LIGON, J. —
The bill in this case seeks, 1st, a reformation of the marriage articles between the complainant and Addison C. Love, her husband and one of the defendants ; 2d, an injunction as to the defendant Graham, who seeks at law to charge certain slaves with the payment of a debt due to him from A. C. Love; and, 3d, to have a trustee appointed to protect the separate estate of the complainant, in the place of Erasmus Love, who was appointed to that office by the marriage articles, and who has resigned his trust.
Whether the relief sought in the first aspect of the bill should be granted, must depend upon the proof in the case in respect to the verbal agreement between the parties in relation to the property owned by Mrs. Love before her marriage, and the failure of the marriage articles, from the fraud or mistake of the draftsman, correctly to embody the terms of that agreement. It appears from the proof, that A. C. Love, the husband, was the draftsman of the deed of settlement; and as he was a party to it, he must be presumed to know what property of the wife was intended to be embraced in it; and if any of this is omitted, by his fraud or mistake, it is the duty of the court so to reform the deed, as to make it include such property, and thus truly express the intention of the parties.
We concur fully with the chancellor, that the proof in this record is clear to show that the marriage articles exhibited do not conform to the directions given to the draftsman, or the terms of the verbal agreement in regard to the kind and quantity of the property intended and agreed to be secured to [192]*192the separate use of Mrs. Love. The testimony of her grandmother, her mother, and several other witnesses, is full to the fact that all the property of Mrs. Love, her money and choses in action, as well as her slaves, were to be so secured ; yet the two former arc omitted in the deed. The circumstances under which it was executed by the wife are such as to forbid the idea that this omission was by her consent, or arose from any change of the original intention of the parties, occurring after the terms were agreed upon and the deed was drawn. She does not appear to have had any further connection with the matter, from the time when the directions were given until a few days before her marriage, when it was read to some of her friends, in her presence, by A. C. Love, and he was asked whether it included the money due to her from her guardian; to which he replied, “it did; that the word‘proceeds,’ as used in the deed, included it.” But a few minutes before the marriage, the deed was brought to her by A. C. Love, the intended husband, and on his assurance that it secured to her all her property, she executed it.
We think she had the right to confide in the representations of A. 0. Love. He was about to become her husband, and from this very relation may well be supposed to possess her fullest confidence, and to exert a controlling influence over her. In such circumstances, the law does not require of a party that degree of circumspection and diligence which would be required in persons who are so situated as to be able to deal at arm’s end with each other. We are constrained to hold, with the chancellor, that the representations made by A. C. Love amount to a fraud upon his wife, and that the omission of the money and choses in action out of the marriage articles was less a mistake than a fraud. We regard the allegations of the bill as substantially charging fraud, as well as mistake. It is true, fraud is not alleged in terms; but facts and circumstances, from which fraud is the only legitimate inference, are set out in the bill, and this is sufficient.— Kennedy v. Kennedy, 2 Ala. 571.
It is a matter of indifference, however, whether the omission in the deed results from mistake or fraud; if the deed fails to show the true agreement between the parties, or to express their avowed intention at the time it is made, forfeeither rea[193]*193son, a court of equity should reform it, when application is made to it for that purpose, and the fact is made to appear.
There is no error in the decree reforming the articles of marriage settlement between A. C. Love and the complainant. 11 Ala. 181; 1 ib. 161; 8 ib. 345; 5 ib. 761; 10 ib. 548.
As this deed was fairly entered into, its terms will protect the separate estate of the wife from being made liable for the debts of the husband; and it was the duty of the trustee, when a levy was made on it for this purpose, to interpose a claim to it under the statute, and have the right to it tried at law. But in this bill it is charged, and this allegation is not denied, that Erasmus Love, the trustee, refused to interpose such claim. The wife is not allowed to do so, and if she is denied the right to appeal to a court of chancery for redress, no remedy would be open to her, and, in this respect, there would be a failure of justice. We have heretofore held, however, that in such cases a court of equity may interpose by injunction, and afford her full relief. — Calhoun v. Cozens, 3 Ala. 498; Bridges & Co. v. Phillips, at the present term.
In the present case, it appears that the defendant Graham caused his attachment to be levied on two of the slaves mentioned in the deed of settlement, and as to these the chancellor correctly perpetuated the injunction. In respect to the slaves Isaac, Lucy, and her child, James Burton, the case is materially different. Isaac was purchased by A. C. Love in his own name, and, from all that appears in the record, was paid for with his own money. There is no evidence whatever, which goes to show that any portion of his wife’s funds was used for this purpose, unless such presumption could arise from the fact that the bill of sale for him was taken in the name of Erasmus Love, the trustee. This presumption is very fully rebutted by other facts in the case, which tend very strongly to show, and we think conclusively do show, that the purchase money was paid by A. C. Love out of his own means. When he proposes in writing to make the purchase, he says nothing about buying on account of his wife, but makes the proposition in his own name, and refers to the fund out of which he expects to be able to make the payment, viz., money which he expects his father to obtain for him in North Carolina. Five hundred dollars of this purchase money were [194]*194paid before he got possession of Ms wife’s funds, and his own note is executed for the balance, which he afterwards pays at different times, and then takes the bill of sale in the name of his father as trustee for his wife. We agree with the chancellor, and believe this was “ an after-thought,” and was an effort to cover his own property under the name of the trustee of his wife, who seems never to have had it in his possession, or in any manner to have interfered with, or had a knowledge of the purchase. The injunction was rightly dissolved as to this slave.
In respect to Lucy and her child, the weight of evidence preponderates strongly to establish the conclusion of the chancellor, which is, that they were paid for in part with the funds of the husband, and partly with the choses in action belonging to the wife’s separate estate. The trustee had no agency in this purchase, nor any possession of the slaves. It does not, however, appear in what precise proportions the funds of the husband or those of the wife were used in this purchase ; but it is evident that both of them have an interest in these slaves.
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LIGON, J. —
The bill in this case seeks, 1st, a reformation of the marriage articles between the complainant and Addison C. Love, her husband and one of the defendants ; 2d, an injunction as to the defendant Graham, who seeks at law to charge certain slaves with the payment of a debt due to him from A. C. Love; and, 3d, to have a trustee appointed to protect the separate estate of the complainant, in the place of Erasmus Love, who was appointed to that office by the marriage articles, and who has resigned his trust.
Whether the relief sought in the first aspect of the bill should be granted, must depend upon the proof in the case in respect to the verbal agreement between the parties in relation to the property owned by Mrs. Love before her marriage, and the failure of the marriage articles, from the fraud or mistake of the draftsman, correctly to embody the terms of that agreement. It appears from the proof, that A. C. Love, the husband, was the draftsman of the deed of settlement; and as he was a party to it, he must be presumed to know what property of the wife was intended to be embraced in it; and if any of this is omitted, by his fraud or mistake, it is the duty of the court so to reform the deed, as to make it include such property, and thus truly express the intention of the parties.
We concur fully with the chancellor, that the proof in this record is clear to show that the marriage articles exhibited do not conform to the directions given to the draftsman, or the terms of the verbal agreement in regard to the kind and quantity of the property intended and agreed to be secured to [192]*192the separate use of Mrs. Love. The testimony of her grandmother, her mother, and several other witnesses, is full to the fact that all the property of Mrs. Love, her money and choses in action, as well as her slaves, were to be so secured ; yet the two former arc omitted in the deed. The circumstances under which it was executed by the wife are such as to forbid the idea that this omission was by her consent, or arose from any change of the original intention of the parties, occurring after the terms were agreed upon and the deed was drawn. She does not appear to have had any further connection with the matter, from the time when the directions were given until a few days before her marriage, when it was read to some of her friends, in her presence, by A. C. Love, and he was asked whether it included the money due to her from her guardian; to which he replied, “it did; that the word‘proceeds,’ as used in the deed, included it.” But a few minutes before the marriage, the deed was brought to her by A. C. Love, the intended husband, and on his assurance that it secured to her all her property, she executed it.
We think she had the right to confide in the representations of A. 0. Love. He was about to become her husband, and from this very relation may well be supposed to possess her fullest confidence, and to exert a controlling influence over her. In such circumstances, the law does not require of a party that degree of circumspection and diligence which would be required in persons who are so situated as to be able to deal at arm’s end with each other. We are constrained to hold, with the chancellor, that the representations made by A. C. Love amount to a fraud upon his wife, and that the omission of the money and choses in action out of the marriage articles was less a mistake than a fraud. We regard the allegations of the bill as substantially charging fraud, as well as mistake. It is true, fraud is not alleged in terms; but facts and circumstances, from which fraud is the only legitimate inference, are set out in the bill, and this is sufficient.— Kennedy v. Kennedy, 2 Ala. 571.
It is a matter of indifference, however, whether the omission in the deed results from mistake or fraud; if the deed fails to show the true agreement between the parties, or to express their avowed intention at the time it is made, forfeeither rea[193]*193son, a court of equity should reform it, when application is made to it for that purpose, and the fact is made to appear.
There is no error in the decree reforming the articles of marriage settlement between A. C. Love and the complainant. 11 Ala. 181; 1 ib. 161; 8 ib. 345; 5 ib. 761; 10 ib. 548.
As this deed was fairly entered into, its terms will protect the separate estate of the wife from being made liable for the debts of the husband; and it was the duty of the trustee, when a levy was made on it for this purpose, to interpose a claim to it under the statute, and have the right to it tried at law. But in this bill it is charged, and this allegation is not denied, that Erasmus Love, the trustee, refused to interpose such claim. The wife is not allowed to do so, and if she is denied the right to appeal to a court of chancery for redress, no remedy would be open to her, and, in this respect, there would be a failure of justice. We have heretofore held, however, that in such cases a court of equity may interpose by injunction, and afford her full relief. — Calhoun v. Cozens, 3 Ala. 498; Bridges & Co. v. Phillips, at the present term.
In the present case, it appears that the defendant Graham caused his attachment to be levied on two of the slaves mentioned in the deed of settlement, and as to these the chancellor correctly perpetuated the injunction. In respect to the slaves Isaac, Lucy, and her child, James Burton, the case is materially different. Isaac was purchased by A. C. Love in his own name, and, from all that appears in the record, was paid for with his own money. There is no evidence whatever, which goes to show that any portion of his wife’s funds was used for this purpose, unless such presumption could arise from the fact that the bill of sale for him was taken in the name of Erasmus Love, the trustee. This presumption is very fully rebutted by other facts in the case, which tend very strongly to show, and we think conclusively do show, that the purchase money was paid by A. C. Love out of his own means. When he proposes in writing to make the purchase, he says nothing about buying on account of his wife, but makes the proposition in his own name, and refers to the fund out of which he expects to be able to make the payment, viz., money which he expects his father to obtain for him in North Carolina. Five hundred dollars of this purchase money were [194]*194paid before he got possession of Ms wife’s funds, and his own note is executed for the balance, which he afterwards pays at different times, and then takes the bill of sale in the name of his father as trustee for his wife. We agree with the chancellor, and believe this was “ an after-thought,” and was an effort to cover his own property under the name of the trustee of his wife, who seems never to have had it in his possession, or in any manner to have interfered with, or had a knowledge of the purchase. The injunction was rightly dissolved as to this slave.
In respect to Lucy and her child, the weight of evidence preponderates strongly to establish the conclusion of the chancellor, which is, that they were paid for in part with the funds of the husband, and partly with the choses in action belonging to the wife’s separate estate. The trustee had no agency in this purchase, nor any possession of the slaves. It does not, however, appear in what precise proportions the funds of the husband or those of the wife were used in this purchase ; but it is evident that both of them have an interest in these slaves. This, however, will not authorize a creditor of the husband to proceed at law to sell his interest for the payment of his demand. We have already held, that in such cases the judgment creditor must proceed in equity to separate the interest of the wife from that of the husband; and when the latter is ascertained, it may be devoted to the payment of his 'debt by a decree of that court. — Bridges & Co. v. Phillips, at the present term, and cases there cited. In the case last cited, the creditor is required to become the actor in such proceedings ; all that the wife can do is, to protect her interest by injunction. It would be wrong, therefore, to dissolve her injunction, as it would leave to the creditor the privilege of selling the property under his process at law.
We do not understand the chancellor as holding a different doctrine, but in drawing up his decree, we find it so worded as to dissolve this injunction as to these slaves, and this can only result in compelling the complainant to a second suit in chancery against Graham, which (without a cross-bill on his part) will accomplish no more than can be attained under the present bill. The decree of the chancellor must be here amended, so as to retain the injunction as to the slaves Lucy [195]*195and her son, James Burton, but without prejudice to the right of Graham to proceed in equity to ascertain what interest A. C. Love holds in them, to separate such interest from that of the complainant, and charge it with the payment of his debt.
As Erasmus Love has resigned his trust, it was both proper and necessary that the chancellor should have appointed another. This he was proceeding to do, when his action was arrested by the writ of error in this case. Under these circumstances, the cause must be remanded to the court of chancery, that such trustee may be there appointed.
The decree of the chancellor is affirmed in all things, except so far as it has been herein corrected. As both parties have here assigned errors, and neither set of errors has prevailed, each party must pay half the costs of this court; and the costs of the court below must be paid as directed in the decree of the chancellor.