Hollowell et al. v. Simonson et al.

by the proof, nor alluded to in the instructions-namely, that the purchase was made with her property, and at a time when her husband was not in debt, we will pass it, and consider the questions involved in the instructions, in view of the evidence before the Court.

The evidence showed that, at the date of the deed to Mrs. Simonson, her husband was bound as a surety for the debt to Hollowell, then of some 600 dollars; and tends to show that he also was responsible for some 1200 or 1400 dollars more, which he had received for another person. The evidence, aside from that of Simonson, pretty clearly shows that, he was then worth, including the amount paid for this land, some 5,000 or 6,000 dollars, and, if his evidence is considered, some 10,000 dollars.

We understand it to be well settled, upon ample authority, that a relinquishment of dower by the wife, the husband being then alive, is a good and valuable consideration for a conveyance by the husband, or procured by him, to the wife, of property which may be considered but a fair equivalent; and that the same will be viewed as valid or not, as it may be shown to be fair or fraudulent, and the comparative value of the respective estates and interests may be taken into consideration. Levinz 146; McCann v. Letcher, 8 B. Mon. 326; Ward v. Shallet, 2 Vesey sen. 16; Atherly on marricge settlements 162. This proposition is founded upon the principle that, whatever is taken from the funds of the husband, whereby he might discharge his debts, is replaced by an equivalent from the funds of the wife, which his creditors could not otherwise reach. Hunt v. Depruy, 11 B. Mon. 286; Marshall v. McDaniel, 8 id. 175; 5 id. 305; Bullard v. Briggs, 7 Pickering 533. As dower interest was a right which a husband could not convey, so as to defeat it, it belonged not to him but to the wife, and her title was paramount to that of the husband, and it necessarily followed, it could not be

Hollowell et al. v. Simonson et al.

taken for his debts without her consent. Adset v. Adset, 2 J. C. Rep. 457.

From these propositions and principles, the conclusion might well follow, that if the transaction was fair and the consideration received but an equivalent for the interest or estate granted, it might be supported notwithstanding the fact, that the husband's debts at the time were more than equal to the amount of his property. Of course this might involve inquiry as to the value of her interest conveyed, as compared with the consideration received by her. This comparative value is inquired into for the purpose of determining the honesty of the transaction. As a matter of course, this class of evidence is not of so great value or importance in a case where, after thus providing for the wife, the means in the hands of the husband are much greater than the debts he may owe, or when he owes nothing, if the transaction is not tainted with fraud. That she should obtain a fee simple for a contingent life estate, would not matter, except as determining the character of the transaction as above indicated.

There is a bill of exceptions in the case which professes to embody all the evidence. It is apparently contradictory in its statements, in this, that in the first part of the bill, it shows that said defendants Simonson and wife "offered the defendant, M. V. Simonson, as a witness, who was examined as a witness for the defendant, Catharine." The evidence of said Simonson is not set forth in that part of said record, but some 70 pages further forward in the record appears this entry: "M. V. Simonson examined, (for himself.)" His testimony then follows, and related alone to his pecuniary condition before, at the date of, and after the date of, the deed to his wife for the property in controversy.

The questions on this are, first, whether he was a witness in his own behalf, or his wife's? Secondly, whether a hus

VOL. XXI.-26.

Hollowell et al. v. Simonson et al.

band could thus testify generally in his own behalf, but, as in the case at bar, incidentally to the benefit of his wife?

As it is stated that the record contains all the evidence, we cannot presume that Simonson gave any testimony in behalf of his wife, at the time the Court authorized an examination to elicit such evidence from him. The order of the Court therefore, in that respect, however erroneous, appears to have been harmless.

M. V. Simonson answered the pleading of Hollowell and Haines by a denial.

It does not appear in the record, that the introduction of the evidence of said Simonson, in his own behalf, was objected to. But it is said there was no issue between him and his said co-defendants to which his evidence could be directed. The pleadings stood thus:

First, a complaint against Larue and wife, as mortgagors, Miller as grantee of Larue, and Mrs. Simonson as grantee of Miller, and charging that Mr. Simonson bought and paid for the property, and procured the deed to be made to his wife, against Hollowell, Haines, and Roberts, each as incumbrancers by judgments younger than the mortgage.

To this there was a general denial by Larue, Miller, and Roberts. Hollowell and Haines each answered, charging the purchase by Simonson of said property, and that he had fraudulently caused it to be conveyed to Mrs. Simonson, &c. Simonson did not answer the complaint, but denied the answer of said Hollowell and Haines as before stated. Mrs. Simonson answered as before stated. Hollowell and Haines in reply denied the answer of Mrs. Simonson, and also replied affirming the indebtedness of Mr. Simonson at the date of said deed, and that it was made to defraud his creditors. Under these pleadings, was there any issue to be tried, in which Simonson had such interest to be protected, as would authorize his introduction as a witness? and if not, what was

Hollowell et al. v. Simonson et al.

the effect of his introduction, without objection, and the evidence he gave?

We cannot perceive that Simonson had such an interest, under these issues, as would permit him to be a witness. This being the case, it follows that his evidence was directed wholly to the issues being tried between Hollowell and Haines, and Mrs. Simonson. The question is not, therefore, presented by this record as to his right to testify in his own behalf, although such testimony should incidentally bear upon the issues made by his wife. As the testimony of said witness was irrelevant to any issue to which he was a party, and was applicable only to the issues to which his wife was a party, he was, as to such evidence, incompetent. But as the evidence thus given, ostensibly in his own behalf, but really in the interest of his wife, does not appear to have been objected to, the question is, what was the effect thereof?

It has been often held that, although evidence may have been given that, if objected to, would have been excluded; yet having been admitted without objection, it can not be made available on appeal to reverse the judgment.

The further question was, presented in the proceedings, whether said Hollowell could show other transactions, after the date of said deed, in which said Simonson loaned money, and took notes payable to his wife, for the purpose of defrauding his creditors, upon the trial of the issues, as to the validity of said deed.

This suit was instituted in 1862, and tried in 1863. Ten years had elapsed after the transaction, which was sought to be set aside as fraudulent. The offer to make the proof, above indicated, did not show to the Court the time the money should have been loaned, &c., but stated that it was "after the voluntary conveyance;" it might have been immediately preceding the trial. At such a length of time, we can not see that any connection between the two acts could

Standeford et al. v. Devol et al.

be presumed, so that the first should be considered void, even if the second was invalid or fraudulent.

We must presume in favor of the ruling of the Court. If such proof had been permitted, and had shown a loan, &c., several years after the making of the deed, it would have been irrelevant, unless the connection had been also shown, directly or circumstantially, between the two transactions. Per Curiam.-The judgment is affirmed, with costs. Wilson Morrow, for the appellants.

Nelson B. Rariden, Geo. Holland and C. C. Binkleg, for the appellees.

STANDEFORD et al. v. DEVOL et al.

HUSBAND AND WIFE-MARRIED WOMEN.-In 1843, A contracted with B, the wife of C, and D, the daughter of C, for the sale to them of certain land, for 1,000 dollars, one-half whereof was paid at the date of contract, and a title bond executed by A for the conveyance of the land to D, and B and D executed their promissory note to A, at twelve months, for the other half of the purchase money, which was paid at maturity, and then said bond was canceled, and, under another arrangement, A conveyed said land to E, a son-in-law of B and C. The first payment on the land was made in part by the transfer of a note to A, which B held in her own right, having nothing to do with the transfer, and all of the residue of the purchase money was paid by B, with her own money, received from the estate of her grandfather. Said money was received by her after her marriage with C, but never came into his possession, and was never claimed by him by virtue of his marital rights, or otherwise. Said money did not come to her with any limitation to her separate use. B and C and their family together