Henderson v. State. valise, which was identified as stolen property, in his house, he asked his wife, in presence of the witness, "Whose valise is that? And how came it here?" If these questions, as the evidence tends to show, were put to the defendant when he first discovered the stolen property on his premises, they are manifestly relevant, as going to the very fact of possession. The rule is well established, that the recent exclusive possession of the fruits of crime, soon after its commission, is prima facie evidence of guilty possession. 1 Greenl. Ev., § 34. Yet if the party, at the time he is found in possession of the stolen property, and before he has had the opportunity to concoct evidence exculpatory of himself, give a reasonable and probable account of the manner in which he became possessed of the property, this evidence should always be allowed to go to the jury, so as to rebut the presumption of guilt which might otherwise arise. We are aware of the fact, that this principle has not been always observed in the past decisions of this court; notably in the case of Taylor v. State, 42 Ala. 529; and again perhaps in Maynard v. State, 46 id. 85. These cases fail to make the proper distinction between an explanation given at the time the defendant is first discovered in possession of the fruits of the crime, and his declarations made at other times, when there was opportunity for the deliberate premeditation of a false story. Such was the case of Spivey v. State, 26 id. 90, upon the authority of which the two cases above appear to have been decided. The principle was however recognized and applied in Crawford's case, 44 Ala. 45; and is well sustained by authority from the earliest adjudications in English criminal jurisprudence down to the present day. 1 Lead. Cr. Cases, 365, and cases cited in note; 2 Bish. Cr. Proc., 88 740-746; Clark's Cr. Dig., § 635; Hampton v. State, 5 Tex. Ct. App. 463; Whart. Cr. Ev., §§ 691, 761. Mr. Bishop indorses this rule as a reasonable doctrine, and adds: "Such an explanation, especially if given instantly upon the property being discovered, and the accusation brought home to the prisoner's knowledge, is deemed a part of the res gesta." 2 Bish. Cr. Proc., § 746. In Cooper's case, 63 Ala. 80, the declaration of the defendant was excluded, no doubt on the ground that there was ample time for the concoction of an exculpatory statement. It was not contemporaneous with the imputation of guilt by the ar resting officer. It was therefore or may have been premeditated, VOL. XLV - 10 Henderson v. State. and not instinctive; and in such cases is not admissible as either being explanatory of possession, or a part of the res gesta. Whart. Cr. Ev., § 691. The questions put by defendant to his wife, as testified to by the witness, Jane McElderry, were a part of the res gesta, explanatory of the fact of possession, which might otherwise be inferred by reason of the stolen property being found on the premises under defendant's control. They should have been permitted to go to the jury, to be passed on and weighed by them for what they were worth, and as evidence, would be more or less cogent or weak, according to all the other facts and circumstances of the case. The judgment of the Circuit Court is reversed, and the cause is remanded. Reversed and remanded. NOTE BY THE REPORTER.—In Hampton v. State, 5 Tex. Ct. App. 463, the court say: The declarations of a defendant charged with theft, made at the time the stolen property is first found in his possession, may be given in evidence by him; and if he give a reasonable and satisfactory account of his possession, as a general rule it devolves on the State to show that his account is false. It is often difficult to determine as to the admissibility or exclusion of such declarations. It is safer, if there be a question of doubt or uncertainty, to solve the doubt by ruling in favor of the accused. In the case at bar, we believe that the District Court acted right in not permitting the witness Jones to answer the questions under consideration, which were asked him by counsel for the defendant. "The rule of evidence which allows such declarations to be given in evidence by the accused is limited to the time and to declarations made by him when he is first caught in possession of the stolen property — when he first ascertains, or it is made apparent to him, that his right to the ownership of said property is questioned by some one else. The declarations of a defendant when first caught, or found in the possession of the stolen property - when he is first approached, and feels called upon to explain the nature and extent of his possessions, and how he came by the stolen property—are admissible in evidence, either for or against him. "This rule of evidence however does not permit a defendant on trial for theft to introduce his own declarations, made when first seen in possession of stolen property, as to how he came by it, before any adverse claim to the property is set up, and before any suspicion rests upon him of being the thief." Kelly v. McGrath. KELLY V. MCGRATH. (70 Ala. 75.) Marriage — ante-nuptial conveyance by intended husband in fraud of intended wife. A mortgage secretly executed by an intended husband in contemplation of marriage and to defeat the intended wife's rights of dower and homestead is void, although it was to secure a loan, the mortgagee being cognizant of the fraudulent purpose.* ILL to set aside mortgage. The head-note states the point. BILL Harris Taylor and Henry St. Paul, for appellant. R. Inge Smith and John Elliott, contra. 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 Eq. Jur., § 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 choses in action his own, by reducing them to possession; and if the wife was seised of an estate of inheritance, he, eo instanti the marriage, became seised 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 seised, 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 duty of the husband to maintain the wife would come into existence. They were just expectations, forming material inducements to the marriage contract; its legal • See Hamilton v. Smith (57 Iowa, 15), 42 Am. Rep. 39. Kelly v. McGrath, 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, 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, 450. It is not fraud alone 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. "Fraud, without damage, gives no cause of action; but when these two do concur and meet together, then an action lieth." The injury may be to present, actual, exist, ing 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, are valid as between the parties, and as to all the world but creditors, or bona 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 Kelly v. McGrath. protected equally with present debts depending upon no contingency. When the contingency happens when the liability thereby ripens into a present claim, the creditor can assail and avoid the conveyance. Foote v. Cobb, 18 Ala. 585; Gannard v. Eslava, 20 id. 732; Bibb v. Freeman, 59 id. 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 cannot 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, cannot, 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 such 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 county, where settlements on marriage, operating to bar dower, are of rare occurrence, and when the 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. 66 8 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 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, cannot 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 id. 282. It is an incumbrance on the lands of the hus |