Wilson v. Prewett.

ance, which transfers to her property worth $32,776. Could she, bona fide, knowing that Prewett was indebted and embarrassed, accept a conveyance for so large a sum? Could she shut her eyes and say she did not know the extent of his debts, did not know of his fraudulent purpose, and, therefore, she received the deed in good faith?

Actual knowledge of the fraudulent intent is not necessary. A knowledge of facts sufficient to excite the suspicions of a prudent man or woman, and to put him or her on inquiry, amounts to notice, and is equivalent to actual knowledge in contemplation of law: Atwood v. Impson, 5 C. E. Green, 150; Tantum v. Green, 6 C. E. Green, 364; Jackson v. Mather, 7 Cow., 301; Smith v. Henry, 2 Bailey, 118; Mills v. Howeth, 19 Texas, 257.

It has even been held that the means of knowledge, by the use of ordinary diligence, amounts to notice. Farmers' Bank v. Douglass, 11 Smedes & M., 469. But in this case it is not necessary to go so far. The indebtedness and pecuniary embarrassinent of Prewett, and the large estate conveyed by the deed of settlement, put Josephine Prewett on inquiry, and she is chargeable with knowledge of every fact which she could have learned on inquiry. She might have learned all that the evidence in this case discloses about the amount of Prewett's debts and property, and such knowledge would have made clear Prewett's fraudulent purpose. She is, therefore, chargeable with notice of the fraud, and her acceptance of the deed of settlement, after such notice, makes her a party to the fraud, and renders the marriage settlement null and void.

The creditors of Prewett, whose bona fide debts were provided for by the marriage settlement, can take no benefit from the fraudulent instrument. When a deed in favor of two persons is obtained by the fraud of one, although without the privity of the other, the deed will be void as to both: Whelan v. Whelan, 3 Cow., 537; Hunt v. Bass, 2 Dev. Eq. R. (N. C.), 292; Huguenin v. Baseley, 14 Ves. Jr., 273; Townsend & Brothers v. Harwell, 18 Ala., 301.

Although they had no notice or knowledge of the fraud

VOL. III.-41

Wilson v. Jordan.

contemplated by Prewett, yet the fact that the grantee, under whom their rights are claimed, not only had notice of the fraud, but was a beneficiary under the fraudulent deed, avoids the instrument as to the beneficiary as well as to the grantee.

The result of these views is, that the marriage settlement made by Richard upon Josephine Prewett, must be declared void for all purposes, and the property conveyed thereby turned over to the assignee in bankruptcy for administration.

ROBERT H. WILSON, ASSIGNEE OF FLEMING JORDAN, V. LUCY JORDAN AND FREDERICK B. MOORE.

1. J., who was insolvent, conveyed to his wife real and personal property of the value of $7,700, for a consideration estimated at $1,537. Held, that the consideration was so grossly inadequate as, under the cir cumstances, to establish conclusively the fraudulent character of the conveyance.

2. A testator devised a large estate to various legatees to the exclusion of the heir. The heir filed a bill, in which the validity of the will was assailed. Pending this bill, the executor and the heir entered into a contract with each other, to the effect that, in case the will should be set aside, the executor was to pay the heir a certain fixed sum out of the estate and retain as his own all the residue, to the exclusion of the legatees under the will. Held, that such a contract was a flagrant breach of trust by the executor, and was against public policy and void.

IN EQUITY. Heard upon pleadings and evidence for final decree.

The bill was filed by the complainant as assignee in bankruptcy of Fleming Jordan, to set aside as fraudulent two deeds made by Jordan on September 29, 1866, one to his wife, Lucy Jordan, and the other to Frederick B. Moore. Both these deeds conveyed personal as well as real property. They were attacked by the complainant on the ground that the consideration for the conveyances was grossly inadequate, and that they were executed to hinder, delay and defraud the creditors of Jordan.

Wilson v. Jordan.

The consideration of the deed to Lucy Jordan was the release of her inchoate right of dower in the lands conveyed, by her husband to Moore, and the consideration of the conveyance to Moore was the cancellation of a debt due to Moore from Jordan, evidenced by certain bills of exchange of which Jordan was the drawer, and Moore the holder, amounting to $28,000.

Messrs. S. D. Cabiniss, F. P. Ward and David P. Lewis, for complainant.

Messrs. L. P. Walker, D. D. Shelby, Milton Humes and Geo. S. Gordon, for defendants.

'WOODS, Circuit Judge. The evidence shows conclusively, indeed it is not controverted, that on September 29, 1866, the day when the deeds to Frederick B. Moore and Lucy Jordan were executed, Fleming Jordan was largely insolvent. At that time he owed at least $80,000, and all his property was not worth more than $25,000 or $26,000. On the day just mentioned he conveyed, substantially, all his real and personal property to Frederick B. Moore, and to his wife, Lucy Jordan, and others.

Lucy Jordan knew that her husband was insolvent at the date of the conveyance to her, for she so testifies.

The real estate conveyed to her by the deed in question is estimated by one witness, Joseph C. Bradley, at $5,000, by another witness, Larkin A. Warthan, at $9,550, and it was valued for taxation for the year 1867, by Lucy Jordan herself, at $9,000, and taxes paid by her on that valuation.

Two items of the personal property conveyed by said deed, *namely, six mules and two hundred barrels of corn, are estimated by the witness Warthan to be worth $2,020, the mules $1,020, and the corn $1,000. Besides these articles of personal property, the deed to Lucy Jordan also conveyed to her one wagon and gear, fifteen head of cattle, twenty head of hogs, one horse-cart, one rockaway and harness, and all the household and kitchen furniture at the residence of the grantor. Lucy Jordan, in her evidence, puts the value of the mules at $900, and other witnesses put the price of corn at

Wilson v. Jordan.

from sixty to seventy-five cents per bushel. According to the lowest estimates made by the witnesses, the mules and corn alone were worth $1,500.

The return of property for 1867 made by Lucy Jordan for taxation, shows that she returned for taxation cattle over five head in number, valued at $150, household and kitchen furniture in excess of $300, valued at $700, and vehicles, not excluding those used for agricultural purposes, valued at $50. The value of these articles amounted, in the aggregate, to $1,200. It is true, it is not directly shown that they were the same articles conveyed by the deed of Fleming Jordan the year before, but the inference that they are so is not a forced one. If this property, returned by Lucy Jordan for taxation in 1867, was not the property conveyed to her by Fleming Jordan in 1866, it certainly stood her in hand to show it. It was a fact peculiarly within the knowledge of herself and husband, yet neither of them have attempted to deny the identity of the property.

Estimating the corn and mules at $1,500, and the other personal property conveyed at $1,200, the estimaté put upon it by Lucy Jordan for taxation, the value of the personal property conveyed by the deed of September 29, 1866, foots up at $2,700.

Estimating the mules and corn at the price named by Warthan, to wit, $2,020, the entire value of the personal property conveyed foots up $3,220.

There are but two estimates of the value of the real estate conveyed to Moore, in which Lucy Jordan released her dower. One is that of Warthan, who placed it at $10,500, and the other of Joseph C. Bradley, who placed it at $7,000. The only evidence to show the residue of the lands conveyed by Fleming Jordan to Warthan. Lightfoot, Reynolds and Larkins, was the sum for which Jordan testifies he sold them at that time. These lands sold for $2,225.

Therefore, taking Warthan's estimate, the entire value of the lands in which Mrs. Jordan released her dower, as a consideration of the conveyance to her, was $12,750; according to Bradley's estimate, was $9,225.

Wilson v. Jordan.

Now, what was the inchoate right of dower of Lucy Jordan, in other lands, worth on September 29, 1866. The statute of Alabama has fixed the utmost limit to its value. If, at the date just named, Mrs. Jordan had actually been a widow eighteen years of age and in perfect, health, the present value of her vested dower estate in these lands would have been, according to the law of Alabama, only one-sixth of their value, in fee simple. See Walker's Rev. Code, secs. 2229, 2230, 2231.

According, therefore, to Warthan's estimate of the value of the lands, Mrs. Jordan's dower therein, if she had been a widow in youth and health, would have been $2,125; according to Bradley's, it would have been $1,537. When it is remembered that on September 29, 1866, the date of her release of dower, Mrs. Jordan's husband was living, that he was only five years her senior, and that she was fifty-seven years of age, the value of her inchoate right of dower almost entirely disappears.

But suppose it to be worth what it would have been if she had been actually a widow eighteen years of age, and in good health, how does its value compare with what she received for it? According to the highest estimate of the value of her dower, and the lowest estimate of the value of the personal property only, conveyed to her by the deed of September 29, 1866, she received in personal property alone $575 more than her dower was worth.

Taking Bradley's estimate of the lands in which dower was released, the mules and corn alone, at the lowest estimate put upon them by any witness, came within $37 of paying all that her dower was worth, if she had been actually a widow and only eighteen years old.

The truth is, that the inchoate right of dower of Mrs. Jordan, in the lands conveyed by her husband, was almost worthless. If we are to exercise our own judgment in such matters, we know that, if put up to sale, it would have brought nothing. The purchasers of the land would doubtless have paid a small sum for it, but not near one-sixth of the value of the estate in fee.