 18 N. C., 76; Thomas v. Alexander, 19 N. C., 385; Brooks v. Ross, Ibid., 484; Honeycut v. Angel, 20 N. C., 449; Stewart v. Garland, 23 N. C., 470; Fleming v. Halford, 26 N. C., 268; State v. Gallimore, 29 N. C., 147; State v. Ray, 32 N. C., 279; State v. Orrell, 44 N. C., 217; State v. Lankford, Ibid., 436.

All these cases, and some others which we have examined, relate to the statement made or signed by the presiding Judge, which is, in our practice, a substitute for a bill of exceptions, wherein is set forth the errors complained of. They proceed upon the ground that it is the duty of the appellant to have his exceptions stated and sent up with the transcript of the record proper, and if there be no such case stated or bill of exceptions at all, or none which shows that any error has been committed, the judgment will be affirmed. Hence, in the case of Waugh v. Andrews, 24 N. C., 75, it was held that where deeds, records, etc., were referred to as making a necessary part of the bill of exceptions, it was the

MCCORKLE v. HAMMOND.

duty of the appellant to see that they were sent up, otherwise the judgment (no other error appearing) would, as a matter of course, be affirmed.

(444) The objection in the case now under consideration differs from all these in this, that it appears upon the record proper, and the question was reserved by the consent of one party as much as that of the other. In this respect it more nearly resembles the case where the judgment in the Court below is rendered upon a case agreed but defectively stated. Isbell v. Stone, 14 N. C., 410.

The remedy is to reverse the judgment and award a venire de novo. That must be done in the present case.

PER CURIAM.

Venire de novo.

WILLIAM A. McCORKLE v. H. B. HAMMOND et al.

Where an insolvent debtor transfers his effects to an infant, upon an agreement, made bona fide, that the infant should pay certain debts contracted by them both, as a firm, without providing security for the performance of such stipulation, such transfer is fraudulent in law and void as against creditors.

ACTION of trespass tried before his Honor Judge Saunders, at Fall Term, ROWAN Superior Court.

This action was brought by the plaintiff W. A. McCorkle for the seizure and sale, under an execution, of certain goods sold and transferred to him by his father, W. B. McCorkle, under the following circumstances:

William B. McCorkle, the father of the plaintiff, was engaged in the business of merchandise at Wadesborough and Monroe. In the spring of 1849 he established another store at Gold Hill, in Rowan County. The old and unsaleable goods on hand at Monroe, and part of those at Wadesboro, were put into this store at Gold Hill, and a small purchase of new goods added. The plaintiff, who had managed the business at Monroe, was admitted as a partner in this new establishment, upon the terms of attending to the business, and receiving one-half of the net profits. This firm was called by the name of "William B. McCorkle & (445) Son." The goods sent to Gold Hill had cost about

MCCORKLE v. HAMMOND.

$2,700, and were invoiced at what they had cost. In the fall of 1849 and the spring of 1850 other goods to the amount of $3,000 were purchased at the north on the credit of the firm. It was in evidence that during the summer and fall of 1849 the son remitted to his father $2,700 in cash and returned about $300 worth of the goods originally put in, making the amount paid the father $3,000. The purchases. made in 1849 and 1850 were mostly on a credit; and there was evidence that $600 was at one time advanced by the father to assist in renewing the stock.

About the last of May, 1850, William B. McCorkle, the father, was indebted beyond his ability to pay, and was urged by one of his largest creditors to make a deed of trust; with the view and purpose of doing so he went to Gold Hill to take an inventory of the goods and debts and with a view of selling out his interest if he could. From an inventory then taken, and an investigation of the affairs of the firm, it turned out that they had made between $900 and $1,000 if all the debts should prove to be solvent. This inventory was taken about 1 June, 1850. It was afterwards agreed between the father and his son, the plaintiff, that the former should sell to the latter his entire interest in this concern at Gold Hill, consisting of his share of the debts due and the capital advanced in goods and money; he, the son, paying all the debts of the firm. This sale was accordingly made at a full price and the son executed his notes to the father for the price thereof, at one, two and three years, with interest after one year. It was in evidence that previously to making this transfer, H. B. Hammond, the defendant, S. W. Cole and E. J. Waddell, the other trusteees, were consulted about this arrangement, and that they approved of it. The said William B. McCorkle, the father, then executed the deed of trust, dated 29 June, 1850, to Hammond and the other trusteees, conveying all his property, including the notes taken from his son. The son

was an infant when these notes were given, and had (446) no other means in the beginning than those furnished

by the father.

The son then continued the business at Gold Hill till --, when the defendants, having obtained a judgment against the father, seized all the goods that had belonged to the old firm, and advertised and sold them for the father's debts.