#### BENJAMIN LOGAN vs. SQUIRE SIMMONS & AL.

Where a woman, who was about to be married, made a voluntary conveyance of all her valuable property, on the day beiore the marriage, without the assent or knowledge of her intended husband, to a son by a former marriage, and it rvas agreed that this conveyance should be kept secret; Held, that a Court of Equity will consider it a fraud upon the expected rights of the husband, and will declare it void against him.

Such a fraud can only be relieved against in a Court of Equity, because, at law, the conveyance, being good against the wife, is also good against the the husband, who claims through her.

Whether, if a woman, during the course oí a treaty oí iharriage, make, without notice to the intended husband, a conveyance of any part of her property, such conveyance would in itself be fraudulent, quasre 1 It certainly would be fraudulent, if designed to deceive the intended husband. A knowledge of the facts shewn clearly to exist in the husband after the marriage, and acquiescence in any thing done uhder the conveyance, cannot purge thé iritud and set up the conveyance, but it would be evidence tending to shew a communication of the facts before the marriage.

The case of Logan v. Simmons, 1 Dev. & Bat. 13„ approved.

This cause was commenced in September, 1841, in Rutherford Court of Equity, and, having been set for hearing at the Spring Term, 1845, of that Court, was by consent of parties transmitted to the Supreme Court.

The following appeared from the pleadings and proofs in the case, to be the material facts.

*488On the 12th day of February, 1818, the plaintiff intermarwith Phebe Simmons, in Rutherford county, where they both resided. She was a widow, and had, by a former marrjage. four children, all of whom were grown and married, and had removed from their mother’s. The defendant, Squire Simmons, was one of the children, and resided orí the same tract of land, and five or six hundred yards from his mother. The exact difference between the ages of the plaintiff and Mrs. Simmons does not appear, but it was considerable, and it seems probable that she had a child as old as the plaintiff, and it is stated by the witnesses, that she was not a robust woman, but of rather feeble health, and subject to occasional attacks of hysterieks. The plaintiff had little or no property, (it is said only one mare) but Was a blacksmith, and industrious and skilful in his trade, though he sometimes drank ton much, but not habitually, as far as appears 5 and his situation* habits and character, were well known by Mrs. Simmons, as he had been brought up, and then lived within a mile of her residence. Mrs. Simmons was in very moderate circumstances. She owed about $200 at the time of her second marriage ; and she then oWried and possessed two female slaves,, of whom one was thirty-seven years old and had ceased childbearing, and the other was a girl, named Poll, about sixteen yenrs'old. Besides those slaves, she had one or two horses, a few cattle and hogs, some little household stuff, and implements of husbandry j and seems to have been entitled to dower in a small piece of land, on which she resided. On the 11th day of February, 1818, Mrs. Simmons conveyed by deed of gift to her soil, Squire Simmons, the two negroes E.bsolutely and in possession, reserving, however, to herself) the first living child, which the girl Poll might have. After the marriage of the plaintiff) he resided with his wife, in the house previously owned by her, until her death in 1828 ; and he retained possession of the two slaves and several children, horn* during that period, of the woman Poll. But soon alter the death of his mother, the defendant Simmons got the negroes into his possession, and-set up, a claim to them under the con-*489veyance to him of February llth, 18,18. The plaintiff then instituted an action of detinue against Simmons for the ° groes, upon the ground, that the conveyance to the defendant was a fra'ud upon his'marital rights and void add was given therein against the plaintiff, in December, 1834, because the deed constituted a good title at law, and could he treated as infected with fraud, in a Court of Equity only.— Upon that decision having been made, the plaintiff filed a bill in the Court of Equity against Simmons, impeaching the deed as fraudulent, upon the ground of the deception thereby practised on him, and the defendant answered, and orders were made and proofs taken in the cause; but by a fire in 1839, the court house of Rutherford was burnt,' and all the papers arid records of the Court of Equity, including the bill, answer and proofs in that cause, were destroyed. The présent bill was filed in May, 1841, and charges that the plaintiff had addressed1 Mrs. Simmons for more than a year before the Inárriagéj and that they had been engaged for several weeks, and that it was known to the defendant, Simmons: that Mrs. Simmons had1 notoriously the possession and property in the slaves during the'courtship and long before, and continued in the possession and apparent ownership of them at the time of the marriage, and that the plaintiff was thereby induced to believe,’ and did belie’ve, that the slaves belonged to his said intended wife at the marriage, and would by that event be vested in* him as a provision for his wife, himself and their family, if they should have any; and that the plaintiff knew nothing to' the contrary until the defendant got the'negroes into his possession after the death of his mother, when, for lhe fiiyst time, he discovered that the deed had been made. The bill further charges, that it' was expressly designed by the intended wife' and her son, to deceive tbe plaintiff, as to the title of the ne-' groes, as the plaintiff had, upon inquiry, ascertained, that it' was agreed between them at the making of the deed on the’ day before the marriage, that its existence should be kept a secret, and that the' donor should still keep the' negroes in her' possession as the apparent owner :' and that, accordingly,' the ' *490deed was never published, but remained unknown by any person, except the parties and subscribing witness, until the defendant, Simmons, caused it to be proved and registered in jy¡-arc^ ig28, during the extreme and dying sickness of his mother. The bill further states, that shortly before filing the present bill, the defendant, Graham, took a conveyance from the other defendant for one of the children of Poll, by the name of Jacob; and that he, Graham, had been the Attorney and Solicitor for Simmons in the previous suits, and knew of the plaintiff’s title, and paid no valuable consideration for the negro. The prayer is, that the deed from the wife may be declared fraudulent and decreed to be delivered up to be cancelled, and that it may be decreed, that the defendants convey to the plaintiff1 the said negroes and their increase, and account with him for the profits.

The answer of Simmons states, that the match between the plaintiff and his wife was a very unfit one, as she was much the older and was exceedingly infirm, and that he had no property and was dissolute in his life: that the courtship was not of long continuance, and was unknown to himself or to the other children of the intended wife, as was also the marriage : and that her infirmities continued after the marriage during her life, and that the plaintiff treated her at all times with neglect and indifference, and sometimes with cruelty. So that, the defendant states, he fully believes the plaintiff’s sole object in soliciting and consummating the marriage, was to get the slaves and other little property belonging to the other party.

The answer states, that during the minority of the defendant, and after he came to full age, up to his marriage at five and twenty, he resided with his mother and attended to her and her affairs, and that she often declared, as was well known in the family, her intention to give the negroes to this defendant in return for his services; that the execution of this intention had been deferred from time to time; but that on the 11th of February, 1818, his mother told him, “ th at life was uncertain, and she wapted then to make him a bill of sale for *491her two negroes;” and she then did so, and also delivered them into his hands, in the presence of John Parker, who came the subscribing witness to the" deeds. The answer proceeds to state, that the mother then told Parker to say nothing about the bills of sale for awhile, as she did not wish to offend W. K. Hunt, who had married one of her daughters, and who, she was afraid, would abuse his wife, if he should know that she had conveyed.the negroes to her son; and that there was no concealment for any other purpose spoken of. The answer further states, that the defendant was unwilling to take the negroes away, “as his mother’s condition required their services, and that after he got the deeds he said to her, that he would leave them and lend them to her until he should call for them.” The answer denies, that the defendant .then knew or believed, that his mother intended to marry again, much less, that she would marry the plaintiff; and also denies, that he was present at the marriage, or had heard that it was to take place, and states that his first knowledge upon the subject was when he heard of it the day after its celebration. The answer states, that the reasons for not registering the deed, at the first, were, that the defendant was ignorant of the legal necessity for it, and that he wished to comply with his mother’s injunction on that point, on account of keeping it from her son in law, Hunt; and that, afterwards, he had another reason which was, that he became desirous of saving his mother from the insult and violence she would probably receive from the plaintiff, if he knew that she had made the deeds to him. But the answer further states, that the deeds were never concealed from any one, who desired to know the truth about the title ; and that the plaintiff, during the coverture, became acquainted with their .existence — for that upon some occasions, he' threatened to sell some of the negroes, and that his wife would tell him, he could not sell them, for they belonged to her son, the defendant; and that his mother, when Poll had several children, told the defendant to take one of them, named Sol, (which the bill stales the plaintiff himself gave by parol to *492the defendant, but which the defendant denies to have receivas a gift from the plaintiff) and carry him, the said Sol, home, and raise him there, and that he did so, and the plaintiff acquiesced therein, and did not pretend to claim the said boy afterwards in the lifetime of his mother.

The answer further states, that the present bill was not ■filed for more than two terms succeeding the burning of the court house and the original bill and proceedings in the suit between these parties, and that such delay in filing the present bill is a bar to the same, as evidence of an abandonment .of the plaintiff’s claim. The answer also states, that the defendant has had adverse possession of the slaves from the year 1828, and insists upon the statutes of limitation of 1715 and 1820, as bars.

The answer of the other defendant admits, that he was of counsel for Simmons in the previous suits brought by Logan .against him for the negroes, including Jacob, and states that, about eighteen months after the burning of the court house, •finding that the plaintiff had not renewed his suit, he took a deed from Simmons for' the negro Jacob, on account of his fees in those suits, and took him into possession. And ft insists on the laches of the plaintiff in filing, his present bill, and on the statute of limitations in the same manner as the other defendant’s answer does.

The parties have taken many depositions; but, except so far as their contents are embodied in the beginning of the statement of the case, the only material parts are the following: Parker, the subscribing witness to the deeds from Mrs. Simmons (who makes his mark) deposes, that after she had executed the deeds and delivered them and the negroes to her son, he, the witness, asked her, if she was going to cut herself out of the negroes altogether, and she replied, “ Squire says, he will lend them to me until he calls for them and then her son said, “ yes, mother, you shall have the use of them your life time, or until 1 call for them :” that Mrs. Simmons at the same time said, she always intended Squire to have the negroes, because he had been such a particular good boy to *493her; aud that she further said, she did not wish any thing said for a while about the bills of sale, but to keep them secret, because her son in law, W. K. Hunt, and Squire Simmons were not at a good understanding, and she was afraid .a disturbance. The witness states, that he then took the bills of sale and kept them until they were proved for registration ■in March, 1828, and did not make them known: and that his residence was within a mile of Logan’s during that time.

A witness deposes, that upon one occasion the plaintiff, being intoxicated, was correcting one of the negroes, and that his wife interfered, and he struck her with a whip ; but by-several witnesses it is stated, that he was an affectionate, kind, «and attentive husband, and during his wife’s illness, procured such medical advice as she desired.

One of the persons, who was present at the marriage, states, that it took place at Mrs. Simmons’ house, on the 12th of February, 1818, and that neither of her children was there, and that there were only two others besides himself and the parties : but it is stated by several witnesses, among whom is the sheriff of the county, that it was understood in the neighborhood'for several days, that the marriage was to be then celebrated.

A witness, by the name of JM. Curry, states, that a year or two after the marriage, the plaintiff employed him to shingle Ills house, and the witness proposed also to build a piazza to it, when the plaintiff replied, “as soon as your old aunt dies, it dont belong to me.” The witness then said, “I know that; but you have got property enough with her, to leave the children good buildings.” To which the plaintiff again replied, “none of the negroes here are mine; they belong to Squire Simmons.” And the witness said thereupon, “ surely you did not know this before you married this old woman, because you could not have married her for love ;” and the plaintiff answered, “yes I did; she was a pretty likely old woman, aqd I thought we could do pretty well together.”

Another witness, Hides, states, that four years after the marriage, upon an inquiry of the plaintiff, why he should be *494working from home, when hé had so many negres there, the said to the witness, “there are negroes enough there, 'but they áre not mine, and I am as hard put to it as you are.”

¡jaat¡ the son in law before spoken of, states that he lived within a mile of the parties during the period of the coverture, and that the plaintiff treated his wife well; and that, until the deeds to the defendant Simmons were registered, he never heard of their existence, nor of any claim to the negroes but that of the plaintiff, who, as he believed, became the owner of them by his marriage.

Alexander for the plaintiff.

Osborne for the defendant.

Ruffin, C. J.

It is a principle of Equity, which is found in almost every text writer, and has been stated by many judges as undoubted law, that conveyance^ by a woman previous to her marriage, in fraud of the rights, with which the law would invest the husband upon the marriage, must be set aside. It seems agreed by all, that such conveyances are not invalidated upon any ground of policy, merely; for, if that were so, it would apply as well in a Court óf Law, as in Equity, and we have held, in a suit at law between these very parties, Logan v. Simmons, 1 Dev. & Bat. 13, that the deed binds the husband at law, because it binds the wife. In so holding, we were supported by the unvaried current of precedents, and the clear declarations of the eminent Judges, Mr. Justice Duller, and Lord Ti-iurlow, who gave opinions in the case of Strathmore v. Bowes, 2 Bro. C. C. 345. 1 Ves. jr. 22. If avoided at all, then, it must be on the ground of fraud. Consequently, the conveyanceof a woman before her marriage is not only good at law, but it is primal facie good also in Equity, as fraud is never imputed without' evidence. The question is in such cases, what constitutes the fraud : what design' will be fraudulent, and what is evidence of such design ? The law, says Lord Thurlow in the case cited, conveys the marital rights to the husband, because it charges him with all the burdens; which are the con*495sideration which he pays ior them; and therefore they are rights on which a fraud may be committed. Out of that right arises a rule of law, that the husband shall not be cheated, on account of his consideration. Now, the rights, thus spoken of; are not present rights, that is, existing at the time of the conveyance; fo'r, a fraud on rights of that kind, the common law would redress. They are prospective rights — those that' the husband expects to enjoy upon the contemplated marriage by the law of the land. A husband, being bound to pay his wife’s debts and to maintain her during coverture, and being chargeable by the law with the support of the issue of the marriage, and bound by the ties of natural affection also to make provision for the issue, it is in the nature of things, as a matter of common discretion, that a woman’s apparent pro-t perty should enter materially, if not essentially, into his inducements for contracting the marriage, and incurring those onerous obligations. It is also to be assumed by a man proposing this relation to a woman, that she too has a view their means of livelihood after marriage, and feels an interest! in the provision that, between their joint stocks, can be made! for a family. Every woman therefore must suppose, that the! man, who is about to marry her, expects she will not put away her fortune, at least the visible part part of it, and thereby diminish his ability to discharge his duties and legal obligations to herself, her creditors, and her future family. And if she, after allowing him to form such expectations, deliberately defeats them by a conveyance of her property, and draws him into the marriage by a deception on that point, it would seem, that it could be nothing less than a fraud on the husband. He is disappointed of what the law promised him, and of what she held out to him, he would get. In such a case it may be well argued, that a concealment of the conveyance would amount to the fraud, upon the principle of swppres'sio veri being in bad faith, when a person, towards whom it is practised, has an interest in knowing the truth, and has no ground to suspect any thing that has not been avowed. A very respectable writer, Mr. Roper, in his treatise on Husband and

*496Wife, 1 Vol. 163, entertains the opinion, that any disposition' by the wife, made after the .courtship began, without the intended husband’s knowledge and concurrence, is within the ¡^¡schief an¿ the principle laid down by the courts. And' Lord Thurlow uses this language: “If a woman, during the course of a treaty of marriage, make, without notice to the intended husband, a conveyance of any part of her property, I should set it aside, though good prima facie, because affected with that fraud.” That was said, too, on a rehearing of the case, which had been before heard before Judge' Buller, who had said, that “ fraud, as applied to cases of this nature, is falsely holding out an estate to be unfettered, and that the intended husband will, as such, be entitled to it, when in fact it is disposed of from him; but I do not think there is any case which says, that such a conveyance shall be Void, merely because the wife did not disclose it to the husband.” Concluding with saying, “ therefore it is necessary to shew other facts, and that the husband is actually deceived and misled.” It seems also very clear, that in 'the modern case of St. George v. Wake, 1 Coop. Sel. Ca. 129, Lord' Brougham leans to the opinion expressed by Mr. Justice Buller, though that casé did not require him so to hold. On the other hand, LokD Thurlow again said in Ball v. Montgomery, 2 Ves. jr. 194, that he “ would set aside a deed, as in fraud of the marriage, if concealed from the intended' husband; for if a woman, previously to marriage, conveys' her property without the privity of the intended husband, it will be a fraud.” And the case of Goddard v. Snow, 1 Russel, 485, decides, that when a woman assigned a sum of money, which the intended husband did hot know she was entitied to, and concealed from him both her right to the money. and her settlement of it, the deed was void. It appears, therefore, that it is a poiiit yet open, and on which respectable opinions are much divided-, whether concealment by the wife, merely, where there is no active expedient adopted to keep the intended husband in ignorance, and where he makes no in-1 quiry, is, per se, a fraud. We do-not purpose to give any'’ *497judgment of this court on if, because we do not think the present case requires us to do so, and we think it safest not to go out of the case into a field of doubtful disputation. We may say this, however, because, though not essential to the decision, it has some bearing on it. That much, we should suppose, might depend, among other things, upon the species of property, as being visible, or not, such as debts, money or stocks, and, if the former, whether it was in the actual possession of the woman, since the possession of tangible property is in itself a sign held out of ownership, and, if continued up to the time of the marriage, is calculated in the nature of a false token to deceive and mislead. The effect of conceal-1 ment may, moreover, be allowed to be more stringent in country than in England ; because there it is the general habit of society to have settlements on marriages, in which professional persons are employed; and that almost necessarily leads to inquiries into the particulars of the fortunes on both sides, and each one, therefore, is to be presumed to have no other expectation, than what is secured in the settlement. But here settlements are very rare, and never are made by persons in the condition of life of the parties here; because our people look to the law as establishing their relative rights and duties upon a proper basis, and do not therefore make those minute inquiries, which would be necessary to the framing of a settlement, but the intended husband expects to get all the wife has — that is, that she will let him get by the marriage all she would keep for herself and within her own power, if she had not contracted the marriage.

But we have said, that it does not seem to us necessary to determine, whether concealment by itself amounts to -fraud in cases of this kind. We say so, because we think, in the case before us, there is much more than concealment; that the plaintiff was actually deceived and misled as to the wife’s circumstances, and her right to the negroes in question» by a set contrivance and agreed purpose between her and her son. It was essayed in the argument to make out, that the witness, Mr. Curry, proved, that the conveyance was communicated *498to the plaintiff before the marriage, because the plaintiff said “Yes I did,” in reply to the observation of the witness, “that surely he did not know, that the .negroes belonged to Squire g¿mmons¡ ]3efore he married, because he could not have married for love.” But it is-obvious, that the remark of the witness embraced two distinct points; that of the plaintiff’s knowledge of the state of the title, and that of his motive for marrying; and it does not follow, that the plaintiff meant to affirm both of them. Indeed, the whole reply of the plaintiff shews, that he was confining himself to the latter, and meant by “Yes I did.” to say, that he did marry for love; for he adds, “she was a pretty likely woman, and 1 thought we Could do well together,” But a clear refutation of the argument, resting as it does uponan ambiguous phrase of the witness, is the absolute silence of the answer'upon the point. It is no where pretended in it, that the plaintiff was, in the remotest degree, privy to the conveyance. So far from it, the answer clearly implies the contrary, for it says, that the plaintiff’s motive for the marriage was the base one of getting the negroes, at the expense of sacrificing himself in a match with an old woman, for whom he had no affection. And it further says, that one reason why the defendant did not register his deeds was, that he did not wish the plaintiff to know of their existence, for fear he would ill-treat his mother. Besides, the subscribing witness and the son in law, Hunt, both say, that the deeds were kept secret until their registration. There is no doubt, therefore, that the plaintiff was in entire ignorance upon this point at the time of his marriage. He so avers in the bill; and, although he cannot give direct evidence of the truth of á¡ negative averment as to his' own information, yet these are the circumstances he lays before us, and the inability of the defendant to state on his oatheven a belief on the point, much less to give proof of a communication to, or suspicion by the plaintiff, that his wife, who was continuing in poseession of them, had conveyed away the slaves. What opportunity had he to know it? The deed was made on one day, and the marriage took place the next; and the plaintiff did not see his *499intended wife, until he went to be married in company with a witness, who has been examined in the cause, and from 1 whom not even an inquiry is made on the subject, though he must have heard of these deeds, if the plaintiff did, at that time. Then, if the'plain tiff was kept in ignorance, was he purposely kept in ignorance, that in that state he might go on and consummate a marriage, which the woman believed he would not contract, if he should be informed of the conveyance? Was that her motive for her conduct, in order that the plaintiff might, under a deception, enter into the marriage? Who can doubt it? Although the plaintiff may have married without affection, and for the base motive of lucre alone, and his subsequent conduct speaks favorably for him in that respect, yet we are obliged to believe, that he would not have proceeded in the marriage, if he had been told wnat was industriously withheld from him on this subject. His opinion of his intended wife’s feelings towards him would have so changed, and the gross imprudence of contracting a marriage, when he had nothing but a trade, and she had conveyed all her property of any value, would have presented itself m so glaring a light, that he must not only have hesitated, but stopped short. That the other parties must have been aware of; and they acted, therefore, in a way effectually to deceive him. The conveyance was executed the day before, lest, if sooner done, it might get wind. It was prepared by we know not whom, and executed in the presence of a single witness, and he illiterate; and, moreover, in order to prevent Mm from acting the part of an honest neighbor by the plaintiff, that witness is particularly charged not to disclose it, “ to keep it secret for awhile.” It is said, indeed, that a different reason was given for wishing nothing to be said of the deeds — namely, that it might be kept from the ears of Hunt, a brother in law of the defendant, and not friendly with him. But that is 'a shallow pretence; for what difference could it make to Hunt, whether his wife was cut off by a deed, made to her brother on one day, or by her mother’s marriage with the plaintiff, which was to take place on the next day? The time when these deeds were made *500conclusively, that they were made with a direct view *° aPProacfrin? marriage ; and the circumstance, that they include all or nearly all of the property the woman owned, gjjew.g tliey were made, not bona fide to advance a child, but to defeat both the marital rights and the actual expectations of the intended husband ; expectations, raised upon the possession and enjoyment of the slaves by the wife, as well as upon the common course of women in similar situations, and defeated, not merely by the concealment of the parties, but by their taking means to engage another person to unite in keeping the plaintiff in ignorance. We think such a case clearlyl within the rule, as most strongly expressed by Mr. Justice! Buller. There are other facts besides concealment barely! "The husband has been actually deceived.

It has not been contended^ that a knowledge by the husband, after the marriage, can purge the fraud and set up the deeds; for clearly it could not. A knowledge shewn clearly to exist after the marriage, and acquiescence in any thing done under the deeds, would be evidence to shew a communication before marriage. That is all the effect it could have. But there is nothing of that kind here. Mr. Gurry and Hicks state circumstances, from which we may infer, that the plaintiff had heard, after he married, of some sort of claim of the defendant ; but we have no distinct information on the subject, and it is more than probable that all he went on was what his wife told him, (as mentioned in the answer) when he would threaten to sell some of the negroes, That, it seems, was within two or three years after the marriage; but. it was not calculated to make any impression on the plaintiff, when he discovered that the son, to whom the wife said the negroes belonged, did not claim them, but the plaintiff himself kept them; and Parker states, that he never made known the deeds fo the son and his bailment to his mother, until 1828.

The marriage, though not very fit in point of equality of age, does not appear to have been so unequal, as to give a character of baseness to the plaintiff’s motives; and there is no evidence of his resorting to any deception or unfair means *501of gaining the consent of the other parly. It is true, also, that the plaintiff did not settle any thing on the woman, nor' bring an accession to the common stock ; and, therefore, she might have reserved some reasonable share of a considerable estate to her own use, or given it bona fide to a child. ■ But it cannot justify such reservation and gift of all the little she had, as this party virtually did, leaving to the husband only the burthen of raising young negroes for the son.

There is nothing whatever, on which the idea, that the plaintiff at any time abandoned his claim, can rest; for he has, though sometimes in a wrong direction, been in hot pursuit of the slaves, ever since the defendant took possession. For the same reason the statutes of limitation do not affect the case, even if they apply to it. As to the short interval between the burning of the court house and the filing of this bill, nothing can be made of it by the defendants; for there was no decree in the former suit, and it may, indeed, be considered, to this purpose, as pending now, and that the present pleadings, made necessary by accident, are but substitutes for those consumed.

The deeds to the defendant, Simmons, must therefore be declared fraudulent, and the plaintiff entitled to the slaves conveyed in them and their subsequent increase; and the defendants be decreed to deliver to the plaintiff the slaves mentioned in the pleadings, and such others as may have been born, as are in their possession respectively, and to account for the hires and profits, and pay the costs of this suit. The defendant, Mr. Graham, having come in under the other defendant, as he did, must, of course, abide by his fate.

Per Curiam, Decreed accordingly.