
    Harvey and Wife v. Pecks.
    Monday, November 11, 1810.
    1. Husband and Wife — Deed—No Privy Examination —Effect.—A deed from a husband and wife without her privy examination and relinquishment, is utterly void as to her, and furnishes no consideration to support a subsequent conveyance.
    2. Deeds — Fraud.~What are badges of fraud in obtaining a deed.
    Benjamin Borden, the elder, by his last will, dated the 3d of April, 1742, and admitted to record the 9th of December, 1743, gave to five of his daughters (of whom Lydia, who afterwards married Jacob Peck, was one) five thousand acres of land, “all of good quality;” (being part of his lands on James River, without specifying the situation or boundaries;) “that is, one thousand acres of good land, a piece, to every one of the said five daughters, to them and their heirs and assigns for ever;” and all the rest of his said lands to be sold, &c.
    By a deed of bargain and sale, dated the 17th of September, 1745, Jacob Peck, and Lydia his wife, for and in consideration of the sum of 301. current money, conveyed to Benjamin Borden, the younger, who was the testator’s executor, “all the said Jacob’s part of the land which he had by virtue of his intermarriage with the said Lydia, containing one thousand acres, situate, lying and being on one of the branches of James River, and in that part of Orange called Augusta;” without any farther description ; the land, as it seems, having never been allotted according to the will. This deed had the name of Lydia 519 Peck as well as that of *Jacob subscribed, without a mark; and her privy examination and relinquishment were not taken.
    On the 19th of May, 1747, a bond in the penalty of 701. was executed by Jacob Peck to Benjamin Borden, conditioned, that if the said deed was not good, having been executed before the said Jacob Peck (who was a native of Germany) had been naturalized, he was to make a good and lawful deed when demanded; and, on the 19th of January, 1748, a receipt “in full satisfaction for one thousand acres of land, upon the waters of James River, which was left to Lydia Borden, by her deceased father,” (without mentioning any sum of money as paid,) was also given.
    Benjamin Borden, the younger, having departed this life; and Martha Borden, his only daughter and heiress, having married Robert Harvey ; a deed was obtained by the said Harvey, on the 25th of May, 1797, from Jacob Peck and Lydia his wife, (who then were very old,) conveying to himself and his heirs the same one thousand acres of land, described as aforesaid; for and in consideration of the sum of 4001. of which he paid 181. in cash; giving his bonds for the balance, payable in four equal instalments. On the same day, by virtue of a dedimus previously issued from the Clerk’s office of Botetourt County, and brought with him by Harvey to the place where the deed was executed, Henry Walker and William Anderson, two Justices of that County certified “that they had examined Lydia Peck, privily and apart from her husband, touching the said conveyance; and that she acknowledged the same to Robert Harvey, and was willing such her acknowledgment might be recorded in the County Court aforesaid.” By a subsequent certificate, dated the 10th of April, 1798, the same magistrates stated, that she the said Lydia Peck, at the time of such examination, did declare “that she willingly signed and sealed the said indenture, which was then shewn and explained to her.” This deed, with the two certificates annexed, was duly recorded. By a writing under seal, bearing date the 27th of May, 1797, but appearing-in fact to have been executed on the same 25th of May,' the terms of the contract with Harvey were mentioned, and it was agreed that, “if a certain instrument of writing, executed by the said Lydia to her son Jacob, be of sufficient authority to vest the said one thousand acres of land in the said Jacob, then the above contract was to be void, the said deed to be cancelled, Harvey’s bonds given up, and the eighteen 520 pounds *in cash repaid him.” This writing was attested by the said William Anderson and Henry Walker. The written instrument referred to, as having been executed by Lydia Peck, to her son Jacob Peck, was dated May 11th, 1796, and signed
    her
    Ejlizabeth ¡x¡ Peck, (Seal.) mark,
    conveying “all and singular her hereditary interest and lawful partition part of and in the personal and real estate of her father Benjamin Borden, to her sons Jacob, John, and Joseph Peck, and their heirs and assigns for ever;” the name (Llizabeth) appearing to have been inserted in the body of the instrument, and also in the signature, by a mistake of the person who drew it.
    In September, 1799, Jacob Peck, sen. and Lydia his wife, filed their bill in the late High Court of Chancery, against Robert Harvey and Martha his wife, suggesting that both the deeds (to Benjamin Borden, the younger, in 1745, and to Robert Harvey in 1797) were obtained by fraud and imposition ; setting forth a variety of circumstances in support of this allegation, against each deed, particularly, that Harvey contrived to make the plaintiffs drunk, and obtained the last deeds from them when in a state of intoxication ; praying the Court to-decree the said deeds to be void and of no effect; that the said Robert and Martha re-convey the said lands to the plaintiffs ; that Commissioners be appointed to allot to them one thousand acres of land lying on the waters of James River, according to the will of the said Benjamin Borden, the elder, and to put them in possession thereof that the said Commissioners liquidate and settle the annual profits or issues, and that the said Robert Harvey and Martha pay the same to the plaintiffs, after deducting the sum of 181. paid as aforesaid by Harvey;” concluding with a prayer for general relief.
    The defendants by their answer denied the fraudulent practices charged in the bill, and insisted that the first deed, in 1745, had been fairly obtained for a price equal to the value of the land continually exposed to Indian depredations. They farther set forth, (among other allegations,) “that the defendant Robert, living at a considerable distance from the complainants, and being desirous of avoiding more applications than should be necessary, and, especially after frequent conversations with the complainants on the subject, did, by the 521 advice of his attorney, carry a *deed drawn, and requested two Justices to attend, because he had every reason to expect that the bargain would be concluded, from what had already passed; that he; offered, at first, 2001. which he conceived was a liberal offer, considering that the land had been fairly purchased of the complainants in the year 1745; that he believes that Jacob and Lydia Peck were both sober at the time of executing the last deed, and thinks he may well make this conclusion from the caution used in obtaining the writing, which he the said defendant signed, containing the reservation aforesaid : that another fact would shew a perfect knowledge in the complainants of what they were doing, and had done; viz. that after the last deed was executed, they came to the town of Eincastle, and in the presence of their son John Peck, gave up to the defendant Robert the bonds taken at the time of the purchase, and took fresh bonds with other security; and that neither they nor their son then uttered any complaint about the said purchase; nor did the latter pretend any claim to the land. The answer concluded with an averment that, if the decree of the Court should be adverse to the defendants, they had not land enough, belonging to the reservation made by Benjamin Borden, the elder, out of which to make the allotment required by the complainants.
    The testimony taken in the cause was very voluminous. The depositions of Peter Holm, and Hannah, his wife, (who was a daughter of the plaintiffs,) were positive in proving the fraud charged in the bill to have been committed by Harvey, and the intoxication of the plaintiffs by his procurement. The magistrates, Walker and Anderson, did not think the plaintiffs were intoxicated at the time of the contract, but mentioned that liquor had been procured. Walker swore that, before the business was closed, Mrs. Holm was told to make some toddy; and the cup was passed twice, as well as he remembered. Anderson recollected seeing Peck and his wife drink some liquor at the time the deed was executed; but did not remember whether it was or was not, mixed with water; (though he thought it was;) nor whether Mrs. Peck drank or not before the bargain was concluded: during his stay there, he thought she drank lightly. They both conceived her to have been in her senses when they took her relinquishment. The characters of these two gentlemen were proved to be highly respectable. Sundry depositions were also taken with the view of discrediting Peter Holm and 522 wife; *from which (as well as from her own deposition) it appeared that she was induced by a promise of reward from Harvey to assist him in making the old people drunk, and persuading them to make the bargain ; but nothing was proved against Peter Holm’s credibility, except that he was occasionally subject to habits of intoxication. The value of the land was proved to be 2,5001. or 3.0001. in the year 1797; the age of Jacob Peck was about one hundred years, and that of Lydia upwards of eighty; and both were very illiterate as well as poor. The witnesses differed in opinion concerning their capacity to make contracts; but the evidence was strong as to the mental imbecility and dotage of Jacob Peck.
    No evidence appeared to impugn the deed, dated in 1745, except the circumstances herein before expressed. The allegation in the answer, relative to the subsequent exchange of other bonds for those at first given by Harvey, was in substance proved.
    The suit, having abated by the deaths of the plaintiffs, was revived on behalf of their children; and, on the 26th of November, 1804, came on to be heard by the Judge of the Superior Court of Chancery for the Staunton District, who decreed “that the plaintiffs repay to the defendant, Robert Harvey, the sum of 181. with legal interest thereon from the 27th of May, 1797, and restore to him the bonds given for the balance of the purchase-money; that the said defendant deliver up both the deeds in question to be cancelled, and moreover reconvey to the plaintiffs any title which he and the other defendant had acquired, by either of the said deeds, to the lands in the bill mentioned, and pay the plaintiffs the costs of this suit; that certain Commissioners, appointed for that purpose, do ascertain and report to the Court the situation of such lands of Benjamin Borden, the elder, as will best answer the description of those devised by him to his five daughters, and whether sufficient of such remain undisposed of to satisfy the claim of the plaintiffs, as representatives of Lydia Peck; if not, who are in possession of said lands, and by what title they hold them.
    Prom this decree the defendants appealed.
    Peyton Randolph and Call, for the appellants.
    *Wickham and Wirt, for the appellees.
    So much of the argument in this cause as related to the evidence need not be inserted. The points in law made on either side were the following:
    1. With respect to the deed in ,1745, it was contended on the part of the appellants, that no objection on the ground of fraud being established ; and the price given by Benjamin Borden, the younger, not being inadequate, if estimated at that time when the land was in possession of the Indians; the attempt of the appellees to set aside the last deed was not founded in morality and justice. The Court of Equity, therefore, having a discretionary power to give or withhold its aid in such cases, ought not to interfere in their favour; especially considering the acquiescence of the plaintiffs during the great length of time which had elapsed since the date of the first deed.
    In answer to this, the circumstances, under which that deed was given, the authority and command which Benjamin Borden derived from his seniority, executorial office and resources, over the ignorance, confidence, poverty, and dependence of the original plaintiffs, the great advantage which his superior knowledge of the language, the country, its manners and laws, gave him in a bargain with an illiterate foreigner, were relied upon as powerful objections. The price too was prima facie inadequate; being only thirty pounds for one thousand acres of good land I for it does not appear in evidence, that the country was in the hands of the Indians. The defendant himself does not affirm it positively, but only (by recitation) speaks of his impressions and convictions. Another ’suspicious circumstance is, that the names of Jacob and Lydia Peck are signed to the first deed; but their marks to the last. If the deed to Borden, therefore, had any effect at all; it comes in such a shape, as not to be permitted to stand before a Court of Equity and good conscience. But, in fact, it is a mere nullity as to Lydia Peck; she being a married woman ; and her privy examination and relinquishment not having been taken. There is not a circumstance to shew any equitable or moral obligation upon 524 her to execute that deed; and *it must be presumed to have been under the coercion of her husband, without direct evidence to the contrary. Indeed, it may be denied that she ever signed it at all; for the probate of a deed said to have been executed by a married woman, without privy examination, is entirely extrajudicial, and proves nothing against her; since, at common law, (independent of our act of Assembly directing the mode of taking her relinquishment,) every deed from a married woman is void.
    Prom Jacob Peck himself, the deed passed nothing, because he was then an alien, as is proved by his subsequent bond to make a farther conveyance. An alien can purchase land, but cannot hold; and can require nothing by act of law.
    The length of time is no objection to the claim of the appellees; being repelled by the coverture of Lydia Peck, under whom the present plaintiffs claim ab initio. Besides, the limitation is not pleaded; nor is staleness of the demand insisted on either by plea, or answer; which is indispensable, that the other party may have an opportunity of accounting for it by a replication : for this reason, it will not do to make the objection by demurrer; much less by argument.
    In reply, it was contended that, as to Jacob Peck, (though an alien,) the deed was not void, (even if the land did not pass by it,) but was binding, on his heirs, by his covenant to warrant the title; and this whether they received real assets, or not.  The act of 1785, c. 67,  does not ‘affect this case; being altogether prospective in its operation.
    But the act of 1766, c. 20,  confirmed the deed, and gave it full effect as a conveyance. The charge of fraud is repelled by Peck’s deliberately, on the 19th of May, 1747, confirming the contract made in 1745, by giving a title-bond; and the penalty of that bond, being only seventy pounds, evinces that the price of the land, at thirty pounds, was not considered inadequate by either party.
    2. As to the last deed, the evidence was contradictory with respect to the imbecility of the plaintiffs, and other circumstances. The Chancellor should therefore have directed an issue to ascertain the disputed facts.
    The Counsel for the appellees observed, contra,
    that this was *not necessary, where the weight of evidence clearly preponderated on one side, as it did here. The deed to Harvey was plainly obtained by fraud; 1st. From the gross inadequacy of price; the right of Jacob Peck to the land being at that time no more than equal to one year’s purchase, in consequence of his extreme old age; and Mrs. Peck’s title being almost a fee-simple in possession of a tract of land worth 2,500! or 3,0001. ; which Harvey well knew; for the Court of Appeals in the case of Harvey and Wife v. Borden, 2 Wash. 156, had, in the fall term of the year 1795, decided the great question; and he was apprized that, when Jacob Peck died, he must give up the land. To this circumstance must be ascribed his sudden transition to pretended affection and kindness, after neglecting the old people, in the depth and bitterness of poverty, for so many years, his great anxiety, and urgent persuasions, and contrivances to induce them to conclude the bargain.
    In support of this point, as to the effect of gross inadequacy of price, they cited Grotius, b. 2, c. 12; Puffendorf, b. 5, c. 3, s. 9; Codex Juris Civilis, lib. 4, tit. 1; Pothier on Ob! p. 34, s. 25; 2 Bro. Ch. Cases, 177, note, Horne v. Meers; 7 Bro. Par! Cases, 70, Filmer v. Gott; 2 Vesey, 549, Chesterfield v. Janssen; 1 Bro. Ch. Cases, 6 — 9, Gwynne v. Heaton; 2 Bro. Ch. Cases, 167, Heathcote v. Paignon; 10 Vesey, jun. 209, Underhill .v. Harwood; 3 P. Wms. 315, Pusey v. Desbouvrie.
    2dly. The weakness of intellect of Peck and wife, if not in itself, yet coupled with the inadequacy of consideration, was clearly sufficient to vitiate the deed.
    
    3dly. The previous preparation of the deed and commission to take Mrs. Peck’s relinquishment was another badge of fraud,  It is not the usual course, where people deal upon equal terms, to prepare the deed before the contract. This is therefore a strong circumstance shewing Harvey’s settled determination to get it signed at all events; and a pregnant proof of his own impressions as to the condition of the persons with whom he had to deal.
    4thly. Scrupulous concealment of the negotiation from the only habitual counsellors of the old people, their sons; and,
    5thly. The false recital in the preamble of the deed that Jacob and Lydia Peck had conveyed the land by the deed of 1745, and that the new contract proceeded from their discontent, (occasioned by the rise in the value of the land,) and from Har526 vey’s generosity; *were additional evidences of fraud. This recital was a deception upon them, and shewed that through ignorance of law they were influenced by erroneous impressions concerning their rights; which circumstance, added to inadequacy of consideration, was enough to set aside the contract, 
    
    6thly. The fraudulent artifices used by Harvey to make the plaintiffs drunk, and take advantage of their intoxication, were forcibly urged.
    In reply, it was contended, that Harvey, having married a lady, whose ancestor and herself had been in possession of the land more than half a century, by virtue of a deed, and a subsequent bond confirming that deed, was not to blame for wishing to save his wife’s inheritance. The first deed not having been fraudulent, the consideration for the second was not inadequate; for Mrs. Peck having executed the first deed, and knowing that her husband had received the money, was bound in hon-our and honesty to sign the second. Concerning the pretended imbecility of intellect, the testimony is contradictory. The previous preparation of the deed and commission is a very common circumstance, and well accounted for by the answer.
    A conclusive circumstance, against the charge of fraud and intoxication, is, that the Pecks afterwards ratified the contract, by giving up the bonds to Harvey, and taking new ones.
    Thursday, November 29.
    The JUDGES ROANE and EEEMING (JUDGE TUCKER not sitting in the cause) pronounced their opinions.
    
      
      Husband and Wife — Deed—Necessity of Privy Examination. — To the point that in order for a wife to convey real estate there must be a privy examination of the wife, else the deed is void, the principal case is cited in Laughlin v. Fream. 14 W. Va. 334; McMullen v. Eagan, 21 W. Va. 244; Watson v. Michael, 21 W. Va. 572; Cooey v. Porter. 22 W. Va. 126.
      In Bartlett v. Fleming, 3 W. Va. 164, it was held, on the authority of the principal case, Countz v. Geiger, 1 Call 190, and Hairston v. Randolphs, 12 Leigh 445, that the certificate of justices of the execution. of a deed by a married woman, which omits to state that she had the deed fully explained to her, or had willingly executed the same and wished not to retract her execution of it, is radically defective, and the deed inoperative as to the wife.
      See further, monographic note on “Acknowledgments” appended to Taliaferro v. Pryor, 12 Gratt. 277; monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
      Deeds — Fraud.—See generally, monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564; monographic note on "Fraud” appended to Montgomery v. Rose, 1 Pat. & H. 5.
    
    
      
      Note. It was proved that Jacob Peck could write; but not that Lydia could.--Note in Original Edition.
    
    
      
       Aggas v. Pickerell 3 Atk. 225.
    
    
      
       2 Bl. 302.
    
    
      
       1 Rev. Code, c. 13.
    
    
      
       Edit. of 1769, p. 479.
    
    
      
       2 Ch. Cases. 103, White v. Small; 2 P. Wms. 203, Clarkson v. Hanway; 2 Atk. 324, Bennett v. Vade; 1 Bro. Ch. Cas. 560, Gartside v. Isherwood.
    
    
      
       2 Ch. Cases, 103, White v. Small.
    
    
      
      
         1 P. Wms. 315, Broderick v. Broderick; 4 Vesey, jun. 348; Griffin v. Nanson; Moseley, 364, Lansdown v. Lansdown; 2 Atk. 33, Simpson v. Vaughan, and the cases there cited.
    
    
      
      Note. Tile second deed was to Harvey Min self, and Ms heirs: not to his wife. — Note in Original Edition.
    
   JUDGE ROANE,

upon the whole . case, was for affirming the Chancellor’s decree.

JUDGE FEEMING.

The only material question in this case is, whether the deed from Jacob Peck and wife to the appellant Robert Harvey was, or was not, fraudulently obtained? In proof of which there are several strong badges and circumstances spread upon the record.

1. The • appellant’s going to the house of Peter Holm, where *Peck and his wife were on a visit to their daughter, with a deed ready prepared, with a commission to take the relinquishment of her right to the land in question; and two magistrates to take her privy examination, before any contract was made, or perhaps treated for.

2. The manifest inadequacy of the price of 4001. for the land, stated by the depositions to be worth from 2,500 to 3,000 pounds.

3. The extreme old age, weakness and imbecility of Peck and his wife; of whom the land was purchased for the above-mentioned trifling sum of 4001.; and,

4. The plying the old people (accustomed to intoxication) with ardent spirits, procured from the neighbourhood, by Harvey himself; before the business was completed; or, perhaps, before the negotiation had commenced.

An attempt has been made, however, to invalidate the testimony of Peter Holm and his wife, by whom the latter circumstance was proved: but their testimony respecting that matter is corroborated by two of the appellant’s most respectable witnesses, the magistrates who took the acknowledgment of Lydia Peck. Mr. Walker, in answer to a question put by the appellant, whether he saw one. or both of them drink freely, said, ‘ ‘I think they drank twice, but I did not discover that they drank deeply;” but they might have drank twice more, or oftener, without his observing them; as I do not suppose he was a spy upon their actions, nor 0 particular as to notice whether they drank deeply or not; nor do I think it material, as the crime and mischief lay in Harvey’s having procured the liquor, from the free use of which, it may be fairly presumed, they were under no restraint: and the circumstance of the liquor being sweetened would naturally produce a double effect; first, in disguising its strength ; and, secondly, would induce a more free and liberal use of it: and it is in evidence that they were put to bed, on account of intoxication, soon after the business was finished. The evidence of Peter Holm and his wife is strongly supported by that of Walker and Anderson, in another important part of it, which is, that Eydia Peck refused her assent to. the contract, “or to-sign the deed, unless Harvey would enter into an article to cancel the bargain, in case an instrument of writing she had executed to her son Jacob Peck some time ago-was sufficient authority to vest the 528 title of *said land in him; which the said Harvey did, and then she signed the deed.” Those are the express words in Walker’s deposition; and that of Anderson is much to the same effect.

1 see nothing to lessen the credit of Peter Holm’s evidence. His deposition consists chiefly in answers to a variety of interrogatories, put to him by the parties, which he seems to have answered with frankness and candour: several of them (had they been answered in the affirmative, would have been much in favour of the appellees) he professed to know nothing about. And when the question following was asked him, “do you remember of hearing the defendant insisting on your mother-in-law, Eydia Peck, to drink, and how often?” he answered, “I heard him ask her once.”

These circumstances in the testimony of Peter Holm and his wife, corroborated, in some of its material parts, by that of Walker and Anderson, two of the appellants’ principal witnesses, perfectly establishes its credibility with me. And I have no hesitation in saying that I think the decree a very just one, and therefore concur in the opinion that it be affirmed.

With respect to the decree of September, 1745, from Jacob Peck and wife to Benjamin Borden, it may be observed,

1. That the wife of Peck, in right of whom he claimed an interest in the said land, never relinquished her right to the same.

2. Neither Peck nor his wife (the latter of whom claimed a right to the 1,000 acres of land, on the waters of James River, under the will of Benjamin Borden, her father, the locality or identity of which had never been ascertained) were ever seised, or in possession thereof, and therefore could not convey the same to Benjamin Borden.

Decree affirmed.  