#### MARY PINNER vs. NANCY PINNER et al., HEIRS-AT-LAW OF WILLIAM PINNER.

On a petition for dower, the heir-at-law produced a deed from the husband, dated thirteen years before his intermarriage with the petitioner, and by a subscribing witness proved a delivery of the deed a short time before the husband’s death, and his declaration that the deed had been delivered many years before: — Held, That this declaration was no evidence of any previous delivery, as against the petitioner.

(The case of Bynum v. Bynum, 11 Ire., 632, cited and approved.)

This was a petition for dowee, filed against the defendants, heirs at law of one William Pinner, in which the petitioner alleges that she is the widow of said William, and that he died intestate and seised of certain lands in Buncombe, of which she is entitled to her dower.

The defendants deny that the petitioner was ever lawfully married to the deceased, and further deny that the deceased died seised and possessed of the lands in question ; and the defendant, Nancy, claims to hold the same in her absolute right, and as a bona fide purchaser for valuable consideration, and she exhibits with her answer, a deed to her from the deceased, her father, bearing date 1827, some twelve or thirteen years before the alleged marriage of the petitioner, and covering tire premises in question.

Upon the issues of fact joined, the case was tried before his Honor, Judge Dick, at Buncombe, on the last Spring Circuit. Of the many witnesses examined before the jury, (and whose testimony relating to the occupation and assumed ownership of the land, the Reporter deems it unnecessary to state here.) one Lanning was called by the defendant, who stated that about a month before the death of William Pinner, he sent for the witness, who found him at the house occupied by Nancy and Jane, (defendants) ; that either Jane or Nancy produced the said deed to the latter, before referred to, and the deceased then stated, that he had made a deed to Nancy, for the land, many years ago ; that some of the witnesses were dead, and some of them removed out of the State, and the balance of them were near relations, and that he wished to acknowledge the deed before the witness, which *476he did, and the witness having attested it, handed it back to Nancy or Jane.

His Honor charged the jury, that if they believed from the testimony that the deed was executed and delivered by William Pinner to his daughter, Nancy, at the time it bears date, without any fraudulent intent, the title passed to Nancy, and the defendants were entitled to a verdict; but if they believed that the deed had not been delivered to Nancy until the time Lanning witnessed it, it would only take effect from the time of delivery, and in that view of the case it was proper for them to inquire whether the delivery was not made with an intent to defraud the petitioner of her dower — in which event, they should find for the plaintiff.

The jury found a verdict for the defendants, and from the judgment rendered thereon, the plaintiff appealed to the Supreme Court.

N. W. Woodfin, Bynum and M. Envin, for the petitioner.

J. W. Woodfin, contra.

Nash, C. J.

Upon the trial of the issues in this case, it became important to ascertain the time when the deed under which Nancy Pinner claimed the premises was delivered.' The plaintiff alleged that it was made and delivered after her intermarriage with William, the father of the defendant, a short time before his death, and therefore was void as to her, as made to defraud her of her right of dower. On the part of the defendant, it was insisted that the deed was made and delivered some years before the marriage. The marriage of William Pinner with the plaintiff was solemnized in 1840 or 1841, and the deed from him to the defendant bore date in 1827. None of the subscribing witnesses were called on the trial, and the plaintiff called on one Lanning, who testified that about a month before his death, William Pinner sent for him, and upon going to the house where he lived, he found there with him, the defendant and her sister, when the deed was produced ; and that Pinner stated that some of the witnesses were dead, some removed, and some were family relations, and he wished to acknowledge the deed before him, Which he did, and he attested it $ and that Pinner at the same *477tune declared that he had made the deed to Nancy for the land many years ago. The Court instructed the jury, that if they believed from the evidence the deed was executed and delivered to Nancy, at the time it bore date, without any fraudulent intent, the title passed to Nancy. In this instruction there is error. The instruction was in general principle correct, but it did not bring to the notice of the jury the point in actual dispute at the-time. The only testimony upon which the defendant, Nancy, relied to show that the deed was delivered at the time it bore date, was the declaration of William Pinner, which was incompetent on that point, The declarations of Pinner before Lanning, as to his acknowledgment of the deed, were competent, as showing a present delivery, for it was part of the res gestee then taking place, but it was no evidence of what had taken place at any time before. The plaintiff did not claim under him, but under the law, and he was endeavoring to deprive her of her rights. So far, then, the declarations of Pinner were incompetent to give the deed an operation before his then acknowledgment. The error in this case consisted in his Honor’s omitting in his charge to draw the attention of the jury to that portion of the -testimony of Lanning which was competent and to that which was incompetent ; and the charge was well calculated to mislead them, and from it they were justified in considering all the declarations of Pinner as evidence in the case. To this difference, it is true, the attention of the Court was not drawn by the counsel, and in general it is not error in law to refrain from charging on a point as to which instructions are not asked ; yet when the judge does charge, care must be taken that it is not in itself erroneous, or calculated to mislead the jury (Bynum v. Bynum, II Ire., Q32) ; -or as to a point upon which there was no evidence. Such care was not taken here. In fact there was no evidence -as against the plaintiff of any delivery., but that witnessed by Lanning ■, and so the jury ought to have been instructed.

Per Curiam, Judgment reversed, and a venire de novo awarded.