CASTELLAR v. SIMMONS ET AL., 1 Shan. Cas. 65

McKinney, J., delivered the opinion of the court: The plaintiff recovered against the defendant a judgment of $1,500, for a breach of promise of marriage. On the day after the summons was issued in the suit for breach of promise, the defendant, Simmons, transferred his property to his co-defendant, to avoid the payment of the judgment that might be obtained. After recovering her judgment, the plaintiff filed a bill in chancery to set aside this conveyance. Pending the chancery suit, the defendant, Simmons, proposed to marry the plaintiff, for the secret purpose of defeating her bill.

The plaintiff consented, the ceremony was performed, and the defendant, Simmons, in ten minutes after eloped with a strumpet, and the plaintiff has not seen hint since. Has the court of chancery power to' annul the marriage ¿ In a case at Nashville [McKinney v. Clarke, 2 Swan, 321], a creditor filed his bill to annul a marriage celebrated for the purpose of -defrauding him of his debt. Belief in his case was refused. But here we are called upon by one of the par-ties to the marriage, to grant relief against a fraud which the other party has, through the marriage, perpetrated upon her.

In the opinion of a majority of the court, we are compelled to announce that the marriage cannot be set aside on this ground. Misrepresentations as to' station, p>ropei*ty and the like, afford no ground of relief against a marriage. The fraud in this case consists in the secret intention of the party to desert the wife. The object was to secure a pecuniary benefit. If this- were a ground of relief, the courts of chancery would be crowded with applications of this kind. We are of opinion that the complainant is entitled to relief by divorce and alimony.

But in the view we take, the sale, which would be void against a creditor (and such the plaintiff was until her marriage with the defendant, Simmons), would be valid as against the party himself, and as against the wife by the subsequent marriage, who can only claim under him. In this attitude the plaintiff now finds herself. The only relief, then, against the property, will be to reach the purchase money so> far as it remains unpaid.

Though the answer states that the purchase money is paid, there is much in the case to attack it indirectly, and so much suspicion against it, that we will require the purchaser to show the payment by clear proof. Cause remanded for proof on this point. Costs accrued and to accrue to' be paid by defendant. Totten, J., dissenting.