The grounds upon which the bill in this case, seeks to set aside the deeds are, 1. Because they were executed in consequence of the importunities of the intestate’s first, wife, and his son-in-law, Gibson. 2. Because Gibson, by his persuasion, at a time when the complainant was drunk at a drinking house, in his neighborhood, induced him to execute the deeds in question, by which he divested himself of all the property, of which he had previously been the proprietor. These are to be regarded as the gravamen of the bill, and the allegations of the subsequent acts and declarations of the intestate, Gibson and others, are to be considered as merely ancillary, or explanatory of the transaction.
The proof in the cause does not show that the deeds were executed by the intestate, in consequence of the intreaties used, or influence attempted to be exercised by his wife, son-in-law, or any one else. And instead of being drunk at the time of the execution of the deeds, it appears, that the intestate was apparently as intelligent and self possessed, as usual. There is then, an entire failure to make out by proof the case stated by the complainant, and the onus probandi being thrown upon him by the answers, it is clear that the decree of the Court of Chancery cannot be sustained. In attaining this conclusion, we are not to be understood as determining, that the proof is insufficient to authorise relief, but merely that there is such a want of harmony between the allegata and probata, as to ren*426der the evidence under the pleading, wholly ineffectual. Clements, adm’r v. Kellogg, by her next friend, 1 Ala. Rep. N. S. 330.
We might here close this opinion, but my brothers think it best to, look into the. evidence, and inquire whether, if the bill were adapted to it, the result would be different from that we have expressed. That equity has jurisdiction to set aside, cancel, or reform deeds or other instruments, is abundantly shown by the case of Kennedy’s heirs and ex’rs v. Kennedy’s heirs, 2 Ala. Rep. 593, et post; and this has been done in some cases in which there was no pretence of actual or positive fraud. Thus in Slocum and wife v. Marshall, et al. 2 Wash. C. C. Rep. 397, it appeared, that a conveyance had been made of her real estate by a daughter to her father, immediately before her marriage, under a belief that she would be benefitted by the same, and that the property conveyed by the deed would become her’s after the decease of her parent; and where the operation of the conveyance was to deprive the daughter of the estate; the Court decreed a conveyance of the property, and an account of the proceeds of the part which had been sold, so as to effect the justice of the case, and to give to the daughter the property to which she would have been entitled, had not the conveyance been made. This decision was not made on the ground that the transfer of the property by the daughter, was a fraud on the marital rights of the husband, or that fraud or imposition was meditated by the father; but the Court was of opinion that as the father’s will had proved ineffectual for securing to the daughter the consideration which induced- her to make the deed, a Court of Equity could do nothing less, than to set aside the deed, as having been made under a mistake, and for a consideration which had failed.
Jones v. Robertson, 2 Munf. Rep. 187, bears a more striking analogy to the case before us, than any we have seen. In that case it appears, Mrs. Robertson sent for Jones to prepare a writing for her to execute, changing the disposition of her property, which she had previously made by will; he accordingly prepared a deed of gift, with which she expressed herself satisfied, and executed it. It appeared from the previous and subsequent declarations of Mrs. Robertson, that she intended to dispose of her estate by will, and was surprised when informed, that the instrument executed would have a different effect. *427The Court set aside the deed upon the ground of surprise, on the part of Mrs. Robertson. In the Earl of Bath and Montague’s case, 3 Ch. Cas. 56, et post, which was most elaborately examined, the Court held, that no other surprise, except that which is accompanied with fraud and circumvention, will be a good ground to set aside a deed in equity. See, also, Jeremy’s Eq. Jurisd. 366. But Mr Justice Story supposes that there is nothing technical or peculiar in the word surprise, as used in Courts of Equity. “When a Court of Equity relieves on the ground of surprise, it does so upon the ground that the party has been taken unawares, that he has acted without due deliberation, and under confused and sudden impressions. The case of Evans v. Llewellyn, 2 Bro. Cha. Rep. 150, is a direct authority to this very view of the matter. There may be cases where the word surprise, is used in a more lax sense,- and where it is deemed presumptive evidence of fraud. 1. Foub. Eq. 125. But it will always be found that the true use of it is, where something has been done which was unexpected, and operated to mislead or confuse the parties on the sudden, and on that account, has been deemed a fraud. Irnham v. Child, 1 Bro. Ch. Rep. 92; Marquis of Townshend v. Stangroone, 6 Ves. Rep. 327, et post; Twining v. Morrice, 2 Bro. Ch. Rep. 326; Willan v. Willan, 16 Ves. Rep. 81, et post.” 1 Story’s Eq. 133, note.
My brothers are of opinion that the evidence in the cause shows, that the intestate was surprised in the execution of the deeds. His declaration that they were his will; they would save him the trouble of making a will; he was to enjoy the property during his life, &c. when coupled with the facts, that he was an habitual drunkard, of but ordinary understanding; and that the deeds divested him of the present right of possession of all his estate, both real and personal, are considered by them as satisfactory to show that he was ignorant of the legal effect of what he had done, and that he really supposed the deeds were merely testamentary papers. While I will not dissent from this view, I decline the expression of an opinion upon the point, inasmuch as it is unnecessary to decide it. But conceding that this conclusion of fact is correct, and I am prepared to say that it furnishes a sufficient reason in equity, why the deeds should be set aside; and if upon their face, they ap*428peared to be testamentary dispositions of property, the filing of the bill would operate a revocation.
The fact that the intestate had the possession of. the slaves and other property in question, does not render the deeds void, as a fraud upon the marital rights of the wife of his second marriage — even if she was ignorant of their existence. The wife acquires no right by marriage to the property of the husband. True, he may make a settlement upon her, but until this is done, he cannot be controlled by her in making such disposition of his estate as he thinks proper. With no propriety then, can the wife be regarded as the purchaser, by the simple act of marriage, of her husband’s estate.
We do not deem it necessary to consider whether, or how far, the subsequent acts of the intestate, or Thomas Gibson, may be looked to, as explaining the transaction. What we have said, will most probably lead to an adjustment of the rights of all concerned; and have only to add that the decree is reversed, and the bill dismissed without prejudice, at the cost of the defendant in error, to be levied of the estate of his intestate, &c.