
    Jordan vs. Black.
    Husband AND Wife. Conveyance in fraud of marital rights. A disposition made by a feme sole of her property after a contract of marriage and before solemnization, will be fraudulent as against the husband who has been kept ignorant of the transaction. 2P. W. 6*74; 2 Bro. C. C. 345 5 1 Ves. Jr* 22; 2 Cox, 28 ; 1 Cond. Eng. Ch. R. 188.
    Same. Same — exceptions. This rule is perhaps without exceptions, so far as> by implication, it denies the husband the power to disturb a disposition of which he was informed before the marriage. But so far as it affirms his power to set aside a disposition concealed from or unknown to him, it admits it seems of two classes of exceptions — 1, founded on the meritorious objects of the conveyance — 2, on the husband’s situation as to pecuniary means- 7 Cond. Eng* Ch. Rep. 194,195.
    Same. Conveyance of slaves to a trustee. If a feme sole, between the contract and solemnization of an intended marriage, convey her slaves to a trustee to emancipate them at her death, and the intended husband be informed oí the conveyance before the solemnization, the court, without inquiring whether the object of the conveyance were meritorious, and without laying any stress on his pecuniary situation, would not entertain the husband’s bill to set aside the conveyance.
    SAME. Effects of such conveyance. Such a conveyance vests the trustee with the legal title, and thefeme with an equitable life estate in the slaves, and a sale of them by the husband is equally an injury to both interests.
    Gideon Morgan, Sen., of Kingston, by his will made and published on the 8th of May, 1828, gave a large and valuable portion of his real, and all his personal estate, including his slaves to his wife, Elizabeth. She, about the middle of the afternoon of the 7th- of October, 1834, being on that evening to intermarry with Hambright Black, the defendant, who had no property, and was much embarrassed by his debts, sent for Henry S. Purris, deputy clerk of the county court of Roane, and requested him to draw a deed, in which, after reciting the intended marriage, and that she was absolute owner of certain slaves by name, in consideration of the sum of one dollar paid by Lewis W. Jordan, the complainant, bargained, sold and conveyed to him, his heirs, &c. said slaves and their increase, but to remain in her possession, and be under, and subject to her control during her natural life, — not to be sold by Jordan, his heirs, &c., but to be held by him and them at her death, to emancipate them and their increase, to effect which emancipation, he' and they were to have the right to hire them out for such time as might be necessary to raise a fund sufficient for that pur-* pose-, reserving to herself the right to emancipate any, or all of them or their issue, at any time during her life.
    This deed she immediately executed and acknowledged before Purris, as deputy clerk, and requested him to cause it to be registered, which was done the same evening, and before the issuing of the license for the marriage. At its execution, besides Mrs. Morgan and Purris, no one was present, except Amanda Ashley, an inmate of her house, and C. W. Hardin, a clerk in her store, and he only part of the time. So soon as Purris had retired with the deed* she sent for Black to the tavern, whither he had gone but a short time before from her house, to dress for the wedding. On his arrival, according to the statement in his answer, — “she informed him of the attempt to make an arrangement for the freedom of the negroes; that Purris had written and taken away some instrument of writing, conveying the negroes to complainant for the purpose, but reserving to her the possession, control and right to emancipate them at any time during her life, and wanted to know what he thought of it. He told her it was entirely unexpected to him, and he cotdd not consent to it; that it would place him and her in a situation he did not wish to occupy; that it would be virtually offering the negroes their liberty to shorten her life, &c. &c., adding other remarks to apprise her of the consequences of the measure, and make her hesitate before completing an arragement, so evidently calculated to embarrass herself and him, and furnish grounds for apprehensions and fears in every way inconsistent with domestic happiness and peace. She replied, that she hardly knew what to do, but said the consideration mentioned in the instrument was only one dollar, which she had not received; that she did not consider that, or any other instrument binding until the -consideration had been paid, and that she would not receive it.” He, being thus assured that the instrument, whatever might be its nature, was not executed, as she understood it, and that it should not be, remained with her till the marriage, which took place one or two hours afterwards.
    The negroes continued in Black’s possession after the mar-r¡age fifi t|le gth of December, 1836, when the complainant filed his bill in the chancery court at Kingston, stating the above facts, and that Black claimed the negroes as his own property, notwithstanding the deed; had repeatedly offered to sell them as slaves; that he had recently confessed certain judgments, and had directed the sheriff of Roane to levy executions thereof on the negroes and sell them as his property; that he had threatened to sell them out of the country, and charging that he would do so unless restrained; that complainant would, if not prevented, execute the trutst vested in him by the deed of Mrs. Black, who still desired it to be done, and was unwilling that the negroes should be sold: praying that Black might be perpetually enjoined from selling, or sending off out of hzs possession all or any of said negroes; that he should be enjoined to keep them in his possession for the use of his wife and himself until her death, should he survive her, to the end that the trust might be executed, and for general relief.
    Black’s answer stated the facts relative to the- execution of the deed and his knowledge of its existence' as they are above detailed; and the proof corresponded therewith. There was much other proof, but the above statement exhibits all of it that is necessary to present the questions of law debated and decided.
    The cause was brought to hearing, at March term, 1838, of the chancery court, before his Honor Chancellor Williams, who dismissed the bill without prejudice. The complainant appealed.
    J. H. Crozier and G. S. Yerger, for complainant.
    I. The only question in cases where fraud upon marital rights is charged is — was the conveyance made without the privity, i. e. without the knowledge of the husband? If it was, in most cases it would be void. If not, in all cases, it would be good. 1 Ves. Jr. 28; 1 Story’s Eq. § 273; Newland Cont. 424, 428; St. George vs. Wake, 7 Eng. Cond. Ch. R. 188; 1 Russell, 490. All the elementary writers say it must be done without the privity of the intended husband. “Privity” means joint knowledge with another of a private concern, implying often consent and concurrence It is not a question, however, of contract, requiring his assent or agreement, other than that which is to be inferred from knowledge of the deed, and consequent solemnization of the marriage.- It is for fraud, not for want of assent, that the transaction is to he impeached; and the fraud consists in conveying after a treaty of marriage, and concealing the fact from the husband. But if the husband had notice before the marriage, though but ten minutes before, it is no fraud on him; he need not have consumated it. The secret conveyance would be a good defence to an action for breach of promise of marriage. 7 Cond. Eng. Oh. R. 192, and authorities above cited.
    2. Here Black had knowledge of the fact that the deed had been made. Her erroneous conclusion, that it could not operate without payment and receipt of the nominal consideration, does not alter the law. Tt is the defence of ignorance of the law. Shotwell vs. Murray, 1 John. C. R. 512; 6 Id. 169; 8 Yerger,. 500. She distinctly informed him of all its contents, and where it was, which was all the notice required. 1 Story’s Eq. § 400. She did not inform him it was registered, because she did not know it; nor would it make any difference whether registered or not. In case it was not, it would only be void as to creditors and purchasers without notice.
    3. But there is a class of cases, of which Hunt vs. Matthews, 1 Vernon, 408, is an example, in which notice to the husband is dispensed with, on account of the meritorious character of the object, and the husband’s pecuniary circumstances and condition. Freedom of the slaves at Mrs. Black’s death, is such a possibility as the law will notice and secure; McCutchen vs. Price, 3 Haywood, 211; David vs. Bridg-mon, 2 Yerger, 559, 563; and as soon as the deed was made the slaves became vested with such an interest in their freedom as it is consistent with the policy of law to protect. Fisher’s negroes vs. Dabbs, 6 Yerger, 119, 126, 128; act of 1833, c 81. Any instrument which expresses the volition of the master that the slave shall be free, is good as between the master and slave. 2 Yerger, 123, 126. It is therefore insisted, that as soon as the deed was made, the slaves acquired a right to have the provision for their benefit perfected; and that, in such case, no subsequent act of the party who makes the deed can divest the right of the slave.
    4. The provision for the negroes will not be defeated by the fact that Jordan, the trustee, was not cognizant of the deed, for if he had refused to assume the trust, a court of equity would supply a trustee. Co. Lit. 113, a. note 2; 6 Ves. 663; 8 Ves. 570, 574; 2 Story’s Eq. § 1058, 1061.
    Churchwell for the defendant
    insisted, that the deed was void because no consideration passed and no interest accrued to the negroes or to Jordan, at the time of its execution, and never could afterwards; 1 Harrison’s Ch. 57; Cowper, 434; 4 Eq. R. 266; because it was not delivered till after the marriage, and then Black gave no assent to it either express or implied; because the power reserved to Mrs. Morgan destroyed the estate conveyed to Jordan, 2 Vernon, 510; Roberts on Frauds, c 6; because it is” against the policy of law, and inconsistent with the safety and security of human life, equivalent to an offer of freedom to the negroes to destroy the life of their mistress, Newland on Cont. 497, 157; because it was signed after the treaty of marriage concluded, only an hour or two before the ceremony, privately, and without the knowledge or consent of Black, and therefore a fraud upon his marital rights. Newland 497; 1 Fonblq. 258, 270; 2 Vernon, 500; Reeve’s Dom. Rel. 182; 2 Ch. R. 43; Carleton vs. Dorset, 2 Vernon, 17; Pitt vs. Hunt, 1 Vern. 18; 2 Vern. 270; 2 Afk. 421; 1 Story’s Eq. § 273, and authorities cited.
    But Black is to be regarded as a purchaser, and all the authorities, which show that a deed made to defraud subsequent purchasers, is void, equally apply to this case, 2 Ves. 11; 2 Atk. 481; 1 Fonblq. 148; and the notice which he had could not make that good which was void by statute, New-land on Cont. 358. Whenever the intent to deceive appears, the conveyance is void, and the pretence of discharging a moral obligation, will not save a fraud, or give merits where none existed before. Fonblq. 272: Newland on Cont. 352.
    
      June 21.
   Reese, J.

delivered the opinion of the court.

Elizabeth Morgan who was the relict of Gideon Morgan, Sen., and the owner of several negroes, of a mercantile establishment, and of valuable real estate, being without any children and of a somewhat advanced age, entered into a treaty of marriage with the defendant, who was a widower, with three children. He is much younger than Mrs. Morgan, and he was without property, and in debt at the period in question. On the day of the marriage Elizabeth Morgan executed a deed, in which she recited that she was about to enter into a marriage, and by which she conveyed all her ne-groes to the complainant in trust to be emancipated at her death, but in the mean time, and during her life, to remain in her possession and under her control; and she reserved power to emancipate them herself during her life. The marriage took effect.

The defendant, the husband, being about to sell the ne-groes in question, or some of them, the complainant has filed this bill to enjoin and restrain him from doing so.

The prayer of the bill is resisted on the part of the defendant, on the ground that the deed was in fraud of his marital rights, and that therefore a court of chancery shall not assist the complainant, or lend its aid and protection to the interests created by said deed. We will, for the present, consider this case as if it were a bill to set aside and cancel the deed to the complainant. The ground upon which relief is given against a disposition of property by the wife pending the treaty of marriage, is, that such'disposition, if made without the knowledge of the husband, disappoints his just expectations. Such relief, therefore, can only be given in those cases where the husband has been kept in ignorance of the transaction up to the moment of the marriage.

If he has been informed of the wife’s disposition of the property, he may on that ground refuse to carry the marriage into effect; if he do not this, but solemnizes the marriage he cannot afterwards set aside the disposition by her made of the property. The general rule to be gathered from all the cases is, that a disposition by the wife of her property after a contract of marriage, and before it has been solemnized, will be fraudulent as against the husband who has been kept ignorant of the transaction. 2 P. W. 674; 2 Bro. C. C. 345; 1 Ves. Jr. 22; 2 Cox, 28; 1 Mylne & Keene, 510; 7 Con. En. Ch. R. 188.

There are exceptions to this rule, where although the intended husband was kept in ignorance of the wife’s disposition of the property, the disposition, nevertheless, has been held good, because the court took into consideration the meritorious object of the conveyance, or the situation of the intended husband in point of pecuniary means. But no case has been shown, or it is believed can be produced, where the intended husband being informed before the marriage, of the disposition of the property by the wife, has been permit-ed to set aside such disposition.

In the case before us, it appears from the answer, that after the execution of the deed, and before the marriage, the defendant was informed by Mrs. Morgan, that she had executed the conveyance, and was fully apprised of its contents. Upon his remonstrating against the arrangement, she said that she had not received the nominal consideration of one dollar mentioned in the deed, and told him that she would not receive it; and he and she were both of opinion that unless it were paid, the deed would not be effectual. Here then is a case in which the husband was fully and truly apprised of what had been done. And if this were a bill by the husband to set aside this disposition of the property as fraudulent against him, we would, upon the authority of the cases on this subject, be constrained to refuse him relief, even without inquiring whether the object of the conveyance be meritorious, and without laying stress upon the situation of the husband in point of pecuniary means.

It is still more clear that we should grant the relief in this bill prayed for. The complainant has the legal title to the negroes in question by virtue of the conveyance; the wife of the defendant has the equitable title for life, and to say nothing of the question of emancipation, the sale and conveying away of the negroes would be destructive of the'equitable title of the wife, who is not even a party to these proceedings.

The decree therefore of the chancellor will be reversed, and the defendant will be enjoined from selling or disposing of the negroes.  