Page:Federal Reporter, 1st Series, Volume 5.djvu/456

 444 FEDERAL REPORTER. �of the wife ; that the conveyances cannot he sustained as in execution of a contract to convey ; that the wife was a crediter of the liusband, and the conveyances were made to give her a preference, and must, therefore, be set aside. But, to the extent of the $1,000, she has au equity superior to other creditors, and should be flrst paid out of the proceeds. ., �8. Ohio— Etidbncb— HtrsBAifD and Wife. �When, under the laws of Ohio, the testimony of husband and wife Is incompetent. �9. HOMBSTBAD — DoWBB— INTBBBST �In Bankruptcy. �Exceptions to the report and findings of the register. �W. W. Young, for assignee. �Devore dt Evans, for Mrs. Wood. �Swing, D. J. This case was referred to the register, and, from the report filed herein, we find that on the eleventh day of April, 1878, Thomas Wood executed to Sylvannus P. Evans a deed for 40 acres of land, and on the same day the said Evans conveyed to Eliza Wood, the vrife of the bankrupt, the same land. The assignee attacks these conveyances as fraud- ulent, and the register reports that the conveyances v?ere valid conveyances as against the creditors, and to this report and finding the assignee excepta. �On the part of the wife it is claimed that certain of her moneys were used by the husband in payment of the land, and in building of the house, under an agreement or under- standing that she should have land for it, or that it should be secured by the land. This is denied by the assignee. It is also claimed by the assignee that the only evidence upon this question is that by the husband and the wife, and that by the statute of Ohio they cannot be witnesses concerning any com- munication made by one to the other, or act done by either in the presence of the other, and therefore ail the testimony upon this point must be ruled out. Let us see what the evi- dence, outside of communications and acts between the hus- band and the wife, establishes : �First, the evidence of Thomas Wood is clear that there was received, either by him for her or by her, the following sums of moneys from her brothers and from her mother's estate : ����