#### *Elmore Manes vs. Francis B. Durant and others.*

A husband is regarded as a purchaser for valuable consideration of all the personal property in possession of the wife. A Secret conveyance, therefore, to a trustee by the wife on the eve of the marriage, oí her personal property in possession, even where the object is to make a reasonable provision for the children of a former marriage, is fraudulent and void as against the husband.

No act of the husband, such as giving a note to the trustee for the hire of the property, will amount to a confirmation of the conveyance, unless the husband knows, at the time he does the act, that the original transaction is questionable.

*Before*Harper, Ch., *at Marion,*

January, 1842.

The decree of his Honor is as follows :

Harper, Ch. In September, 1838, the complainant was married to Isabella C. Shannon. She was seized and possessed of *405some r-eal estate in the village of-Marion and two slaves. A few days previous to the marriage, she conveyed to *the*defendant, Francis B. Durant, her half brother, the two slaves and a quantity of household furniture, in trust for the use of her mother, Mrs. Ruth Durant, during her life, remainder to her own children, if she should leave any living at her death, and if none, to the two daughters of the said Francis B. Durant. It does not appear that any one was made acquainted with the execution of- this deed, except the trustee and the counsel who prepared it.

After the marriage,'the slaves remained in the possession of the complainant, his mother-in-law also continuing to live with him. In the *beginning of January,*1840, *the*complainant having been informed of the existence of the deed, and the trustee being about to leave the district, they went together to the office of W. W. Harllee, Esq., where the deed was read to complainant, and he executed to the said W. W. Harllee, as attorney for the trustee, his note of hand for $100, specified to be for the hire of the slaves, *“*conveyed to him, the said F. B. Durant, as trustee, by my wife, J. C. Manes, before our marriage, for that and other purposes.” On the 8th of January, 1841, the complainant executed a similar note, written in his own hand. The object of the bill is to set aside the deed in question as a fraud on the marital *rights.*

The defendant, Mrs. Ruth Durant, by her answer, claims that although the legal title of the real estate was in the said Isabella O. Shannon, yet she herself and another deceased daughter, Anne Shannon, had, in equity, an equal interest with her, and, consequently, that she is entitled to three-fourths of the said real estate. But, besides that there was an entire failure of proof on this matter, I do not think it properly put in issue by the answer. The subject of the suit is the deed of trust, and she may make the claim by a bill for partition, which the complainant can answer and defend. She claims also the furniture included in the deed as her own private property. The proof of this I should •regard as too slight, and having accepted the deed and claiming .under it, she would, I suppose, be estopped to deny the title of her grantor. If not, and the deed should be set aside, she will have plain and adequate remedy at law for the recovery of the property. I do not regard this matter as in Issue.

In general, it is not questioned that a voluntary conveyance •made by a woman in contemplation of marriage, without the *406knowledge of the intended husband, will be set aside as a fraud on the marital rights. It has been supposed, however, that exceptions have been made in some particular cases, as where the object was to make a reasonable provision for the children of a former marriage. In the case of *Ramsay*vs. Joyce,(a) I expressed my own opinion, that there was no such exception. By assuming the burdens of the marriage relation, the husband is regarded as a purchaser for valuable consideration of all the personal property in possession of his wife, and is there any doubt but that a voluntary conveyance, even to provide for children, is void against a subsequent, purchaser for valuable consideration and without notice ?

The principal question, however, related to the confirmation of the deed, by complainant’s acquiescence after he was apprized of it, and his giving the notes for the hire of the negroes. I am inclined to believe that such a transaction must be regarded as a case of actual *fraud*— suppressio *veri*— the suppression of truth which the party was bound to disclose — which cannot be confirmed by any thing short of that which would operate as an original conveyance, rather than one of those in which fraud is implied from the circumstances and relation of the parties, which admit of confirmation. If one should sell to another, for a valuable money consideration, property, of part of which he had a few days before made a voluntary conveyance to a third person, it could hardly be doubted but that this amounted to actual fraud.

But, supposing it to be of the latter class, I think the alleged acts of confirmation are not sufficient to have that effect. To operate as a confirmation, I think the act must be intended to confirm. It seemed to be thought that the rule in this respect was laid down somewhat too strongly in *Butler*vs. *Haskell,*4 Des. 709, that the party must be no longer under the circumstances of necessity, influence, or confidence which led to the first transaction, and that he must be “aware that he isnot bound by the original contract, but may be released from it; but that, nevertheless, he chooses, deliberately and without imposition, to confirm what he had first done.” The rule, I think, may very well be taken as laid down by Lord Redesdale in *Murray*vs. Palmer, *2*Sch. <& Lef. 486, that the party must at least be aware that the act he is doing is to have the effect of confirming an *407impeachable transaction. He must at all events know that the original transaction was questionable. The maxim that every, one must be presumed to know the Jaw, seems not to apply where the party has been practised upon by fraud. In the present case there is nothing to shew that the complainant knew the original transaction to be questionable, or any thing more than that he acquiesced in what seemed to him inevitable.

It is therefore ordered and decreed, that the deed in question be set aside and delivered up to be cancelled.

Munro, for the complainant.

*Harllee and Dargan,*contra.

(a)

 M’M. Eq. 236.