Medlin for the land in controversy, in consideration of an assignment of the distributive share, and Medlin, by his direction, executed a deed to his wife, and they took possession. The deed was never registered. Several years afterwards, Crump persuaded her to hand back the deed to Medlin. He destroyed it, and executed another to Crump, who then sold the land to the defendant. Mrs. Crump knew that this was his intention. This suit is by the heirs of Mrs. Crump for a conveyance, she and her husband both being dead. Defendant had no notice of the deed to Mrs. Crump.

Alexander and Bryan, for the plaintiffs.

No counsel for the defendant.

By Court, PEARSON, J. The plaintiffs are not entitled to the relief asked for, because the defendant is a bona fide purchaser for valuable consideration, without notice. When both parties are equally entitled to consideration, equity does not aid either, but leaves the matter to depend upon the legal title.

The mother of the plaintiffs knew that the object of her husband, in procuring the legal title, was to enable him to sell the land, and they apply to this court, with but little grace, to lend its aid to the consummation of a fraud upon the purchaser. It is true, married women can not part with their land, unless consent be given in the form prescribed by law. And a purchaser, who has not obtained the legal title, can not come into equity for assistance, upon the ground, that he has been induced to pay his money by a fraudulent combination between the husband and his wife. But when the purchaser gets the legal title, and the wife or her heirs are obliged to come into equity, it is a different question, and he will not be required to give it up, unless he had notice of the wife's rights.

It was urged that, as the distributive share belonged to the wife, she was the meritorious cause of the consideration paid for the land, and ought not to be prejudiced by the destruction of the deed, as it was done, not only against her consent, as implied by law (she having no capacity to consent, except in a prescribed form), but against her express wish, until she yielded to importunity. The argument would have much force against a volunteer, but can not avail against the defendant. The distributive share belonged to the husband by his act of assignment; so the wife paid nothing, and we are asked, in favor of her heirs, to make a purchaser give up a valid legal title. There is no principle upon which it can be done: possibly, if the

plaintiffs were acting upon the defensive, this court would not interfere against them. But they have not the legal title; have paid nothing, and are asking aid against one, who has paid the full value without notice: Tolar v. Tolar, 1 Dev. Eq. 457 [18 Am. Dec. 598]; Tate v. Tate, 1 Dev. & B. Eq. 22; and Tyson v. Harrington, 6 Ired. Eq. 329, were cases against volunteers.

It was further urged, that as the deed was executed, and the ceremony of registration alone was wanting to confer a legal title, which it was not in the wife's power to have done; she had something more than a mere equity, an incomplete legal title, and therefore stands upon higher ground than the ordinary case of one who seeks to set up an equitable title. Be that as it may, no one has superior claims to the consideration of a court of equity than a purchaser without notice; and there is no case in which the court has interfered to deprive such a purchaser of a legal advantage. This principle is carried out in all the cases. If the power of appointment be defectively executed, and the appointee is a younger child, or wife, aid will be given as against the heir at law, but not against a purchaser. In Martin v. Seamore, 1 Ch. Cas. 170, a sale was made of copy-hold land, but there was no surrender. Afterwards the vendor devised the land to his wife and daughter, and a surrender was duly made to the use of the will, upon the death of the vendor. The vendee, who had an incomplete legal title, filed his bill against the wife and daughter, praying for a conveyance. It appearing that the husband had agreed before the marriage to settle the land upon the wife, she was considered as a purchaser, and the court refused to deprive her of the legal advantage which she had under the devise and surrender. But relief was given against the daughter, who was a volunteer.

Bill dismissed with costs.

EQUITY WILL NOT DEPRIVE BONA FIDE PURCHASER OF LEGAL ADVANTAGE: See Jones v. Zollicoffer, 7 Am. Dec. 708, and note. The principal case is cited in Wilson v. Western N. C. Land Co., 77 N. C. 457, to the point that where a bona fide purchaser for a valuable consideration, and without notice, has acquired the legal title, a court of equity will not interfere to deprive himn of his legal advantage; also siting King v. Trice, 3 Ired. Eq. 568.

3

HART V. ROPER ET AL.

[6 IREDELL'S EQUITY, 349.]

MAXIM, "IGNORANTIA LEGIS," ETC., IS FOUNDED UPON THE PRESUMPTION THAT EVERY ONE competent to act for himself knows the law, but the presumption that he knows it is not conclusive, but may be rebutted. WHERE PLAINTIFF ALLEGES IGNORANCE OF THE LAW, IN HIS BILL, the defendant can not take advantage of it on demurrer.

WHERE PLAINTIFF ALLEGES AN IMPORTANT EQUITY, HE IS AT LIBERTY to add a small item which would not be within the jurisdiction of equity if alone, but which is connected with and tends to elucidate the main subject.

EQUITY. In 1833, one Roper died, leaving a will, a widow, and two grandchildren. The latter are the defendants in this suit. The will gave the widow certain personal property, "to her and her heirs forever," and "lent to her, for and during her natural life and widowhood," a tract of land, two negroes, Robert and Elias, and some personal property. The rest of the estate was given to the defendants. When the will was probated, the widow dissented, and the jury allotted her, in addition to the property willed, to make up her share, the absolute estate in Robert and Elias and the other personal property. The report was confirmed, and she took possession. In November, 1847, the plaintiff married the widow, and in January, 1849, she died, leaving plaintiff in possession of the property. The allegations of the bill sufficiently appear in the opinion, except "that your orator, being ignorant of his rights, did surrender Elias, and Nancy in place of Robert, who had been sold, and executed a note for fifty dollars, for rent of the land, and signed a release of all his claim to the two negroes," and that at the same time defendants gave plaintiff an instrument purporting to be a release of their claim to his wife's property, but that there was no seal thereto. The bill prays a restoration of the negroes, a cancellation of the plaintiff's release, and offers to surrender the unsealed release of defendants. Defendants de

murred.

No counsel for the plaintiff.

Strange, for the defendants.

By Court, PEARSON, J. The first ground taken is, that by the plaintiff's own showing, the acts were done by him with the full knowledge of all the facts; and the whole ground for relief is, that he acted in ignorance of the law.

Admitting the bill to be liable to this objection, it may be

gravely questioned, whether advantage can be taken of it by demurrer. The maxim, Ignorantia legis, etc., is founded upon the presumption that every one competent to act for himself knows the law. It is necessary for the courts, whether in reference to civil or criminal matters, to act upon this presumption, however wide of the mark it may be in many cases; for, in the language of Lord Ellenborough, "otherwise there is no saying, to what extent the excuse of ignorance might not be carried; and there would be much embarrassing litigation, and no small danger of injustice from the nature and difficulty of the proper proofs: 1 Story's Eq. 123.

But while on the one hand, whether a party knows the law, is not left as an open question for inquiry, as it is whether he knows of the existence of a fact; on the other, the presumption that he knows it is not conclusive, but may be rebutted. For instance, if there be an intention to pass a freehold estate, and the vendee accepts a deed of feoffment, without livery, he will be relieved upon the ground that he was under a mistake as to the law; for, the intention being clear, the failure to effect it makes the mistake manifest, and rebuts the presumption. So, in the case of McKay v. Simpson, 6 Ired. Eq. 452, decided at this term, relief was given because of a mistake of law, as to the form of a transfer of bank stock. It is different, however, when the intention is carried into effect, because, in such cases, there is nothing to rebut the presumption, and the ignorance of the party can only be shown by going into proof, which is not admissible.

As this presumption is not conclusive, it would seem to follow, that, if a defendant, by demurring, admits that the plaintiff was ignorant of the law, the court must act upon the admission, and it may be, that such would also be the case, when the answer makes the admission, so as to dispense with the necessity of any proof to rebut the presumption. That it is so in the case of a demurrer is strongly sustained by the fact that the learned and diligent counsel for the defendant has not been able to cite any case in which the objection was taken by demurrer. We put our decision upon the ground that the bill is not liable to the objection; for it does not appear that the plaintiff had a full knowledge of all the facts. A fair construction of the bill leads to the conclusion that the plaintiff "was ignorant of the extent of the interest and title which his wife had acquired and to which he had succeeded by the marriage," in consequence of his ignorance of the facts, as well as of the law, upon which his title was founded.

The bill is hastily drawn. A confusion of ideas is introduced by the use of generalities, and sweeping expressions, than which nothing is more calculated to destroy certainty, so much to be desired in all judicial proceedings. It does not appear, however, that fourteen years intervened between the dissent and the marriage; that during the life of his wife, the title of the plaintiff was not called in question; that she died a little over a year after the marriage; and that, in a few days after her death, the defendants "claimed under the will an interest in all the estate and property of his wife at the time of the marriage, and, particularly, that they were entitled to the two negroes, Elias and Robert, and the rent of land from the time of the marriage."

It is certain the parties knew the contents of the will. By it the land and the two negroes Elias and Robert were "lent" to the widow for her life or widowhood. Elias is surrendered; Nancy is substituted for Robert, who had been sold; and rent is exacted from the marriage, not the death of the widow.

It is almost certain, that the contents of the report of the jury were not known to the plaintiff, and possibly not to the defendants. In the absence of any admission, that the plaintiff knew the contents of the report, his being ignorant of the extent of his title must be ascribed to his want of information as to this fact, rather than to suppose he was so stupid, as not to know the difference between an estate for the life or widowhood of his wife, and the absolute estate. But if it is to be ascribed to both causes, this ground of demurrer fails.

The next ground is, that by the plaintiff's own showing, the instrument signed by the defendants, purporting to pass their interest in the rest of the property to the plaintiff, is void for want of a seal, and that no consideration passed to make the transfer of the two slaves by the plaintiff to the defendants valid, as the instrument, signed by him, was not under seal, and, therefore, the plaintiff had a clear remedy at law.

This objection is based upon a misapprehension of the plaintiff's allegation. There is no allegation of a gift, which would not be valid without a deed. The allegation is, that the transaction was made to assume the form of a sale and delivery of the two slaves for a pretended consideration; whereas, in fact, there was no consideration, and the pretense of one was the means used to effect the fraud and induce the plaintiff to deliver up his property. This court has concurrent jurisdiction in matters of fraud: and it would be a disgrace to any court, having jurisdiction, to decline to exercise it, because the fraud is