The opinion of the Court was delivered by
Williams, Ch. J.An order was made by two magistrate, to remove one Lydia Wakefield from Randolph to Braintree, as likely to become chargeable. An appeal was taken from this order to the county court, and the cause was there tried, on the plea that the pauper was not. likely to become chargeable to the town of Randolph. Under the issue, it was competent for the defendant town to give in evidence that the pauper had a freehold estate in the town of Randolph, because a person is irremoveable from his free* hold, and also., because it rebuts the presumption that the pauper will be chargeable, so long as he has any visible property, which can be applied to his support. Every person must support himself when able, and apply his proper* ty, whether real or personal, for that purpose, before the town, can be called on for his support.
It appeared, on trial, that the pauper had owned a tenement of the value of one hundred dollars, and was, therefore, irremoveable, while she owned and resided on it.
It also appeared that she was a lunatic, and had had a guardian appointed, who had sold the land. Nothing appears but that the title had been legally divested from the lunatic, and passed to the purchaser.
The town of Braintree, however, contended, that a short time before the order of removal, the overseers of the poor of the town of Randolph procured the representation of lunacy to be made, the guardian to be appointed, and the land to be sold, with the fraudulent intent, on the part of the said overseers, thereby to deprive her of her freehold, and render her likely to become chargeable, and subject to removal.
As a general proposition, it is true that fraud vitiates every act whatever, although done and attempted to be justified by legal process. It becomes necessary, in this case, to inquire, whether the appointment of the guardian, the sale of the property, &c., with the intent mentioned, are to be considered as fraudulent. They are not to be treated as of that character, because they are so called in the bill of exceptions.
In the first place, it is expressly stated that the pauper was a lunatic. If so, she ought to have a guardian, agreeably to the provisions of the statute. And there would be no fraud *443in Representing the lunacy to the proper tribunal, and procuring the appointment of a guardian, although the persons procuring it may have had in view some ulterior benefit to themselves, or even some sinister designs.
In the second place, it cannot be considered as fraudulent or improper, to cause the lands of such lunatic to be sold, if there are no false representations to procure the order from the competent tribunal, or no collusion in the sale. It is true, it deprives the lunatic of the freehold, and so does every sale of real estate.
In the third place, we cannot consider the intent, with which it is alleged this was done, as fraudulent, or any evidence of fraud. It may be a proper, a lawful, and even a charitable act, to cause such sale, have the avails for the support of the pauper, and thus open the way to compel the town, subject to the charge and maintenance of such person, to afford a more adequate support than would probably be derived from a small tenement of little value, or the feeble support which might be derived from the exertion of relations, themselves poor and incapable of affording much support or relief, if needed.
In the fourth place, to cause such sale to be made, with the intent to subject such person to removal, cannot be fraudulent, as the town, liable by law for the maintenance,should be subject to the charge, and the town where the pauper resides may take any justifiable measures to relieve themselves from a burthen, and to cause a removal to be made to the place of settlement.
In the the case of The King v. Inhabitants of Great Glen, 5 Barn. & Adol. 108, and in the case of The King v. Inhabitants of Birmingham, 8 Barn. & Cres. 29, the acts complained of savored much more strongly of fraud than in this case, and yet they were held not to vitiate a 'settlement acquired thereby. The facts given in evidence in this case, and what was relied upon to show the appointment of a guardian &c. fraudulent, were not evidence tending to show it of that character.
But secondly, the evidence under the issue was immaterial, as it did not tend to show the pauper to be still the owner of the freehold. If the property was legally disposed of, it no longer remained a fund for her support, nor afforded her a residence from which she was irremovable, although the mo*444tives, which induced the representation of lunacy, the appointment of a guardian, and the sale might have been improper. The county cburt t'ook a correct view of the transaction, in this particular, in saying, that the motives, which influenced the overseers of the poor Of Randolph, were immaterial.
The next question arises under the pleadings, which terminated in a demurrer.
Any state of facts, which show that an order of removal should not be made, may be pleaded in bar» Such a plea must be subject to the ordinary rules, applicable to other pleadings. No presumption can be made in favor of the party pleading.
The plea in this case sets forth that the pauper, who is the daughter of Asahel and Sally Wakefield, lived in, and constituted a part of her father’s family, from her earliest years to his death in January, 1830; that after his death, she lived with hter mother in Braintree to April, 1830 ; that the mother then removed into the town of Randolph, on an estate which she held as tenant in dower, where she has ever since resided ; that the pauper removed with her mother, as a part of her family, and lived with her, and has not acquired any settlement in her own right. It is obvious that this plea presents no facts to prevent a removal. It is wholly immaterial whether she resided with her mother or any other person. No facts are set forth to present the question which has been argued. It is not averred that she was either an infant or an idiot, nor is her settlement in Braintree denied. Why should she not be removed if of full age, incapable of taking care of herself, and likely to become chargeable ? Of what consequence is it with whom she resided, or of what family she was a member ? This plea must have fallen before a demurrer.
The replication alleged that she was of full age, and, in endeavoring to answer the plea, treats the question of residence as of importance, by alleging that she owned a part of the house where she resided, in her own right. Nothing is yet disclosed as to the pauper being in a state of mental imbecility.
The rejoinder then asserts that she was incapable of manar ging the estate, by reason of mental imbecility.
Without pursuing the pleadings any farther, the inquiry is *445here directly presented, whether a person, such as the pauper is described tp be, can be removed from her mother’s family, and we apprehend there can be no doubt upon this subject. If an infant, after he ceases to be a mere child, has a settlement, different from his parents, such infant may be removed to his settlement.
If a widow acquire a settlement by marriage, her children, by the former husband, may be removed to their settlement, derived from their father. In the case of The King v. Inhabitants of Great Clacton, 3 Barn. & Ald. 410, a child of 8 years was removed from her mother and her mother’s settlement, to the settlement of the child. The case of The King v. Inh. of Whitehaven, 5 do. 720, was of a similar character. The facts set forth in the plea in bar, few as they are, and when aided by the replication and rejoinder, do not present any legal impediment to the removal of the pauper, nor offer any reason why she should not be removed.
It is, therefore, of no consequence to inquire as to the after pleadings, whether they are defective in form or in substance, as these pleas are clearly insufficient.
The judgment of the county court must be affirmed.