| Miss. | Dec 15, 1855
delivered the opinion of the court.
This was a bill filed by the wife against her husbanjl, in the Vice Chancery Court, holden at Fulton, for the purpose of can-celling certain deeds, whereby her slaves, which she possessed under the act of 1839, were conveyed to the husband.
The facts are as follows: Burnes and wife, conveyed the slaves of the latter to J. M. Acker, with the understanding that he should convey them to the husband, Burnes. Acker having made the conveyance according to said understanding, the wife filed this bill, to have said conveyance cancelled, and the bill revested in her.
The bill charges, that the complainant was induced to believe, that the slaves were sold to Acker, for a full and fair consideration ; and thus believing, she gave her consent to the conveyance. The answer, on the contrary, sets up, that the husband having paid certain debts of the wife, she was fully informed as to the object of the transaction, and that it was to reimburse the defendant.
Under the state of facts presented by the record, we do not deem it necessary to decide, whether the deed is void per se, or whether the transaction may, under special circumstances, be sustained. The husband, in making the sale, was the trustee of the wife, if not in a strict technical sense, at least so far as good faith was concerned; and the same rules which apply to transactions between trustee and cestui que trust, would be applied even with greater rigor to this class of cases, because the influence which the husband is always presumed to exert over his wife, is in the nature of things, greater than can be exerted in ordinary cases of trust by the trustee, over the cestui que trust. The husband having by the transaction acquired without legal consideration, the wife’s title to the' slaves, the question is not, whether she has
Again, the deed of'conveyance, in the absence of proof to the contrary, must be taken to contain the terms of the contract, as assented to by the wife; and it recites that it was made upon the consideration of three thousand dollars in cash paid by Acker. The husband, to sustain his purchase, must show that the consideration moving the wife to make the conveyance, if not the same, was nevertheless the same in substance as that recited in the deed. When tested by this rule, the proof utterly fails.
Another'point made by counsel is, that as the husband is entitled to the usufruct of the property, no action can be sustained by the wife, until this interest of the husband shall have expired. We disagree with counsel in this position. The fraud was committed, not upon the wife’s possession, but upon her title. Her ultimate benefit in the slaves must depend upon the' fact whether she survives her husband, and she is only seeking to protect her title, with a view to this ultimate benefit, if she should be the survivor. If these conveyances should stand, she must, at a future day, have the difficulty with the husband’s representatives, instead of with him at the present time. It is his fraud of which she complains, and which has placed her title to her slaves in him, and which must give the slaves to his representatives, instead of their remaining to her, if she should be the survivor. ■ But it is not our intention to elaborate this point. We are clearly of opinion, that the bill can be maintained to cancel the deed; thus leaving the slaves in the same condition, and the rights of the parties the same as they were prior to the conveyances.
Decree reversed; deed to Acker, and deed'from him to the husband cancelled, and the title to the slaves revested in the wife, according to the provisions of the act of 1839.