#### JOSHUA TAYLOR against JESSE RICKMAN.

Where marriage articles were never mentioned to the mtendcd'husband until the parties were on the floor to he married, and having been executed, were kept in the possession of the husband without being registered *:*— Held that one who purchased from the wife the slaves conveyed in those articles, but kept his deed secret from the husband until after the wife's death, a period of more than fifteen years, had no equity against the husband to compel him to carry the articles into effect.

Cause removed from the Court of Equity for Henderson county, at Spring Term, 1853.

The defendant had, some twenty years before the filing of the bill, intermarried with one Rhoda Gadd, who, previous to and at the time of their marriage, owned the two negro slaves and other personal property named in the pleadings ; and the parties, being pretty far advanced in life, bad no prospect of any issue. The bill alleges that the said Rhoda, previous to her intermarriage with the defendant, proposed to him that a marriage contract should be drawn up, securing to her the separate use and control of her said property, and especially the right to dispose of the said slaves as she might think proper; to which proposition the defendant readily assented, and requested a gentleman present to write the agreement; which was accordingly written and signed by the parties, *“*giving to her the sole right after marriage, to dispose of her property, and among other things the slaves above described, in such manner as she thought propeiq and disclaiming any power in his, Rickman’s behalf, to dispose of the same that this contract was then taken by the defendant'for safe keeping, and *279was to be proved and registered at his instance either in Henderson or Buncombe county, which, from some cause, either through ignorance or to defraud the said Rhoda, he refused to do ; and that he still refuses to produce the same. Mrs. Rickman died in 1851 or 1852, and the plaintiff, who is her brother, claims the said slaves by virtue of a deed of gift from her executed in 1835, and exhibited with the bill. The prayer is, that the defendant may be declared to hold said slaves as a trustee for the plaintiff, and enjoined from setting up title thereto in himself, and for general relief.

The defendant answers and denies that he ever made any marriage contract with the said Rhoda Gadd whatever, or agreed in any manner to give her the exclusive use of the said property ; and he avers that, under the circumstances, there could have been no inducement on his part to any such contract. For he says that at the time of his marriage, he was owner of a plantation on Mills River worth about $2000, that he owed nothing, was of industrious habits — that Rhoda knew all this, and that as to her, she owned no other property of any value except the said two negroes, had no child, nor from her age and infirmities the prospect of any child, nor the prospect of being enabled by her own labor to provide any part of her support, and that of the negroes. And the defendant further states, that notwithstanding these facts, just at the instant he and Rhoda made their appearance on the floor to be married, and for the first time he ever heard of such a thing, Mrs. *Franky*Steele, a sister of said Rhoda, remarked there was a marriage contract written by one *M. M.*Edney, Esq. (the Magistrate, in readiness for the purpose of solemnizing the rites of marriage) ; at which remark “ this defendant made some hesitation, and expressed his ignorance not only of that particular contract but of every tiling ofthatnature, for he really now doubtsifhe ever heard of a marriage contract before from any quarter, and knowing nothing of its contents, he complained to said Rhoda that any such thing should be spoken of just at that instant for the first time,” and that on intimating his intention to leave without consummating' the engagement, Rhoda made many apologies for her conduct, insisting *“*that she had the thing prepared merely to gratify her sister, Mrs. Steele, with whom she was then living,” -and that Es> *280quire Ed noy, who prepared it, had told her she need not have it registered, and that it'would not, therefore amount to any thing ; and that. *“*even if (his defendant consented to sign it, she had no idea or intention of ever having it registered, but still this defendant has no recollection of seeing any paper writing purporting to be a marriage contract, and states positively that he never learned the contents of any paper writing purporting to be a marriage contract, nor indeed does he remember seeing any paper writing at all on the occasion.” He says he remembers that Rhoda didask him to sign some paper which he and she would *keep to*themselves, and that no one should take benefit under it, and he admits such paper may have been handed to him for the purpose of determining whether he would put his mark to it or not, and that he may have destroyed such paper, yet he positively denies that he ever intended to execute and deliver the same as his contract on agreement by which the said Rhoda was to have control, of airy property whatever. *“*Not remembering however his ever having seen the paper writing spoken of by said Rhoda, he does not admit that it ever existed, but says possibly it may have been that he did see such paper in her hand, and may have received it into his own hand for the purpose of considering the propositions therein spoken of, when he should find some one in whom he had confidence to explain them ; but he positively denies that' he ever undertook to execute such agreement, to deliver it to any one, or procure its registration. Further answering the defendant avers, that *from*the day of his said marriage, he heard nothing more of said contract — that he may have thought something of it a few times within a short period after that event, but for many years the affair had passed out of his mind, and he has lived agreeably and contentedly for about twenty years with said Rhoda as his wife— supplied all her wants, — maintained her with all the comforts and conveniences of life — she in the meantime in consequence of her state of health and habits, being entirely dependent on him for her support, and unable to make any compensation or return ; and .that being without children she greatly indulged said negroes, who, being females and thus indulged, have been almost valueless to him, and that under these circumstances the support of hissaid wife and negroes has for many years imposed upon him an annual *281tax at once burdensome and hard. The defendant expressly denies that he has possession of said alleged contract; and says that he was present when a thorough search was made for the same among his papers by his counsel who examined every paper he had, and was unable to find it. Further answering, the defendant states that he is now nearly eighty-four years old, quite infirm both of body and mind ; that he is and always has been entirely illiterate, kind and confiding in his disposition, and indulgent to those depending on him ; and he avers that the alleged deed of gift, set up by the plamtiff, was a bare fraud upon his rights. For he says that .the plaintiff and his wife were quite attentive to him *“*until the year 1835, when, through the intervention of their rela-tvies and friends, they procured him to go with one in one direction, while they decoyed his wife in another, under color of a visit to one of their relatives, Mr. Kinsey, and there persuaded her, with promises of secresy, to execute said deed, and let it be witnessed by a son and another relative of said Kinsey, and registered in Buncombe county, at a distance of twenty miles from this defendant,” who, living as he did retired and in a very obscure section, would never hear of it; and he avers that they succeeded in keeping it a secret from him until after the death of his wife, when, to his surprise, he for the first time heard of it; and then he was enabled to account for the discontinuance of the visits and attentions of the plaintiff after the year 1835.

The defendant, under the circumstances, relies also upon his adverse possession of said slaves, under color of title acquired by his said marriage ; and he further insists, that as no benefit is alleged by the plaintiff to have been secured to him under the said marriage contract at the time of the pretended execution*thereof, and he not being in contemplation of the parties to be provided for, he is a mere volunteer, and therefore should not be heard in this Court j and the defendant prays the benefit thereof as by special demurrer to the plaintiff’s bill.

Many depositions were read at the hearing, the substance and effect of which will be found in the opinion delivered by the Court.

*J. Baxter*and *Shipp,*for the plaintiff.

*Bynum, J. W.*and *N. W.*Woodjin, for the defendant.

*282PearsoN, J.

To entitle the plaintiff to the aid of this Court in carrying into effect the marriage articles executed by the defendant and the sister of the plaintiff, it is necessary for him to allege and prove that the instrument was executed by the defendant deliberately and without surprise or imposition. The plaintiff makes the allegation, but it is denied by the defendant, who avers that the execution of the instrument was obtained from-him both by surprise and imposition, for that the subject was never mentioned to him until the parties were on the floor to be married ; that he was surprised, confused, and was in the act of going off without being married, whereupon, being told by the magistrate that the paper would not be valid unless he had it registered, and believing lie would afterwards have his election either to have it registeied or not, he leaves it to be inferred that he did sign it, and the parties were then married. He kept the paper, apd never did have it registered. There is a want of fairness about the answer, particularly in reference to the fact of making his mark to the instrument, which is calculated to prejudice the defendant’s case, and can only be accounted for by the fact of his being a weak old man, upwards of eighty years of age.

The plaintiff has failed to prove his allegation.

There are these circumstances worthy of consideration : — 1st. Marriage settlements are usually made to provide for the wife and to guard against the husband’s going in debt and spending the property, and after the death of the wife to provide for the issue of the marriage. Both these inducements were wanting in this case, the husband was upwards of sixty, and the wife upwards of fifty years of age, so that there was no probabilitj^ of issue, and the husband was a hard-working steady man, well to-do in the world. 2nd. The wife owned no property but a negro woman and child. She and her children are the subject of this controversy, consequently the allegation that the -husband was willing to take this negro girl and raise her and her children for his wife’s brothers or sisters ought to be satisfactorily proved, because it was unreasonable in the wife to ask it, and a hard bargain on him. 3rd. About two years after the marriage, the wife, without the knowledge of the husband, executed a deed of gift for the negroes to the plaintiff, who was her brother; and it was *283agreed between them and the Witnesses that it should be kept secret, and it did not come to the knowledge of defendant until af* ter her death, a period of some fifteen years. Why this profound secrecy if the matter had been fully understood and agreed upon before the marriage, and why did not the plaintiff, after he had acquired an interest under the marriage agreement, call upon the defendant and insist upon having it registered?

The only direct evidence in relation to the execution of the contract, is that of one Edney, Justice of the Peace, who married the parties ; he gives a very short and unsatisfactory account of it — says he went to Mrs. Steele’s, where her sister, the intended wife of the defendant lived, for the purpose of performing the marriage ceremony, and was requested by Mrs. Steele to draw a marriage contract, whiqh he did, and the parties executed it. He thinks he told the defendant it Would not be binding unless it was registered. After it was signed the defendant kept the paper. This evidence, so far from showing that the contract was entered into deliberately, tends to support the averment of the defendant, that he was induced to execute it by surprise and imposition.

There is no direct proof that the subject was ever spoken of before the parties met for the purpose of being married.

The other testimony consists of conversations had with the de^ fendant many years afterwards, when he was so old and imbecile as scarcely to be able to connect his ideas, and is consequently, entitled to no weight.

Per Curiam. Bill dismissed with costs.