Cummins v. Boston & Gunby

By the Court McDonald, J. delivering the opinion. In discussing the charge given to the jury by the presiding Judge in the Court below, we must examine the Act requiring marriage settlements to be recorded, in order to determine the kind of notice contemplated by that Act to bind bona fide purchasers, creditors and sureties. Antenuptial marriage settlements are made upon valuable considerations and prior to the Act of the Legislature of 1847, there was no Act requiring them to be recorded. They were good con [283] veyances, for valuable consideration, and, when free from fraud between the parties, bound every body. In this State* all the property of the feme on marriage vests in the husband. The possession of the property by the husband after marriage, is the indicium of property in him, and, without explanation, it is presumptively his absolutely. But this presumption was held not to affect the rights of the wife as she ceased to be sui juris on her marriage, and became incapable of performing a legal act or of procuring for herself legal protection, and purchasers, creditors and sureties, were subjected to great injuries, by ignorantly supposing the property to be the husband’s. To remedy this evil, that Act was passed, and it is a matter of much importance, to settle the kind of notice which satisfies the statute, whether it be actual or constructive. We think there can be but little doubt on that point. The legal ability of the wife to act for herself continues to be the same since the enactment of that statute, that it was before. She cannot control her trustee, of herself, in the execution of the duties he undertook to perform by the acceptance of the trust, and if, as in this case, the law, by the death of the trustee, vests an insolvent and, therefore, irresponsible husband with the trust, under whose legal dominion the wife is, she is powerless in contemplation of law as to her legal rights. Her condition, then, requires, that in construing the statute, we should not extend it against her beyond its letter. [1.] We shall proceed then to a brief analysis of the Act. The two first sections require that marriage settlements shall bfe recorded. The third section declares the consequence of a failure to record. A settlement not recorded shall not be of any force or effect against a bona fide purchaser without notice, a bona fide creditor without notice, or a bona fide surety without notice, who may purchase, give credit, or become surety before the actual recording of the same. It is manifest, that if the settlement be recorded, the registry would be sufficient notice and all'that the statute requires. It cannot [284] be questioned, but that the registry would be constructive notice only. It is certainly not actual notice. It is just to say then, that the kind of notice meant by the statute, is that which is equal to a registry — a constructive notice. [2.] Our conclusion is, that any notice is sufficient, or in other words, amounts to constructive notice, which would excite apprehension in ordinary minds, and prompt enquiry into the actual condition of things; and that information for such purpose may be communicated by a person, whether he have personal knowledge of the fact, or be specially authorized to speak or not,provided it be given by such a man and in such terms as would induce aperson of ordinary prudence to enquire into the matter, we think that the Court ought so to have instructed the jury, and that the charge that the law required actual notice was too strong. The Legislature intended to protect the description of persons mentioned in the statute,from imposition and injury, and not to_arm them with power to commit a fraud. Wm. W. Chapman testified that Mr. Boston spoke to him of his acceptances on drafts of plaintiff in error drawn on cotton and that, he informed him that Cummins had no property except a house and lot, and that he had heard that his negroes were settled on his wife. It is true that he said he knew it only from hearsay, but it did put him on enquiry, for he enquired immediately of Chapman, the value of the bouse and lot, and on being informed that it was worth about $800, replied that he thought he"was good — that he was holding about 110 bales of cotton for him. We think that the charge of the Court in regard to the right of the consignee to dispose of the produce in their hands for their indemnity, and of their duty to do it, should be modified to suit the views expressed by us in respect to the notice required by law, with a slight change in regard to the substance. We think that the consignees ought, if the notice received by them was such as would have induced a man of ordinary prudence, to have enquired into the matter, to have [285] sought information of the wife, within a reasonable time, in relation to the trust; and of any one probably knowing the circumstances of the consignor, as to his solvency, and if the enquiry resulted in information that the property was secured in trust to the wife, or if there was a part not so secured, and they were satisfied of the insufficiency of the part not secured to protect them, they might proceed at once to dispose'of the effects in hand for their own security, whether the credit had been extended or not, unless the credit had been extended with a knowledge of all the facts; or independent of any consideration of security afforded by the property. In that case they should act on their own judgment, as they would on their own responsibility so far as their right to claim indemnity for a balance, from the trust property, Is concerned. Agreeing mainly with the 6ourt below on other points insisted on in argument by plaintiff in error, we simply say that we reverse the judgment on the points above examined. Judgment reversed.