
    Cheshire and Wife vs. Payne, &c.
    APPEAL FROM UNION CIRCUIT.
    1. To render a disposition made by the wife of her property before marriage fraudulent against the husband, as against his marital rights, it mu3t bo made pending the treaty of marriage, and without his knowledge.
    2. If the husband be apprised, before -the marriage, of the disposition by the intended wife of her property, he cannot claim to have been defrauded by it — if, notwithstanding such knowledge, he consummate the marriage contract, he cannot afterwards complain — as such an act on the part of the intended wife would be a valid defense for a refusal to consummate the marriage contract. (Hobbs vs. Blanfard, 7 Monroe, 89, overruled.)
    
    
      3 The chancellor will not draw nice distinctions in regard to the time at which the' information of the conveyance is communicated to the intended husband — it is sufficient if it be before the marriage ceremony take place.
    4. A parol promise to convey land is not absolutely void. The promisee has the right to have a performance or a rescisión at the hands of the chancellor — if the promisor is willing to perform, the promisee cannot have a rescisión.
    The facts of the case are stated in the opinion of the court. — Rep.
    
      James Harlan for appellant- — •
    This suit in equity was commenced in the year 1854, by John S. Cheshire, and Ann, his wife, late Ann Pa}me, to set aside a deed executed by said Ann to her brother, William Payne, jr., upon the ground of fraud on the marital right of the husband.
    The deed is dated October 15th, 1844, and purports to have been acknowledged before the clerk of the county court the day following. Ann Payne and John S. Cheshire were married on the 22d of October, 1844.
    This suit was commenced in 1854. The petition alledges that the deed was executed in consideration of representations and promises made by William Payne, sr., the father, and William Payne, jr., the brother, of said Ann, that if she would execute the conveyance, her father would convey to her the farm ®n which he then resided; that the conveyance was made without the knowledge of the intended husband, but in a subsequent part of the petition the plaintiffs say; “John'S. Cheshire was destitute of all knowledge, or information of it until after he had arrived at the place fixed foi the wedding, and a few moments only before he was called upon to take his place on the floor for the ceremony to be performed.” Plaintiffs alledge a noncompliance by the father and son of the promises made by them as the inducement for the execution of the deed, and they therefore pray that it be annulled and cancelled, and that John Payne, jr., pay rent for the land conveyed thereby.
    John Payne, sr., admits he executed a deed of gift to his son John and daughter Ann, in the year 1841, for the land in controversy. He denies he agreed to make a conveyance of the farm on which he resided as an inducement to the execution of the deed of 1844; but admits he said he intended to devise it to his daughter, which promise he intends to fulfill.— He says it is more valuable than the whole of the tract conveyed by the deed of 1841. He says he has given to his daughter and son-in-law, since their marriage, $700 in money, and three slaves.
    The circuit court having granted the relief prayed for, and directed an inquiry as to the value of the rents and profits, William Payne, jr., has appealed to this court. s
    The judgment is erroneous and ought to be reversed. It is founded upon the idea that the conveyance made by Ann Payne, immediately preceding her marriage with Cheshire, was a fraud on his marital right. I will show from elementary works, and by adjudged cases, both in England and in this country, that the facts of this case did not authorize the judgment that was rendered by the circuit court.
    Mr. Bright, in his treatise of the law of “Husband and Wife,” ml. I,chap. 13,p. 221, has reviewed all of the English cases, and made copious quotations from Roper on Husband and Wife, and Jacob’s Notes, and they establish this principle: That before marriage a wife may dispose of her fortune as she pleases, provided it be done without any improper motive, nor to deceive the person who is addressing her.— {Roper, vol. l,p. 162.) In the case of the Countess of Strathmore vs. Bowes, referred to in Wilson vs. Daniel, 13 B. Monroe, 351, first heard before Judge Buller, (2 Brown’s Chan. Rep., 345,) and afterwards, on appeal, before Lord Thurlow, (2 Yesey, jr., 22,) this principle was settled: “ That a conveyance by a wife, whatsoever may be the circumstances, and even a moment before the marriage, was prima, facie good, and became bad only upon the imputation of fraud. If a woman, during the course of a treaty of marriage with her, made, aithout notice to the intended husband, a conveyance of any part of her property, he should set it aside, though good prima facie, because affected with that fraud.” (1 Roper, 164.)
    In the case of St. George vs. Wake, 1 Mylne Sp Keene, 610; 7 Kng. Con. Chan. Rep., 188, all of the cases prior to the decision of that case, (which was in 1833,) are referred to, reviewed and commented upon by Lord Brougham, who held, that when a lady, pending a treaty of marriage, which afterwards took effect, made a voluntary assignment of part of her property to her sister, it was held that the husband, who was, under the circumstances, presumed to have had notice of the assignment before the marriage, was not entitled to set it aside on the ground of fraud upon his marital right. “As, however, (said Lord Brougham), everything depends upon the fraud supposed to be practised upon the husband, it is clearly essential to the application of the principle, that the husband should, up to the moment of the marriage, have been kept in ignorance of the transaction.”
    In the case at bar, the husband admits he had notice oí the conveyance before the marriage ceremony was performed; and having thought fit to marry the lady, he cannot reasonably complain that he is deceived or defrauded. I have found no case, English or American, except a dicta, in Hobbs vs. Stanford, 7 Monroe, 469, where a conveyance of the kind in question has been set aside if the intended husband, had notice of it before the consummation of the marriage ceremony.
    In McAfee vs. Ferguson, 9 B. Monroe, 476, the decision in favor of the husband rested upon the ground of,the ignorance of the husband, “until after his marriage, that such a deed had been executed.”
    
      In Wilson vs. Daniel, 13 B. Monroe, 351, the husband was ignorant of the execution of a conveyance by his intended wife, but the court, notwithstanding, upheld the conveyance as not being any fraud upon his marital right.
    In a treatise on marriage settlements, by Mr. Atherly, page 319, chapter 20, (27 Law Lib.,p. 165,) title “of settlements in derrogation of the marital rights,” the whole subject is discussed very clearly and lucidly, and the conclusions are the same now contended for.
    In conclusion, I contend: 1. There was no fraud, in law or in fact, committed on the rights of the intended husband. 2. That the presumption of fraud arising from the execution of the conveyance, pending the treaty of marriage, is repelled by actual notice to the husband before the marriage ceremony was performed. 3. The lapse of time (though not relied upon in the answers,) from the execution of the deed to the institution of the suit — a period of ten years — ought, of itself, to be regarded as sufficient to authorize the court to refuse any relief to the plaintiffs. 4. The judgment of the court sanctioning the right to recover rents, even if the conveyance should be set aside, is erroneous, because the plaintiffs gave no intimation that they looked to or required John Payne, jr., to pay rents. 5. If the plaintiffs are entitled to recover the land, they ought to account for the money and the value of the slaves received from John Payne, sr., subsequent to the date of the conveyance.
    
      J. II. McHenry and Huston on the same side—
    Relied upon the following grounds for the reversal of the judgment:
    1. The mere negative action on the part of the wife does not amount to fraud; there must be positivé acts of dissimulation, or artifice resorted to; the husband must be duped or misled. (Roberts on Fraudulent Conveyances, 350-366.)
    
      2. The English cases are not applicable to this country, because in the former property is more looked to, and in the latter the person of the woman is the principal motive in contracting the marriage relation.
    3. The English cases refer to the potential right of the husband to courtesy; but in this case it is not alledged that the fact exists which would give Cheshire courtesy in the land in the event of his surviving his wife.
    4 The cases decided by this court relating to slaves, do not apply to this case, because the rights of the husband to the slaves of his wife vest absolutely. There is a vast difference between the marital rights of the husband to slaves and to land.
    5. The cause of action set forth in the petition is denied by the answer, and the truth of the allegations is not sustained by evidence.
    6. The long silence of Cheshire is sufficient to authorize the court to presume he acquiesced in the arrangement.
    7. The deed of 1844 was made upon a good consideration, and the plaintiffs are estopped to controvert the right of John Payne, jr., to the land. He took no active part in the transaction.
    8. John Payne, jr., is not liable for rents during his occupation. .
    9. If he-is, he should be paid for improvements.
    
      Hughs Sf Dallam, aúd B. <§• J. Monroe, for appellees—
    Argued: 1. That the conveyance of the land described in the petition by the wife, Mrs. Cheshire, about six days before the marriage, and after it had been agreed on, was a fraud upon the marital rights of the husband, and being made without his knowledge or consent, should be set aside.
    The existence of the deed was made known to him a few moments only before the marriage ceremony was performed, and at the place appointed for its performance. Should the communication of the fact to the intended husband at such a time, and under such circumstances, place it out of his power to avoid the deed which had been made in fraud of his rights? It is supposed not. As an honorable man he was bound to fulfill his promise, and in doing so he should not be prejudiced in any right which he had, if no such communication had been made. It is said by Bell, in his treatise on the law of property, (Law Library, vol. 67, p. 31,) “The more safe, as well as correct doctrine, seems to be that laid down in Goddard vs. Snow, 1 Russ. 490, by Lord Gifford, M. R., that if at the time of the execution of a settlement, marriage was in the contemplation of the parties, and the woman execute the settlement in that contemplation, and with concealment from the husband, it will not stand against his marital rights.” It not only appears from the pleadings, and facts proved, that marriage was in contemplation, but that the connection about to be formed constituted the motive, and especially with the grantee, to have the conveyance made. It is no defence to say that the husband did not know that the intended wife owned the estate when the marriage was contracted. (See Bell on Property, supia,p. 85, and side page; Ib.,p. 8 ; 1 Russell, 485.) It is said by the same author, page 30 : “But the cases seem equally to establish that where the effect of the wife’s disposition is to operate no more than a legal fraud upon the marital right, by curtailing those rights in her property which the law, de facto, gives to the husband, without the existence of any legal or moral obligation upon the woman to justify the act done by her, the husband will be entitled to be relieved, although there should be an utter absence of moral fraud on the part of the woman.”
    2. The conveyance was made alone upon the verbal promise of the father of Mrs. Cheshire, that he would will to her a tract of land, wdiich the father now says he may or may not do, as he shall see proper.
    
      The delay in commencing suit is sufficiently accounted for in the petition, which is not denied in the answers. It is there stated that the petitioners have been kept back by promises and assurances of an adjustment upon amicable terms, and a conveyance in compliance with the parol promise, until a short time before the commencement of this suit. If it had been the intention of the father to convey according to his verbal promise, it was as easy to do so by deed, reserving a life estate, as by will, to take effect at his death, and thus have ended the controversy.
    It is not perceived that any of the cases referred to by appellant’s counsel contain any principle at variance with the views here taken. The late decisions of this court have been in accordance with the English authorities, and the case of Larkin vs. Smith, 4 Washington's C. C. Rep., 224.
    Though there are authorities deciding that if the husband come to a knowledge of a conveyance of property in fraud of his marital rights, he cannot avail himself of objections to it, and that is a justifiable ground for refusing to consummate the mar^ riage, yet it seems to be better calculated to promote the ends of justice, and more proper, that the marriage should be consummated, and the deed set aside, than that the marriage should fail.
    The appellees should have the deed set aside, or a conveyance made of the land agreed to be conveyed by the parol promise.
    February 4.
   Judge Simpson

delivered the opinion of the Court.

John S. Cheshire and Ann Payne, were married on the 22d of October, 1844. On the 15th day of the same month, Ann Payne, by a deed duly executed and recorded, conveyed to her brother, John Payne, an undivided moiety of about two hundred and sixty acres of land, which they owned jointly, and upon which John Payne then resided. This deed was executed after the agreement to marry had been entered into by John S. Cheshire and Ann Payne, and after the day for their marriage had been fixed by parties.

The tract of land referred to, had been conveyed to John Payne and his sister Ann, in the year 1841, by their father, John Payne, sr. It was at the instance of the latter, that the deed was made by his daughter Ann to her brother. Her father, to induce her to execute the deed, promised her, that she should after his death, have the farm upon which he resided. He states, that knowing there existed unfriendly feelings between the man his daughter Ann intended to marry, and her brother John, and believing that it would be to the advantage of all the parties, that his son should be the exclusive owner of the land upon which he resided, as it could not be divided without greatly injuring the whole tract, and that his daughter should be the exclusive owner of the other tract, he had proposed such an arrangement to his daughter, to which she assented, and the deed was executed to carry it into effect.

This action was brought in 1854, in the names of Cheshire and wife, against John Payne, jr., and John Payne, sr., to annul and vacate the deed executed by Ann to her bi’other John, before her marriage. The transaction is attempted to be assailed upon two grounds. First, that it was a fraud upon the marital rights of the husband. Second, that a fraud was perpetrated upon the daughter, by inducing her to convey away her land, upon a parol promise, which is not obligatory upon the father.

First. The petition after stating the making of the deed by the plaintiff Ann, to her brother, and the time of, and the circumstances attending its execution, contains the following allegation :— An entire and studied concealment, by father, brother, and sister, of this conveyance, and everything in relation to it, was preserved and kept, and plaintiff, John S., was destitute of all knowledge or information of it, until after he had arrived at the place fixed for the wedding, and a few moments only before he was called upon to take his place upon the floor for the ceremony to be performed.”

1. To reader a disposition made by the wife of her property before mar riage, fraudulent against the husband, as against his marital rights, it must be made pending the trea ty of marriage, and without his knowledge.

2. If the husband be apprized before the marriage of the disposition by the intended wife of her property, he cannot claim to have been defrauded by it. If not-w i t h s t anding such knowledge he consummate the marriage contract he cannot afterwards complain, as such an act on the part of the intended wife would be a valid defense for a refusal to consummate the marriage contract. (Hobbs vs. Blandford, 7 Mon., 89, overruled.)

The defendants denied the alleged intention to conceal the execution of the deed, and stated that it had been put upon record the same day that it was made ; but they did not alledge they had informed the plaintiff, John, of its execution, or that he had any actual knowledge of it before the time mentioned by him in his petition.

The only circumstances relied upon in this case, to render the deed fraudulent as against the husband, are its execution after the marriage contract was entered into, and the ignorance of the husband that it had been executed, until a few moments before he was married.

To render a disposition made by the wife, of her property before marriage, fraudulent against her husband, as being in derrogation of his marital rights and just expectations, it must be made pending a treaty, and in contemplation of marriage, and without the knowledge of her intended husband. Both of these elements must enter into the transaction, to constitute it a fraud against the rights of the husband.

If the husband be apprized.before his marriage, of the disposition which his intended wife has made of her property, he cannot, in any just sense of the term, be said to have been deceived by it. If, notwithstanding such knowledge, he deems it proper to consummate the marriage contract, the act is voluntary on his part, and he cannot afterwards complain that the disposition which his wife made of her property, is a fraud upon his marital rights. If the intended wife should secretly, and without the assent of the man she had contracted to marry, dispose of a part of her property, the marriage contract would be thereby avoided, and proof of such a secret disposition of her property would be a valid defence, if an action were brought against the intended husband for breach of the promise of marriage. (Ashton vs. McDougald, 5 Beav. 56; Griggs vs. Staplee, 13 Jur. 32. See also, My. & K., 619, referred toin 1st vol. White's Leading Cases in Equity, Hare & Wallace’s Notes, p. 348.)

It is true, that it was held by this court in the case of (Hobbs vs. Blandford, 7 Mon., 469,) that a conveyance of the wife’s estate, between the time of the engagement and the marriage, was a fraud upon the marital rights of the husband, although he had notice of the conveyance before the marriage tools place. But that decision cannot be sustained either upon principle or authority.

Ignorance of certain facts, known to the other party, but concealed, or misrepresented, is an essential ingredient to constitute fraud. If all the facts are known, there can be no deception; and if there be no imposition or deception, there cannot be any fraud. In conformity with this view it has been repeatedly decided, and seems to be the settled doctrine of the courts, both in England and in this country, that if the husband has notice, or knowledge of the settlement or alienation, before the marriage, the transaction cannot be impeached. (Terry adm'r. vs. Hopkins &c., 1 Hills Chan., 15; McClure vs. Miller, 1 Bailey's Equity, 108; Fletcher and wife vs. Ashley &c., 6 Grattan, 322. St. George vs. Wake, 1 My. Keene, 610; 7 Con. Eng., C. R., 188.)

In the last named case, the chancellor said “ it might perhaps be affirmed, that excepting Goddard vs. Snow, no case exists of a conveyance by the wife, though without consideration, being set aside simply because made during a treaty of marriage, and without the knowledge of the intended husband. Yet, it is certain that all the cases in which the subject is approached, treat the principle as one of undoubted acceptance in this court-; and it must be held to be the rule of the court, to be gathered from an uniform current of dicta, though resting upon a very slender foundation of actual decision touching the simple point. As, however, everything depends upon the fraud supposed to be practiced upon the husband, it is dearly essential to the application of the principle, that the husband should up to the moment of the marriage have been kept in ignorance of the transaction.”

3. The chancellor will not draw nice distinctions in regard to the time at which the information of the conveyance is co mmnnioated to the intended husband; it is sufficient if it be before the marriage ceremony take place.

But the question still arises in this case, whether the husband should be regarded as having been kept In ignorance of the transaction, or whether the knowledge of it at the time it was imparted to him, should be deemed sufficient to repel the legal imputation of fraud.

As it is essential to constitute the fraud, that the husband should remain ignorant of the transaction until the marriage ceremony takes place, it follows as a necessary consequence, that his knowledge of it at any time previous to that period, will operate to prevent him from impeaching the conveyance on the ground of fraud. In reference to his knowledge, the law fixes but one period, and that is the time of the marriage; it does not draw any nice distinctions with respect to the length of the time before that period, but considers any previous time as sufficient, and leaves the husband to act for himself, according to his own sense of justice and propriety. Until the marriage actually takes place, he is at liberty to retract, and the law justifies him in so doing, if he be notified that his intended wife has, without his assent, made a settlement of her estate that will be prejudicial to his marital rights. But, if with this knowledge, acquired at any time before the marriage actually takes place, he voluntarily complies with his previous engagement, he connot complain that he was deceived, nor will the transaction be deemed to be a fraud upon his rights as husband.

As, therefore, the husband has admitted that he was informed of the transaction before the marriage ceremony was performed, he cannot assail it on the ground that it was fraudulent as to him, although that information was only imparted to him after he had arrived at the place fixed for the wedding, and a few moments only before the marriage did take place.

4. A parol pro mise to convey land is not absolutely void.— Thepromiseehas the right to have a performance or a rescisión at the hand of the chancellor; if the promisor is willing to per form, the promisee cannot have a rescisión.

We are not, however, prepared to decide, that the deed in question would be invalid, even had the husband remained ignorant of its existence until he was married. The doctrine we have been considering, has been usually applied to cases of gifts, and voluntary settlements and alienations; if it has any application where the conveyance has been made for a valuable consideration, it can only be in cases where it is executed for the purpose, and with the effect, of depriving the husband of the interest he would have had in the property of his wife, if the conveyance had not been made. In such a case, there would be actual fraud, against which the husband would be entitled to relief. But here, no such object was contemplated by the parties ; the motives by which they were actuated were not culpable ; the consideration upon which the deed was executed was adequate; there was no effort to conceal the transaction, the deed having been recorded in the county in which all the parties resided ; nor was the arrangement one that if carried into effect, would necessarily prejudice, at least to any material extent, the rights of the husband. It is not, however, necessary in this case to decide this question, inasmuch as the husband was apprized of the execution of the conveyance before he was married.

Second. But is the conveyance valid so far as the wife herself is concerned ? She parted with her property in consideration of a verbal promise that she should have another tract of land in lieu thereof, after the death of her father. This promise, although not legally enforceable, kis not void; and as her father in his answer, professes a willingness to comply with it, the contract cannot, according to the settled doctrine on the subject, be rescinded on this ground.

As, however, the verbal promise was not obligatory, the plaintiffs had a right to bring this action to require a fulfillment of it, and if that could not be obtained, then a rescisión of the contract. The execution of a will by the father, in which he has devised the land to his daughter, cannot be regarded in law, as a compliance with the spirit and meaning of the contract, because he has the power of revocation, and may exercise it at any time he deems proper, unless he should be rendered unable to do it, by the want of sufficient capacity for its accomplishment. The plaintiffs have a right to have the property secured to the wife, according to the terms of the contract; and to effect this object, the father should be required to convey the land to his daughter, subject to his life estate therein.

The" circuit court having rendered a judgment vacating the deed executed by the wife before her marriage, and requiring John Payne, jr., to re-convey the land to his sister, and making him accountable for rents, that judgment being inconsistent with the views expressed in this opinion as to the law of the case, is deemed erroneous.

Wherefore, said judgment is reversed and cause remanded, that a judgment may be rendered in conformity with this opinion.  