By the Court.
Lyon, J.,delivering the opinion.
The equity of the bill, if it has any, rests on a paper signed by James Oglesby, without a seal, purporting to give and deliver the negroes in controversy to him, in consideration of love and affection. There never was, in fact, any delivery of the negroes. There was not only no consideration in fact, but that expressed in the deed shows that the deed was without consideration to support it. It is not stated in the bill that the negroes belonged to James Oglesby, or that he had any right to convey them. The answers show that James Oglesby had no title to or claim upon the negroes at the time he made the paper under which the complainant claims; that the negroes belonged to Mrs. Oglesby, the wife of James, and not to him, and_ that the complainant knew it at the time he took this paper; that Mrs. Oglesby had bought and paid for the negroes with money from her own earnings, by the sale of cakes, etc.; that she took the title to herself, all by the permission of her husband; that she has constantly *390'paid the taxes on them since her purchase in 1849, and all the time claimed and held them as her separate property, and that it was well known to the complainant; that the deed had been wheedled out of James Oglesby, who was an infirm and old man, while in a state of intoxication, by the complainant. These facts are sufficient to vest in Mrs. Oglesby a separate property to the negroes as against her husband and the complainant, who is, at best, but a volunteer, even admitting that the paper was sufficient to convey what title James Oglesby might have had in them. This we do not for an instant admit. On the contrary, we are strongly inclined to the opinion that the paper, upon its very face, is void for want of a consideration, and we do not put our decision of this case on that ground, because it is not necessary to do so to dispose of it. But the facts show that the title was in Mrs. Oglesby. “If without any ante-nuptial agreement the husband should permit his wife, after marriage, to carry on business on her sole and separate account, all that she earns in trade will be deemed to be her separate property, and disposable of by her as such.” Story’s Equity, sec. 1378. This is pretty respectable authority, and pretty strong on the point, but were it not so, and no other dictum or precedent could be found for it or any strongly against it, we would still so decide. If it be said that the facts set up by the answer are not responsive to the bill, we reply, that they are sufficiently so, we think. The bill ought never to have been sanctioned in the first place. Mrs. Oglesby was no party to the title complainant sets up. What right had he to disturb her possession under the allegations in his bill? Having done so, she had the right to come in and be heard in defense of her title and possession. The Court below should, upon the application of plaintiffs, have dissolved the ne exeat and restored the negroes to the possession of. Mrs. Oglesby. As he did not, the judgment of the Court below must be reversed on that ground.