#### ISAAC JOYNER *against*MARY DENNY, DRURY VINCENT & WILLIE WILLIAMS, ADM’R. OF MARY, LATE WIFE OF DRURY VINCENT.

The assignee of one against whose marital rights a fraud has been committed, has a right to the protection of a Court of Equity, when the assignment was made for value.

Where a bill was filed against a husband, the administrator of his deceased wife, and the donee of the wife by ante-nuptial gift, alleging that the gift was a fraud upon the marital rights of the husband, and therefore a fraud upon his assignee for value *:*— Held, That the husband could not be said to be primarily liable to the assignee, and consequently that the reading of his depositon by the complainant was no release of the other parties.

(The cases of *Tisdale*v. Bailey, 6 Ire. Eq.„ 35S, and *Strong*v. *Menzies, ib.,*544, cited and approved.)

The bill in this case was filed to Spring Term, 1850, of the Court of Equity for Pitt county. Having been set for hearing, upon the bill, answer and proofs, it was, at Spring Term, 1852, transferred to this Court.

The bill alleged .that on and a long time before the 6th of Au* gust, 1829, Mary Denny, deceased, was possessed in absolute property of a negro girl named Nancy ; that on that day and for some time before, a marriage had been contemplated between the deceased and the defendant, Drury Yincent, who seeing the deceased in possession of Nancy, had good reason to believe her the property of the deceased ; that on or about the day mentioned above, the marriage took place, and that thereupon the defendant, Drury, took Nancy into his possession and retained her there until about the 5th of December, 1843, when he sold her to the complainant for $310, and that the complainant has held her ever since. The bill further shows, that on the said 6th of August, 1829, whilst the said marriage was in contemplation, but before it was performed, the said Mary Denny, deceased, without the knowledge or consent of the said Drury, and with a view of deceiving him in his just expectations of acquiring the slave Nancy, executed a deed of gift, conveying her and a small piece of land to Mary Denny, her niece, the consideration recited being natural love and affection, to have the same to her own benefit in case the donor died without an heir, otherwise the gift to be void; that the donee was an infant, and the deed went into possession of Thomas Hooker, the subscribing witness, who is now dead, *177and that its existence was purposely concealed from said Drury, and that at the time of the purchase made by the complainant, he had no notice of said deed or of any claim adverse to that of said Drury ; that the wife never had a child, and died about January, 1849, and that defendant, Willie Williams, is her administrator ; that the said Mary Denny, the defendant, has brought suit against him for said slave, Nancy, and that the suit is still depending. The bill then prays for an injunction against the suit, that the deed of gift shall be declared void, &c.

The answer of the defendant, Mary Denny, admits the marriage mentioned in the *will;*admits the making of the gift, but is ignorant of the length of time by which it preceded the marriage, the defendant having been at that time of so tender an age that she had but little personal knowledge of what took place ; it avers, however, an information and belief that it was all done with the consent of the defendant, Drury. The answer further denies any intended concealment of the deed of gift, and denies that either the defendant, Drury, or the complainant was ignorant of its existence ; it admits the institution of the suit at Jaw ; that the wife, Mary, is dead, and that the defendant, Williams, is her administrator.

The answer of Willie Williams admits that he is administrator of Mary Yincent, deceased, and says that for the other matters alleged in the complainant’s bill, he has no personal knowledge of them, but is informed and believes them to be true.

The deposition of Drury Vincent, the other defendant, proves his total ignorance at the time, of the gift made by his indended wife to the defendant, Mary ; that he kept Nancy in his possession from his marriage until the sale to the complainant ,• that he heard for the first time of the said gift several years after his marriage, but that he never believed it, because his wife denied it, saying there had been such a paper, but it was destroyed, and that Nancy was his to do what he pleased with; that he was courting his late wife some four or five months before his marriage, but was engaged only three or four days previously; that his whomever had a child, and that excepting the land and negro, mention in the deed of gift, his wife’s only property at the time of marriage was a bed and a sow.

*178Several other depositions were taken.

Sarah Hooker, the widow of the subscribing witness to the deed of gift, proved that it was made only a short time before the marriage, and after the defendant, Drury, had commenced his courtship. She also proved that some ten or more years after the marriage, Mary Denny, the deceased, came to her to get the deed to destroy *it;*that she could not find it then, but promised the deceased to' get it and destroy it ,• that she never was able to find it.

The other testimony was not important.

*Moore*and *Rodman,*for the plaintiff.

*Donnell,*for the defendant, Mary Denny.

Pearson, J.

The allegations of the bill are proven, and the plaintiff is entitled to the decree he asks for, unless the objections taken in reference to the defendant, Yiircent, are sustained. *Tisdale*v. *Bailey,*6 Ire. Eq., 358. *Strong*v. *Menzies, ib.*544.

Mr. Donnell insisted that the right to complain of the fraud on his/ws *mariti,*was personal to the defendant, Yincent, and could not be assigned, so as to give the plaintiff a right to maintain this bill. He assumed that a creditor of Yincent who bought this interest at an execution sale, could not sue, and inferred that, a purchaser from Yincent could not sue. The cases are not similar. The former could not sue, because he acquired no right by his purchase at execution sale, inasmuch as the interest of the debtor was not subject to execution. But *non constat,*that the debtor himself could not in equity assign his right. It was an interest that would pass to his personal representative. *Strong*v. *Menzies;*and although by the strict rule of the common law, he could not assign it, because it was>a chose in action, and the legal title was in the donee of his wife, yet it is common learning, that such assignments, when for value, are supported by Courts of Equity.

Mr. Donnell further insisted, that Yincent was not a competent witness, notwithstanding the plaintiff had released him, from all liability ; and moreover, that as he was primarily liable, the plaintiff by reading his deposition, had released the other defend*179ants who are only secondarily liable. After the release, the witness was certainly not interested, and was of course competent. The other proposition has no application. Yincent was not primarily liable. In fact he was not liable at all, except so far as he had incurred a collateral liability *at law*by reason of his express warranty ; and from this, the plaintiff had released him. There was no such relation between him and the other defendants as would enable them to screen themselves behind him. He did not participate in the fraud. In truth the fraud was practiced on him, and the rule above alluded to only applies, when the parties participate in the fraud, and one is considered primarily liable, because more directly involved in a breach of trust to the plaintiff. As where a trustee fraudulently sells the trust fund, or an administrator wastes the assets ; in such cases, although all who participate in the fraud are liable to the party injured, itis held, that the trustee or adminis-tratorshould stand in the front rank, and be required, in the first place, to make compensation'if he is able to do so. This is only to prevent circuity, becau.se of his liability over to his co-defendants. But here the defendant, Yincent., so far from having committed a fraud and being liable over, was the original victim of the fraud.

Per Curiam. Decree accordingly.