
    Sarah Green v. Wm. Branton & Eliz. Branton,
    Pitt.
    New maltei’j brought forward in the answer as a defence, which would have aided-tbe Plaintiff, had the bill been framed with reference to it, cannot be used to sustain the relief sought.
    A married woman can be bound as to her land, there being no separate estate, only by her deed executed in the prescribed form, or . the decree or judgment of a Court, and if her deed be informal, it cannot be aided.
    Where the husband, with the wife’s privity and consent, sold her land., and she received and enjoyed the purchase money, upon her bill to be relieved against an obstacle to her, in asserting her right to the same land, her fraudulent conduct does hot bar her — and an outstanding legal estate, which otherwise she had a right to have removed, wdl not be held up as a security for the purchase mcney.
    A wife is in all cases barred by a judgment against her husband and herself, obtained during the coverture, unless obtained by a combination between the other party and the husband, in fraud of the wife’s rights — and ’ if the husband, for his own convenience, de„ dines to defend the suit, the wife cannot have the judgment reversed, simply because it was unjust.
    As where the husband and wife were served with a set. fa. to subject her land to her father’s debt, and the husband, without collusion with the Plaintiff, or the administrator, declined defending her interest — it was held, that the wife was barred by the judgment.
    The bill charged, that the Plaintiff’s father, Samuel Branton, died in 1800, leaving four children, William, Samuel, Elizabeth, then intermarried with Matthias Holstein, nf Pennsylvania, and the Plaintiff, then intermarried with George Green : That the father died seised in. fee of the land in dispute, and intestate : That his two sobs administered, and received personal assets more than sufficient to pay all his debts ; which consisted in part, of a debt to one Standley of =631. 1 and of a debt to one Curl, of =224. 2 : That, the two sons fraudulently bought in all the personal property under Standley’s execution, so that there was nothing left to satisfy Curl, who sued on his bond and got judgment, tho’ the plea of fully administered was found for the administrators* In consequence of their fraudulent combination : That a scire facias issued against the heirs, ami a judgment was taken against the lands it) their hands, on which they were sold, and the two sons became the purchasers at a very inadequate price : That there were in fact, personal assets sufficient to pay that debs, huí that the sons refused to pay it, with a view of buying tiu» land, and defrauding their sisters of their shares : And that to effect this purpose, they combined together, and with George Oreen, the Plaintiff’s then husband, not to make defence to dies(A, fa. and for that purpose, they gave Breen g400¡, in consideration of which, he did not defend the Plain - tiff’s interest against Curt1 s scire facias.
    
    The bill then charged, that Green was dead j that Holstein and wife fiad conveyed to the Plaintiff; that So-' mud,rhe younger, was also dead, and that his part of die land had descended to bis daughter Elizabeth ; who, and her unelf- William, were Defendants. The prayer was for a convey anco of one half of the land of which Samuel Branfon senior died seised.
    The answers denied personal estate of the father to the value of Standleifs debt, and set up a title by deeds made by the father to his two sons just before his death, and averred, that the sons were advised by Counsel, that tiiose conveyances being voluntary, would not protect the land from creditors; and that apprehending an unjust demand for a large sum would be hr,night against their father by one Stringer, they determined not to pay Curl’s debí, but suffer the land to be sold for it, and purchase it in, and thus perfect (h ir title; That the sale was regular, and that the sons bought fairly. All collusion with George Green was denied ; but it was admitted, that he complained that the father liad given all his land to his sous, and that to satisfy him for his disappointment, they gave him S4O0 ; but the period of that contract was tint stated. The Defendants relied upon the opportunity 0f defence to the scire facias, and insisted on their title H!j<je(, flle esoention sale.
    Replication was made to the answers, and proof taken . hut a statement of it, and copies of the deeds are not material to the point decided by the Court.
    
      Gaston, for the Plaintiff.
    
      Hogg, for the Defendants.
   S.0FUIN, Judge,

after stating the case, proceeded : The deeds made by the father are among the exhibits, and are so d< feciively drawn as to be wholly inoperative» Besides hat, the depositions show,, that those deeds were obtained from the old man in extremis, and under circumstances which completely invaliua.e them. It was a gross and unfeeling imposition on the father’s weakness. They are not, the shadow of a title for the Defendants y but constitute cogent evidence against them. Had the bill been differently framed, those (beds might have furnished a specific ground of relief. If they had been held up by the sons as a title ; if that pretence induced George Green not to defend the sei.fa. upon th * idea that his wife and he h«d no interest, or even led hint, in doubt of that, interest, to compromise and receive a sum of money, in ignorance of the facts attending their execution, it would be a fraud on him, as well as his wife, which .Equity would r emove out of their way. But the bill brings forward no stub equity. Tin* deeds are not even mentioned in it. The first we hear of them is in the answer. They were not registered until 1819, affer this suit was Urgum They do not seem, if known to Green and wife, to have been acted on by them, or to have influenced their conduct in tire feast, it is impossible for the Court fe proceed on a ground not taken in the bill, or to relieve an equity not raised by the party. We cannot say those deeds had the least influenre on the ■Tuotift’s conduct, or her husband’s, when she is altogether silent on that bead.

ihc evidence proves, very satisfactorily, the, payment '.y'í ¿he sum *>f g400 to Green. Both t!m bill asid tlse an-swr»- leave the time at large, But the depo'driiM'S prove, tb.it -the contract was made, ai.d the p.;y«iep1w, after Cm Px judgment, and the purchase of the iwd by the km ill ro. It is clear too. íuat 1 hi whole v.us with the ks.-wvledp* and consent of the Plaintiff, 5 he, in fact, "mide tee. bargain ; ami the payment w:--a in p>ovif,ioiia ib? tfit- í'..:;ur-. The Defendant*!-. Coimscl bss endeavor) il to si Hid ots this utTattgcuieul of the vite’ :, net construe?. Sin- present suit into a fraud, which shed! bar nil relnf, or make the land a security, at least, for the money ad* Tiinced.

The contracts of a married wokisiií, except as to her separate property, are held, alike in Equity, as id LjjWj to be void. She can be bound as to her land in only two 'ways: by her deed duly executed by her privy examina-tiou. or by the judgment or decree of a Court. Bor deed is a formed legal co'.veyabce ; in favor or against: which there is no equity. Ir siands upon its strength in Law. If it is not perfect, wo cannot help it hero. An ag?cement, no matter upon what ronuidcratior, by a married woman, is an absolute nullity in every Court fS’e do not take notice, Ike efore, of m y pameipatlon ots her part in the family arrangement. I-ior ran the Court allow her husband to. treat for the sals «fíy-r land, and t-ontrue a conveyance of it without her ascent, obtained -according to the act of Assembly, under the pretence of a judgment and judicial salo.

We do not lay dow w the rule, that the husband is bound ¿o p .y the debts of bis wife’s laud; that lie is icq- -My hound to advance money oui e,f his own pocket, to discharge debts of his wife’s ancestor. Do piay sutler 2aml to he sold. But a Court cannot hold out temptations to him to betray bis wife’s interests, and commit a '«each of his marital duties. If be will not move to save Mi» vdfe-’s ft'ecíinbi» we caneot kelp it But Sts must, at»?; j]e kept back by another, and for the sake of mutual gain,, He shall not look out for gain at his wife’s expense ; and he who prompts him to it, shall not profit by if. it is ^afcen j,p f;>ear? ffiaf ¡f the husband and brotiiers combined to defeat the wife, it is a fraud upon her, and every thing done under it must he set aside. But the mere negligence of the husband is the wife’s misfortune, not the fault of others. Married women are bound by judgments at Law, as much as other persons, with the single exception of judgments allowed by the fraud of the husband, in combination .with another. If cannot be. said, that when a woman becomes discovert, the ground of judgment during coverture must be re-proved by the creditor, or even that the judgment must be set aside, if she nan show; that it ought not to have been recovered. That is not the kind of fraud that will avoid it. Something else must appear, besides the judgment being unjust. That «as a thing, that might have been shown oil the trial at Law; and therefore cannot, by itself, be heard now. She must charge and prove, that she was prevented from a fair trial at Law, by collusion between, her adversary and her husband, preceding or at the triah Here there is no evidence to that effect. The husband was served with process, and never stirred in the business. But not the slightest, communication between any of the parties is spoken of, until after, the sale under execution. Then, a witness says, the Plaintiff and her husband expressed their sense, of the wrong done them ; and then the brothers agreed to make compensation. It is true, the Plaintiff afterwards urged her husband to sue, and he refused; saying, that she had got the worth of her land; and ought to be content. But that is nothing; for what could he do then ? In fine, the only equity which a married woman has against a judgment, which other people have not, is, that she has been deprived of full defence by the contrivance of her adversary. This cannot be the case without the fraudulent collusion of the husband. This is not shown by the mere inaction of the husband, or even that and a just defence. There must be a dealing on the part of the adversary also. Else he is not to blame, and will not be made to suffer the consequences of her making a bad choice of her husband. It is precisely like the husband letting the statute of limitations run against the wife. It binds her.

The evidence is far from establishing satisfactorily, that there were personal assets $ ami the debt of Curl is admitted in the bill. If however the other parts of tine case were made out, an account of the assets would he ordered. The want of them would he conclusive against the bill. Their sufficiency would be material only on the question of collusion ; hut to that point they would bo very important, as a circumstance. But that is not of itself sufficient. I repeat, there must he a combination not to defend. Otherwise, the wife cannot open the case, and carry it back, to have it retried at law. I think it very probable, (fho’ there is no allegation or proof, eren to that,) that Green withheld a defence to Curl’s debt upon the same motive, which induced the sons to desire a,judgment on it, namely, from apprehension of the large unjust debt of Stringer. But suppose that: and the Plaintiff is then to he looked on, rather as a party to that fraud, than the object or victim of it. It was not directed against her, but the creditor, ami is good as against the parties and all else but creditors. The purpose was not to take the land from the Plaintiff, and test it in the brothers, but to defeat Stringer. But even that is not the case before us : which is one altogether without collusion, as relates to the Plaintiff’s husband ^ and without a communication of any sort, or at, any time as to Holstein.

Ham, Judge.

— -It appears in this case, from the evidence, that a legal title to the land became vested ire William and Samvel Branton, the brothe.es of the Plaintiff, as stated in the hill: that the process by which ifc was sold, as far as relates to the Plaintiff, was regular and legal. There does not apirear to have been any fraud, collusion or combination, to defraud the Plaintiff by the Defendants and the husband of the Plaintiff, who had it in his power to defend her interest. If there were assets to discharge the debts of the intestate, there was ample opportunity to do so, on tire return of the scire facias, on which judgment was obtained for the sale of the land.

Per Curiam.

Let the bill bo dismissed with costs-  