Sec 266

Either party to a marriage may, prior to the marriage, make a settlement of property in such a way as to withdraw it from the control of the other party.6 But a woman's settlement of her property, in anticipation of her marriage, is invalid, if the fact be fraudulently withheld from the husband.7 Fraud, in such cases, as in most other cases, need not be expressly shown; it is to be inferred from all the facts of the case.1 And a conveyance by the man, on the eve of marriage, for the purpose of defrauding his intended wife of dower, may in like manner be voidable by her.2

Fraudulent marriage settlement may be set aside.

1 Reynolds v. Reynolds, 3 Allen, 605. To the effect that fraud under such circumstances may avoid, see Montgomery v. Montgomery, 3 Barb. Ch. 132; Rit-ter v. Ritter, 5 Blackf. 81.

2 Wald's Pollock, 494, citing Donovan v. Donovan, 9 Allen, 140; Carris v.. Carris, 24 N. J. Eq. 516; Morris v. Morris, Wright, Oh. 630; Baker v. Baker, 13 Cal. 87. See to this effect Page on Div. 161; and cf. criticisms in Bishop, Mar. and Div. 6th ed. i. sec 167, 191, 291; ii. 291; contra, Long v. Long, 77 N. C. 304.

3 Crehore v. Crehore, 197 Maes. 330;.

Moss v. Moss, 2 Ired. 55. See supra, sec 180.

4 Swift v. Kelly, 3 Knapp, 257.

5 Blossom v. Barrett, 37 N. Y. 434.

6 Infra, sec 399, and cases there cited.

7 Goddard v. Snow, 1 Russ. Ch. 485; Wrigley v. Swainson, 3 De G. & S. 458; Strathmore, v. Bowes, 2 Cox, 28; S. C, 2 Brown C. C. 345; Duncan's App. 43 Penn. St. 67; Gregory v. Winston, 23 Grat. 102; Freeman v. Hartman, 45 111. 57; Tisdale v. Bailey, 6 Ired. Eq. 358; Baker v. Jordan, 73 N. C. 145; Jordan v. Black, Meigs, 142.

Sec 267

It is one of the incidents of sales by auction that the thing exposed should be sold to the highest bidder; and unless there is a condition stated at the time that the vendor reserves a right to bid, or that a fixed price is limited, below which the thing will not be allowed to go, it is a fraud for the vendor or the auctioneer to employ puffers to bring up the price. If this is done, it should be announced, and the suppression of the fact is equivalent to a fraudulent representation. Hence it has been held that the employment, without notice to bona fide bidders, of a puffer by whom the thing is bid up on the owner's account, avoids the sale as to a bona fide purchaser at his election.3 Bids by the auctioneer, as the vendor's agent, have the same effect.4 The English equity courts at one time seemed to hold that a single bidder might be employed by the owner, without notice, to bid up the property to a fixed price; and that the interposition of such a bidder, being an understood thing, did not avoid a sale, though the bidder so interposed took part in raising the price and in getting up a delusive appearance of competition.5 This view has been followed in several cases in this country, chiefly on the ground that the presence of an agent of the owner to bring the property up to a reasonable price is an understood right.1 But the great preponderance of American authority is to the effect that the use of pretended bidders, in the guise of bona fide bidders, entitles bona fide bidders who are thus imposed upon to throw up the purchase.2 In the English courts the relaxation of the rule was not permanently accepted, even by the courts by whom it was at first approved;3 and now, by act of parliament, the common law rule is established in equity as well as in law. The rule is thus judiciously stated in the Indian Contract Act: "If at a sale by auction the seller makes use of pretended biddings to raise the price, the sale is voidable at the option of the buyer."4 If the vendor desires to avoid a sacrifice, this is to be done by withdrawing the thing to be sold if a fixed price is not reached, not by employing fictitious bidders.5 At the same time, when no harm has been done by the presence and interposition of a puffer, a sale will not be set aside.6 The rule applies, it is said, to judicial sales.7 But when the fact of an interposition of this kind is discovered, the purchaser must act promptly, and return the property, in order to rescind.8

Employment of puffer at auction may be a fraud.

1 Supra, sec 239; Taylor v. Pugh, 1 Hare, 608.

2 Leach v. Duvall, 8 Bush, 201; see Littleton v. Littleton, 1 Dev. & B. 327, and cases cited infra, sec 399.

3 Kerr on Fraud and Mistake, 225; Bispham's Eq. sec 209; Story's Eq. 12th ed. sec 202; Green v. Baverstock, 14 C. B. N. S. 204; Wheeler v. Collier, M. & M. 123; Gilliat v. Gilliat, L. R. 9 Eq. 60; Veazie v. Williams, 8 How. 134; Towle v. Leavitt, 3 Foster, 360; Fau-cett v. Currier, 115 Mass. 20; Trust v.

Delaplaine, 3E. D. Smith, 219; Staines v. Shore, 16 Penn. St. 200; Walsh v. Barton, 24 Oh. St. 28; Darst v. Thomas, 87 111. 222; McDowell v. Simms, 6 Ired. Eq. 278; Woods v. Hall, 1 Dev. Eq. 411; Baham v. Bach, 13 La. 287; though see Bank of the Metropolis v. Sprague, 20 N. J. Eq. 159.

4 Parfitt v. Jepson, 46 L. J. C. P. 529; Veazie v. Williams, 8 How. 134; Leake, 2d ed. 367.

Smith v. Clarke, 12 Ves. 483; Flint v. Woodin, 9 Hare, 618.

1 See note to Benj. on Sales, 3d Am. ed. sec 474; Veazie v. Williams, 3 Story, 622 (overruled, 8 How. 134); Phippen v. Stickney, 3 Met. 387; Wolf v. Lys-ter, 1 Hall, 146; Steele v. Ellmaker,.

11 S. & R. 86; Pennock's App. 14 Penn. St. 446; Moncrieff v. Goldsborough, 4 H. & McH. 282; Walsh v. Barton, 24 Oh. St. 28; Morehead v. Hunt, 1 Dev. Eq. 35; Woods v. Hall, 1 Dev. Eq. 411; Lee v. Lee, 19 Mo. 420; Reynolds v. Dechaums, 24 Tex. 174.

2 See oases cited supra.

3 Mortimer v. Bell, L. R. 1 Ch. Ap.

12 ; Woodward v. Miller, 2 Coll. 279. 4 Wald's Pollock, 493.

5 Bispham's Eq. sec 209.

6 Jennings v. Hart, 1 Rus. & Ch. (N. S.) 15; Veazie v. Williams, 3 Story, 611; Tomlinson v. Savage, 6 Ired. Eq. 430; cited Benj. on Sales, 3d Am. ed. sec 470; and see Story's Eq. Jur. 12th ed. sec 201; Nat. Fire Ins. Co. v. Loomis,.

10 Paige, 431; Latham v. Morrow, 6 B. Mon. 630. See supra, sec 25 b. And see generally as to the questions in the text, Thornett v. Haines, 15 M. & W. 367; Veazie v. Williams, 3 Story, 611; S How. 134; Nat. Fire Ins. Co. v. Loomis,.

11 Paige, 431; Pennock's App., 14 Penn. St. 446. As to liability of auctioneer when participating in fraud see Heatley v. Newton, L. R. 19 Ch. D. 326; 45 L. T. N. S. 455, where it was held that the plaintiff, who bid at a sale at which the auctioneer and the vendor's agent bid up the property between them, could recover back his deposit with interest, though the vendor had reserved the right of bidding.

7 Dimmock v. Hallett, L. R. 2 Ch. App. 21; Lee v. Lee, 19 Mo. 420.

8 Veazie v. Williams, 3 Story, 811; Staines V. Shore, 16 Penn. St. 200;.