Price v. Joyner, 10 N.C. 418, 3 Hawks 418 (1824)

Dec. 1824 · Supreme Court of North Carolina

10 N.C. 418, 3 Hawks 418

Price, by Guardian, v. Joyner.

IN EQUITY.

1 I From Martin. J

On the trial of an issue directed for the purpose of ascertaining whether an absolute deed was obtained by fraud or misrepresents'ion, the widow of the grantor named therein is a competent witness to prove that the deed was intended to be a mortgage, because whether the deed was absolute or a mortgage her right of dower was gone.

This was a bill filed to set aside a conveyance absolute on its face, on the ground that it had been fraudulently obtained by misrepresentation, and it was alleged that the intention and agreement, on the part of the grantor, was to execute a mortgage deed.

The answer, denying the allegations of the bill, insisted that it was the agreement of the parties that an absolute conveyance in fee simple should be made.

In the Court below, an issue was directed to inquire into the alleged fraud; and on the trial, the deposition of Nancy Price, the widow of the grantor in the deed, was offered in evidence by the complainants, and objected to by defendant on the ground that she was entitled to dower in the premises. The objection was overruled, and the deposition read. The issue was found in favour of complainants; and the only question before this Court, on the appeal of the defendant, was on the admissibility of this deposition.

Hall, Judge.

There can be no objection to this deposition on the ground that the widow had any interest in the land, because whether the deed was absolute, or considered as a mortgage, her right of dower was gone. If it was considered as a mortgage, it would seem that she was swearing against her interest, because the personal property of her late husband was the fund out of which the money must be raised to pay the debt and redeem the land, which would consequently lessen the fund out of which the law makes provision for her. For these reasons, I think a new trial of the issue should not be granted.

The other Judges being also of this opinion, a new 'Mai was refused.