Tisdale v. Bailey, 41 N.C. 358, 6 Ired. Eq. 358 (1849)

Dec. 1849 · Supreme Court of North Carolina

41 N.C. 358, 6 Ired. Eq. 358

JOEL TISDALE vs. WILLIAM A. BAILEY & AL.

Where a woman, just before marriage, secretly and with the intent to deceive her intended husband, conveys away her property, Held, that the conveyance was void as to him, though the children to whom it was con- . veyed, were themselves innocent.

The cases of Harris v. Delamar, 3 Ire. Eq. 219, and Logan v. Simmons, 3 Ire. Eq. 487, cited and approved.

Cause remoyed from the Court of Equity of Johnston County, at the Fall Term 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 oil the 24th of December 1S46, and it took place accordingly. On the day preceding 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 states 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 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 April 29th 1847, when the deed was registered. And the bill furtherstates, 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.

H. W. Miller and J. H. Bryan, for the plaintiff, argued :

1st. A conveyance made by a woman during a treaty of marriage, in fraud of the marital rights of the intended husband, will be set aside by a Court of Equity. Countess of Strathmore v. Bowes, 1 Yes, Jur. 22. Logan v. Simmons, 8 Ire. Eq. 487.

2nd. In this case there is proof of actual fraud, but want of notice to the intended husband is alone sufficient to avoid the conveyance. St. George v. Wake, 1 My. & It. 610. Linker v. Smith, 4 Wash. 224. Tucker v. Andrews, 13 Maine 124.

3rd. .The conveyance being for the benefit of children by a former husband will make no difference. The deed in the case of Logan v. Simmons, was to a child by a former husband. Vide also Terry v. Hopkins, 1 Hill Oh. Cases 1. Ramsay v. Joyce, 1 McMul. E. 237. Manes v. .Durant, 1 Rich. E. 404.

G. W. Haywood, for the defendants.

Ruffin, C. J.

The evidence fully sustains the statements of the bill. The deed bears date December 23rd 1S46, 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 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 he so cheated.

The evidence brings this case within the restricted rule, on which the Court acted in Logan v. Simmons, 3 Ire. Eq, 487 ; for there is not only a secret conveyance, but such secrecy was expressly designed to deceive the intended husband, and did deceive him as to the state of the wife’s property. He was therefore, to use the language of the writness, cheated, and is entitled to have the conveyance put out of his way, which would have the effect, if it stood, of making, the cheat successful. Since the decision of that case it is found, that the general question has again-come up for consideration in England, whether conceal*'• ment .of itself would not render a conveyance by a woman,•• pending the treaty of marriage, of all her property-for her separate use or for the benefit of children, fraudulent; - and it is very obvious, that the opinion of Vice-Chancel- * lor 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 con-; siderations 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 professes 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 or 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 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 practised concealment, for the express purpose of 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. Lord Chief-Justice Wilmot said in Bridgeman v. Green, Wilm’s notes 64, that, though not a party to an imposition, whoever receives any thing by means of it must take it tainted with the imposition : partitioning and cantoning it out among relation 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, 3 Ire. Eq. 219, and several other cases in this Court; and it refutes entirely the argument relied on for the defendants.

The plaintiff is entitled to the decree he asks ; but, of course, without costs.

Per Curiam.

Decree accordingly.