
    * James Wilson, by his next friend, v. George F. Bull and others.
    A conveyance, by a wife to a husband, through a trustee, obtained by undue influence on the part of the husband, is void.
    The regularity of proceedings in partition can not be inquired into collaterally.
    This is a bill in chancery from the county of Fairfield.
    Dr. James Wilson devised his real estate to his children, Maria and James, and died.
    
      Maria afterward married George F. Bull.
    Afterward, during the-minority of James, in certain proceedings . for partition, George and his wife elected, under the statute, to take James’ half of the land; and'the sheriff, by order of tho court, made a deed of tho entire estate “ to George F. Bull and Maria Bull his wife, their heirs and assigns.”
    Not long after, in May, 1837, George and his wife made a deed to G. B. in trust, that on the request of George, tho trustee should convey the lands “to George and his wife during their joint lives, remainder to the survivor in fee.”
    Mrs. Bull survived the execution of this deed but a few days, and in dune, 1837, after her death, the trustee conveyed the lands to the husband.
    This bill is filed by James to set aside these two deeds, on the ground, as he alleges, that George, by undue influence, and by harsh and ill usage, procured his wife, then in her last sickness, and beyond all hope of recovery, to join with him in the deed to the trustee, and that the deed was never delivered, nor its contents made known to Mrs. Bull.
    The bill also prays that the proceedings in partition, on account of certain irregularities therein, may be declared void.
    Ewing and Hunter, for the plaintiff:
    It is the well-established doctrine, that where the wife, by ^marriage articles, or in any other manner, has a power of [251 appointment which she can execute without the concurrence of her husband, she may execute it to him as well as to another, with only this caution, that the transaction is to be narrowly watched, on account of the danger of improper influence. Chancellor Mont, with his usual ability, has investigated this subject in Bradish v. Gibbs, 3 Johns. Oh. 549. He there says, Lord Eldon, in Parkes v. White, 11 Ves. 222, when speaking of the power of disposition of a feme covert over estates settled to her separate use, observed that the court had no difficulty in supposing that a woman having such interest might give it to her husband as well as any one else. The cases never intended to forbid that, and if he conducts himself well I do not know that she can make a more worthy disposition, though certainly the particular act ought to be looked at with jealousy. Indeed, it is a clear point through the books, that a married woman having a power which is a right to limit a use, may appoint to her husband in like manner as her husband may appoint to her. In the ease of the Methodist Episcopal Church v. Jacques, decided in October, 1817, in which the power of the wife over her property was largely discussed, it appeared that gifts to the husband had been constantly sustained, and the only check to them suggested in the cases is, that they are to be narrowly inspected on account of the danger of improper influence. If duly made in pursuance of the power, and at the same time fairly made, there is no pretense in any of the cases that a gift to the husband is not to be supported. There is no ground for the suggestion, that the husband who takes under a will, founded on marriage articles like these in the present case, is a mere volnnteer without consideration. The principle is well established, that when a person takes by execution of a power, he takes under the authority of that power. The meaning is, as Lord Hardwick expresses it, that the person takes in the same manner, as if the power and the instrument executing the power had been incorporated in one and the same instrument, and as if all that was in the instrument executing had been in that giving 252] the power. Now *the marriage articles are founded on the consideration of marriage, which is a good and valuable con. sideration, and the provision in the will is founded on the same consideration,'as if it had been a part of the samo antenuptial contract.”
    Now, it is to be remarked, as to these conveyances by the wife to the husband, which have been sustained in courts of equity, that they arise out of marriage contracts, entered into by the parties, with the aid of friends and by the intervention of counsel. In these cases the wife has her own attorney who counsels and assists her> in the first place, in framing the'articles, and afterward in settling and maintaining her own rights under them. The husband and wife stand more apart and independent of each other as to property where it is settled under marriage articles, and there is less of delicacy on her part in calling in the advice of friends, or of legal counsel, in a matter touching it, than in the ordinary cases which arise under our law.
    In those cases, too, the wife can act independently of the husband, and without his knowledge or intervention, and if she be not willing to make him the receptacle of her bounty, she can avoid that, and at the same time put an end to his importunities, by executing the power in his absence in favor of ancther.
    
      But not so in the class of cases to which this belongs. Here was no marriage settlement, and the facts in the case, in our opinion, show the employment of such undue influence and coercion, on the part of the husband, as must vitiate the whole transaction.
    We do not ask the court to reverse the proceeding in partition. That can not be done in a collateral suit. But if the deed from the defendant to his wife be declared void because of fraud or undue influence, then a court of equity, in furtherance of justice and to avoid multiplicity of suits, will examine the proceedings in partition, and adjust the rights of the parties, without requiring the plaintiff to proceed at law by writ of error. Indeed, if the proceedings in partition were reversed, still the aid of the chancellor will be required to set *aside the sheriff’s deed, which [253 can not be reached by any judgment of reversal in a court of law.
    H. Stanbery, for the defendant, Bull.
    The case of Bradish v. Gibbs, 3 Johns. Ch. 549, clearly shows that a provision by the wife for the husband is considered meritorious, and that a power will bo executed in his favor, which would not be even to a brother. Again, if any better consideration is required, we have it fully in this case. It is to be recollected that the husband is not merely a nominal gi'antor of this estate and power. At the time of the conveyance, Bull had, by the partition proceedings and sheriff’s deed, an equal interest with his wife. The consideration was, therefore, equal; and, in legal estimation, the chance of survivorship was equal. I should like to know, if the doctrine of complainant’s counsel prevails, what becomes of the husband’s moiety of this estate? Does that go along with his wife’s moiety to her heir at law, by reason of this non-execution ? Lastly, as to this point, there is a manifest error in treating this duty to convey as a mere power. It is in no sense a power; for powers are never imperative. They leave the act to be done at the will of the party to whom they are given ; but a trust is imperative. This is the language of O. J. Wilmot, 2 Sugden on Powers, 173, where it is further said, that we must be careful to distinguish between mere powers and powers in the nature of a trust.
    The remaining ground is as to the marital coercion. The argument for the complainant seems to proceed upon the idea, that a settlement made by a wife upon her husband is discouraged by the policy Of the law; and some attempt is made to liken it to the prohibited conveyances, from ward to guardian, etc. Such is not the doctrine of this court. On the contrary, in the language of Lord Eldon, “ the court has no difficulty in supposing that a woman having a separate estate might give it to her husband as well as any one else. The cases wore never intended to forbid that; and if he conducts himself well, I do not know that she can make a 254] more worthy ^disposition, though certainly the particular act must be looked at with jealousy.” Parkes v. White, 11 Yes. 222.
    It is clear from the evidence in this case, that Mrs. Bull exercised her own free choice, and that she made the deed to carry into execution her previous intentions, frequently expressed, of leaving her property to her husband.
    It stands admitted by the argument for the complainant, that there is no ground to impeach the proceedings in partition for fraud; matter of error is alone relied upon.
    The partition in this case was under the statute, not in chancery; if it had been, it would, of course, be subject to review, upon a proper bill. Neither is this a bill of review, but in so far as it relates to the partition, it is in the nature of a writ of error. I take it, nothing can be clearer than that a court of equity does not sit to supervise or correct the errors of a court of law.
    But it is said the matter alleged against the partition proceedings is not in the nature of legal error — that the judgment of the court awarding the premises to Bull and wife is merely void— that, consequently, the sheriff’s deed is also void, and being void, the complainant has a right to have them declared void in this court.
    I hardly know what is to be understood by the term legal error, as making a distinction in matters of error, or why a party should be entitled to call upon a court to declare a thing to be void which is void upon its face. It would be a nice matter to determine that it was more essentially void after the decree'than before.
    It is a now doctrine to hold, in respect of a judgment of a court having jurisdiction of the subject, that it is void, and that it may bo so treated in any collateral proceeding. It may be erroneous; that is all that can be said of it, and until it be reversed, in the proper way, it must stand and be respected.
    It is further argued, that a reversal of this partition in the usual way would not, because of the sheriff’s deed, entirely relieve the complainant. The title conveyed by that deed may or may not depend upon the affirmance or reversal of *those proceed- [255 ings, but it will be time enough for the complainant to come into this court for the cancellation of the deed, after he has removed its foundation.
   Grimke, J.

The land conveyed by the sheriffs deed did not, as respects her share, become the separate property of Mrs. Bull, as in Parkes v. White, 11 Ves. 222. If it were so, the conveyance from her could not- properly be executed by husband and wife, such property being placed entirely beyond any disposition or any participation of the husband. As to such property, a feme covert is to all intents and purposes a feme sole, and the conveyance of it would be by trustees appointed for that purpose. But in the present instance, the deed is by husband and wife, of the joint property of both, to a trustee, who is directed to convey back. Certainly no interest in the trustee is thereby created ; his widow would not be entitled to be endowed of one-third of the lands. He is, therefore, a mere channel of conveyance, and the transference of property, however circuitous it may be, results in the conveyance by the wife of her moiety to the husband. The creation of trust estates before marriage, and in contemplation of it, is very common, because the future wife is then surrounded by disinterested friends, and she is thus enabled to deal on an equal footing with her intended husband. The respective rights of the parties are then arranged before the marriage contract is entered into. But it must be a very strong case, if indeed any such case can exist, where a conveyance of this nature could be upheld after the marriage. There is an intrinsic inconsistency in a direct conveyance by the wife to the husband, whereas, in Ohio, the husband must be both grantor and grantee; and the inconsistency is not less real where the moans adopted are more circuitous, but terminate in the same end.

At the time when the deed to the trustee was executed, Mrs. Bull was laboring under a disease from which there was no hope of recovery. Not only was the husband aware that the machinery which he had contrived for the disposition of the property would almost necessarily result in a conveyance *to himself alone, [258 but her situation was such as to subject her peculiarly to an undue influence on the part of the husband; and we must say, that the evidence of such an influence being exercised is too strong and convincing to be resisted. The relation of husband and wife is such as very naturally to endow the husband with very great power and influence, and it is for this reason that the law watches with scrupulous caution any transaction between them which has for its object the disposition .of her property. It is unnecessary to repeat the testimony, or even to refer to it; -suffice it to say, that it has made but one impression upon us : that after every allowance is made for the bias which a grandmother might be supposed to have in favor of her grandson, the testimony of Mrs. Sturgeon ■is too clear and circumstantial not to be entitled to very great weight. The testimony of Mrs. Stinchcombe, if taken alone, would not perhaps have very great weight, but when taken in connection with that of Mrs. Sturgeon, it points to a transaction which can not be mistaken, and gives to those warm and excited conversations, which this witness so often overheard, a distinct and unequivocal meaning. We are satisfied that the circumstances under which the deed was executed, show that an improper advantage was taken of the feeble situation of the wife, and that it must be declared void, and so also must the deed from the trustee.

As to the proceedings in partition, this court has no jurisdiction to treat them as illegal, until they are declared so on certiorari. This is not a bill to set aside those proceedings as having been obtained by fraud ; it is an attempt to overturn them in consequence of error and illegality. When a court of errors has determined that matter, it will be time enough for this court to exercise its equitable jurisdiction.

Decree for the complainant.  