1890-would prevent her from enforcing the principle of lis pendens, especially against the defendant Melburn, who became a purchaser intervening the dismissal of the former and the commencement of the present suit.

The decision in Cheever v. Minton, 12 Colo. 557; 13 Am. St. Rep. 258, is in analogy with this view. It was there held that a purchaser after a decree, whether on the merits or of dismissal, and before proceedings in error or on appeal, is not a purchaser pendente lite. The equitable considerations that controlled the decision in that case are equally applicable to the facts of this case. After instituting a proper action to determine the character of the deed in question, and procuring its dismissal, the plaintiff saw fit to allow the proceeding to rest until purchasers for value acquired the apparent title to the property, under an implied acquiescence on her part. Under these circumstances, she is estopped from asserting the rule lis pendens against such purchasers. But another, and we think a conclusive, answer to plaintiff's case is, that the present action in ejectment is not a reinstatement or renewal of the former suit in equity, but is a new and independent action at law, and one which, aside from all other considerations, cannot be maintained by plaintiff, for the reason that the legal title to the lots in question is admitted to be in defendant Melburn.

Under either of these views, the judgment of the court below is correct, and must be affirmed.

LIS PENDENS.-The doctrine of lis pendens is, that any interest acquired in the subject matter of a suit while it is pending will be regarded as a nullity as to the plaintiff's title, which may be established by a judgment or decree in the suit: Shelton v. Johnson, 4 Sneed, 672; 70 Am. Dec. 265. See, also, the extended note to Newman v. Chapman, 14 Am. Dec. 774.

LIS PENDENS-EFFECT OF LACHES.-A delay or lapse of time in the prosecution of a suit will not create any estoppel against the right to enforce the rules of lis pendens, unless the complainant has been so negligent in its prosecution as to induce the belief that such prosecution had been abandoned: Norris v. Ile, 152 Ill. 190; 43 Am. St. Rep. 233, and note. See, also, the extended note to Newman v. Chapman, 14 Am. Dec. 777.

SMITH V. SMITH.

[22 COLORADO, 480.]

HUSBAND AND WIFE-GIFTS OR CONVEYANCES IN FRAUD OF WIFE.-A husband has power to dispose absolutely of all of his property during his lifetime, independently of the concurrence, and exonerated from any claim, of his wife, provided the transaction is not merely colorable, but bona fide and unattended with circumstances indicative of fraud upon the rights of his wife.

HUSBAND And wife-GIFTS OR CONVEYANCES IN FRAUD OF WIFE.-If a transaction by which a husband disposes of all of his property is colorable only, and resorted to for the purpose of defeating his wife's rights as his heir, but reserving the benefit of such property to himself for life, it is a fraud upon the rights of the wife, from which she is entitled to relief after his death.

ACTIONS-CONSOLIDATION OF.-Separate actions can be consolidated into one only when both actions are pending between the same plaintiff and the same defendants for causes of action which might have been joined.

D. Mitchell and N. M. Laws, for the appellants.

V. D. Markham and Bartels & Blood, for the appellee.

483 HAYT, C. J. The record in this case discloses that the real estate deeded to his children, the issue by a former wife, was all the real estate owned by Horace G. Smith, Sr.; that aside from this he had no other property or choses in action, except a few hundred dollars in cash deposited to his credit in a bank, and that a few hours before his death he executed a check for this to one of his sons. As a result of these transactions, he left his widow absolutely penniless at his death. She was then old and infirm, and has since been dependent upon the charity of friends for her support. Appellants contend that, under the statutes of this state, the obligation of the husband to provide for his wife upon his decease is simply a moral obligation, and one that cannot be enforced by the courts.

Wherever the common law has prevailed, it has from the earliest times required the husband to support the wife so long as the marriage relation existed between them and she remained true to her marital vows. Moreover, it imposes the duty upon the husband having property to provide for the support and comfort of his widow after his demise.

The obligation in this latter respect is to a large extent mutual, and the books are full of authorities to the effect that where either husband or wife attempts secretly to convey property on the eve of marriage, such conveyances would be 484 set aside for the benefit of the defrauded party. So, also, where the hus

band has attempted to convey real estate in fraud of his wife's right of dower, the courts have never been called upon in vain to protect such rights. Although in this state dower and the tenancy by curtesy are abolished, the statute provides that whenever either party shall die intestate possessed of real estate, if such intestate leave a husband or wife and children, one-half of such estate shall descend to such surviving husband or wife: Mills' Annotated Statutes, sec. 1524. It is also provided that if any decedent leaves a widow, residing in this state, she shall be entitled to certain personal property, particularly describing the same, and that she may have the same set apart for her, not subject to the payment of his debts: Mills' Annotated Statutes, sec. 1534. It is further provided that when an inventory shall have been made of such personal estate, the widow may relinquish her rights to all property allowed to her, and that in lieu thereof she may claim the value of such property in money or other personal property, at her election: Mills' Annotated Statutes, sec. 1535. It is also provided: "In case any married man shall hereafter deprive his wife of over one-half his property, by will, it shall be optional with such married woman, after the death of her hus band, to accept the condition of such will or one-half of his whole estate, both real and personal": Mills' Annotated Statutes, sec. 3011.

It is the obvious intent and purpose of the foregoing acts to provide the widow with the necessary means for her support in case of the death of the husband, whenever his property is sufficient for that purpose. Under these statutes, appellee contends that where the husband during coverture secretly makes conveyance of all his property and keeps the knowledge thereof from his wife, thereafter retaining control and management of the same, that such conveyance should be treated and considered as testamentary in character and not as a deed, and, in so far as the wife is deprived thereby of more than one-half the real property, it should be held void as to her. To this proposition the zeal and ability of 485 counsel have been largely directed, and our attention has been called to the numerous authorities upon either side of the controversy; some of them directly in point and others bearing more or less upon the question presented. Our examination of the cases cited, however, does not disclose one showing a parallel to the heartlessness and inhumanity manifested by the deceased. In many of the cases, the husband has attempted to convey his personal property by a gift, to the exclusion of his widow, leaving for her reliance such interest as she might be

entitled to in his real estate under the law. In other instances, the husband has attempted to convey his real estate, leaving his personal property to be shared by his widow and other heirs, but this decedent has attempted to strip his widow, at his death, of all his property, both real and personal.

As to whether such a transaction should be upheld the authorities are not uniform, and to reconcile them would be impossible. In Stewart v. Stewart, 5 Conn. 316, the husband executed a deed conveying all his real estate to his children, placing the conveyance in the hands of a third person, to be delivered to them upon his death, on the happening of which event, two years after the execution of the deed, it was delivered pursuant to the trust, and the court held: 1. That the instrument was strictly a deed, and not a testamentary disposition; 2. That it was not fraudulent in relation to the widow's right of dower. The case is the strongest we have found in favor of appellants' position. The action was, however, at law and not in equity, and the court, in the course of the opinion, mentions the fact that that may be a fraud in equity which is not at law.

The case of Small v. Small, 56 Kan. 1, 54 Am. St. Rep. 581, is strongly relied upon by appellants. It is held in that case that; subject to certain limitations and against any claim of the widow made after death, a married man in Illinois or Kansas may, during coverture, give away to his children the bulk of his property, although the well-known effect of the gift will be to deprive the widow of a 486 fair share of the property, which would otherwise have fallen to her.

In the course of the opinion, the Kansas court quotes with approval the following language from the case of Williams v. Williams, 40 Fed. Rep. 521: "The main question is simply this: Can a married man give away his property, during coverture, for the purpose of preventing his wife from acquiring an interest therein after his death? The law seems to be that if such gift is bona fide, and accompanied by delivery, the widow cannot reach the property after the donor's death. ... Neither the wife nor children have any tangible interest in the property of the husband or father during his lifetime, except so far as he is liable for their support, and hence, he can sell it or give it away without let or hindrance from them. Of course, the sale or gift must be absolute and bona fide, and not colorable only. And if the sale or gift would bind the grantor it would bind his heirs." The writer of the foregoing seems to have understood that a colorable sale could be set aside. Set aside by whom? If made

for the purpose of defrauding an heir, it could only be set aside at the suit of the party defrauded, while the grantor, being a party to the fraud, would be refused relief by the courts. Hence, it does not necessarily follow, as stated by him, that all sales or gifts which are binding upon the grantor are likewise binding upon his heirs.

As our statutes are borrowed from Illinois, decisions in that state are entitled to great weight. The case of Padfield v. Padfield was before the supreme court of Illinois three times: 68 Ill. 210; 72 Ill. 322; 78 Ill. 16. The conclusion of the court is, we think, fairly expressed in the following from Kerr on Fraud and Mistake, which is quoted with approval in the last opinion: "There can be no doubt of the power of a husband to dispose absolutely of his property during his life, independently of the concurrence, and exonerated from the claim, of his wife, provided the transaction is not merely colorable, and be unattended with circumstances indicative of fraud upon the rights of the wife. If 487 the disposition of the husband be bona fide, and no right is reserved to him, though made to defeat the right of the wife, it will be good against her": Kerr on Fraud and Mistake,

220.

Accepting this as a correct statement of the law, we think the case made by the pleadings and proofs before us brings the present case within the exception. For here, as we have shown, the transaction was merely colorable and made under circumstances strongly indicative of fraud upon the rights of the wife. The proof shows that these three several deeds were held from record for the period of four years after their execution. If one of these deeds had been withheld from record for that length of time, this would be a suspicious circumstance, while the fact that all were thus withheld leads very strongly to the conclusion that they were so withheld as a result of an understanding between the grantor and the three grantees, and that these grantees were guilty of collusion in the matter for the purpose of preventing information of the transfer from reaching the wife of the grantor, and to permit the grantor in the mean time to continue to exercise exclusive dominion and control over the property.

In the case of Youngs v. Carter, 10 Hun, 194, the facts were that Daniel Youngs, a widower, was engaged to be married to the plaintiff in August, but, in consequence of his sickness, the marriage was put off until September. In the interim, he, without the knowledge of the plaintiff, conveyed nearly the whole of his real estate to two daughters by a former marriage and took

AM ST. REP., VOL. LV.-10