Baker v. . Jordan .

PeARsof, C. J.

The plaintiff marries a lady, whose only estate is a lot in the town of Wilson. In a short time he finds out that on the day before the marriage she had executed a deed of gift to her step-mother, conveying all of her interest in the lot. So instead of a bride with a fortune of $3,000 (the estimated value of the lot) he has a bride stripped of everything except her clothes.

Before 1868 this would have been declared to be “ a bare faced fraud ” upon his marital rights. But the new Constitution and the “ marriage act,” Bat Rev., chap. 69, make very great changes in respect to the rights of the husband; for in- < stead of acquiring jure mariti, as by the common law, the 5 property of his wife, and becoming liable &$. pater familias to > support her and the children, he is treated as an overseer in ) respect to his wife’s property, bound to account for profits re- j ceived out of her estate if called upon as such overseer or bailiff, j which is the milder word, to account and pay over within one 1 year. ■ (

! These radical changes of the common law, in respect to the Í relation of “ Baron and Feme” call for great consideration on the part of the Courts. We will approach the subject with caution, and not go one inch beyond what it is necessary to decide, in order to dispose of the present case. Mr. Moore, who aided the Court by an elaborate argument, took the ground squarely that a husband, under the Constitution of 1868, and the marriage act to carry it into effect, acquires no right to his : wife’s estate or to the use or profits thereof \ and is not to act as her bailiff without being subject to account: ergo, he cannot be defrauded by a conveyance made by her on the eve of the marriage without his knowledge.

; We do not concur in this proposition. A husband is enti-1 tied since the Constitution of 1868, and the marriage act, to ; the society of the wife, is under an obligation to support her i and the children, and for that purpose Is entitled to her services, and to contribution from the profits of her estate. He has a right to live in his wife’s house, and to ride her horse if.' she own one.

The plaintiff was surprised by the fact that his wife had been-induced to give away all the estate she owned, and to which he-with reason looked for aid in supporting her. He was deceived, and the question is, was he defrauded of any right to which he was entitled as husband? We think he was. The marriage act, Bat. Rev., chap. 69, sec. 17, authorizes a wife to-make contracts changing her real and personal estate for her \ necessary personal expenses, or for the support of the family, ; &e.” So the plaintiff had in legal contemplation a right to- \ look to this lot as a source which would enable his wife to con- ■ tribute to “ her necessary personal expenses, and for the sup-j port of the family,” and was not only deceived, but was de- \ frauded by the secret conveyance made the day before the \ marriage.

/ The defendant, Taylor, knew of the fact that this conveyance | was made on the day before the marriage. This, as the books ¡ say, was enough to put him “ upon enquiry.” If he had asked, of the plaintiff he would have received the information that the deed was executed without his knowledge, and that he would contest the right of Mr. Jordon to sell the lot.

No error.

Peb Oubiam.

Judgment affirmed.