
    Richmond.
    Fletcher & wife v. Ashley & als.
    
    1849. October Term.
    
    (Absent Cabell, P.)
    A deed executed by a woman a few days before her marriage, to secure a debt due to her daughter by a former marriage, held to be valid.
    
      Mrs. Maria D. Hall was the guardian of her daughter Mary Ann, and as such she had received the sum of 100 dollars. On the 24th of December 1828, she executed a deed, by which, reciting said indebtedness, she in consideration thereof and of natural love and affection, conveyed to John Pollard, a tract of twenty-five acres of land in King & Queen county, a negro woman named Louisa, one bed and bedstead, one china press, one bureau, eight chairs, one cow and one watch, in trust for herself during her natural life, whether she continued a feme sole or married; and at her death that the trustee should deliver to the said Mary Ann the said property, in lieu of the sum then due to her from her mother; and if the said Maria D. outlived the said Mary Ann, then at the death of the mother, the property was to go to the children of Mary Ann, or if she left no children, then to pass as the law for the distribution of intestates’ estates should direct. This deed was acknowledged before two justices on the day of its date, and was admitted to record in the clerk’s office of the County court of King & Queen on the 5th of January 1829.
    
      On the 31st of December 1828, Mrs. Hall was married to Daniel Ashley; and she died about the year 1842, leaving her husband, Mary Ann who was then married to W. D. Fletcher, and three children by her last marriage, surviving her.
    In 1842, Daniel Ashley and his three children, who were infants, by the said Daniel as their next friend, instituted a suit in equity in the Circuit court of King & Queen county, against Fletcher and wife, and Pollard the trustee, to set aside the deed of the 28th of December 1828. The bill charged that the deed was made in contemplation of marriage, without the knowledge or consent of Daniel Ashley; and in fraud of his marital rights. That it was a merely voluntary deed, or if there was any valuable consideration for it, the consideration was grossly inadequate. That Fletcher and wife had obtained possession of the personal property mentioned in the deed against Ashley's consent; and threatened to turn the plaintiffs out of possession of the land.
    The defendants answered the bill. Fletcher and wife denied that the deed was made without the knowledge and consent of Ashley ; and said that without a previous settlement of her property, Mrs. Hall would not have married him. That the deed was on valuable consideration ; and looking to the limitations of the deed in favour of the grantor, and to the fact that she was then in the prime of life and likely to live as long as her child, the consideration was not inadequate. They admitted they had received the negro woman Louisa and her child, and a part of the other personal property mentioned; but they said that the cow had been consumed by Ashley, and the watch and chairs destroyed by him.
    It appeared from the evidence, that Mrs. Hall was in the prime of life when the deed was executed; but her precise age is not stated. The deed was prepared at her request about two months before it was executed; and she was indebted as guardian of her child as stated in the deed.
    There were different estimates of the value of the property conveyed. Pollard the trustee, who wrote the deed, expressed the opinion, that the property at the time of the conveyance, was worth about 400 dollars ; and taking into consideration the provisions and limitations set out in the deed, he thought there was not any great disparity between the property and the consideration stated, for the reasons that Mrs. Ashley was then in the prime of life, and might have lived many years; the negro woman might have died, and the balance of the property was liable to waste from use: And then nothing but the land would have remained to make good to the daughter the 100 dollars. Two other witnesses estimated the property subject to the limitations of the deed, one of them at from one hundred and fifty to two hundred dollars, and the other from two hundred to two hundred and fifty dollars.
    Upon the question whether Ashley knew of the execution of the deed before his marriage, two witnesses stated that they had heard Mrs. Ashley tell him repeatedly that he knew before the marriage that the deed had been executed, and that he did not deny it. Another witness stated that he informed Ashley of the existence of the deed some years after the marriage; and he stated facts to shew that this was the first information Ashley had that there was such a deed. It was, however, proved by the clerk of the Court, that Ashley came to the office a few days after the deed was admitted to record, and examined it, when he seemed much incensed.
    The cause came on to be heard in May 1843, when the Court below held that the deed having been executed pending the treaty of marriage between Mrs. Hall and Daniel Ashley, without notice to him, was fraudulent and void as to Ashley, except for so much thereof as secured to the defendant Mary Ann Fletcher, the payment of the sum of 100 dollars, with interest thereon; and decreed that John Pollard, the trustee in the deed, should sell at public auction for cash, such of the personal property in the deed mentioned as was still in existence, including the increase of the slave Louisa, or so much thereof as would be sufficient for the purposes of the decree ; and out of the proceeds of sale should first pay the expenses thereof; secondly, should pay to the plaintiffs their costs; and third, should pay to the defendant Fletcher 100 dollars, with interest thereon from .the 28th of December 1828 till paid, deducting therefrom one half the costs paid to the plaintiffs as aforesaid; and that he should deliver to the plaintiff Daniel Ashley, the residue of such personal property, and the surplus of the proceeds of sale which remained after the payments aforesaid. From this decree Fletcher and wife applied to this Court for an appeal, which was allowed.
    
      Griswold, for the appellants,
    insisted :
    1st. That the deed was valid, even if it had been voluntary and made to a stranger without the privity of the husband. He said that the ground on which such a deed is set aside is fraud. 1 Story’s Equ. Jur. § 272, 273 ; Atherly on Marriage Settlements, ch. 20, p. 319, 27 Law Libr.; Buller, J. in Strathmore v. Bowes, 2 Cox’s Cas. 28, He admitted it was true that in some of the cases, the Judges say without qualification, that a deed executed by a feme sole pending a treaty of marriage, without notice to the husband, is void for fraud. Lance v. Norman, 2 Ch. R. 79, cited Roper on Husband and Wife 164; Howard v. Hooker, 2 Ch. R. 81; Carleton v. Earl of Dorset, 2 Vern. R. 17; Poulson v. Wellington, 2 P. Wms. 533; King v. Cotton, Id. 674; Ball v. Montgomery, 2 Ves. jr. R. 191; Strath
      
      more v. Bowes, 1 Ves. jr. R. 22; Goddard v. Snow, 1 Russ. R. 485. But he insisted that in none of these cases did the facts justify the dicta. That in all of them there were other circumstances of fraud. And to shew that fraud will not he implied from these facts alone, he referred to Atherly on Marriage Settlements, ch. 20, p. 319-327; Roper on Husband and Wife, 166, note h.) De Manneville v. Crompton, 1 Ves. & Beame, 354, 7 Cond. Eng. Ch. R. 193; Crump v. Dudley, 3 Call 507; Blanchet v. Foster, 2 Ves. sr. R. 264; Blithe's Case, Freem. R. 92.
    2d. That the deed in this case was to provide for a child of a former marriage, and therefore was a valid deed. 1 Story’s Equ. Jur. § 273; Atherly on Marriage Settlements, 327-8; 2 Lomax’s Digest 304-5; Hunt v. Matthews, 1 Vern. R. 408; Blithe's Case, Freem. R. 92; King v. Cotton, 2 P. Wms. 674. That the deed was executed in good faith, to provide for a child, with no purpose at the time of defeating the marital rights of the husband.
    3d. That the deed was on valuable and adequate consideration, and therefore valid. Crump v. Dudley, 3 Call 507. And that it was executed with the privity of the husband.
    4th. That with full knowledge of all the facts, Ashley had surrendered the personal property to Fletcher and wife, under the deed, acknowledging it to be theirs, and that he could not, therefore, afterwards claim it. Brisbane v. Dacres, 1 Eng. C. L. R. 43 ; Lee and wife v. Stewart, 2 Leigh 76.
    
      Daniel, for the appellees.
    Three points are established by the record.—I. The deed by the wife, by which the marital rights of the husband were intercepted and defeated, was made pending the marriage engagement, without the privity of the husband, and with the design to defeat them. II. That its existence was not discovered by him until after the marriage, and that he dissented from it when discovered, and resisted it when it was sought to be enforced. III. That the debt secured by the deed was an inadequate consideration for it.
    The counsel examined the evidence to sustain these propositions, and then proceeded:
    But the debt itself, secured by the deed, is established by no proof. The recitals of the deed are not evidence against persons claiming against, and not under it. Blow v. Maynard, 2 Leigh 29.
    As to the cases on the first point, the Court is referred to Waller v. Armstead, 2 Leigh 11; Roper on Husband and Wife, ch. 5, § 1, p. 161-3, and the cases cited; M’Queen on Husband and Wife, 59 Law Lib. 38; Goddard v. Snow, 1 Russ. R. 485; England v. Downs, 17 Cond. Eng. Ch. R. 97; Taylor v. Pugh, 1 Hare’s R. 608, cited by M’Queen, p. 37.
    In the first of these two cases last cited, Lord Lang-dale said such deeds were prima facie good, and that the fraud must depend on the circumstances of each case. But that is at war with most of the cases; and in the case last cited, it is said it does not appear necessary to make out a case of positive fraud and deception ; and even Lord Langdale, in England v. Downs, says, “ the clandestinity of the proceeding is a material element from which fraud will be inferred.” But tried by any test, the present is a case of positive fraud and deception. Goddard v. Snow is a clear authority against the deed.
    Upon the point of acquiescence by the grantor, or confirmation, the Court is referred to 1 Fonb. Eq. ch. 11, § 13, note R., and the cases there cited. There must be some positive act of confirmation, for the maxim is “ Quod ab initio not valet tractu tenvporis non convalescet.” “If a case be against conscience, then if the party, being fully informed of all the circumstances and' of the objections to it, voluntarily comes to a new agreement, he thereby bars himself of that relief which he might otherwise have in equity; not so, if the confirmation be a continuance of the original fraud and imposition” In Morse v. Royal, 12 Ves. R. 355, Lord Erskine says, “As to the doctrine of confirmation, it stands upon several authorities, where a man having been defrauded, with complete knowledge chooses to come again in contact with the person who defrauded him, abandons his right to abrogate the contract, and enters into a plain, distinct transaction. But when the original fraud is clearly established by circumstances not liable to doubt, a confirmation of such a transaction is so inconsistent with justice, so unnatural, so likely to be connected with fraud, that it ought to be watched with the utmost strictness, and to stand only on the clearest evidence as an act done with all the deliberation that ought to attend such a transaction, the effect of which is to ratify that which in justice ought never to have taken place.”
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the evidence in the record does not shew that the deed executed by Maria D. Hall previous to her intermarriage with Daniel Ashley, was executed by the said Maria with intent to commit any fraud upon the marital rights of her intended husband. It was executed not only upon a good, but a valuable consideration ; and taking into consideration the perishable nature of a portion of the property, the hazard of loss from the death of the slave, and the insufficiency of the real estate to pay the debt with the interest which might reasonably have been expected to have accrued thereon before the probable termination of the life estate, there was no such gross inadequacy of consideration as to raise the presumption that the same was merely colourable, and intended to conceal a fraudulent intent. The Court is therefore of opinion, that said decree is erroneous, and the same is reversed with costs, and this Court proceeding, &c., injunction dissolved and bill dismissed with costs.

Brooke, J.

I concur in the results of the opinion of the Court. But though the deed in this case was not fraudulent, but was bona fide, yet it would not be a bar to the marital rights of the husband if it was not proved that he knew it had been executed after the engagement and before the marriage. I think, however, his knowledge before the marriage of the execution of the deed, is fully proved by the evidence in the record; and that is a bar to his marital rights. I expressed this opinion in Land v. Jeffries, 5 Rand. 211, and it seems to be the better opinion of the English Judges.  