N. Smith, J.
This is an action to recover the penalty of the statute against fraudulent conveyances; alleging that the defendant was indebted to Giles Pettibone in several notes of hand, and a bond which Pettibone held as trustee to the plaintiff; and that, with a view to cheat and defraud the plaintiff in the collection of those notes and bond, the defendant conveyed to his father all his estate, both real and personal.
It appeared on the trial, that the notes and bond were given on an agreement between William Goodwin and iwife, to live separate. Which sums she accepted in full for her future support, and agreed never to become chargeable to him in any event. A clause is then added, in which she agrees, that, on his furnishing money and testimony, she will pursue the proper means to obtain a divorce as soon as may be; all which shall be under his direction, by himself or attorney. And in default of the compliance of Mary Goodwin with any of her engagements, the whole of the-settlements and obligations were to be void.
The court decided, and gave in charge to the jury, that the plaintiff had a just and lawftil debt against the defendant, and might well support her action, as being an aggrieved person within the meaning of the statute.
To this opinion of the superior court, various objections have been made in the argument. It was insisted, that there is no debt in this case, because the [350]*350contract on which the notes were given was bétweerfiár husband and his wife, and is void for want ©f a contracting power in the wife. But suppose the contract between the . . husband and wife to be void on this ground, it only serves to show that the notes from the son to Giles Pettibone were without consideration. And as our notes are con* sidered to be in the nature of specialties, mere want of consideration cannot be averred.
Again, it was objected that the contract set forth in this case was conditional, and that the plaintiff lost all her right to the benefit of these notes, by a refusal to permit the petition to proceed, until she cotapelled her husband to make new terms with her. But as the contract between husband and wife was void for want of contracting parties, a failure on her part could render it no more than a nullity, and resolve itself into mere want of consideration for the notes ; which, as I have already stated, cannot, in this state, be averred to destroy their validity.
But although mere want of consideration cannot, in this state, be averred to destroy a note of hand, yet it may be averred that a note was given on an illegal contract, and if it appear that the contract in question is an illegal one, and the notes were given in pursuance of it, the circumstance of the wife’s having no contracting power will not purge the contract of its impurity.
Notes given to a trustee for the benefit of a feme covert, on consideration that she commit a crime, stand on no better ground than if given ts any other person, on a similar consideration. What, then, is this contract ? And here we discover a provision made for the support of the wife, on condition that she will bring forward a petition for a divorce, to be at the husband’s expense, and at his absolute control, or that of his attorney, which is the same thing. A petition is then to be brought, charging the husband with a crime; and he appearing in character of a respondent, in which character his confession? [351]*351are all to be taken most strongly agáinst him, and may supply the place of all other testimony; when, in truth and fact, he is substantially the petitioner. ,
Whatever, apology may be made for this contract, it must, .from its nature, operate a gross frajjd on the court; and if such friendly arrangements are allowed, they must very much interfere with the regular administration of justice.
It is said that here was a good cause for the divorce. Be this as it may, it is perfectly manifest that the fact of this petition being brought forward by. the procurement of the respondent, and at his control, was to be concealed from the court; the discovery of which fact would in itself be good ground for dismissing the petition.
It is also perfectly apparent, that the true cause of the divorce, which was thought disgraceful to the party, was to be concealed from the court, and a false one substituted and imposed on the court in its room. But courts of justice ought not to suffer themselves to be thus imposed on by the fraud of parties; they ought to judge upon the real state of facts.
On this ground, therefore, I think a new trial ought to be granted. And it becomes unnecessary for me to determine the general question, whether contracts between husband and wife to live separate, are illegal or not; or whether the present action was properly brought in the name of Mary Goodwin, as being the aggrieved person or not.
Swift, Edmond, Brainerd, and J. C. Smith, Js. were of the same opinion.
Baldwin, J.
The great question is, whether Mary Goodwin, the plaintiff, had such an interest in the debt attempted to be avoided, as will make her, in the sense of the statute, a party grieved.
It is admitted that the notes to Giles Pettibone were [352]*352given to him in trustfor the benefit of the plaintiff. He, of course, had no interest in them; if he recovered them, it was for the benefit of another ; if he lost them, he was not at all affected by the loss. If, then, the notes are valid, the cestuy que trust has the only substantial interest to be affected by any fraudulent attempt to preveqtfa recovery. And though between the trustee and the cestuy que trust, her rights, if withheld, might’ be redressed in chancery only; yet the law will not permit an improper interference, to prevent an equitable adjustment, even though it could not be enforced. This was expressly decided in the case of Storer v. Bulkley, which I consider as a stronger case than this; for the claim of Storer, defeated by the act of Bulkley, could not be enforced either in law or in equity.
If the interest of the plaintiff in this case is substantial, either ip law or in equity, and is defeated by the act of the defendant, it appears clear to me that she is a party grieved within the meaning of the statute. But it is contended, that her trustee has no legal claim, and, of course, that she has neither a legal nor an equitable interest ; because the notes originated from an impure contract between husband and wife. I have never considered the case of Dibble v. Hutton, 1 Day, 221. as going so far as to prevent all possible provision, which a husband may be disposed to make for his wife. While such provision rests in contract between husband and wife merely, as that did, I agree it is void; but when made bona fide, and fairly executed by the intervention of a trustee, I know of no decision or principle that will set it aside, if the plaintiff’s claim in the case before us, rested in contract merely, as did the case of Dibble v. Hutton, I am ready to say such contract is void. Here, neither the husband or wife are parties in the arrangement; the note is given by the son of the husband, to a trustee, for the benefit of the wife.
T am aware it is contended, that there is a want of con[353]
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N. Smith, J.
This is an action to recover the penalty of the statute against fraudulent conveyances; alleging that the defendant was indebted to Giles Pettibone in several notes of hand, and a bond which Pettibone held as trustee to the plaintiff; and that, with a view to cheat and defraud the plaintiff in the collection of those notes and bond, the defendant conveyed to his father all his estate, both real and personal.
It appeared on the trial, that the notes and bond were given on an agreement between William Goodwin and iwife, to live separate. Which sums she accepted in full for her future support, and agreed never to become chargeable to him in any event. A clause is then added, in which she agrees, that, on his furnishing money and testimony, she will pursue the proper means to obtain a divorce as soon as may be; all which shall be under his direction, by himself or attorney. And in default of the compliance of Mary Goodwin with any of her engagements, the whole of the-settlements and obligations were to be void.
The court decided, and gave in charge to the jury, that the plaintiff had a just and lawftil debt against the defendant, and might well support her action, as being an aggrieved person within the meaning of the statute.
To this opinion of the superior court, various objections have been made in the argument. It was insisted, that there is no debt in this case, because the [350]*350contract on which the notes were given was bétweerfiár husband and his wife, and is void for want ©f a contracting power in the wife. But suppose the contract between the . . husband and wife to be void on this ground, it only serves to show that the notes from the son to Giles Pettibone were without consideration. And as our notes are con* sidered to be in the nature of specialties, mere want of consideration cannot be averred.
Again, it was objected that the contract set forth in this case was conditional, and that the plaintiff lost all her right to the benefit of these notes, by a refusal to permit the petition to proceed, until she cotapelled her husband to make new terms with her. But as the contract between husband and wife was void for want of contracting parties, a failure on her part could render it no more than a nullity, and resolve itself into mere want of consideration for the notes ; which, as I have already stated, cannot, in this state, be averred to destroy their validity.
But although mere want of consideration cannot, in this state, be averred to destroy a note of hand, yet it may be averred that a note was given on an illegal contract, and if it appear that the contract in question is an illegal one, and the notes were given in pursuance of it, the circumstance of the wife’s having no contracting power will not purge the contract of its impurity.
Notes given to a trustee for the benefit of a feme covert, on consideration that she commit a crime, stand on no better ground than if given ts any other person, on a similar consideration. What, then, is this contract ? And here we discover a provision made for the support of the wife, on condition that she will bring forward a petition for a divorce, to be at the husband’s expense, and at his absolute control, or that of his attorney, which is the same thing. A petition is then to be brought, charging the husband with a crime; and he appearing in character of a respondent, in which character his confession? [351]*351are all to be taken most strongly agáinst him, and may supply the place of all other testimony; when, in truth and fact, he is substantially the petitioner. ,
Whatever, apology may be made for this contract, it must, .from its nature, operate a gross frajjd on the court; and if such friendly arrangements are allowed, they must very much interfere with the regular administration of justice.
It is said that here was a good cause for the divorce. Be this as it may, it is perfectly manifest that the fact of this petition being brought forward by. the procurement of the respondent, and at his control, was to be concealed from the court; the discovery of which fact would in itself be good ground for dismissing the petition.
It is also perfectly apparent, that the true cause of the divorce, which was thought disgraceful to the party, was to be concealed from the court, and a false one substituted and imposed on the court in its room. But courts of justice ought not to suffer themselves to be thus imposed on by the fraud of parties; they ought to judge upon the real state of facts.
On this ground, therefore, I think a new trial ought to be granted. And it becomes unnecessary for me to determine the general question, whether contracts between husband and wife to live separate, are illegal or not; or whether the present action was properly brought in the name of Mary Goodwin, as being the aggrieved person or not.
Swift, Edmond, Brainerd, and J. C. Smith, Js. were of the same opinion.
Baldwin, J.
The great question is, whether Mary Goodwin, the plaintiff, had such an interest in the debt attempted to be avoided, as will make her, in the sense of the statute, a party grieved.
It is admitted that the notes to Giles Pettibone were [352]*352given to him in trustfor the benefit of the plaintiff. He, of course, had no interest in them; if he recovered them, it was for the benefit of another ; if he lost them, he was not at all affected by the loss. If, then, the notes are valid, the cestuy que trust has the only substantial interest to be affected by any fraudulent attempt to preveqtfa recovery. And though between the trustee and the cestuy que trust, her rights, if withheld, might’ be redressed in chancery only; yet the law will not permit an improper interference, to prevent an equitable adjustment, even though it could not be enforced. This was expressly decided in the case of Storer v. Bulkley, which I consider as a stronger case than this; for the claim of Storer, defeated by the act of Bulkley, could not be enforced either in law or in equity.
If the interest of the plaintiff in this case is substantial, either ip law or in equity, and is defeated by the act of the defendant, it appears clear to me that she is a party grieved within the meaning of the statute. But it is contended, that her trustee has no legal claim, and, of course, that she has neither a legal nor an equitable interest ; because the notes originated from an impure contract between husband and wife. I have never considered the case of Dibble v. Hutton, 1 Day, 221. as going so far as to prevent all possible provision, which a husband may be disposed to make for his wife. While such provision rests in contract between husband and wife merely, as that did, I agree it is void; but when made bona fide, and fairly executed by the intervention of a trustee, I know of no decision or principle that will set it aside, if the plaintiff’s claim in the case before us, rested in contract merely, as did the case of Dibble v. Hutton, I am ready to say such contract is void. Here, neither the husband or wife are parties in the arrangement; the note is given by the son of the husband, to a trustee, for the benefit of the wife.
T am aware it is contended, that there is a want of con[353]*353sideration for the notes, or that the consideration arises from an impure and immoral source. I should doubt whether a mere want of consideration would be a defence for the defendant; and, I contend, that a suitable provision for a wife on the event of a divorce for sufficient cause, is a good and a legal consideration. It is no more than the law requires the court to give on such an event. If, then, the provision is made by the husband, fairly, end on sufficient ground, I cannot say that such an arrangement is in itself void; yet I readily agree that such arrangements may be made fraudulently, with design to impose on the court, and obtain a divorce without cause. That this is so, reliance is placed on that part of the agreement which required the husband to furnish proof and money. I cannot concede that this is necessarily evidence of corruption ; the wife had no means separate from the husband; this part of the agreement is capable of honest explanation, and the onus probandb is on those who claim it to be otherwise. The case has been tried on the general issue, and nothing of that kind appears before us. We have, then, the naked question, ■whether such a transaction is in itself void.
It is also contended, that these notes are avoided by a subsequent agreement between the plaintiff and her husband, respecting her alimony. To this I have only to observe, that I cannot conceive how an unexecuted contract between husband and wife, resting in parol, and which all parties agree is in itself void, can by any possibility, make void at law a specialty executed by a third person.
On the whole, I am of opinion, that though a contract between husband and wife, respecting her alimony in case of divorce for his misconduct, cannot be enforced against him while resting in contract; yet if made bona fide, and executed by the procurement of the husband, and secured to a trustee for her benefit, it becomes valid, and may be enforced; and a fraudulent attempt to [354]*354avoid the payment of the sum secured, will affect her *nterest anc* entitle her to an action, as the grieved party. I am therefore opposed to a new trial.
Trumbull, J. was of the same opinion.
Reeve, J.
I perceive nothing in this case other than a provision made by a husband for the support of his wife, in the event of a divorce taking place betwixt them, which they had in contemplation. Such a provision, I apprehend, can never be deemed illegal or improper, provided there was no corrupt design betwixt the parties to accomplish a divorce by fraud and falsehood. Let it be supposed that the husband had committed adultery, and of this there was no doubt; the wife would most assuredly be justified in obtaining a divorce from her husband. It would be a lawful act, for a legitimate cause for obtaining a divorce existed; and if the husband, conscious of having injured his wife by his infidelity, should make provision for her, as in this case, would it not be binding upon him ? This cannot be controverted. It would be doing what the law supposes proper to be done; for, in such case, it is in the power of the court to assign to the injured wife one third part of his estate to be her own, as a provision for her maintenance. And surely when a man does that which by law he is compellable to do, he must be bound by it. I apprehend that the decision in this case has proceeded upon the supposition that the record shows that there was an agreement, Sec. to procure a divorce by a fraud and imposition on the law or the court. This question is a point of fact. It is, I apprehend, impossible to raise it on this motion. It does not appear that this ground was ever taken at the trial; and it being a mere matter of fact, the party should have made the question to the jury. If it does, I agree that the notes, See. given in pursuance of it are not valid. But where is it apparent that there [355]*355was any fraud ? Is it inferred from the agreement that the husband should furnish the money, and the necessary J testimony to obtain a divorce, for his wife ? If the necessary construction of such an agreement be, that he was to procure false testimony, and suborn witnesses to prove a falsehood, viz. that he had been guilty of adultery, when he had not, and thus impose upon the court, my opinion would coincide with the opinion of the court. To me it appears impossible to say that such is the necessary construction of such an agreement. Such an agreement is perfectly reconcilable with the hypothesis that adultery had been committed by the husband, and that the wife was able to produce that testimony, and that he knew it to be his duty to be at the expense of furnishing the testimony, and, therefore, was willing to do it. It is a much more probable supposition, in my opinion, than that he should be willing, when he knew himself innocent, to blast his own reputation, and that by one of the foulest of crimes, the subornation of perjury, Admitting, then, and I think it must be admitted, that it does not appear upon the record what was in reality the true state of the case, it is not in the power of the court by conjecture to infer any fact. No: it is necessary that the consideration of the notes should appear to be unlawful, or to have been given with a fraudulent object in view. Is it inferred that because the petition for a divorce was to be under the direction of the husband, there was fraud in the transaction ? Unless it is a necessary construction that such an agreement must be with a fraudulent view, the court cannot make such inference. To justify the conclusion it must be a fraud tier se. I conceive that this might be done without any such intention. Suppose the fact to be, as was testified by the witnesses, that the husband had been guilty of adultery, and had also several times had the venereal disease during the intermarriage, would it not” account for this transaction? The object being a divorce, which [356]*356was a lawful object, might not the husband, knowing that the wife would prefer a bill for a divorce, and knowing that she could prove the fact of adultery, and under the aggravated scandal of having had that disgraceful disease, be desirous of avoiding the increased shame, and have it in his power to produce no further evidence of his baseness than what was necessary to attain the object of a divorce? And might not a wife consent to this? Surely she might, unless it was her duty to produce all the evidence that existed of his shameful infidelity ta her. If this might be the case, and especially when it is rendered probable by the testimony given, there is no foundation laid by the record to conclude that there was any fraud contemplated betwixt the husband and wife. It is not enough to say, that there may be fraud in such transaction, and the court may be imposed on. In order to justify the advising to a new trial, it must appear that there was fraud, and that the court was imposed upon.
There is, it seems, a part of the agreement, which I have not noticed, which is deemed peculiarly offensive and immoral; that is, the agreement to live separate, and dissolve, as much as in them lies, all the obligations of the marriage covenant, and that, for reasons best known to themselves and the Searcher of Hearts. It is apparent the manner in which they meant to dissolve the obligations of the marriage covenant, viz. by obtaining a divorce for adultery, which is a legal act; and if this was not what was meant, it is no part of the consideration on which these notes were given. It may be wished to attempt to dissolve the obligations of the marriage covenant ; but this has not the least connexion with a note or bond that was given to take effect upon the contingency of a divorce. The same observations are applicable to the agreement to live separately.
But admitting that this was a consideration for giving the notes, it must appear to the court that there is no such thing as a husband and wife agreeing to live sepa[357]*357rate, and that agreement be a lawful one. Without resorting to the host of English authorities which sanction such agreements, and give complete effect to all the arrangements made under them, I think no man will say that it would be thought that any turpitude was attached to such an agreement, if the husband had the venereal disease, or if the wife had been guilty of infidelity to her husband. Shall the wife in the one case, and the husband in the other, not be justified in living separate l And what one might lawfully do, might not both agree should be done ? How, then, does this court know that this agreement is illegal ? What led to it we are not told, only that the reasons are best known to themselves and the Searcher of Hearts.
I know that it has been contended in this case, that there was no debt, because the agreement was betwixt husband and wife, and, therefore, the notes were void. Admitting that all agreements betwixt husband and wife are void, the admission is for argument’s sake only; for I believe the doctrine to be not only ridiculous in the extreme, but opposed to the laws of the land, and destructive of the welfare of society, of a baneful and immoral tendency; yet it does'not follow that the notes given to a third person for the benefit of his wife, on the happening of a certain contingency, are void. The case, on that hypothesis, is this: there never was any agreement betwixt husband and wife, for by law there could be none, and the husband then voluntarily makes a provision for her by a contract executed to a third person as trustee for her. It can never be averred that there was no debt; for a want of consideration can never, by the rules of law, be shown in such a case. Such transaction is always binding upon the promissor, and never could be avoided by him, however it might by creditors. Unless it can be shown to be immoral for a husband to provide for the maintenance of a wife, in case she should be divorced from him for his adultery,' and that in a way [358]*358entirely consistent with the rules of law, by a contract not with her but with a third person for her benefit, the argument on this ground must utterly fail.
It has been urged that the debt, if any, was due to Giles Pettibone ; and, of course, he, and not the plaintiff, was the person grieved, to whom the action by law is given. As I do not apprehend that this consideration had much weight in the decision, I shall only observe, that Giles Pettibone had no beneficial interest in the subject whatever, and, therefore, could not be the person grieved; and the plaintiff, who was entitled to the whole beneficial interest, was grieved, and the only person who was; and it is now settled that the violation of an equitable right may be the ground of an action at law.
It has been further urged, that this contract was intended by the parties to operate if no divorce had ever taken place, and that a married woman can hold no separate property given in trust for her, either in law or equity, and that no debt could be raised to her separate use, and her husband, of course, was the cestuy que trust; that the case of Hutton v. Dibble recognises this doctrine. To this I answer, if it does, the opinion was an obiter opinion, and nowise necessary to determine that case. Nothing can be clearer than that such an opinion is opposed to all authority, and never was law, unless that decision has made it so.
But admitting this to be the case, that a wife can have no separate property, and that our books on this subject are to be given to the winds, yet it cannot have the smallest operation on the case ; for surely the husband cannot be the cestuy que trust'; to suppose it would be a violation of all principle. Let the doctrine be, that a wife can hold no separate property. A. conveys property to B. in trust for C., the wife of D., to her sole and separate use, over which property the conveyance declares that D., the husband, shall have no control. Suppose B. is not bound to execute this trust for C,, because C. is [359]*359not a person who in law could compel an execution of it, and thus the intention of granting be frustrated, because he intended that C. should hold it for her separate use, does it follow that B. is trustee for D., the husband ? This would be monstrous; for this would not barely disappoint the intention of the grantor, but would, in violation of every principle of construction of a conveyance, and in direct opposition of the grantor’s intention, convey the beneficial provision of the grant to the very person to whom the grantor never intended that it should go. This idea must be abandoned ; and the most which can be made out of such a transaction is, that B., the grantee of the legal title, could not be compelled to fulfil the trust to C. But suppose he should fulfil it. May he not if he chooses ? And is the note or bond given by A. to B. void, because C. could not compel a fulfilment of the trust ? Say it is a voluntary bond by A. to B. for a special purpose, not an unlawful one, but such a one as that the person intended to be- benefited could not compel the performance of it by B., and B. sues A., who pleads in bar that B. was not compellable to perform the trust; on a demurrer, could this avail A. ? Has not B. the legal title ? And who can say that he he will not perform the trust honestly ?
The truth is, such a defence does not lie in the mouth of the promissor. It is nothing to him. The defendant’s argument would be the same, if Giles Pettibone had holden notes against a minor, and he, the defendant, had robbed him of them, or swindled them from him; for, says he, I have done you no harm; you could not have enforced your notes, if I had not swindled you.
Mitchell, Ch. J. was of the same opinion.
New trial to be granted.