41 N.C. 358 | N.C. | 1849
Elizabeth Bailey was the widow of Austin Bailey, by whom she had four children. He died intestate, and at the sale of his effects she purchased two slaves and other things to the value of $500 or upwards, for which she gave a bond to the administrator. The present plaintiff subsequently made a proposal of marriage to her which she accepted, and it was agreed between them that the marriage should be celebrated on 24 December, 1846, and it took place accordingly. On the day preceding *256 the marriage she executed a deed to her children for the said slaves and all her other property, conveying the same to them immediately and absolutely.
The bill was filed by the husband against the children in February, 1848, and stated that the plaintiff had no knowledge, at the time of the marriage, that the deed had been executed, nor had he been informed nor had reason to believe at any time before the marriage that his intended wife had any purpose to convey away her property or any part of it to any person or for any use; and that, on the contrary, he believed (359) she had not, and that he would upon the marriage become entitled to the slaves and other effects which she then had in her possession. The bill states that accordingly the plaintiff took possession of the property when he married, and used it as his own for several months before he had any intimation of the conveyance so made by his wife — that is, up to 29 April, 1847, when the deed was registered. And the bill further states that the deed was not only executed secretly, but that in fact the existence of it was purposely concealed from the plaintiff, and the writer of the deed and the subscribing witnesses to it were specially requested and induced by the wife not to make it known to the plaintiff, but to keep it secret from him. The prayer is that the deed may be declared fraudulent and void.
The answer of the children by their guardian admits the deed and the marriage; but it insists that it was executed without their knowledge or any fraudulent contrivance on their part, and therefore that they have a right to hold under it. The evidence fully sustains the statement of the bill. The deed bears date 23 December, 1846, and is witnessed by two persons, who say that one of them prepared it, and that after execution it was left with him for safe keeping for the children, with a request to both of them not to let the intended husband, the plaintiff, nor any person know of it until after the marriage — the wife saying that she had worked for the property and wished her own children to have it, and not to leave it under the control of her husband, if she should marry, as she expected to do. Those witnesses state that they were present at the marriage the next day, and each of them says he did not communicate to the plaintiff the existence of the deed. One of them, however, states that he gave information of the circumstance to the person who married them, and who was the administrator of the wife's first husband; and that person says that the bond for the wife's purchases was still due to him, and that *257 he did not tell the plaintiff of the deed, and that he had been sorry ever since that he did not, as he did not believe the plaintiff knew it, and he did not think it right that he should be so cheated.
The evidence brings this case within the restricted rule on which the Court acted in Logan v. Simmons,
Since the decision of that case it is found that the general question has again come up for consideration in England, whether concealment of itself would not render a conveyance by a woman, pending the treaty of marriage, of all of her property for her separate use or for the benefit of children, fraudulent; and it is very obvious that the opinion of ViceChancellor Wigram, strongly inclines to the affirmative. Taylor v. Pugh, 1 Hare, 608. He refers to the rule laid down by Mr. Roper, which was quoted in Logan v. Simmons, and says he takes it to be correctly stated as the rule of the Court; and then he says that the several circumstances which have been sometimes thought material to negative the imputed fraud, such as the poverty of the husband, the want of a settlement from him, the reasonable character of the wife's settlement upon the children of a former marriage, and the ignorance of the husband that the wife owned the property, may, indeed, be material considerations for the guidance of the parties as to the manner in which the wife's fortune should be settled; but that they should constitute a reason for concealing the arrangement from the husband, he confesses that he cannot comprehend, nor that the concealment should be treated as immaterial. Certainly those are forcible expressions, and seem to be just views; for fraud has been aptly described to be "what is done in secret, and when there is a concealment from the party in a matter which concerns his interest." Tyrrell v. Hope, 2 Ath., 560.
In this country there has been no case in which it has been held o intimated that such a conveyance, whereby a woman makes herself destitute, or bestows all upon herself to the entire exclusion of the intended husband, ought, if concealed, to stand against his marital rights and just expectations; but there are divers cases to the contrary, and strongly so.Ramsay v. Joyce, 1 McMul. Eq., 237; Manes v. Durant, 2 Rich. Eq., 404; Tucker v. Andrews, 13 Shep., 124. In the latter case it was held, indeed, that though the husband was entitled to relief, yet a (362) suitable provision should be secured to the wife — a doctrine which for very sufficient reasons does not prevail in our law. In this case there was an intentional and practiced concealment, for the express purpose of *258
preventing the intended husband from a choice of acting as he might if he knew all. As to the idea that the children can hold under the deed upon the ground of their innocence of any fraud, it is altogether inadmissible. LordChief Justice Wilmot said in Bridgeman v. Green, Wilm.'s Notes, 64, that though not a party to an imposition, whoever receives anything by it must take it tainted with imposition; partitioning and cantoning it out among relations and friends will not purify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, says he, if it comes through a polluted channel, the obligation of restitution will follow it. That principle has been applied in Harris v. Delamar,
The plaintiff is entitled to the decree he asks; but, of course, without costs.
PER CURIAM. Decree accordingly.
Cited: Joyner v. Denny,
(363)
