ment.

255. In the next place, frauds in regard to powers of appointA person having a power of appointment for the benefit of others shall not by any contrivance use it for his own benefit. Thus if a parent has a power to appoint to such of his children as he may choose, he shall not by exercising it in favor of a child in a consumption gain the benefit of it himself, (a) or by a secret agreement with a child in whose favor he makes it derive a beneficial interest from the execution of it.1 The same rule applies to cases where a parent, having a power to appoint among his children, makes an illusory appointment by giving to one child a nominal and not a substantial share; for in such a case Courts of Equity will treat the execution as a fraud upon the power.2

256. In the next place the fraudulent prevention of acts to be done for the benefit of third persons. Courts of Equity hold themselves entirely competent to take from third persons, and a fortiori from the party himself, the benefit which he may have derived from his own fraud, imposition, or undue influence in procuring the suppression of such acts. Thus where a person had fraudulently prevented another upon his death-bed from suffering a recovery at law with a view that the estate might devolve upon another person with whom he was connected, it

1 McQueen v. Farquhar, 11 Ves. 479; Meyn v. Belcher, 1 Eden, R. 138; Palmer v. Wheeler, 2 Ball & Beatt. 18; Sugden on Powers, ch. 7, § 2; Morris v. Clarkson, 1 Jac. & Walk. 111.

2 Sugden on Powers, ch. 7, § 2; ch. 9, § 4; Butcher v. Butcher, 9 Ves. 382; 2 Hovenden on Frauds, ch. 23, p. 220, &c.; 1 Madd. Ch. Pr. 246 to 252; Campbell v. Horne, 1 Younge & Coll. N. R. Ch. 664.

3 Bridgman v. Green, 2 Ves. R. 627; Huguenin v. Baseley, 14 Ves. 289; ante, § 252; post, § 768.

(a) Topham v. Portland, 11 H. L. Cas. 32; s. c. L. R. 5 Ch. 40; Williams's Appeal, 73 Penn. 249, 284; Hinchinbrooke v. Seymour, 1 Bro. C. C. 395, a case explained and denied in Henty v. Wrey, 21 Ch. D. 332, 343, 344, so far as it may be thought to decide that a power for children shall not be raised until wanted. See also Wellesley v. Mornington, 2 Kay & J. 143; Keily v. Keily, 4 Dru. & W. 38; s. c. 2 Con. & L. 334. In Henty v. Wrey, supra, Lindley, L. J., says, at p. 359, that appointments vesting por

tions charged on land in children of tender age who die soon afterwards are looked upon with suspicion, and that very little additional evidence of improper motive will induce the courts to set aside the appointment or treat it as invalid; but that without some additional evidence this will not be done. Nor will the mere fact that the appointor may derive some benefit with the appointees be fatal necessarily to the exercise of the power. In re Huish, L. R. 10 Eq. 5; Cooper v. Cooper, L. R. 5 Ch. 203.

was adjudged that the estate ought to be held as if the recovery had been perfected, and that it was against conscience to suffer it to remain where it was.1 So if a testator should communicate his intention to a devisee of charging a legacy on his estate, and the devisee should tell him that it is unnecessary and he will pay it; the legacy being thus prevented, the devisee will be charged with the payment.2 And where a party procures a testator to make a new will, appointing him as executor, and agrees to hold the property in trust for the use of an intended legatee, he will be held a trustee for the latter upon the like ground of fraud.3

257. We may close this head of positive or actual fraud by referring to another class of frauds of a very peculiar and distinct character. Gifts and legacies are often bestowed upon persons upon condition that they shall not marry without the consent of parents, guardians, or other confidential persons. And the question has sometimes occurred how far Courts of Equity can or ought to interfere where such consent is fraudulently withheld by the proper party for the express purpose of defeating the gift or legacy, or of insisting upon some private and selfish advantage, or from motives of a corrupt, unreasonable, or vicious nature. The doctrine now firmly established upon this subject is that Courts of Equity will not suffer the manifest object of the condition to be defeated by the fraud, or dishonest, corrupt, or unreasonable refusal of the party whose consent is required to the marriage. It is indeed a very delicate and difficult duty to be performed by such courts. But to permit a different rule to prevail would be to encourage frauds and to enable a party to withhold consent upon grounds utterly wrong or upon motives grossly corrupt and unreasonable.

1 Luttrell v. Lord Waltham, cited 14 Ves. 290; s. c. 11 Ves. 638.

2 Cited in Mestaer v. Gillespie, 11 Ves. 638. See Goss v. Tracey, 1 P. Will. 288; 2 Vern. 700; Thynn v. Thynn, 1 Vern. 296; Reach v. Kennigate, Ambler, R. 67; Chamberlain v. Agar, 2 Ves. & B. 259; Drakeford v. Walker, 3 Atk. 539.

8 Thynn v. Thynn, 1 Vern. 296; Reach v. Kennigate, Ambler, R. 67; Devenish v. Barnes, Prec. Ch. 3; Oldham v. Litchfield, 2 Vern. R. 504; Barrow v. Greenough, 3 Ves. 152; Chamberlain v. Agar, 2 Ves. & B. 262; Whitton v. Russell, 1 Atk. R. 448. See also cases in note (a) to 3 Ves. 39.

4 Peyton v. Bury, 2 P. Will. 625, 628; Eastladd v. Reynolds, 1 Dick. R. 317; Goldsmid v. Goldsmid, 19 Ves. 368; Strange v. Smith, Ambler, R. 263; Clarke v. Parkins, 19 Ves. 1, 12; Mesgrett v. Mesgrett, 2 Vern. R. 580; Merry v. Ryves, 1 Eden, R. 1, 4.

CHAPTER VII.

CONSTRUCTIVE FRAUD.

258. HAVING thus considered some of the most important cases of actual or meditated and intentional fraud in which Courts of Equity are accustomed to administer a plenary jurisdiction for relief, we may now pass to another class of frauds, which, as contradistinguished from the former, are treated as legal or constructive frauds. By constructive frauds are meant such acts or contracts as, although not originating in any actual evil design or contrivance to perpetuate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and therefore are prohibited by law as within the same reason and mischief as acts and contracts done malo animo. Although at first view the doctrines on this subject may seem to be of an artificial if not of an arbitrary character, yet upon closer observation they will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice so as to shut out the inducements to perpetrate a wrong, rather than to rely on mere remedial justice after a wrong has been committed. By disarming the parties of all legal sanction and protection for their acts, they suppress the temptations and encouragements which might otherwise be found too strong for their virtue.

259. Some of the cases under this head are principally so treated because they are contrary to some general public policy or to some fixed artificial policy of the law. Others again rather grow out of some special confidential or fiduciary relation between all the parties or between some of them, which is watched with especial jealousy and solicitude because it affords the power

and the means of taking undue advantage or of exercising undue influence over others. And others again are of a mixed character, combining in some degree the ingredients of the preceding with others of a peculiar nature; but they are chiefly prohibited because they operate substantially as a fraud upon the private rights, interests, duties, or intentions of third persons, or unconscientiously compromit, or injuriously affect the private interests, rights, or duties of the parties themselves.

260. And in the first place let us consider the cases of constructive fraud which are so denominated on account of their being contrary to some general public policy or fixed artificial policy of the law. Among these may properly be placed contracts and agreements respecting marriage (commonly called marriage brokage contracts), by which a party engages to give another a compensation if he will negotiate an advantageous marriage for him. The civil law does not seem to have held contracts of this sort in such severe rebuke; for it allowed proxenetæ, or match-makers, to receive a reward for their services, to a limited extent. And the period is comparatively modern in which a different doctrine was engrafted into the common law and received the high sanction of the House of Lords.3

261. The ground upon which Courts of Equity interfere in cases of this sort is not upon any notion of damage to the individuals concerned, but from considerations of public policy.

1 See Mr. Cox's note to Osmond v. Fitzroy, 3 P. Will. 131; Newland on Contracts, ch. 33, p. 469, &c. By being contrary to public policy we are to understand that in the sense of the law they are injurious to, or subversive of, the public interests. See Chesterfield v. Janssen, 1 Atk. 352; s. c. 2

Ves. 125.

2 Cod. Lib. 5, tit. 1, 1. 6.

8 Hall and Kean v. Potter, 3 P. Will. 76; 1 Eq. Cas. Abridg. 89, F; s. c. 3 Lev. 411; Show. Parl. Cas. 76; 1 Fonbl. Eq. B. 1, ch. 4, § 10; Grisley v. Lother, Hob. R. 10; Law v. Law, Cas. temp. Talb. 140, 142; Vauxhall Bridge Company v. Spencer, Jac. R. 67. In Boynton v. Hubbard, 7 Mass. R. 112, Mr. Chief Justice Parsons said: We do not recollect a contract which is relieved against in chancery as originally against public policy which has been sanctioned in Courts of Law as legally obligatory on the parties. For although it has been said in chancery that marriage brokage bonds are good at law but void in equity, yet no case has been found at law in which those bonds have been holden good.' But see Grisley v. Lother, Hob. R. 10, and a case cited in Hall v. Potter, 3 Levinz, R. 411, 412; 1 Fonbl. Eq. B. 1, ch. 4, § 10, note (r).

1 Fonbl. Eq. B. 1, ch. 4, § 10, note (r); Newland on Contracts, ch. 33,

Marriages of a suitable nature and upon the fairest choice are of the deepest importance to the well-being of society; since upon the equality and mutual affection and good faith of the parties much of their happiness, sound morality, and mutual confidence must depend. And upon these only can dependence be placed for the due nurture, education, and solid principles of their children. Hence every temptation to the exercise of an undue influence or a seductive interest in procuring a marriage should be suppressed; since there is infinite danger that it may, under the disguise of friendship, confidence, flattery, or falsehood, accomplish the ruin of the hopes and fortunes of most deserving persons, and especially of females. The natural consequence of allowing any validity to contracts of marriage brokage would be to introduce improvident, ill-advised, and often fraudulent matches, in which advantage would be taken of youth and inexperience and warm and generous affections. And the parties would be led on until they would become the victims of a sordid cunning, and be betrayed into a surrender of all their temporal happiness; and thus perhaps be generally prepared to sink down into gross vice and an abandonment of conjugal duties. Indeed contracts of this sort have been not inaptly called a sort of kidnapping into a state of conjugal servitude; and no acts of the parties can make them valid in a Court of Equity.2

262. The public policy of thus protecting ignorant and credulous persons from being the victims of secret contracts of this sort would seem to be as perfectly clear as any question of this nature well can be. And the surprise is not that the doctrine should have been established in a refined, enlightened, and Christian country, but that its propriety should ever have been made matter of debate. It is one of the innumerable instances in which the persuasive morality of Courts of Equity has subdued the narrow, cold, and semi-barbarous dogmas of the common law.

pp. 469 to 472. Marriage brokage bonds which are not fraudulent on either party are yet void because they are a fraud on third persons, and a public mischief, as they have a tendency to cause matrimony to be contracted on mistaken principles, and without the advice of friends, and they are relieved against as a general mischief for the sake of the public.' Per Parsons, Ch. Just. in Boynton v. Hubbard, 7 Mass. 112.

1 Drury v. Hooke, 1 Vern. 412.

2

Shirley v. Martin, cited by Mr. Cox, in 3 P. Will. 75; s. c. 1 Ball & Beatty, 357, 358.