Johnston County NcArchives Court.....William A. Bailey & Al, Joel Tisdale V. 1849
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Connie Ardrey n/a January 29, 2010, 8:55 pm

Source: Nc Reports
Written: 1849

Joel Tisdale vs. William A. Bailey & Al, 1849

Where a woman, just before marriage, secretly and with the intent to deceive 
her intended husband, conveys away her property, Held, that the conveyance was 
void as to him, though the children to whom it was conveyed, were them selves 
innocent.

Cause removed from the Court of Equity of Johnston County, at the Fall Term, 
1849.

Elizabeth Bailey was the widow of Austin Bailey, by whom she had four 
children. He died intestate, and at the sale of his effects, she purchased two 
slaves and other things to the value of $500 or upwards, for which she gave a 
bond to the administrator. The present plaintiff subsequently made a proposal 
of marriage to her which she accepted, and it was agreed between them that the 
marriage should be celebrated on the 24th of December, 1846, and it took place 
accordingly. On the day preceding the marriage, she executed a deed to her 
children for the said slaves and all her other property, conveying the same to 
them immediately and absolutely.

The bill was filed by the husband against the children in February 1848, and 
states that the plaintiff had no knowledge, at the time of the marriage, that 
the deed had been executed, nor had he been informed nor had reason to believe 
at any time before the marriage, that his intended wife had any purpose to 
convey away her property or any part of it to any person or for any use; and 
that, on the contrary, he believed she had not, and that he would upon the 
marriage become entitled to the slaves and other effects, which she then had 
in her possession. The bill states, that accordingly the plaintiff took 
possession of the property, when he married, and used it as his own for 
several months before he had any intimation of the conveyance, so made by his 
wife - that is up to April 29th, 1847, when the deed was registered. And the 
bill further states, that the deed was no only executed secretly, but that in 
fact the existence of it was purposely concealed from the plaintiff, and the 
writer of the deed and the subscribing witnesses to it were specially 
requested and induced by the wife not to make it known to the plaintiff, but 
to keep it secret from him. The prayer is, that the deed may be declared 
fraudulent and void.

The answer of the children by their guardian admits the deed and the marriage; 
but it insists that it was executed without their knowledge or any fraudulent 
contrivance on their part, and therefore that they have a right to hold under 
it.

H. W. Miller and J. H. Bryan, for the plaintiff, argued:

1st. A conveyance made by a woman during a treaty of marriage, in fraud of the 
marital rights of the intended husband, will be set aside by a Court of Equity.

2nd. In this case there is proof of actual fraud, but want of notice to the 
intended husband is alone sufficient to avoid the conveyance.

3rd. The conveyance being for the benefit of children by a former husband will 
make no difference.

G. W. Haywood for the defendants.

[NC Supreme Court]
Ruffin, C. J. The evidence fully sustains the statements of the bill. The deed 
bears date December 23rd 1846, and is witnessed by two persons, who say, that 
one of them prepared it, and that, after execution, it was left with him for 
safe keeping for the children, with a request to both of them not to let the 
intended husband, the plaintiff, nor any person know of it until after the 
marriage - the wife saying, that she had worked for the property and wished 
her own children to have it, and not to leave it under the control of her 
husband, if she should marry, as she expected to do. Those witnesses state, 
that they were present at the marriage the next day, and each of them says, he 
did not communicate to the plaintiff the existence of the deed. One of them, 
however, states that he gave information of the circumstances to the person 
who married them, and who was the administrator of the wife's first husband: 
and that person says, that the bond for the wife's purchases was still due 
him, and that he did not tell the plaintiff of the deed, and that he had been 
sorry ever since that he did not, as he did not believe the plaintiff knew it, 
and he did not think it right that he should be so cheated.

In this case there was an intentional and practised concealment, for the 
express purpose of preventing the intended husband from a choice of acting as 
he might, if he knew all. As to the idea, that the children can hold under the 
deed upon the ground of their innocence of any fraud, it is altogether 
inadmissible. 

The plaintiff is entitled to the decree he asks; but, of course, without costs.

Per Curiam
Decree accordingly

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