The bill then charged that Green was dead; that Holstein and wife had conveyed to the plaintiff; that Samuel, the younger, was also dead, and that his part of the land had descended to his daughter, Elizabeth, who, and her uncle, William, were defendants. The prayer was for a conveyance of one-half of the land of which Samuel Branton, senior, died seized.

The answers denied personal estate of the father to the value of Standley's debt, and set up a title by deeds made by the father to his two sons just before his death, and averred that the sons were advised by counsel that those conveyances, being voluntary, would not protect the land from creditors; and that apprehending an unjust demand for a large sum would be brought against their father by one Stringer, they determined not to pay Curl's debt, but suffer the land to be sold for it, and purchase it in, and thus perfect their title; that the sale was regular, and that the sons bought fairly. All collusion with George Green was denied, but it was admitted that he complained that the father had given all his land to his sons, and that to satisfy him for his disappointment, they gave him $400; but the period of that contract was not stated. The defendants relied upon the opportunity of defense to the scire facias, and insisted on their title under the execution sale.

Replication was made to the answers, and proof taken; but a (502) statement of it, and copies of the deeds, are not material to the point decided by the Court.

RUFFIN, J., after stating the case:

The deeds made by the father are among the exhibits, and are so defectively drawn as to be wholly inoperative. Besides that, the depositions show that those deeds were obtained from the old man in extremis, and under circumstances which completely invalidate them. It was a gross and unfeeling imposition on the father's weakness. They are not the shadow of a title for the defendants, but constitute cogent evidence against them. Had the bill been differently framed, those deeds might have furnished a specific ground of relief. If they had been held up by the sons as a title; if that pretense induced George Green not to defend the sci. fa. upon the idea that his wife and he had no interest, or even led him, in doubt of that interest, to compromise or receive a sum of money, in ignorance of the facts attending their execution, it would be a fraud on him, as well as his wife, which equity would remove out of their way. But the bill brings forward no such equity. The deeds are not even mentioned in it. The first we hear of them is in the answer. They were not registered until 1819, after this suit was begun. They do not seem, if known to Green and wife, to have been acted on by them, or to have influenced their conduct in the least. It is impossible for the Court to proceed on a ground not taken in the bill, or to relieve an equity not raised by the party. We cannot say those deeds had the least influence on the plaintiff's conduct, or her husband's, when she is altogether silent on that head.

(503) The evidence proves, very satisfactorily, the payment of $400 to Green. Both the bill and the answer leave the time at large. But the depositions prove that the contract was made, and the payments, after Curl's judgment and the purchase of the land by the brothers. It is clear, too, that the whole was with the knowledge and consent of the plaintiff. She, in fact, made the bargain, and the payment was in provisions for the family. The defendant's counsel has endeavored to stand on this arrangement of the wife's, and construes her present suit into a fraud, which shall bar all relief, or make the land a security, at least, for the money advanced.

The contracts of a married woman, except as to her separate property, are held, alike in equity as at law, to be void. She can be bound as to her land in only two ways: by her deed duly executed by her privy examination or by the judgment or decree of a court. Her deed is a formal legal conveyance, in favor or against which there is no equity. It stands upon its strength in law. If it is not perfect, we cannot help it here. An agreement, no matter upon what consideration, by a married woman, is an absolute nullity in every court. We do not take notice, therefore, of any participation on her part in the family arrangement. Nor can the Court allow her husband to treat for the sale of her land, and contrive a conveyance of it without her assent, obtained according to the act of Assembly, under the pretense of a judgment and judicial sale.

We do not lay down the rule that the husband is bound to pay the debts of his wife's land; that he is legally bound to advance money out of his own pocket to discharge debts of his wife's ancestor. He may suffer the land to be sold. But a court cannot hold out temptations to him to betray his wife's interests and commit a breach of his marital duties. If he will not move to save his wife's freehold, we cannot help it. But he must not be kept back by another, and for the sake (504) of mutual gain. He shall not look out for gain at his wife's expense; and he who prompts him to it shall not profit by it. It is taken to be clear that if the husband and brothers combined to defeat the wife, it is a fraud upon her, and everything done under it must be set aside. But the mere negligence of the husband is the wife's misfortune, not the fault of others. Married women are bound by judgments at law as much as other persons, with the single exception of judgments allowed by the fraud of the husband in combination with another. It cannot be said that when a woman becomes discovert, the ground of judgment during coverture must be reproved by the creditor, or even that the judgment must be set aside if she can show that it ought not to have been recovered. That is not the kind of fraud that will avoid it. Something else must appear, besides the judgment being unjust. That was a thing that might have been shown on the trial at law; and therefore cannot, by itself, be heard now. She must charge and prove that she was prevented from a fair trial at law by collusion between her adversary and her husband, preceding or at the trial. Here there is no evidence to that effect. The husband was served with process, and never stirred in the business. But not the slightest communication between any of the parties is spoken of until after the sale under execution. Then, a witness says, the plaintiff and her husband expressed their sense of the wrong done them; and then the brothers agreed to make compensation. It is true, the plaintiff afterwards urged her husband to sue, and he refused, saying that she had got the worth of her land, and ought to be content. But that is nothing, for what could he do then? In fine, the only equity which a married woman has against a judgment, which other people have not, is that she has been deprived of full defense by the contrivance of her adversary. This cannot be the case without the fraudulent collusion of the husband. This is not shown by the mere inaction of the husband, or even that and a just defense. (505) There must be a dealing on the part of the adversary, also. Else he is not to blame, and will not be made to suffer the consequences of her making a bad choice of her husband. It is precisely like the husband letting the statute of limitations run against the wife. It binds her.

The evidence is far from establishing, satisfactorily, that there were personal assets, and the debt of Curl is admitted in the bill. If, however, the other parts of the case were made out, an account of the assets would be ordered. The want of them would be conclusive against the bill. Their sufficiency would be material only on the question of collusion; but to that point they would be very important, as a circumstance. But that is not one of itself sufficient. I repeat, there must be a combination not to defend. Otherwise, the wife cannot open the case and carry it back to have it retried at law. I think it very probable (though there is no allegation or proof, even to that) that Green withheld a defense to Curl's debt upon the same motive which induced the sons to desire a judgment on it, namely, from apprehension of the large unjust debt of Stringer. But suppose that, and the plaintiff is then to be looked on rather as a party to that fraud than the object or victim of it. It was not directed against her, but the creditor, and is good as against the parties and all else but creditors. The purpose was not to take the land from the plaintiff and vest it in the brothers, but to defeat Stringer. But even that is not the case before us, which is one altogether without collusion, as relates to the plaintiff's husband, and without a communication of any sort, or at any time as to Holstein.

(506) HALL, J. It appears in this case, from the evidence, that a legal title to the land became vested in William and Samuel Branton, the brothers of the plaintiff, as stated in the bill; that the process by which it was sold, as far as relates to the plaintiff, was regular and legal. There does not appear to have been any fraud, collusion, or combination to defraud the plaintiff by the defendants and the husband of the plaintiff, who had it in his power to defend her interest. If there were assets to discharge the debts of the intestate, there was ample opportunity to do so, on the return of the scire facias, on which judgment was obtained for the sale of the land.

PER CURIAM. Bill dismissed, with costs.

Cited: Vick v. Pope, 81 N.C. 27; Scott v. Battle, 85 N.C. 188; Dougherty v. Sprinkle, 88 N.C. 302; Grantham v. Kennedy, 91 N.C. 156; McLeod v. Williams, 122 N.C. 456; Moose v. Wolfe, ibid., 717; Roseman v. Roseman, 127 N.C. 498; Smith v. Ingram, 130 N.C. 105; Smith v. Bruton, 137 N.C. 82, 89; Cameron v. Hicks, 141 N.C. 32; Rutherford v. Ray, 147 N.C. 259; Windley v. Swain, 150 N.C. 360; Wallin v. Rice, 170 N.C. 418; Elmore v. Byrd, 180 N.C. 127.