
    *Shepherd v. Henderson & als.
    October Term, 1846,
    Richmond.
    (Absent Brooke, J.)
    Deeds — Executed through Deception — Suit to Set Aside —Case at Bar. — Mrs. II. intending to settle certain slaves on her niece, Mrs. D. and her children, free from the control and debts of I), the husband, requests G. to prepare for her a deed which will effect this obiect. 1). the husband prepares a deed which he hands to (!■ informing him Mrs. H. approves it; and G. bringing the deed to Mrs. H.. she executes it, under the belief that it is such a deed as she had directed. The deed in fact gives to I). the husband an interest in the slaves; andhe conveys that interest in trust to secure a debt. II. then files a bill to set aside the deed, and have a settlement made as she had intended. Held.
    1. Same — Same— Same. — II. may maintain the suit.
    2. Same -Same — Same.—The deed will be set aside; and with the assent of II. a settlement will be made according to her original intention.
    3. Same — Same—Same.—The trustee in S.'s deed will be decreed to convey to the trustee in the new deed.
    In April 1838, Mrs. Prances Henderson filed her bill in the Superior Court of Bouisa county, in which she alleged: That moved by her affection for Mrs. Prances A. Downer, wife of Robert G. Downer, who was the daughter of her nephew, and had been brought up and educated by her, she had determined to made some provision for her and her children; and had sent for her friend Jacob Graves, and had' requested him to prepáre for her an instrument which should convey to Mrs. Downer and her children certain slaves, reserving to the plaintiff the use of them during her life; and securing them from the control of Mr. Downer, her niece’s husband; who she alleged was intemperate and extravagant. That Mr. Graves came to her house, and in the presence of Mr. Downer handed her a writing which she understood from him would give effect to her wishes. That relying on this information, and supposing the deed to have been prepared according to her instructions, *'she executed it, and it was recorded. That some time after, she learned that the deed did not secure the property to Mrs. Downer and her children, but would give it on the plaintiff’s death to Robert G. Downer, contrary to her intention. And that she had recently learned that when Graves came to her house, R. G. Downer presented to him the deed which she executed, as one which he had prepared with the plaintiff’s consent; and that Graves had presented it to her for execution, believing Downer’s story to be true.
    The bill alleged further, that Albert G. Shepherd had sold to Downer a tract of land, and to secure the payment of the purchase money, had taken from Downer a deed of trust upon all or a part of the slaves conveyed by her as aforesaid, although, not long after the execution of her deed, Shepherd had made enquiry of her concerning Downer’s means, and had been informed by her that Downer had no property; and that she had given some slaves to Mrs. Downer, but had secured them from her husband’s control.
    The plaintiff made Shepherd, Downer and wife and the trustees parties defendants, and prayed that her deed might be set aside as fraudulently obtained; and that such other conveyance might be directed as would carry into effect the plaintiff’s intention in favour of Mrs. Downer and her children ; and for general relief.
    Shepherd answered the bill, disclaiming knowledge of the circumstances under which the deed in question was made; admitting that Downer was indebted to him for land sold to him, and necessaries furnished his family; and that the payment of the debt was secured by the land itself and Downer’s interest in the slaves given him by Mrs. Henderson; but denying that he had made the enquiry or received the information as charged in the bill. The bill was taken for confessed as to the other parties.
    'x'The deed referred to is dated the 22d of April 1835, and conveys certain slaves therein mentioned, and their increase, “to Frances A. Downer and her heirs forever, free from the claim or claims of all and every person or persons whatsoever;” but subject to the life estate of Mrs. Henderson therein.
    The testimony filed in the cause satisfied both the Court below and this Court that the deed . was fraudulently obtained from Mrs. Henderson ; and was executed by her under the persuasion that she was executing a very different deed. Therefore when the cause came on to be heard, the Court made a decree setting aside the deed, and with the assent of the plaintiff, directed that she should convey the slaves embraced in said deed and their increase, to trustees specified in the decree, to be held for the exclusive and separate use and benefit of Mrs. Downer and her children during her life, free from all claim, interest or control of her husband or his creditors, or others claiming under him, and on the death of Mrs. Downer to be equally divided among her children then living; subject to the life estate of the plaintiff. And the defendants Downer, Shepherd and the trustees in the deed for his benefit, were directed to release to the trustees appointed by the decree, all the right, title, and claim, they had in said slaves. Drom this decree, Shepherd applied to this Court for an appeal, which was allowed.
    G. N. Johnson, for the appellant,
    went into an examination of the evidence, and insisted:
    1st. That there was no fraud in the procurement of the deed.
    2d. That Shepherd was a purchaser without notice of the fraud, if there was fraud; and as such would be protected in equity. And he referred to Rowley v. Bigelow, 12 Pick. R. 307.
    *3d. That Mrs. Henderson could not maintain this suit. She says she intended to convey the slaves from herself, reserving a life estate. This deed reserves all she intended to reserve. She therefore is not injured, and she cannot complain of an injury inflicted on Mrs. Downer.
    Patton, for the appellee,
    insisted, that beyond all controversy Mrs. Henderson intended to secure the property to Mrs. Downer, free from the control of her husband ; and that the deed was fraudulently prepared by Downer. But whether the deed was prepared by the mistake of Graves, or fraud of Downer, he insisted it was competent for the Court to correct that mistake against a bona fide purchaser.' The case of Alexander & Co. v. Newton, 2 Gratt. 266, in its principles governs this.
    2. Mrs. Henderson may come into equity to complain that she has been fraudulently made to execute a deed to a person to whom she never intended to execute it. Or she may be considered as the next friend of Mrs. Downer, who is a party to the suit; and in whose favour the decree has been made. The Court will not, therefore, reverse this decree, which is right on the merits; and that too when all the parties are before the Court.
    
      
      Deeds — Deception Practiced on Grantor — Effect.— Where any deception has been practiced and the direction being to draw a deed for one purpose, it is fraudulently drawn for another, and the deceit is not discovered until after execution, a court of equity will set such deed aside. Pennybacker v. Laidley, 33 W. Va. 642, 11 S. E. Rep. 46. See mono-graphic note on “Deeds” appended to Mott v. Com., 12 Gratt. 564.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court, approving the principles of the said decree, and being of opinion that there is no error therein; it is therefore adjudged, ordered and decreed that the same be affirmed, with costs.  