*394ON REHEARING.
r But little has been added om the rehearing to- what was insisted upon at the original .hearing ol the cause. The arguments then' made haye been emphasized, and somewhat intensified.' ’ A point ,i« raised in the brief otai rehearing as follows: “Second^ what just reason is there for the harsh provisions of this decision against Mollie Pickens?” The brief then goes on to inform the court, dehors the record), that said Mollie was “an afflicted daughter of dames Pickens, and a.sister of Dever Pickens. The world is á silent one to her. She is deaf and dumb. She could not well testify in her own behalf, — in fact, could not ai: all. Her brother did.' Her debt is not denied' to have existed. Dever Pickens owed her the money. But under this decision sheds held to have had knowledge of his fraudtu-lent purpose, and must lose her debt; may even refund part of it paid in the interest of the appellant,, who, no matter how much we may pity her, is neither so innocent aid'this sad business) nór so! helpless in life, as she.” If this is' all true, it does indeed leave the defendant Mollie Pickens in bad condition, and she is to be pitied). But what can be done?-1 She appear® froto, the record to be an adult defendant, and is presumed to be in complete possession of all her faculties, the contrary not being shown, and no intimation of any affliction until it ap-péars in this brief of counsel on rehearing. If there was reason for appointing • a committee or guardian ad' litem to attend to and look after the interests of the defendant Mollie Pickens in the case, a suggestion to the court would have been sufficient to have had her interests protected in the case. The bill charges directly her knowledge of fraud. She stands by after being duly served with process, makes no appearance or answer, the bill is taken for confessed as to her; and it seems that, while Dever Pickens and all the rest of the family had able counsel to assist them in circumventing the plaintiff in her efforts to recover something from Dever on account of her just recovery against him, this poor girl was overlooked, and left to care for herself as best she could.- I think it will hardly be seriously contended that the court can go outside of the record to consider the unfortunate condition that defendants have gotten themselves into' either *395by their own1 hegligencé or by that of their counsel. We regard this statement of counsel concerning the defendant Moilie Pickens, her condition and relation to this •suit, as disclosing a very remarkable state of affairs indeed. Here is a family who have proved their capacity to take care of themselves in the affairs of the world, intelligent, Smart', and financially able to. look after their every interest, and haying in their service the best legal talent in their part of the State. One of their number, unfortunate in not possessing all her senses, and, in a sense, helpless and dependent, yet possessed in her own right of a considerable estate, is permitted by the other members of the family, as well as their counsel, to be in,default, and placed in such condition as to be in great danger of losing a large proportion, of her estate. It seems that, in their eagerness to ©ave themselves, they overlooked the interests of their unfortunate sister: It is argued, too, that the estate of James Pickens could not have notice of fraud, and' could not be a party thereto; that the dejad man in his coffin could not know of or participate in the fraud charged. The estate was well represented by the defendant the executor John D. Pickens, one of the family, and there can be no question as to his knowledge of the intent and purpose of Dever, his brother. The question arising upon the marriage contract of May 10, 1889, is further argued upon rehearing, but about the same authorities relied upon as before. I see no good reason, with the additional light cast upon the matters at, issue, for changing my opinion in the causé* and still think the decree should be reversed, and the cause remanded for further proceedings to be had therein as set forth in the original opinion.
Brannon, Judge:I write this note, not for an opinion on the , many points arising in the case, but only to.,say, that-by concurring in the decision I by no means intend to questioln the principles laid down in Boggess v. Richards' Adm’r, 39 W. Va. 567, (20 S. E. 599.) Herring v. Wickham, 29 Grat. 628, and Snyder v. Grandstaff (Va.) 31 S. E. 647; nor, does Judge McWhorter. I think that even if Miss Coburn knew of Dever Pickens’ seduction of Miss Dent, and his *396promise to marry her, and1 her action, yet she coiuld, by a bona fide marriage contract, look out for herself first, and receive a settlement upon herself of Pickens’ property at the expense of Miss Dent; and this by reason of the peculiar force of a marriage contract. If, with knowledge of those things, she had purchased his property for money, it might be different, as she would be enabling him to convert his property into money, which he could seclude from Miss Dent’s pursuit. But she gave no money; she gave person and) life. Therefore, as the cases above say, the question is,. did, Miss Coburn have notice of Pickens’ intent to defeat Miss Dent’s recovery by this marriage contract? I admit that the other circumstances, though raising a strong suspicion of such notice on her part, are not conclusive; but when you add to them the fact that she failed to give evidence and submit to a cross-examination as to her good faith, thte case grows ¡much stronger. If she had no knowledge of his purpose, why did she not pledge her sworn testimony to it? This decides me. Neither did he testify. As to those claiming under the trust deed: The bill charges fraud in its execution, and that the trustees, who> wene counsel for Pick-ent in Miss Dent’s action at law, knew of the fraudulent intent. They do not answer to deny this. Notice to a trustee is notice to a creditor. It is urged that the creditors' deny the fraud, and that this puts the matter in issue. It is said that as Johnston v. Zands Trustee, 11 Grat. 552, holds that an answer of the trustee, denying fraud puts it in issue, so the answer of a creditor does. It doe® not follow. The trustee represents the Creditor. But, when you fix notice on the trustee, why does npt that fix it on the creditor, whether he tells him or not, as notice to the trustee is notice to the creditor? “The participation of either the trustee or the beneficiary of a deed of trust in the fraud of the grantor is sufficient to avoid the deed.” Crow v. Beardsley 68 Mo. 345. There are, however, other circumstances against the deed of trust; but, if I am right as to the effect of notice to the trustee, these circumstances are not necessary, but strengthen the case.
Reversed.