BRICKELL, C. J.
Intentional concealment or misrepresentation of material facts, by which one party is misled to his injury, is a fraud, against which a court of equity is in the constant habit of relieving. Of the class of cases in which the court interferes upon this ground, is a secret voluntary settlement or conveyance of her property by a woman, pending a treaty, and in contemplation of marriage, without the knowledge of the intended husband.—1 Story’s Eq. § 273 ; 1 Lead. Eq. Cases, 449. By the common law, the husband, on the marriage, became entitled to all the personal property of the wife in possession, and was clothed with the right of making her dioses in action his own, by reducing them to possession; and if the wife was seized of an estate of inheritance, he, eo instanti the marriage, became seized thereof, taking the rents and profits during their .joint lives, and, by possibility, during his own life. Of her freehold estate not of inheritance, he became seized, entitled to the rents and profits during marriage; and her chattels real passed to him, with the power to dispose of them at pleasure. While the marriage was only in treaty, or contemplation, these rights were only in expectation, and they could accrue only on the marriage, when the corresponding [80]*80duty of the husband to maintain the wife would come into existence. They were just expectations, forming material inducements to the marriage contract; its legal results, which could not be disappointed or defeated by secret conveyances made by the wife, without fraud, and a violation of the good faith to which parties are bound in respect to all contracts.
When there was a deliberate purpose to mislead and deceive the intended husband, and to deprive him of the marital rights as defined by the law, of the invalidity of the transaction there never was a doubt. When there was no active expedient resorted to for the purpose of keeping him in ignorance of the fact that the intended wife had so settled or disposed of her property that his marital rights would not attach — when there was mere concealment, or suppression of the truth, mere neglect to disclose it, and he neglected to make inquiry, there was some division of opinion whether there was fraud per se. But the weight of authority, following to its logical results the doctrine asserted by Lord Thurlow, in Strathmore v. Bowes (1 Vesey, p. 22), that a conveyance by a woman during the course of a treaty of marriage, without notice to the intended husband, is a fraud, against which a court of equity will relieve, has held the woman to the duty of disclosure — has treated her neglect to disclose as an omission of legal and equitable duty, offending the trust and confidence reposed by the intended husband.—1 Lead. Eq. Cases, 150.
It is not fraud only which will authorize the interference of a court to annul contracts or instruments, or to prevent them from having full operation. Injury, damage to the party complaining, must be the consequence. “ Eraud, without damage, gives no cause of action; but, when these two do concur and meet together, then an action lietli.” The injury may be to present, actual, existing rights, or it may be to rights which are contingent, or which are to accrue in the future. In the case of which we have been speaking, the intended husband had no present right in or to the property of the woman. The right could accrue only in the event the contemplated marriage was solemnized; yet the acquisition of these rights entered into, and formed essential inducements, from the very nature of things, to the proposals and contract of marriage, and disappointing them was the injury the courts intervened to prevent. Conveyances, intended to hinder, delay, or defraud creditors, áre valid as between the parties, and as to all the world but creditors, or Iona fide purchasers. It is not a present, existing debt, or cause of action, which alone constitutes a creditor. A contingent liability, which may never ripen into an actual demand, is protected, equally with present debts depending upon no contingency. When the contingency happens — when the [81]*81liability thereby ripens into a present claim, the creditor can assail and avoid the conveyance.—Foote v. Cobb, 18 Ala. 585; Gannard v. Eslava, 20 Ala. 732; Bibb v. Freeman, 59 Ala. 612.
It has been said, that as the wife by marriage acquires ' no right in or to the property of the husband — is not in any sense, by marriage, a purchaser of his estate — she can not complain of conveyances or dispositions an intended husband may, without her knowledge, make on the eve of marriage, though the intent was to defraud her, and without notice of them she was permitted to consummate the contract of marriage. The doctrine of the English Court of Chancery seems to be, that an alienation or settlement by the intended husband, although made on the eve of marriage, excluding the intended wife from dower, can not, after marriage, be impeached as a fraud upon her rights.—1 Scribner on Dower, 560. The reasons for distinguishing such a conveyance from a similar conveyance by the intended wife, are, that she by marriage does not acquire siich rights to the property of the husband, as he acquires to hers; and because in England, on marriage, estates are usually so settled or conveyed as to prevent dower attaching; and it is-not therefore presumed that the woman was induced into the contract in expectation of acquiring the right to dower. The latter reason can have no application in this country, where settlements on marriage, operating to bar dower, are of rare occurrence, and when tire fact is that dower is a right, which every man must presume the woman expects and intends shall follow the marriage, as certainly as its other incidents.
The first reason — that by marriage the wife acquires no right to the property of the husband — is true only partially as to real estate, in which the husband, during coverture, has a perfect equity, or the legal title. During coverture, dower may not be, strictly speaking, an estate in lands. It may be, rather, a mere expectancy — “ a capacity to take if the wife survives; ” and after the death of the husband, until assignment, the right may lie in action. It is, nevertheless, a valuable right, which, though inchoate, can not be defeated by any act or alienation of the husband. The wife has capacity to release, and,'as a condition of the release, may require a consideration moving solely to herself.—Hoot v. Sorrell, 11 Ala. 336; Bailey v. Litten, 52 Ala. 282. It is an incumbrance on the lands of the husband, which will excuse his vendee from performance of an executory contract of sale.—1 Brick. Dig. 612, § 7. The law confers the right, and the purpose is, if the wife survives, that she may have the means of sustenance for herself, and the nurture and education of her children. Inchoate simply on marriage it may be, and during coverture dependent for its full consummation upon the death of the husband ; arising solely by operation [82]*82of law, springing silently from, and incidental to the marriage relation, it is a valuable right, the relinquishment of which will form a valuable consideration for a settlement by the husband, or á conveyance by a stranger; it must be under the protection of the law, and frauds upon it — frauds designed to jirevent it from attaching — must be of legal cognizance, and capable of being defeated.
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BRICKELL, C. J.
Intentional concealment or misrepresentation of material facts, by which one party is misled to his injury, is a fraud, against which a court of equity is in the constant habit of relieving. Of the class of cases in which the court interferes upon this ground, is a secret voluntary settlement or conveyance of her property by a woman, pending a treaty, and in contemplation of marriage, without the knowledge of the intended husband.—1 Story’s Eq. § 273 ; 1 Lead. Eq. Cases, 449. By the common law, the husband, on the marriage, became entitled to all the personal property of the wife in possession, and was clothed with the right of making her dioses in action his own, by reducing them to possession; and if the wife was seized of an estate of inheritance, he, eo instanti the marriage, became seized thereof, taking the rents and profits during their .joint lives, and, by possibility, during his own life. Of her freehold estate not of inheritance, he became seized, entitled to the rents and profits during marriage; and her chattels real passed to him, with the power to dispose of them at pleasure. While the marriage was only in treaty, or contemplation, these rights were only in expectation, and they could accrue only on the marriage, when the corresponding [80]*80duty of the husband to maintain the wife would come into existence. They were just expectations, forming material inducements to the marriage contract; its legal results, which could not be disappointed or defeated by secret conveyances made by the wife, without fraud, and a violation of the good faith to which parties are bound in respect to all contracts.
When there was a deliberate purpose to mislead and deceive the intended husband, and to deprive him of the marital rights as defined by the law, of the invalidity of the transaction there never was a doubt. When there was no active expedient resorted to for the purpose of keeping him in ignorance of the fact that the intended wife had so settled or disposed of her property that his marital rights would not attach — when there was mere concealment, or suppression of the truth, mere neglect to disclose it, and he neglected to make inquiry, there was some division of opinion whether there was fraud per se. But the weight of authority, following to its logical results the doctrine asserted by Lord Thurlow, in Strathmore v. Bowes (1 Vesey, p. 22), that a conveyance by a woman during the course of a treaty of marriage, without notice to the intended husband, is a fraud, against which a court of equity will relieve, has held the woman to the duty of disclosure — has treated her neglect to disclose as an omission of legal and equitable duty, offending the trust and confidence reposed by the intended husband.—1 Lead. Eq. Cases, 150.
It is not fraud only which will authorize the interference of a court to annul contracts or instruments, or to prevent them from having full operation. Injury, damage to the party complaining, must be the consequence. “ Eraud, without damage, gives no cause of action; but, when these two do concur and meet together, then an action lietli.” The injury may be to present, actual, existing rights, or it may be to rights which are contingent, or which are to accrue in the future. In the case of which we have been speaking, the intended husband had no present right in or to the property of the woman. The right could accrue only in the event the contemplated marriage was solemnized; yet the acquisition of these rights entered into, and formed essential inducements, from the very nature of things, to the proposals and contract of marriage, and disappointing them was the injury the courts intervened to prevent. Conveyances, intended to hinder, delay, or defraud creditors, áre valid as between the parties, and as to all the world but creditors, or Iona fide purchasers. It is not a present, existing debt, or cause of action, which alone constitutes a creditor. A contingent liability, which may never ripen into an actual demand, is protected, equally with present debts depending upon no contingency. When the contingency happens — when the [81]*81liability thereby ripens into a present claim, the creditor can assail and avoid the conveyance.—Foote v. Cobb, 18 Ala. 585; Gannard v. Eslava, 20 Ala. 732; Bibb v. Freeman, 59 Ala. 612.
It has been said, that as the wife by marriage acquires ' no right in or to the property of the husband — is not in any sense, by marriage, a purchaser of his estate — she can not complain of conveyances or dispositions an intended husband may, without her knowledge, make on the eve of marriage, though the intent was to defraud her, and without notice of them she was permitted to consummate the contract of marriage. The doctrine of the English Court of Chancery seems to be, that an alienation or settlement by the intended husband, although made on the eve of marriage, excluding the intended wife from dower, can not, after marriage, be impeached as a fraud upon her rights.—1 Scribner on Dower, 560. The reasons for distinguishing such a conveyance from a similar conveyance by the intended wife, are, that she by marriage does not acquire siich rights to the property of the husband, as he acquires to hers; and because in England, on marriage, estates are usually so settled or conveyed as to prevent dower attaching; and it is-not therefore presumed that the woman was induced into the contract in expectation of acquiring the right to dower. The latter reason can have no application in this country, where settlements on marriage, operating to bar dower, are of rare occurrence, and when tire fact is that dower is a right, which every man must presume the woman expects and intends shall follow the marriage, as certainly as its other incidents.
The first reason — that by marriage the wife acquires no right to the property of the husband — is true only partially as to real estate, in which the husband, during coverture, has a perfect equity, or the legal title. During coverture, dower may not be, strictly speaking, an estate in lands. It may be, rather, a mere expectancy — “ a capacity to take if the wife survives; ” and after the death of the husband, until assignment, the right may lie in action. It is, nevertheless, a valuable right, which, though inchoate, can not be defeated by any act or alienation of the husband. The wife has capacity to release, and,'as a condition of the release, may require a consideration moving solely to herself.—Hoot v. Sorrell, 11 Ala. 336; Bailey v. Litten, 52 Ala. 282. It is an incumbrance on the lands of the husband, which will excuse his vendee from performance of an executory contract of sale.—1 Brick. Dig. 612, § 7. The law confers the right, and the purpose is, if the wife survives, that she may have the means of sustenance for herself, and the nurture and education of her children. Inchoate simply on marriage it may be, and during coverture dependent for its full consummation upon the death of the husband ; arising solely by operation [82]*82of law, springing silently from, and incidental to the marriage relation, it is a valuable right, the relinquishment of which will form a valuable consideration for a settlement by the husband, or á conveyance by a stranger; it must be under the protection of the law, and frauds upon it — frauds designed to jirevent it from attaching — must be of legal cognizance, and capable of being defeated. That it is incipient, — only one of the facts on which it depends, marriage, having occurred — that it is uncertain whether the other fact, death of the husband the wife surviving, will ever occur, — renders it contingent. So it is of the liability of a grantor in a conveyance intended to defraud creditors, dependent upon the possibility of future events which may not come to pass. Any machination or contrivance, intended to disappoint and defeat future possible rights and interests, which have commenced legally, and are recognized by law, must be as odious to a court of equity, as if the right and interest was capable of present enjoyment. The relief the court will grant, varies according to the nature of the case; yet the right to relief, adapted to protection against, and the prevention of the wrong, in either case is within the jurisdiction of the court. No branch of equity jurisdiction is more salutary, than that which is exercised for the protection of possible future rights and interests. A legacy, the vesting and payment of which is uncertain, dependent upon a contingency which may or may not happen in the future, will be taken under the care of the court, and the executor either compelled to give security for its payment, if the contingency should arise, or to pay it into court to await the happening of the contingency. 1 Story’s Eq. § G03
That a lmsban'd, in contemplation of marriage, may commit frauds upon the rights which, on the marriage, would accrue to the intended wife, from which, after marriage, a court of equity will relieve her, as it relieves the husband from the ante-nuptial frauds of the wife, is recognized by a large number of adjudications in this country, and has the sanction of a direct decision by Chancellor Kent.—2 Bish. Mar. Women, §§ 352-353; 1 Scrib. Dower, 560 564; Swaine v. Perine, 5 Johns. Ch. 482; Cranson v. Cranson, 4 Mich. 230; Petty v. Petty, 4 B. Mon. 215; Tate v. Tate, 1 Dev. & Bat. Eq. 22; Smith v. Smith, 2 Halst. Oh. 515; Jenney v. Jenney, 24 Vt. 324; Dearmond v. Dearmond, 10 Ind. 191. We confess an inability to distinguish the ante-nuptial frauds of the husband, from the ante-nuptial frauds of the wife, 'or to perceive any sound reason for repudiating and avoiding the one, while permitting the other to work out its injury and injustice. The franc! of the woman defeats and disappoints the just expectations of the intended husband; and his fraud defeats and disappoints equally her just expecta[83]*83tions. There can -be no presumption that she is, less than he, influenced by prudential considerations, or is unmindful, on entering into the contract of marriage, of acquiring a home in the event of her widowhood, and the means of sustenance for herself, and of nurture and education for her children when consigned to orphanage.
The alienations or conveyances made by the husband on the eve of marriage, intended for the deprivation of the rights which would accrue to the wife, in the cases to which we have referred, were voluntary, — founded wholly on a good, as distinguished from a valuable consideration. The mortgage now assailed has for its consideration a eotemporaneous debt; and in the absence of bad faith on the part of the mortgagee, he would stand as a boncu-fide purchaser, entitled to the protection of a court of equity. Frauds may be, and are as often probably, perpetrated by purchases and conveyances founded on a valuable consideration, as by voluntary conveyances founded on mere generosity and affection. Good faith, as well as a valuable consideration, must attend any contract or conveyance which operates to the deprivation of the legal or equitable rights of strangers.—2 Brick. Dig. 18, §§ 70-71. If there is an intent to defraud, common to both parties to the contract or conveyance, that intent, though the consideration is valuable and ample, will vitiate, and justify the removal of it, as an obstruction to the enforcement of rights it may be intended to defeat. If the allegations of the bill are true — and the demurrer admits them — the mortgagee w'as the most active agent in contriving the mortgage, for the exclusion of the rights of the intended wife; and if he loses, he pays only the penalty of his bad faith. He can not claim, and is not in good conscience entitled to, higher consideration aud protection than is extended to voluntary donees, the passive recipients of the donor’s bounty.
The bill avers the mortgage was designed, not only to defeat the wife’s inchoate right of dower, but to deprive her of homestead in the premises, and to evade the constitutional and statutory restraint upon alienation by the husband alone. The right in and to the homestead of the husband the wife acquires, the silent effect of the relation, springing up by operation of law, is a present right, capable of present enjoyment, and which is placed not only beyond the misfortunes or improvidence of the husband, but beyond his power of impairing by alienation. Though the dower of the wife can not be barred by the aliention of the husband in which she does not join, a present right of entry and of possession would pass to the alienee, his estate being incumbered only by the contingent right of the wife to dower if she survived. The alienation of the homestead, in [84]*84which the wife does not join, is void absolutely — confers no estate or right of entry on the alienee,' and can not be used to disturb the j)Osscssion of the husband, or the occupancy of the wife. During the life of the husband, the right to the use and occupation of the homestead by the wife as a home, and as a means of sustaining herself and her children, can not be lost, unless it is by an alienation in which she joins with the husband, or by his voluntary abandonment of the premises, under such circumstances as compel her, in obedience to duty, to follow him. The right of homestead is, consequently, of equal dignity with the inchoate right of dower, and is, in some respects, a more substantial interest. Both rights rest in expectancy, pending a treaty of marriage, and can not be disappointed by conveyances made by the husband with the purpose of defeating them, of which she is not informed until after the marriage is consummated.
Note by Reporter. — On petition for re-hearing by the appellant’s counsel, the -foregoing opinion was withdrawn, but was again filed during the ensuing December term, 1881, and with it the following opinion. :
The mortgage to Kelly was, according to the averments of the bill, a deliberate contrivance between him and the intended husband to defraud the complainant of dower and the right of homestead. Fraud, deliberate and intentional, will vitiate any contract, whatever may be its dignity, infected by it. So far as it operates upon the dower of the complainant, she is entitled to a decree declaring it void. Though the husband is in life, and she may not survive him, whereby her right of dower would be consummate; yet there is the possibility that the right may become consummate, and it is protection in that event to which she is now entitled, before the estate has passed to innocent purchasers, while the transaction is recent, and witnesses ‘ are in life and within her reach.
As to the homestead, if the mortgage was intended to operate on, and deprive her of the rights she could have acquired to it by the marriage, it should be declared void as to such rights— incapable of being employed to disturb the' possession of the husband, during the continuance of the marriage relation, and, if the wife survived him, incapable of being used- to disturb her occupancy during her life, or the possession of any child or children born of the marriage, during their minority. •
The decree of the chancellor, overruling the demurrer to the bill, must be affirmed.
SOMERVILLE, J.
After the opinion was delivered in this case by the Chief-Justice, at the November term, 1880, it was [85]*85restored to the docket for re-argument, on application by appellant’s counsel petitioning for a re-liearing. Since the second .argument at bar, the case has been re-considered with great care, and the whole court unanimously concur in the conclusion that the decree of the Chancery Court should be affirmed.
It is an admitted fact, that the conveyance made by the husband was effected for the purpose of defeating the intended wife’s inchoate right of dower, and to deprive her of a homestead in the premises conveyed. It can not be denied that this expectancy on the part of the wife was a valuable property to which she might become contingently entitled. Her deprivation of it has been accomplished by an admitted fraud, and the purchaser bought with full knowledge of the husband’s fraudulent design. We fully concur in the opinion of the Chief-Justice,' holding such alienaton to be voidable at the option of the wife, as a fraud on her rights. Courts of equity have always intervened to set aside conveyances made by a woman on the eve of marriage, which are shown to be a fraud on the intended husband’s marital rights. Even-handed justice requires that the vast and benign power of the same court should be exerted with equal diligence to forbid a man’s denuding himself of his property in contemplation of marrying an intended wife. In sound reason and principle, there is no just distinction between the fraud by the woman on the man in the one case, and that by the man on the woman in the other. The difference, in our opinion, is one of degree only, and not of kind.—2 Bish. on Law of Married Women, §§ 350-351, and cases cited; Brown v. Bronson, 35 Mich. 415 ; Leach v. Duvall, 8 Bush. (Ky.), 201.
Let the decree of the chancellor be affirmed.