SCOTT v. DUNCAN

RUFFIN, J.

This bill is filed to annul or reform a marriage settlement of the wife's estate, executed on the day of marriage, in which the defendant Duncan is trustee, upon the ground, that it was obtained by the fraud of the defendant, or was executed by the plaintiffs, under a mistake of the wife, relating to a material part of it. The estates are settled to the use of the husband and wife for their joint lives, but not subject to his debts or disposal; and if she survived, to her for life; and upon her death without issue living, over to her two sisters and their children.

The defendant Duncan married one of the sisters, and his family thus have the benefit of one-half of the estate, in the events just mentioned.

There is no pretense for setting aside the conveyance altogether; for it is clear that a settlement of some sort was deliberately intended by the parties.

On the other hand, it is equally clear that if the settlement actually made does not conform to the agreement of the parties, by omitting material parts of it, through a mistake all around, or through the fraud of either of the parties to it, equity will, upon clear proof being made of such fraud or mistake by proper evidence, rectify it.

It is material to observe that this is not a controversy between the husband and wife, between whom the marriage is a valuable consideration. Between them, or as relates to the issue of the marriage, the provisions of the deed would be more carefully scanned, either by themselves, their friends, or counsel. A bargain is always more regarded than a gift. The difficulty here is with mere volunteers, who ungraciously say they have got a donation, and will hold it all events. They (405) will not hold it, if it has been obtained by surprise, undue influence, and abuse of confidence, by a person trusted to have the deed drawn up, or by the mistake of the parties as to its contents.

A most important circumstance presents itself to our consideration upon first opening this case. The deed is an absolute and irrevocable disposition of the property, although made by a person who was not likely to have issue. That an absolute settlement should be made on the children of the marriage would not surprise us. We should expect that the husband would require it, and not leave it to the wife, without his consent, or that of the trustee, to appoint it away to strangers, or to the issue of another marriage. But here issue, though mentioned in the deed, could hardly have been anticipated by a lady fifty years of age. In such case the want of a power of revocation and reappointment astonishes. It is against the proneness of the human heart to retain the dominion over property. But if we are surprised at finding no such power reserved to the wife during the coverture, how much more must we be struck when we come to see that although the deed contemplates her surviving the husband, yet in that event also her hands are perfectly tied. Her estate does not become her own again, though her necessities may require a sale. She is not even allowed to devise it among her own relations. This deed fixes by irreversible doom the course of the lady's estate, against her own necessary use of it, and power of reasonable disposition after discoverture; and this, not as against her own children, but as to collaterals, who are strangers to the consideration upon which it was made. It is impossible for a court of justice to say that any extrinsic evidence, anything out of the deed itself, could entirely remove the suspicion of fraud or of mistake, arising from gross ignorance in the parties, which these strange omissions create. (406) Nothing but imposition, or taking advantage of a fatuous confidence, could bring to the point of actual execution such an instrument. Upon the face of the deed it is fraudulent.

In the case before us the parol evidence does not weaken, but fortifies, the conclusion to which the deed itself points. The answer indeed denies the fraud. The defendant says the husband was in debt, and he felt bound to mention it to his sister-in-law; that it was deemed by him and her an act of prudence to secure the estate from his creditors, and also to protect her from his influence after marriage; that this was perfectly understood by her, and that in consequence of it she, in the presence of Scott and the defendant, gave the directions for the settlement as it was drawn. Admit this, and it yet remains to be accounted for why she is left in bonds after her husband's death. But passing that by for the present, let us see how the facts are in relation to the wishes and directions of the wife. After they were given, the defendant admits that he and Scott were to attend counsel together to communicate them; and that before they left the defendant's house, Scott told him that he understood them differently. As he understood the lady, a power was to be reserved to her, notwithstanding the coverture, to dispose absolutely of the estates. This would have been an extraordinary power, which the husband would not readily have agreed to, if issue had been expected. But not anticipating that, it would have argued an improper design on the part of the husband, since it would have left the wife too open to his persuasions or his compulsion. The truth is, all the parties seem to be very uniformed people. I have no doubt that the substance was that a proper power of revocation and appointment was to be inserted, and the parties meant to leave it to counsel to settle, whose duty in such a case is, obviously, to frame it, as this Court would do, if such a stipulation rested in articles. Upon the objection of Scott, reference was (407) again had to the lady, and the defendant says she confirmed her former instructions, and Scott expressed his satisfaction. The account then given in the answer is that he and Scott went together to Mr. Stanly to draw the deed; that there the same difference occurred, when they resorted to the lady for the third time; that she repeated her former words, whereupon Mr. Stanly, in conformity thereto, and with Scott's privity, drew the deed, which was read and explained to Mr. Scott, who perfectly understood it, and freely executed it. The answer, it is thus seen, unequivocally asserts that the lady did not wish any power of disposition to remain in herself, but at three different times, and in contradiction to the pertinacious contention of the intended husband to the contrary, gave her instructions to omit such a clause. How does this correspond with other facts given in evidence? It is true that there was no person present at the time the instructions were given; so that the answer cannot be directly contradicted. But a witness swears that a few days after the marriage the defendant told him that he had got the property settled on his children and others, so that Susan or her husband could not sell it; that a woman was a weak vessel, and could not be trusted; that she signed against her will, but that after hard work he got things done pretty much as he wished. It appears from other depositions that this controversy was discussed in the religious society to which the parties belonged. Their minister and some of their brethren testify that the defendant did expressly admit, in the society, that Miss Kornegay gave the instructions stated by Scott to Mr. Stanly, but that he, the defendant, knew she decided so merely in favor of her lover and against her own interest; that he was her friend, and felt bound to protect her, and therefore had the settlement drawn in the shape it was, and would not relinquish it. These are subsequent declarations; and although they contradict the answer, point to (408) point, we should not feel safe in decreeing on them alone. But Mr. Stanly, who drew the deed, says that when Scott and Duncan first applied to him, that both seemed wholly ignorant of the nature of the intended settlement. They did not then disagree as to her wishes, but were without information. He sent them back to consult the lady. They returned, and Scott represented that she wished the estate settled on herself so that she might dispose of them, notwithstanding her coverture; while Duncan insisted that she desired it to be on her husband and herself for their joint lives, and herself for life, if she survived, with a vested remainder to her relations. This produced an altercation, which induced Mr. Stanly to request that the lady herself might attend him, which they declined. Why was he not requested to visit her? Why was the lady debarred from an interview with counsel? Mr. Stanly then suggested different provisions, and made a memorandum of them, which Scott and Duncan assented to. He then drew the deed, and delivered it to Duncan, with instructions to have it read and explained to the lady. It is not clear, from this explicit statement of the intelligent gentleman who was consulted by these men, that the deed was framed either against the instructions of Miss Kornegay or without them? Can there be a material difference, in a case of this sort, which was the fact? But a circumstance occurred at the execution of the paper which leaves no doubt that the representation, in the answer, of her wishes is absolutely false. The defendant says that the lady wished not to have the power of disposition. Adhering to the letter of Mr. Stanly's instructions, and to that only, he did not request this or any other legal gentleman to give the explanation, but procured a neighbor, just before the marriage ceremony, to read it. Mr. Lente, who is one of the subscribing witnesses, was the person selected. Now, he and the (409) other witness both say that when he began to read it, Miss Kornegay asked "whether she could still do as she pleased with her property?" Can there be the least hesitation, after this, that her instructions were for a power of revocation or disposition? But it is then a reliance that the deed was read over to her, and it is argued that a mistake of its legal operation could not be averred. It is clear that where the parties are perfectly aware of the actual contents of a deed, and each acting on his own judgment, or that of his counsel, omits to insert a clause, for fear it may affect the deed in law, they cannot be helped. But here the question is one of imposition and abuse of confidence. The very inquiry is whether she did, in fact, know and understand what was in the deed, and what not. It was read to her, it is true. But what a time to produce a complicated marriage settlement to an uninstructed female, dressed for her marriage! Was it read to her in the hope that she would or would not understand it? To whom could she apply for advice but the very person who had contrived the imposition on her? I wonder that she had not signed and sealed without a question. But even at that moment the strong desire of controlling one's own property showed itself, and prompted the question, "Can I still do as I please with my property?" The answer given by the witness was, "Yes, you can; but Mr. Scott cannot." This was all she wanted; and in confidence of that she was willing to execute the deed. It was read through; but can it be supposed that she heard it, or, hearing it, comprehended it? The man who was bound, in honor, conscience, and law to advise her was silent, and fostered the deception.

The evidence, then, out of the deed, goes beyond a naked confirmation of the inference from the deed itself of a mistake. It proves actual and deliberate imposition by the defendant. All his rights, therefore, and all the benefits resulting to the sisters and their children from (410) this imposition must yield to the superior equity of this lady to have the settlement reformed. Huguenin v. Basely, 14 Ves., 289.

But it is argued that the Court cannot reform this settlement without inserting a clause which will render the whole deed nugatory, as it will place the wife in the husband's power. This bill is called the husband's bill, because the wife is sunk in him during the coverture, and her wishes cannot be known. The rights of husband and wife are not in conflict in this suit, or touching the matter of it. He derives no benefit under the settlement, and no decree can be had against him. The Court, indeed, would not set aside a settlement upon such a bill, and let the husband in to his legal rights. As to reforming it, the Court will take care to secure the interest of the wife so far as consistent with the true spirit of the intended provision which has been omitted. Here that was a power of disposition to the wife during coverture. That she is now entitled to. But as we cannot suppose that it was meant to be of such a general character as would leave her at the mercy of her husband, it must be so restricted as to protect her. If her real wishes had been laid before the conveyancer, he would certainly have declared a trust for her in fee of the lands, and in absolute property of the chattels, upon her becoming discovert; and, also, a power of revocation and of appointment by will, or a paper writing, properly attested by two credible witnesses, in the nature of a will, executed during the coverture, in case she died during the lifetime of her husband. This at once reserves to her a reasonable control over her own estates, and secures the free exercise of it, as far as it is now possible to be done, except by superadding the consent of the trustee. That would be done if the Court had a faithful one before it. But this trustee has already so far abused his relation to the plaintiff, and the confidence reposed in him, that no discretion can be allowed to him. The Court decrees, therefore, that the marriage settlement be reformed in the particulars mentioned, and that a conveyance (411) be made to such trustees as the plaintiffs, with the approbation of the clerk, may select, to be executed by the plaintiffs and defendant and the trustee to be selected, in which trusts to that effect shall be declared; which deed shall refer to the deed in the pleadings mentioned, and to this decree, and be settled and approved by the clerk of this Court, and acknowledged before a judge of the Superior Court or of this Court; and that the defendant pay all the cost of this suit.

PER CURIAM. Decree accordingly.

Cited: Sanderlin v. Robinson, 59 N.C. 159.