The following appeared from the pleadings and proofs in the case, to be the material facts:
On 12 February, 1818, the plaintiff intermarried with (488) Phebe Simmons, in Rutherford County, where they both resided. She was a widow, and had, by a former marriage, 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 on 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 hysterics. The plaintiff had little or no property (it is said only one mare), but was a blacksmith, and industrious and skillful in his trade, though he sometimes drank too much, but not habitually, as far as appears; 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 owned 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 years old. Besides those slaves, she had one or two horses, a few cattle and hogs, some little household stuff, and implements of husbandry; and seems to have been entitled to dower in a small piece of land, on which she resided. On 11 February, 1818, Mrs. Simmons conveyed by deed of gift to her son, Squire Simmons, the two negroes absolutely 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, born, during that period, of the woman Poll. But soon *Page 385 after the death of his mother, the defendant Simmons got the negroes into his possession, and set up a claim to them under the conveyance to him of 11 February, 1818. The plaintiff then instituted an action of detinue against Simmons (489) for the negroes, upon the ground that the conveyance to the defendant was a fraud upon his marital rights and void; and judgment was given therein against the plaintiff, in December, 1834, because the deed constituted a good title at law, and could be 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 practiced 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 and records of the court of equity, including the bill, answer and proofs in that cause, were destroyed. The present bill was filed in May, 1841, and charges that the plaintiff had addressed Mrs. Simmons for more than a year before the marriage, and that they had been engaged for several weeks, and that it was known to the defendant Simmons, that Mrs. Simmons had 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 believe, 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 the first 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 the plaintiff, as to the title of the negroes, 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 deed was never published, but remained unknown by any (490) person, except the parties and the subscribing witness, until the defendant Simmons caused it to be proved and registered in March, 1828, 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 *Page 386 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 the canceled, and that it may be decreed that the defendants convey to the plaintiff 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 older and 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 to 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 11 February, 1818, his mother told him, "that life was uncertain, and she wanted then to make him a bill of sale for her two negroes"; and she then did so, and also delivered them into his hands, in the presence of (491) John Parker, who became 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 *Page 387 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 first, were that the defendant was ignorant of the legal necessity of 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 states the plaintiff himself gave by parol to the defendant, but which the defendant denies to have received as a gift from the (492) 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 courthouse 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 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 to the negro Jacob, on account of his fees in those suits, and took him into possession, And it 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 *Page 388 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 called for them"; and then her son said, "Yes, mother, you shall have the use of them your lifetime, or until I 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 her; and that she further said, she did not wish anything said for a while about the bills of sale, but to keep (493) them secret, because her son-in-law, W. K. Hunt, and Squire Simmons were not at a good understanding, and she was afraid of 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 12 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 M. Curry, states that a year or two after the marriage, the plaintiff employed him to shingle his house, and the witness proposed also to build a piazza to it, when the plaintiff replied, "as soon as your old aunt dies, it don't 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 *Page 389 answered, "Yes, I did; she was a pretty likely old woman, and 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 working from home, when he had so many negroes there, the plaintiff said to the (494) witness, "there are negroes enough there, but they are not mine, and I am as hard put to it as you are."
Hunt, 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. 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 conveyances 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 of law, as in equity, and we have held, in a suit at law between these very parties, Logan v. Simmons, 18 N.C. 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 Buller, andLord Thurlow, 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 conveyance of a woman before her marriage is not only good at law, but it is prima 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 LordThurlow in the case cited, conveys the marital rights to the husband, because it charges him with all the burdens, which are the consideration which he pays for them; and, therefore, they are rights on which a fraud may be committed. Out of that right arises a (495) rule of law, that the husband shall not be cheated, on account of his consideration. *Page 390 Now, the rights, thus spoken of, are not present rights, that is, existing at the time of the conveyance; for, 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 property 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 to 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 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 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 case it may be well argued, that a concealment of the conveyance would amount to a fraud, upon the principle of suppressio veri being in bad faith, when a person, towards whom it is practised [practiced], has an interest in knowing the truth, and has no ground to suspect anything that has not been avowed. A very respectable writer, Mr. Roper, Husband and Wife, 1 Vol., 163, entertains the opinion that any disposition by the wife, (496) made after the courtship began, without the intended husband's knowledge and concurrence, is within the mischief and 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 *Page 391 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 show 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. JusticeBuller, though that case did not require him so to hold. On the other hand, Lord Thurlow against 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 Russell, 485, decides, that when a woman assigned a sum of money, which the intended husband did not know she was entitled, 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 point 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 inquiry, is per se, a fraud. We do not purpose to give any judgment of this Court on it, because we do not think the present case requires us (497) 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 concealment may, moreover, be allowed to be more stringent in this 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 *Page 392 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 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 to the plaintiff before the marriage, because the plaintiff said "Yes I did," in reply to the observation of the (498) witness, "that surely he did not know that the negroes belonged to Squire Simmons, before 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 shows 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 I thought we could do well together." But a clear refutation of the argument, resting as it does upon an 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 can not give direct evidence of the truth of a negative averment as to his own information, yet these are the *Page 393 circumstances he lays before us, and the inability of the defendant to state on his oath even 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 possession 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 intended wife until he went to be married in company (499) with a witness, who had been examined in the cause, and from 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 plaintiff was kept in ignorance, was he purposely kept in ignorance, that in that state the might go on and consummate a marriage, which the woman believed the 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 what 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 been presented itself in 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 him 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 pretense; 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 proves conclusively that they were made with a direct view to (500) *Page 394 the approaching marriage; and the circumstances that they include all or nearly all of the property the woman owned, shows that they were made, notbona fide to advance a child, but to defeat both the marital rights and theactual 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 clearly within the rule, as most strongly expressed by Mr. Justice Butler. 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 shown clearly to exist after the marriage, and acquiescence in anything done under the deeds, would be evidence to show a communication before marriage. That is all the effect it could have. But there is nothing of that kind here. Mr. Curry 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 to 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 of gaining the consent of the other party. It is true, also, that the plaintiff did not settle anything on (501) 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 give it bona fide to a child. But it can not justify such reservation and gift of all the little she had, as this party virtually did, leaving to the husband only the burden of raising young negroes for the son.
There is nothing whatever on which the idea, that the *Page 395 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 some reason the statutes of limitation do not affect the case, even if they apply to it. As to the short intervals 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 other 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.
Cited: Tisdale v. Bailey, 41 N.C. 360; Long v. Wright, 48 N.C. 292;Bank v. Spurling, 52 N.C. 402; Taylor v. Dawson, 56 N.C. 93; Spencer v.Spencer, Ib., 406; Ferebee v. Pritchard, 112 N.C. 86.
(502)