#### WILLIAM A. POSTON *against*LUECO M. GILLESPIE AND OTHERS.

Where parties have bound themselves by a contract to marry, neither can give away his or her property without the consent of the other, and notice before the marriage of such a gift, does not hinder the party injured, from insisting on its invalidity.

Where a father, with whom his daughter resided, and who was habitually under his influence and control, urged upon her, two days before the time fixed upon by her for her marriage, to sign a deed giving away her property, which she did with reluctance, and with earnest protestations against the act, it was *Held*that such conveyance was inoperative and of no effect, as against the husband.

This was a bill for an injunction, and to set aside two deeds, as being in fraud of the plaintiff’s marriage, sent from the Court of Equity of Rowan.

The plaintiff was engaged in the service of the defendant, E. D. Austin, for the year, 1850, living in his family, during which time an intimacy sprang up between him and Caroline Gillespie, a widow lady, the daughter of Col. Austin, aged about twenty-two years, which resulted in an engagement to marry. This she made known to her father, but it was violently opposed by him. At first she concurred, or affected to concur with the wishes of her father, and informed him that she had discarded the plaintiff, and that he would leave the country. On the first of March, ISol, however, she informed her father that she had determined to marry the plaintiff without his consent, and that the marriage was to take place in three days thereafter. He then called her attention to an agreement which had been made between them long before any marriage was in contemplation, which was, that if she ever married again, she would convey to her infant sou, the defendant, Lueco M. Gillespie, all her interest in the tract of land which her late husband had willed, as a support for her and their child during her life; also, a certain negro named Mary, and certain articles of furniture, consisting of a bed and furniture, a bedstead, bureau and washstand, which said agreement was founded on the following conside*259ration: It turned out that the'property left by her former husband, for that purpose, had proved insufficient to pay the ■debts of the estate, and one of the slaves bequeathed specifi’■cally to his wife and child, would have to be sold to make up the deficiency* A negro man bequeathed to her infant son-, had no wife, and it was agreed between Mrs-. Gillespie and her father, that he should be taken, instead of falling on one of •the two in which she had a life-estate, who had wives in the neighborhood; and, as an equivalent therefor, conveyances should be made to secure the property above-me'ntioned, to wit: her interest in the land, the girl, Mary, and the furniture, to her said son, Lueco, and the slave of Lueco had accordingly been sold and the money applied in payment of the debts. ‘On this agreement, and the facts connected with it, being rehearsed to her, she made the,conveyances accordingly. The 'defendant, Austin, says she did so willingly, and that when the one conveying the personal property was being prepared, she insisted on putting in another slave, named Yardry, in which she had a life-estate, which was done, and that she put in Yardry because, she said, Lueco’s father ought to have given him to his son, and also insisted on putting in the articles of furniture above named, stating that she had bought them at the sale of her husband’s estate for Lueco, and that she always intended to give them to him. He also says that she proposed to put in another slave, Linda, in whom she had a life-estate, but he dissuaded her from doing so. The deed •conveying her interest in the tract of land, was made to E. D> Austin, as the trustee and next friend of the said Lueco, and was dat§d 1st of March, 1851; the other was made directly to her son, Lueco, bearing the same date. On the next day, ¡after these deeds were executed, the father, Col. Austin, started with his daughter to the State of Yirginia, with a view, as he admits, to prevent the contemplated marriage from being •solemnised. They proceeded to the house of a friend in the ’county of Davie, where they were detained by her indisposition, and during this delay, the plaintiff came to that place, ¡and had an interview with the daughter* Col. Austin then *260informed him of the existence of the deeds in question, notwithstanding which, they persisted in the purpose of marrying; which event took place on the 11th of March, 1851, at the house of the defendant, Austin, to which they returned after the interview above spoken of. The notice of the deeds was given to the plaintiff on the fourth day of March.

*Asbury McDaniel,*a witness to the deed, states in his deposition, that Mrs. Gillespie was constrained to sign the instruments in question; that she was in tears w'hen she did it, and said she would rather go to her grave than do so; that her father used no force or threats, but told her to sign. There was testimony going to show that McDaniels’ character was bad, and that he was not worthy of credit on oath. There was other evidence as to the question of duress.

The giil, Mary, and the articles of furniture, remained in the p>ossessiou of the plaintiff and his wife, from their marriage, till her death, which took place in the fall of 1853. In January, 1854, Col. Austin took possession of the negro girl, Mary, as the property of his grandson, Lueeo M. Gillespie, and suit was brought in the name of John F. Foard, as next friend of the said Lueco, in the Superior Court of Eowan, for the value of the bed, bedstead, and the other personal property, and a judgment obtained against plaintiff for the same.— The bill was filed against Col. Austin, the trustee, the defendant, L. M. Gillespie, and J. F. Foard, his next friend in the suit at Law, praying for an injunction to prevent the execution at Law from being enforced; which was granted, and was ordered to stand over and await the hearing in the cause.— The further prayer is for the surrender of the two deeds as being a fraud upon the plaintiff’s marital rights, and for the delivery of the girl, Mary, and for an account of half the rents and profits of the tract of land given for the support of the said Caroline, plaintiff’s wife, and her son, during her life.

*Flemmg,*for the plaintiff.

*Boyden*and Jones, for the defendants.

*261PeaesoN, C. J.

The plaintiff, and Mrs. Gillespie, had entered into an agreement to marry, and the day for its solemnization was fixed. Three days before the time fixed, for the wedding, her father induces her to convey all of her property, except the negro woman, in whom she had but a life-estate, to the defendant, Lueco M. Gillespie, her infant son, who was before sufficiently well provided for, by his father’s will. After procuring this conveyance, the father still determined to prevent the marriage if he could. He starts off with her to Virginia. In Davie county, at the house of .a relative, she becomes too much indisposed to proceed on the journey. The plaintiff goes there, and has an interview, and learns from her the fact that she had been induced to execute the eonvejmnce of her property to her son. Both the plaintiff and Mrs. Gillespie still insist that the marriage should take place. "Whereupon, she goes back home with her father, and the marriage is solemnised shortly thereafter. *>*

Roper, in his treatise on Husband and Wife, vol. 1, page 164, upon an examination of the eases, comes to this conclusion , * “It is presumed, therefore, that *without the consent*of the intended husband, the law will not permit any disposition of the wife’s property to be made before the marriage then in ■contemplation, and that, under no circumstances, .after a treaty of marriage has commenced, will any such voluntary disposition of her property be binding on her subsequent husband. In the absence of other evidence of fraud, the time when the disposition or settlement was made, most decide its ■validity, and attention to this circumstance, will, as it is presumed, reconcile the principal cases.” This passage in Roper lias been cited by this Court, with approbation in several cases, but it was never before necessary to decide the precise point, which is now presented, i. e. does notice of the conveyance made by the wife, imparted to the husband at any time before the marriage is solemnised, defeat bis right to have the '■conveyance set aside? Or, is it necessary, íd order to bind 'siim, that, after receiving notice, he .should concur, and *give*
      *262
      *his consent*thereto-, which is usually done by his signature on the conveyance?

*Spencer*v. *Spencer,*3 Jones’ Eq. 404, after reciting the passage from Boper, and making a reference to the other cases in which it is cited- with approbation, is put on the ground that the notice is vague and indefinite. *Taylor*v. Rickman, Busb. Eq. 278, where the husband actually signed the conveyance, is put on the ground of surprise, because the paper was presented to him after the parties had met together for the purpose of being married.

The question,depends on the time when the disposition or settlement is made, and the principle is this, if a woman, *before she has-, a marriage in*contemplation, gives away her property, the man, who afterwards marries her, has no ground of complaint on which he can stand before this Court, although he married, expecting to get the property, and without notice of the disposition previously made by her.

*After the courtship has*begun, that is, after the man has signified his intention to address tlie woman, and before the matter is concluded by her acceptance of the proposition, if she give away her property, and he has notice thereof, and still proceed in his courting, the disposition is binding upon him, although he did not concur and give his consent; because, at the time of his notice, he was not committed by a contract to marry, and his equity can only be put on the ground that he was *deceived,*which is repelled by the naked fact of notice, as, in an action of deceit, in the sale ofj a horse, where it is-proved that the vendee has notice of the defect before the-trade was closed.

*After the co-uHship or negotiation, about and concerning the-mam-iage^ is concluded,*and the parties bind themselves by a contract to marry, neither can give away his or her property without the consent, of the other, and the matter does not then rest upon a mere question of *deceit,*which may be repelled by proof of notice, but involves a question of *fraud*on aright vested by force of a contract, for a breach of which an action will lie at law; although a court of Equity will not enforce a *263specific performance, for a reason growing out of its peculiar nature, i. e. if the parties are unwilling, they cannot be forced to live together as man and wife should do; so, a specificper-formance is impracticable; and the Court declines the jurisdiction, on the same ground that it will not attempt to make parties proceed under a contract to carry on business as co-partners in merchandise, because, without mutual good will and readiness on both sides, the object cannot be accomplished; still, there is a valid contract, embracing in its consequences, the property of each of the parties ; for, as is said in Roper, *supra,*163, the *wifd s fortune,*in addition to his own, may be a weighty consideration and inducement for entering into the contract,” and of course, after the contract to marry is concluded, she cannot convey her property without his concurrence, and if she does, the person taking it with notice, will be converted into a trustee, in order to prevent a fraud on the contract.

In our case, the father of Mrs. Gillespie, at whose instance the conveyance was made, and who was acting as the self constituted *proahien ami*of her infant son, had notice, and, indeed, procured her to make it for the express purpose of defeating the lights of the plaintiff vested by force of the contract to many.

The ground mainly relied on, by Mr. Boyden; for the defendant, to wit, that the conveyance was for a valuable consideration is not tenable, for several reasons. We have seen that it was made with full notice of a pre-existing contract, and with the purpose of defeating it. In respect to the several articles of furniture bought by Mrs. Gillespie, her saying “that^she intended to give them to her son,” amounts to nothing, and has no legal effect. In respect to the land and slaves, the alleged arrangement, not being in writing, was not valid or obligatory in Law or Equity, and, at most, the amount of it was, that her specific legacy should abate rateably with that of her son, and she was to make good by fair contribution any abatement of his legacy caused by the sale of a slave given to him instead of one given to her — taking into consideration *264the fact that the legacy to him was contingent upon the event of his arriving at the age of twenty-one, with a limitation over to her, if he died under that age, and the legacy to her was for life, with a limitation over to the son, if he arrived at full age. So, that this understanding can, in no sense, be treated as a valuable consideration to support the absolute conveyance, which she was induced to make to her son, on the eve of her expected marriage, and it must be treated as mere security for any balance which, upon a final settlement of the estate, may appear to be due by reason of a necessity for an abatement of the specific legacies, taking into consideration the value of the legacy to her, and the legacy to her son, under the will of the testator.

There is still another view on which the ground taken by Mr. Boyden, is not tenable. ¥e are satisfied, by the evidence, that Mrs. Gillespie did not execute the conveyance voluntarily, and of her own accord. She did so under moral, if not physical duress, and, consequently, the conveyance -is inoperative, and of no effect. The testimony of the subscribing witness establishes the actual constraint, and, if it be said he is a man of notoriously bad character, the reply is, that “he was selected by the father;” so, he cannot object on account of bad character; for, if so, there is no proof of the execution of the deed., and there is room for the imputation that such a witness was selected because the father did not choose to have a credible witness who could speak of the constraint and duress imposed on his daughter. If to this, be added the fact, that the conveyance was executed at the instance of a father by a daughter, whose business he had charge of, who was living in his family, and wholly dependent on him, and who, having agreed to marry a man to whom her father had objections, was willing, in almost any way, to propitiate his favor, and the further fact, that after all these concessions made by her, and the deeds were signed according to his dictation, she is, on the next day, but two days before the day fixed on for her marriage, constrained by her father to start on a journey to "Virginia, which purpose she defeated, at the house of a re-*265latiou, by indisposition, either actuator feigned, whereby her intended husband is enabled to overtake them, clearly makes out a case of duress.

The plaintiff is entitled to a decree, setting aside the conveyances as in fraud of his contract to marry, except so far as to give them effect as a security for any abatement, which, in a settlement of the estate, it may appear her legacy was liable to, in order to meet her rateable part of the debts of the testator, which, although not relied on in the bill, as a distinct ground for relief, is relevant, in reply to the allegation that the conveyance was for valuable consideration.

PeR CceiaM, Decree accordingly.