CHARLESTON.

#### Dent *v.*Pickens *et al.*

Brannon Judge, *Concurring.*

Submitted September 15, 1898

Decided April 15, 1899.

1. *CONTRACTS*— Marriage—Consideration—Fraud.

Marriage, in an antenuptial contract, is a valuable consideration; and such contract, cannot be impeached by existing creditors, as fraudulent, unless it be shown that both parties thereto participated therein, or had notice of fraudulent intent. *Boggess v. Richard's Adm'r.*39 W. Va. 567. (p. 391.)

2. *Contracts*— Marriage—Breach—Fraudulent *Conveyance*— Notice *—Burden of Proof.*

When a man enters into a contract of marriage with a woman, and commits a breach thereof, and she sues him for nonperformance, and during the pendency of such suit, to escape the payment of any judgment against him therein, he, under cover of a second contract of marriage with another woman, and under pretense of consideration therefor, conveys all his property, thus rendering himself hopelessly insolvent, if the facts and circumstances are sufficient to justify the presumption of notice to the grantee, of the fraudulent intent of the grantor the burden of proof is shifted to such grantee, and it devolves upon her to prove want of such notice; and, if she fails to testify with regard thereto, such presumption becomes conclusive, (p. 391.)

3. Contracts *—Marriage— Fraudulent Conveyance —Notice.*

The facts and circumstances which tend to show notice or knowledge of fraudulent intent on the part of the grantee, the nature, character, and manner of the execution of the contract itself, and the character of the various items thereby conveyed, including a mere equity of redemption in other plainly fraudulent transfers made by him, and the explicitness with which it is set forth, the knowledge on her part of the charge of seduction, the birth of the child, and the pendency of the suit for breach of promise, it being a matter of common notoriety in the community in which she lived, were sufficient to put her on her guard and inquiry; and she must therefore be deemed to have accepted him with all his circumstances, and to have taken the risk of his escape from his first marriage contract, and thereby joined with him in his fraud to defeat a recovery on such first contract, (p. 390.)

*3794. *Maeriage*— Seduction—Common *Law.*

While the common law loves matrimony, it abhors deceit, fraud, and seduction, and will not permit matrimony to be used by a guilty person to escape the consequences of his fraudulent, deceitful and unlawful conduct, (p. 391.)

Appeal from Circuit Court, Barbour County.

Bill by Susan C. Dent against Dever Pickens and others. Decree for defendants, and plaintiff appeals.

*Reversed.*

J. Hop Woods and Edwin Maxwell, for appellant.

Dayton & Dayton, J. J. Davis, and John Bassel, for appellees.

McWhoeter, Judge:

On the 27th day of January, 1888, Susan C. Dent instituted her action at law in Barbour circuit court against Pever Pickens to recover damages against him for an alleged breach of promise of marriage, and laid her damages at twenty-five thousand dollars. On the 14th day of January, 1889. while said' action was pending, and before it was tried, the said defendant, Pickens, executed to John J. Davis and A. G. Dayton, trustees (two of his counsel in said action), a deed of trust upon all the real estate owned by him, consisting in all of about five hundred and seventy-one acres:- First. A tract of eighty-six and a fraction acres, purchased by said Dever from said Dayton, special commissioner; also, a tract >of..eighty-eight and one-balf acres adjoining the eighty-six acres, purchased from S. V. Woods, special commissioner: First, to secure Alston <3-. Dayton, special commissioner, the sum of two thousand and sixteen dollars and sixtyMx and two-third cents with interest from March 8, 1887, balance purchase money on said eighty-six acres; second, to secure S. V. Wood’s, special commissioner, two thousand one hundred and twenty-nine dollars, with interest from March 8,1887, -subject to a credit of five hundred and fifty-six dollars as of April 1, 1888, balance of purchase money on -said tract of eighty-eight acrejs, to be first paid out of the proceeds of said tracts, respectively; then to secure J. W. Greathouse a debt of three hundred dollars; to Edward McDaniel three hundred and thirty-two dollars and sixty-three cents, subjéct to a *380credit of fifty dollars; to M. D. Reed, seventy-eight dollars and thirty-eight cents, balance of a five hundred dollar debt; to C. D. Paugh, a debt of three hundred dollars; to R. M. Boring, a debt of one thousand three hundred and twenty dollars and eighty cents, subject to a credit of one hundred and twenty-five dollars which last said debts were to be¡ paid ratably out of the proceeds of said two tracts, except that the debt of R. M. Boring should be paid only after the other debts secured were paid out of the projceeds of the sale of said two tracts; then conveyed a tract of three hundred and ninety-six acres, being the home farm of James Pickens, devised to said Dever Pickens, to secure the said debt of one thousand three hundred and twenty dollars and eighty cents to R. M. Boring, in case the same should not be realized out of the said two tracts; two thousand five hundred dollars to said Dever’s mother, A. M. Pickens, with interest from October 1, 1887, subject to a small credit, and two thousand one hundred and thirty-nine dollars, with interest- from January 1, 1889; also, to secure five thousand dollars to the estate of James Pickens, deceased, defendant’s father, — he being one of the executors of said estate. The trust deed further provided that, in case the said debts should not be paid within twelve months from the date of the deed, it should be the duty of the trustees to sell the first two mentioned tracts of land for sufficient cash to pay the expenses of sale, including their commissions, and the purchase money due thereon, and the residue upon a credit of one, two, and three years, and to sell said three hundred and ninety-six acres for cash, and out of the proceeds of the three hundred -and ninety-six acres pay its pant of the expenses of sale, including the lawful commissions for selling; then pay the debts in the order secured, and of the proceeds of the sale of the said two tracts first mentioned pay the debts therein secured; and it also provided for notice of sale. On the 10th day of May 1889, said Dever Pickens entered into a marriage contract with Minnie B. Coburn, by which he undertook to convey to her, in consideration of marriage the following 'chattels, notes, evidences of debt, and choses in action, to wit: “The rest and residue of the debt due said Dever Pickens from M. W. 'and Ledrue Coburn, and secured by deed of trust to Alston G-. Dayton and James Pickens, ■ *381trustees, dated December 21st, 1885, after deducting therefrom one thousand dollars assigned January 14th, 1889, to Mollie Pickens; one note made to said Dever by A. S. Pickens on the 9th day of August, 1888, for three hundred dollars, due on demand; one other note made to said Dever by A. S. Pickens on the 18th day of June, 1889 and due one day after date, for thirty-five dollars; one note also made to said Dever by M. S. Cleavenger .on the 17th day of September, 1888, for one hundred and forty-six dollars and fifty cents, due one day after date; also, one other note made to said Dever by Mollie Pickens on the 9th day of February, 1889,' for one hundred and fifty dollars, due one day after date; one other note also made to said Dever by A. H. Young on the 15th day of February, 188:9., fo;r, four hundred and ten dollars, payable one day after date; also, one) other note for thirty-six dollars made to said Dever on the 12th day of January, 1889, by Emma Walker, payable one day after date; one other note made to said Dever by John D. Pickens on the 1st day of May, 1889, for five hundred dollars, payable on the expiration of the term of a lease made to said John D., as lessee, should he occupy for the full term without interruption; also, one other note made to said Dever by said John D. Pickdns on the 25th day of April 1889, for twenty dollars, due on demand.” And be further granted and conveyed to her, subject to the deed of trust made to Dayton and Davis,trustees, all his right, title, and interest in and to that certain tract of land situated’ in Barbour County, containing three hundred and ninety-six and three-fourths acres, devised to him by his father, and also all the right, title, interest, and estate to which he was then, or might thereafter be, enitldd in the property or estate, whether personal or real, of his father, the said James Pickens, under and by virtue of the twelfth and fourteenth clauses or items of the will of said James Pickens.

On the 24th of January, 1889, the plaintiff, Dent, brought her suit in equity in said court against Dever Pickens (in his own right and as executor of James Pick-ens), John D. Pickens (executo.r of James Pifckens), A. G-. Dayton (trustee), John J. Davis (trustee), S. V. .Woods {special commissioner), A. G. Dayton (special commissioner), J. W. Greathouse, Edward McDaniel, Milton D. Reed, C. *382D. Paugh; R. M. Boring, and N. M. Pickens, and filed her bill at the February rules, 1889, assailing the deed of trust made on the 14th of January, 1889, as to the claims therein secured to his mother, A.M. Pickens, .his sister, R. M. Boring, and to the estate of James Pickens, deceased, alleging that the said claims were fraudulent, and.that the trust deed was executed to hinder, delay, and defraud plaintiff in the collection of any judgment she might recover, and alleging that said Dever was converting his property, or a material part thereof, into money and securities, with the intent to defraud' her in the collection of her .said debt or demand, and that with like intent he had executed the said deed of trust on the 14th of January, 1889; and (that said debts secured to R. M. Boring, A. M. Pickens, |/and¡ the estate of James Pickens, aggregating about, eleven thousand dollars, were voluntary and fraudulent, and that the said creditors, executors, and trustees had full notice thereof. Dever Pickens filed his answer denying the material allegations of the bill, and the fraud in executing the said deed of trust, and denying that said debts were voluntary or fraudulent. Defendants A. M. Pickens, R. M. Boring, and John D. Pickens also filed their separate answers to the same effefct. At the July term, 1889, ¡the action at law was tried, and a verdict of a jury rendered in favor of plaintiff for ten thousand dollars upon which judgment was entered for ten thousand dollars, with interest from July 20, 1889, until paid, with six hundred and forty-six dollars and seventy-seven cents.

At the September rules, 1889, plaintiff filed her amended bill against the same parties named1, and also against Minnie B. Coburn, M. W. Coburn, Ledrue Coburn, Mollie Pickens, A. S. Pickens, M. S. Cleavenger, A. H. Young, Emma Walker, and John D. Pickens in his own right alleging the judgment rendered on the 23d day of July, 1889, for ten thousand dollars, and assailing the marriage contract made May 10, 1889, between Dever Pick-ens and Minnie B. Coburn, as fraudulent, and made for the purpose of hindering, delaying, and defrauding plaintiff in the collection of her said debt, and charging knowledge of the said fraud upon the said Minnie B. Coburn; further alleging that on the 31st of August, 1889, the caused an execution to be issued upon said judgment and placed in the *383bands of tbe sheriff, and on the same day had the same docketed in thel clerk’s office of the county court of said county, and thereby acquired and continued the lien of said execution upon the debts transferred by said defendant Pickens to said Minnie B. Coburn, whereof the said M. W. Coburn, Ledrue Coburn, A. Gr. Dayton, surviving trustee of himself and James Pickens, deceased, in the deed of trust dated December 21, 1885, mentioned in said ¡contract, Mollie Pickens, A. S. Pickens, M. S. Cleavenger, A. H. Young, Emma Walker, and John D. Pickens in his own right, had due notice, and had also notice of the fraudulent purpose of the said defendant Pickens in making said contract; that, since the filing of the original bill, Dever Pickens had abandoned this States and was living in one of the far-western states, as had also the said Minnie B. Coburn, who was the daughter of M. W. Coburn, and the niece of Ledrue Coburn, both of whom were insolvent; and praying that her judgment be declared a lien upon the real estate owned by said Dever, and ¡conveyed by him to trustees Dayton and Davis by the said deed of January 14, 1889; that the same might be set aside as fraudulent as to plaintiff’s debt, from the institution of her said suit, to wit, January 24, 1889, and that the debts secured in .said deed of trust to the estate of James Pickens, A. M. Pickens, and R. M. Boring be declared fraudulent; that the lien of plaintiff’s execution upon said judgment be enforced against the choses in action and debts due from the defendants Mollie Pickens, A. S. Pickens, John D. Pickens in his own right, S. M. Cleavenger, A. H. Young, Emma Walker, M. W. Coburn, and Ledrue Coburn to said Dever Pickens, and that they be restrained from paying the' same, or any part thereof to the said Minnie B. Coburn, and that said Dayton, surviving trustee, be in like manner restrained, and that said debts be decreed to be paid to plaintiff; and that said marriage contract be defclared1 fraudulent and void. Defendant obtained from this court a writ of error upon said judgment, and upon the hearing the judgment was reversed, and a new trial awarded. The case was again tried at the February term, 1892, and verdict and judgment for nine thousand dollars, with interest from the 27th day of February, 1892, and nine hundred and seventy-one dollars and thirty-four cents costs, awarded.

*384On the 13th day of March, 1893, plaintiff sued out her summons against the .same defendants to answer her second amended bill, and on the first Monday in April, 1893, filed said bill, alleging the recovery of the second judgment for nine thousand dollars, interest and costs; that execution was issued on said judgment, and the same docketed in1 the county court clerk’s office' on the 3d of March. On the 7th day of April, 1893, plaintiff filed her notice of lis pendens in said county court clerk’s office. On the first Monday in April, 1893, plaintiff filed her second amended bill, realleging all of the material allegations in her original and former amended bills, and especially charging that the antenuptial contract entered into between Dever Pickens and Minnie B. Coburn, and" consummated by their subsequent marriage, was executed for the purpose of hindering, delaying, and defrauding plaintiff in the collection of her debt, for which purpose suit had been instituted on the common-law side of that court on the 27th day of January, 1888, prior thereto, of all of which the said Minnie Coburn had full and complete notice, both of said suit and fraudulent purpose of Pickens, and alleging, also, the insufficiency of the execution and acknowledgement of said contract of marriage; alleging, also, that the claims owing by the said persons mentioned in the said assignment were bound by the execution docketed as aforesaid, and that the one thousand dollars mentioned in said contract as part of the debt due to said Dejver Pickens, secured by the trust of said M. W. and Ledrue Coburn to said Dayton and James Pickens (who is now deceased), trustees, dated December 21, 1885, was fictitious and fraudulent, of which said Mollie Pickens had due notice, as did also1 the saüjd'' Dever Pickens and the surviving trustee, Dayton, and, if not paid, is bound by the lien of plaintiff’s said execution, and, if paid, was paid in fraud of plaintiff’s right in the premises, and said Mollie Pickens will be made to respond to the plaintiff for the amount thereof; and praying that •said Mollie Pickens may be made to respond to the plaintiff in case she had received said money; that the contract be declared void and fraudulent as to plaintiff, and the trust of January 14, 1889, as to' the debts secured therein to the estate of James Pickens, A.-M. Pickens, and *E.*M. Boring, be declared fraudulent and void; and that *385the lien of said execution to be enforced against the debts due to said Pickens from the defendants Mollie Pickens, A. S. Pickens, John D. Pickens in his own ri/ght, M. S. Cleav-enger, A. H. Young, Emma Walker, M. W.' Coburn, Ledrue Coburn, and they be restrained, and enjoined from paying the same to anybody but the plaintiff. Defendant Minnie Pickens answered the amended and second amended! bills, and: denied all fraud on her part, and denied that she had complete knowledge of the fraudulent motives and purposes moving said Dever- in the execution of said contract, and her active participation in the fraud, but did not deny her knowledge of the pendency of the action at law. The bills and answers are all made and filed under oath.

Depositions of various witnesses were taken by plaintiff and defendants, and filed in the cause, which came on to be heard' on the 17th o-f'November, 1896, upon plaintiff’s original bill and two amended bills duly matured at rules by process executed thereon, and order of publication duly taken therein, the answers of A. M. Pickens, John D. Pick-ens, executor of James Pickens, Dever Pickens, and R. M. Boring to said original bill, the answers of Dever Pickens and Minnie Pickens to said first amended/ bill, and answers of said Dever and Minnie Pickens to the second amended bill, general replication to all of said answerss, exhibits filed with said bills and answers, depositions of witnesses, and was argued by counsel, whereupon the court was of opinion, and did adjudge, from the pleadings and proofs, that the deed of trust executed on the 14th day of January, 1889, by Dever Pickens to defendants Dayton and Davis, trustees, which was assailed in said original bill, and the marriage contract executed by said Dever Pickens and Minnie B. Coburn on the 10th day of May, 1889, assailed by said amended bills, were not fraudulent, but were in all respects *bona fide,*conveyance's, free from fraud, and that, therefore, the plaintiff was not entitled to the relief prayed for in the bills, and the same were dismissed, with costs., from which decree this appeal is taken by the plaintiff, and the following errors assigned: “(1) It was -error not to decree the said trust deeds and said marriage contract fraudulent and void as to plaintiff’s claim. (2) It was error not to decree the same as a lien upon the real estate conveyed in said; trust as of the date of the institution of said *386suit under, wbicb said original bill was filed, according to the statute in such case made and provided. (3) It was error not to charge the defendant Mollie Pickens, the sister of defendant, with the value of his estate paid to her pending this controversy. (4) It was error to dismiss plaintiff’s suit, the onus being upon the beneficiaries in said trust, the said trustees, and the parties to. said marriage contract, to Show the perfect good faith of both transactions. (5) And for other errors apparent upon the face of said record and proceedings to be hereafter assigned' in argument.”

Are the grounds sufficient for setting aside the trust deed of January. 14, 1889, as to the claims aggregating about eleven thousand dollars as fraudulent? The record discloses the fact that Dever Pickens was in the years 1886,1887, and! 1888" an active business man, trading largely in stock, and farming with every appearance of success. It is shown that in the fall of 1888 he received between five thousand,dollars and siix thousand dollars in cash for a lot of about one hundred cattle that he had sold the fall before. He was charged on the assessor’s books of his county for the purposes of taxation for the year 1886 with money and personal property in the amount of eight thousand one hundred and five dollars; for the year 1887, with four thou- and two hundred and sixty-five dollars; and for the year 1888, with four thousand six ‘hundred and ten dollars; and for the year 1889, with no assessment for personal property, but one dollar for capitation tax. Dever. Pickens was one of the executors of his father, James Pickens, deceased. On the 1st day of May, 1888, the accounts of the executors of said decedent were laid before the commissioners of accounts, and the settlement completed. March 16, 1889, and confirmed by the county court April 1, 1889, which settlement showed a balance in favor of Dever Pickens against the estate of four hundred and nine dollars and seventeen cents. On the 14th of January, 1889, within a month or two after he had received the sum of about .six thousand dollars of his own money, he executed the deed of trust securing to his sister R. M. Boring the sum of one thousand three hundred and twenty dollars; to his mother, A.M.Pickens,about four thous'andsixhundred dollars; and to. the estate of his father, five thousand dollars. Where shall we look for the cause of this sudden collapse of this active, vigorous, .sharp-*387trading young naan from Ms high state of affluence and prosperity to a state of hopeless insolvency? The record clearly shows: That he 'had on hand one too many marriage ¡contracts. It began to dawn upon his mind that the law dues not allow the sainé latitude in dealing in the affections pf the gentler sex that it does in dealing in cattle and other •matters of-merchandise and commerce. That early in the year 1888 he was sued upon the solemn contract which he made with the appellant, and which he had violated, and that he was likely soon to be called to respond in the, damages for the breach and for his wrong (not adequate damages, however, for the wrong, for that cannot be measured or computed in dollars). So he cast about to find where he-¡could reasonably appear that he owed some money that he could secure by trust deed on his real estate, which would cover his interest therein, and not allow the property to leave the family, and yet protect him from the fearful' results of the impending judgment. He soliloquizes: “I gave my mother a note for two thousand five hunldired dollars itn October, 1887 which I can secure. Then there is a balance due my sister Mrs. Boring from the executors, which I can assume. Besides, I can assume that I owe my father’s estate, which is a large one, five thousand dollars, and secure that; and I will assume to borrow enough more money from my mother to make the necessary amount.” So the amount was made up and the deed executed. The note made by Dever to Mrs. Boring for one thousand, three hundred and twenty dollars and eighty cents bears date January 3, 1889, as copied into the record; but Mrs. Boring, in her testimony, states facts which show that the note probably was intended to bear date January 3, 1888, instead of 1889,— just about the time the dangers of a suit against him began to thicken, and he began to prepare for the storm. Appellant’s child was born January 9, 1888. While the defendant Dever Pickens denied in Ms . answers to the bill and amended bills all fraud or intent of fraud on his part in the maMng of the said deed of trust and the said marriage contract of May 10, he fails to make a witness of himself and subject Mmself to cross-examination. Upon the witness stand, Dever could have thrown much light upon many more .than suspicious circumstances and transactions .(involved in this cause, which;are not .only left in the-dark for *388want of the light of his knowledge concerning them, in case they were honest, but the irresistable conclusion is that no explanation consistent with the truth could be made which would give color of honesty to the transactions, as far as the grantor is concerned, and that, the more light turned on, the more clearly would appear the intention on his part thereby to' defeat the appellant in the collection of any recovery she might have in 'her action for ¡damages. Mrs. A. M. Pickens, the mother, who was secured in the sum of more than four thousand six hundred dollars, testifies that she knew nothing of the making *off*the ;dee!d ¡of trust until some time after it was executed, and knew nothing of any fraudulent intent in the making of it by said Dever. She was secure in the payment of a note for two thousand five hundred dollars dated October 1, 1887, three months before the birth of appellant's child, in January, 1888- The other note was made to her in January, 1889, dating just prior to the trust which secured it, as was also the note of Mrs. Boring. Mrs. A. M. Pickens had full knowledge of the trouble Dever was in with appellant. David Bumgardner testifies that: “In January, 1888, a few •days after the birth of the child, Mr- T. L. Evans and myself went to the residence of Ann M. Pickens for the purpose of seeing Dever Pickens. Mrs. Pickens said that he was not at home; claimed that she did not know where he was at. I •askeld her if.she knew of the trouble. She said Dever had told her all about it. I asked her if she would advise Dever to marry Miss Dent and save any further trouble. She answered she would not. Then I asked her what she was going to advise Dever to do. In a very sarcastic manner- she said she was going to advise him to get out of it the very best way he could.” This is corroborated by witness T. L. Evans, who, was present, and not denied by Mrs. Pickens. Bumgardner further testifies that on the following iday aider the conversation with Mrs. iPickens, or the day following that, he saw Dever Pickens in Clarksburg, and appealed •to him to marry Miss Dent, and 'save further trouble, and •says: “He finally refused to marry her, and made me a very emphatic answer,, .saying if this matter was met in peace he would meet iit in peace, but, if it was war, 'By God! it should be war,’ was his answer- Just prior to that remark I had said to him, did! he suppose that Miss Dent *389and ber friends wonld submit to this trouble, if be didn’t marry ber, without a .suit.” Mrs. Boring does not negative on tbe witness .stand tbe fact that sbe bad full knowledge of tbe fraud and fraudulent ¿intent on tbe part of Dever in tbe execution of tbe deed of trust which secured ber. The trustees in said deed) of trust, Messrs. Davis and Dayton, although parties to the .suit and served with process, and although changed with full knowledge of fraud and fmuldlu-lent intent in the execution of said deed of trust, failed to appear and answer the bill, or either of the amended bills. As to the trustees tbe bill and amended bills were taken for confessed. In *Merchandise Co.*v. Laird, 37 W. Va. 687, (17 S. E. 188,) it is held: “In this State tbe trustee in a deed of trust or assignment made to secure creditors is regarded as a purchaser for value, and, in order1 to. make void tbe deed, notice of tbe grantor’s fraudulent intent must in some way be brought home to him or to the creditors.” Tbe proof in tbe record shows that the trustees. Davis and Dayton, were the counsel of defendant Dover Pickens in the litigation between him and appellant from its inception, were at the time of the execution of the trust, and are yet even in this court on his appeal. In the case of *Johnston*v. *Zands*Trustee, 11 Grat. 552, 562, which was a suit to set aside a deed of settlement as fraudulent, the court says, “To assail such a settlement successfully, an actual fraudulent intent must be manifested, or must be collected from tbe circumstances of tbe case.” We are told by counsel fotr appellee that in tbe case last above cited (11 Grat.) “it is held that an answer by either tbe trustee or tbe benficiary under the trust was sufficient to put in issue the allegations of the bill charging fraud-” It is there held that (Syl., point 6): Upon a bill against a trustee and cestui que trust in a deed, the trustee answers and puts the allegations of the bill in ¡¡issue, but the bill is taken for confessed • as to the cestui que trust. The answer to-the trustee protects the cestui que trust, and tbe plaintiff must prove bis case as to both.” In that case tbe trustee, a purchaser for value, 'answered and made tbe. issue. Here tbe purchasers, although charged with full knowledge of, and participation in, tbe fraud and whose relations to tbe grantor were -such as to make it certain that they had knowledge of his purpose and intention in execut-*390mg the'trust,'refused-to answer; but allowed the bills tó! be taken 'for confessed as to them. Code, c. 125, section 36! The only dejbt secured by the trust deed which is included in the amount called eleven thousand dollars, which can bé classed as *bona*'fide, is the note of Mrs.'M; A." Pickens- of October 1,1887,if or two thousand five hundred dollars, andi that is hardly above suspicion. The trust deed, as to • all the debts secured to the estate of James Pickens, to; R.. M. Bor1 ing and to A. M. Pickens as to the note of two thousand one hundred and thirty-nine dollars, 'must be set aside as fraud! hlent as to the judgment of appellant.

As to' the marriage contract 'of May 10, X889, the facts and circumstances clearly proved show that Minnie B. Co-burn lived in the neighborhood where the courtship of De-ver Pickens and appellant was carried on, and knew of his attentions to her. She had met them together, and he had taken- appellant to Coburn’s to see Miss Minnie Coburn in May, 1887; and! Miss Coburn had remained in the neighborhood until the 13th of November, 1888, ten months after appellant’s child was bolrn, andl about that long after the action was brought by appellant, right in the midst of the gossip that was constantly going on in all that section about it, and it was kept before! the public by the local newspapers of some two or three counties, and the fact of the birth of the child was very improperly and immodestly called to her personal attention, so that the subject was constantly kept before her, *nolens -nolens.*And she does not deny, in her answer, the allegation of the bill that she had notice of the pendency of the suit at law. In the face of ail these facts, Dever enters into this contract with her, transferring to her not only all his personal effects, including, specifically, Ms cko,ses in action and evidences of debt in amounts even down to twenty dollars, but including a mere equity of redemption in other plainly fraudulent transfers made jby him and mentioned and set out in, the contract with her. And while she denied in her answer to ■ the allegations of the bill that she had knowledge of the fraudulent intent (of Dever in thus transferring his property and reducing himself to utter insolvency so suddenly, and so soon after-a prosperous career of active business ¡in large transactions, she fails to testify in the case to 'make her position clear, if she might, and, by subjecting herself *391to cross-examination, bring to light all that she knew concerning the matter. These things havbe to be looked at reasonable, and from a common-sense point of view. TO sat that a lady of her intelligence, living where she was, surrounded and environed as she was, did not know what object Dever Pickens had in stripping himself all at once of his property, which had given him, perhaps, the most commanding position, socially and financially of any man of his age in the community, is simply to say that which is quite impossible is probable. In Goshorn's Ex'r v. Snodgrass, 17 W. Va. *717*(Syl. point 6), it is held, "Though the proof of fraud rests on the party who alleges it, circumstances may exist to shift the burden of proof from the party impeaching the transaction onto the party upholding it." The facts as proved in this case, unexplained, would lead any unprejudiced and disinterested person to believe that Minnie Coburn not only knew of the fraudulent intent of Dever, but was engaged in aiding him to escape the payment of any recovery appellant might have, and "yet she fails to testify with regard to the matter, and thus firmlu clinches the inference of notice according to well-settled equitable principles." Farley v. Baeman, *40*W Va. 540, 542, (22 S. E. 72); *Trust Co. v. McClellan,*40 W. Va. 405, 413, (21 S. E. 1025); *Parker*v. Valentine, 27 W. Va. 677 (Syl, point 3); *Hefflebower*v. *Detrich,*Id. 16.

/v 'Much stress is laid upon the-sanctity of thé-marriage contract by the appellee,-that - the-' consideration Of mar-1 riage, in an antenuptiai contract,’is of the very highest, to which I most readily and heartily assent; and the p'ropos®tion is abundantly supported by the highest authority, including this Court, which holds that such contract cannot be impeached as fraudulently existing creditors unless it-be shown that both parties thereto participated therein, or had notice of fraudulént intent. *Boggess*v. Richards, *Adm'r,*39 W. Va. 567, (20 S. E. 599.) We are told" that: “The" common" law, though it abhors every sort of cheating, loves matrimony.' Its principles all point towards it, when the circumstances of a case exposé them to this attractive force.” We must remember' that'in this- case we have two antenuptial contracts to contend with, and to adjust the complications which bad faith, at least on the part of the double contractor, has brought about.! While it is true that *392the common law loves matrimony, it will not permit matrimony to be used! by a guilty party to escape the consequences of Ms fraudulent, deceitful, and unlawful conduct.

In appellant’s first amended bill, she assails the assignment of a certain .claim of one thousánd dollars to Mollie Pickens, sister of Dever, and the assignment of notes and other claims against other persons, his debtors, and makes such other debtors parties to this suit, and asks thlat they be inhibited from paying such debts to any person but the appellant. I find in the record the following admission iinadd before a commissioner by the parties to this suit by their counsel: “It is admitted before the commissioner by the parties to this suit, by their said counsel, that of the debt of $2,050.89 decreed to Dever Pickens in the chancery cause of Franklin Maxwell agadlnst M. W. Coburn, etc., and J. N. B. Crim against M. W. Coburn, etc., mentioned In the foregoing deposition of Melville Peck, that in addition to the sum of $1,721.21 paid by him, as commissioner, on the 22d day of April, 1892, to: Alston G. Dayton, attorney, as per a copy of his receipt exhibited in said deposition, parcel of said $2,050.89, the residue thereof, to wit, $886.84 with interest there'on from thie 22d day of May, 1893, is now in the 'hands of Squire Crouse, the general receiver of fhel circuit court of Barbour county, paid to him under1 a decree entered in said court in the chancery causes of Franklin Maxwell against Arthur W. Martáln, etc., and is now subject to the order of said court therein.” And it is claimed! by the appellant that the debt of two thousand fifty dollars and pighty-nine ceints mentioned in said agreed statement is, by virtue of the lien of the plaintiff’s bill, and the docketed execution therein mentioned, liable to her judgment, and the same should be charged against the person paying .the same, or receiving payment thereof, with notice of plaintiff’s rights* and against the fund in the hand's of said' general receiver, to wit, the sum of eight hundred and eighty-six dollars and eighty-four cents, with interest, as stated in said agreement. This proposition is correct, as applying to the debtors mentioned in ¡said assignment from the date of the1 filing of said first amended bill.

Defendant .Mollie Pickens failed to answer, and the amended! bills were taken for confessed as to her. *Clark**393v. *Figgins,*81 W. Va. 156,) (5 S. E. 643); *Sweeney, v. Refining Co.,*30 W. Va. 443, (4 S. E. 431.)

As to the sufficiency o-f the acknowledgment of the marriage contract by the said Minnie B. Coburn,I deem it immaterial. The marriage contract made between Dever Pickens and Minnie B. Coburn must be set aside, as fraudulent and void as to the judgment of appellant.

For ,the reasons herein given, the decree of the circuit court must be reversed, and the cause remanded, with directions to the circuiticourtto require the general receiver to pay over to the appellant the money in his hands on account of’ her judgment, and that the court take such further proceedings as may be necessary to1 sequester the rents, issues, and profits of the three hundred and ninety-six and one-half acres to the plaintiff’s claim, subject only to the bal- . anee which may be due to A. M. Pickens on her claim of two thousand five hundred dollars, as a prior lien, or toi sell all the right, title, and interest of said Develr Pickens therein, and to sell the tracts of 86 and 88 acres, and after paying the leins thereon created by the deed of trust of January 14, 1889, and not assailed in plaintiff’s bill, the residue to be applied to appellant’s judgment, and to refer the cause to a commissioner to ascertain and report what moneys due on the claims assigned by Dever Pickens from the parties mentioned in the amended bills as debtors to him, if any, have been paid since the filing of the first amended bill, by whom and to whom paid, and whether the one thousand dollars of the debt secured by the trust deed made by M. W. and Ledrue Coburn of October 21, 1885, secured to Dever Pickens, and mentioned in the said •marriage contract as having been assigned to Mollie Pick-ens, has been paid to her since the filing of the first amended bill, and whether any or all of such moneys have been paid or not; that the court take proceedings to collect all such money as may not be shown, upon proper arid sufficient evidence, to have been paid prior to the filing of the said first amended bill, to be collected from the persons who have since received it, or from the debtors who may not yet have paid what they owe; andl that the same, as fast as collected, be applied to the judgment of appellant, until the same is satisfied.

*394ON REHEARING.

r But little has been added om the rehearing to- what was insisted upon at the original .hearing ol the cause. The arguments then' made haye been emphasized, and somewhat intensified.' ’ A point ,i« raised in the brief otai rehearing as follows: “Second^ what just reason is there for the harsh provisions of this decision against Mollie Pickens?” The brief then goes on to inform the court, dehors the record), that said Mollie was “an afflicted daughter of dames Pickens, and a.sister of Dever Pickens. The world is á silent one to her. She is deaf and dumb. She could not well testify in her own behalf, — in fact, could not ai: all. Her brother did.' Her debt is not denied' to have existed. Dever Pickens owed her the money. But under this decision sheds held to have had knowledge of his fraudtu-lent purpose, and must lose her debt; may even refund part of it paid in the interest of the appellant,, who, no matter how much we may pity her, is neither so innocent aid'this sad business) nór so! helpless in life, as she.” If this is' all true, it does indeed leave the defendant Mollie Pickens in bad condition, and she is to be pitied). But what can be done?-1 She appear® froto, the record to be an adult defendant, and is presumed to be in complete possession of all her faculties, the contrary not being shown, and no intimation of any affliction until it ap-péars in this brief of counsel on rehearing. If there was reason for appointing • a committee or guardian *ad' litem*to attend to and look after the interests of the defendant Mollie Pickens in the case, a suggestion to the court would have been sufficient to have had her interests protected in the case. The bill charges directly her knowledge of fraud. She stands by after being duly served with process, makes no appearance or answer, the bill is taken for confessed as to her; and it seems that, while Dever Pickens and all the rest of the family had able counsel to assist them in circumventing the plaintiff in her efforts to recover something from Dever on account of her just recovery against him, this poor girl was overlooked, and left to care for herself as best she could.- I think it will hardly be seriously contended that the court can go outside of the record to consider the unfortunate condition that defendants have gotten themselves into' either *395by their own1 hegligencé or by that of their counsel. We regard this statement of counsel concerning the defendant Moilie Pickens, her condition and relation to this •suit, as disclosing a very remarkable state of affairs indeed. Here is a family who have proved their capacity to take care of themselves in the affairs of the world, intelligent, Smart', and financially able to. look after their every interest, and haying in their service the best legal talent in their part of the State. One of their number, unfortunate in not possessing all her senses, and, in a sense, helpless and dependent, yet possessed in her own right of a considerable estate, is permitted by the other members of the family, as well as their counsel, to be in,default, and placed in such condition as to be in great danger of losing a large proportion, of her estate. It seems that, in their eagerness to ©ave themselves, they overlooked the interests of their unfortunate sister: It is argued, too, that the estate of James Pickens could not have notice of fraud, and' could not be a party thereto; that the dejad man in his coffin could not know of or participate in the fraud charged. The estate was well represented by the defendant the executor John D. Pickens, one of the family, and there can be no question as to his knowledge of the intent and purpose of Dever, his brother. The question arising upon the marriage contract of May 10, 1889, is further argued upon rehearing, but about the same authorities relied upon as before. I see no good reason, with the additional light cast upon the matters at, issue, for changing my opinion in the causé* and still think the decree should be reversed, and the cause remanded for further proceedings to be had therein as set forth in the original opinion.

Brannon, Judge:

I write this note, not for an opinion on the , many points arising in the case, but only to.,say, that-by concurring in the decision I by no means intend to questioln the principles laid down in *Boggess*v. *Richards' Adm’r,*39 W. Va. 567, (20 S. E. 599.) *Herring*v. Wickham, 29 Grat. 628, and *Snyder v. Grandstaff*(Va.) 31 S. E. 647; nor, does Judge McWhorter. I think that even if Miss Coburn knew of Dever Pickens’ seduction of Miss Dent, and his *396promise to marry her, and1 her action, yet she coiuld, by a *bona fide*marriage contract, look out for herself first, and receive a settlement upon herself of Pickens’ property at the expense of Miss Dent; and this by reason of the peculiar force of a marriage contract. If, with knowledge of those things, she had purchased his property for money, it might be different, as she would be enabling him to convert his property into money, which he could seclude from Miss Dent’s pursuit. But she gave no money; she gave person and) life. Therefore, as the cases above say, the question is,. did, Miss Coburn have notice of Pickens’ intent to defeat Miss Dent’s recovery by this marriage contract? I admit that the other circumstances, though raising a strong suspicion of such notice on her part, are not conclusive; but when you add to them the fact that she failed to give evidence and submit to a cross-examination as to her good faith, thte case grows ¡much stronger. If she had no knowledge of his purpose, why did she not pledge her sworn testimony to it? This decides me. Neither did he testify. As to those claiming under the trust deed: The bill charges fraud in its execution, and that the trustees, who> wene counsel for Pick-ent in Miss Dent’s action at law, knew of the fraudulent intent. They do not answer to deny this. Notice to a trustee is notice to a creditor. It is urged that the creditors' deny the fraud, and that this puts the matter in issue. It is said that *as Johnston*v. *Zands*Trustee, 11 Grat. 552, holds that an answer of the trustee, denying fraud puts it in issue, so the answer of a creditor does. It doe® not follow. The trustee represents the Creditor. But, when you fix notice on the trustee, why does npt that fix it on the creditor, whether he tells him or not, as notice to the trustee is notice to the creditor? “The participation of either the trustee or the beneficiary of a deed of trust in the fraud of the grantor is sufficient to avoid the deed.” *Crow*v. *Beardsley*68 Mo. 345. There are, however, other circumstances against the deed of trust; but, if I am right as to the effect of notice to the trustee, these circumstances are not necessary, but strengthen the case.

*Reversed.*