
    Arthur S. Gibbes vs. Jesse Cobb, E. M. Cobb, George Seaborn and A. C. Campbell.
    Bill by trustee under marriage settlement to recover trust property, purchased from husband. The only fact proved in order to connect S., one of the defendants, with the purchase, was that a blank note which he had previously executed by way of lending bis name as surety to C., one of the purchasers, for general purposes, was without his knowledge, filled up and given by C. for part of the purchase-money: — Held, that the evidence was insufficient to make S. liable.
    An unregistered marriage settlement is valid against subsequent creditors and purchasers with notice.
    Notice of such facts as are sufficient to put the party on the enquiry, is sufficient.
    Bill by trustee under unregistered marriage settlement against a purchaser with notice from husband. The purchase-money had been paid to creditors of husband: — Held, that the purchaser could not under this bill claim, by way of defence, to the extent of husband’s interest, nor be subrogated to the rights of the creditors.
    BEFORE WARDLAW, OH., AT ABBEYILLE, JUNE, 1854.
    WARDLAW, Oh. This bill was originally instituted March. 20,1854, by Oollin Oampbell and Arthur S. Gibbes, as trustees under a postnuptial settlement, executed by Archibald 0. Oampbell for the benefit of himself and wife Emily and the issue of their marriage, for the special delivery, or compensation in lieu, with hire, of some of the settled slaves, namely: Jim, Molly, George, Sam, and Frances, alleged to have been sold by Oampbell to the other defendants, and by them removed beyond the limits of the State. Colin Oampbell has died since the filing of the bill, and the suit is continued in the name of the plaintiff as surviving trustee.
    A. C. Oampbell, by deed, dated August 10, 1835, conveyed and transferred to Collin Campbell and Arthur S. Gibbes, and to the survivor of them, and the heirs of the survivor, a plantation in Beaufort district called Burlington, and twenty-seven slaves, (the five in question being either named, or the issue of such as are named) in trust, for the use of the said A. C. Campbell and wife Emily during their joint life, free from their debts, then for the use of the survivor for life, free from his or her debts, but in case the wife should survive and marry again, then the income in equal shares for the use of herself and any children of the marriage; and upon the death of the survivor, then for the use in equal shares of the children of the said Archibald; with powor in the trustees to sell the settled estate, and invest the proceeds in other lands and slaves, or in certain stock and securities at their discretion. This deed was recorded in Anderson District where A. C. Campbell resided, within three months from the execution, namely, Nov. 6, 1835, but it seems to have never been recorded in the Secretary of State’s office, as required by statutes.
    On September 8, 1836, A.. C. Campbell executed a new deed to the same trustees, of the same estate, upon the same trusts, and before the same witnesses, but not precisely in the same words exhibited in the former deed. This latter conveyance was recorded in the Secretary of State’s office, April 2, 1838, (not within three months from the date of execution as required), but not recorded at any time in the registry of Anderson District. It was stated at the bar, in the course of the case, that a third deed of similar effect with the tw'o above mentioned, had been executed by A. C. Campbell at an earlier date, and not recorded in either of the offices where registry is required. If this repeated execution of the deed was with the view of its' proper registry and the consequent affecting of third persons with implied notice, as I infer that it was, there has been a curious miscarriage of purpose, for none of the deeds have been regularly recorded. I remark now, to conclude at once this portion of the case, that it is settled by the decisions of this State, that an unrecorded marriage settlement is good between the parties, and as to all other persons •who have express notice of its existence. Foivlce vs. Woodward, Speers, Eq. 233; Cfivins vs. Branford, 2 McC. 152; Steele vs. Mansell, 6 Rich. 437. The main question in this case is as to the fact of express notice of the settlement to the defendants •who are pursued for the purchase of the settled slaves.
    It is unnecessary to regard specially any of the trusts declared in this settlement, except the first for the use of the estate to A. CL Campbell and wife during their joint life, for these primary beneficiaries are still living. The, husband is intemperate in his habits, and improvident in his expenses, and he has been for some years encumbered with debts beyond the reach of the income of the settled estate, and without other means of satisfying his liabilities. The trustees resided in Beaufort District; the beneficiaries near Pendleton. Some of the settled slaves who were needed by Campbell and wife as domestic or menial servants, were from the beginning in the possession of these beneficiaries, and all of the slaves seem to have been sent from Beaufort to Anderson about new year, 1851. — For the years 1851 and 1852, John T. Sloan, as agent of the trustees, hired out the slaves and appropriated the avails to the support of the family and the satisfaction of their previous liabilities. He was separately, and as a partner of the firm of Gaillard & Sloan, a large creditor of A. C. Campbell, and finding that the hire of the slaves was inadequate to more than the support of the family, he abandoned his agency in January, 1853. In the course of his agency, he had bought many claims against A. 0. Campbell, some at large discount, and had received others for collection. In January, 1853, Campbell and wife, under the advice of the late agent, sold the slaves, Jim, George, Sam, and Frances to Jesse Cobb, nominally, for two thousand six hundred dollars. As to Molly, the answer of Jesse Cobb alleges, that she was not sold to him, but delivered to him by Campbell and wife as their agent for the purpose of sale, and that he has sold this slave, and paid the price to his principals; hut as there is no proof of this statement, I shall treat Molly as sold with the other four slaves. The purchase money, two thousand six hundred dollars, was paid as follows: cash to J. T. Sloan eight hundred dollars, and by notes dated January 29, 1853, of E. M. and J. T. Cobb and George Sea-born, to Gaillard & Sloan for one thousand and sixty-four dollars; to E. B. Benson for three hundred and ninety dollars; to James Hunter for forty-nine dollars and fifty-three cents; to John B. Sitton for two hundred and ninety-six dollars and seven cents. All of the payees of these notes were creditors of A. C. Campbell, and almost entirely for necessaries furnished to his family. It does not appear to whom the bill of sale was made, if any were executed; but the witness, Samuel Eeed, proves that the slaves were to he taken to Georgia, and the title to he made there by somebody. Jesse Cobb is the younger brother of E. M. and J. T. Cobb, and nephew of George Sea-born, and he was scarcely of the age of twenty-one years at the time of the purchase, and without visible means of making the purchase. He resided with his mother in Alabama until about a year before the purchase, during which year he resided with E. M. Cobb. He did not sign the notes for the purchase money; and in this respect his answer is contradicted. At the time of sale, E. M. Cobb paid the cash to J. T. Sloan, and produced a blank note signed by himself in the name of E. M. & J. T. Cobb and by George Seaborn, which was filled up for the amount of the liabilities of A. C. Campbell to J. T. Sloan, and to Gaillard & Sloan. It is manifest that, at first, it was supposed the whole transaction would be perfected through J. T. Sloan, and as George Seaborn did not attend in person, he sent one blank note. In event, however, this note was filled up for the amount of liabilities of A. C. Campbell to Sloan and to Gaillard & Sloan; and on the same, 29 January, 1853, E. M. Cobb gave the other notes to Benson, Hunter and Sitton, in the partnership name of E. M. & J. T. Cobb, and George Seaborn called a few days afterwards and added his signature to the last three notes. Jesse Cobb did not make his appearance on the day of sale, until the notes had been given, and the principal arrangements perfected; although he did come to the counting-room of Gaillard & Sloan the same evening, and received a statement of the application of the purchase money. E. M. Cobb, J. T. Cobb, and George Sea-born were at the time partners in the business of buying and selling slaves ; E. M. Cobb being the principal actor in making purchases. Jesse Cobb .was sometimes employed by the firm to a limited extent. The notes have been paid as to the greater portion by E. M. Cobb and George Seaborn, although some small part of them remains unpaid. J. T. Cobb is dead. The negroes purchased from Campbell including Molly, were taken from the State by Jesse Cobb and E. M. Cobb, in company with other slaves of the firm, and have been sold abroad by Jesse Cobb. In the opinion of the witnesses the sum of two thousand six hundred dollars was not a full price for the slaves in question, and Jesse Cobb swears that having bought on speculation, he sold the other slaves (not mentioning the price of Molly) at a profit of two hundred and twenty-five dollars. All the defendants deny knowledge of the present residence of the slaves, and of any increase from them, and as Molly, the only one capable of increase is described as forty-five or fifty years of age at the time of the sale, unhealthy and unlikely, any increaie is improbable.
    The scope of the bill is that E. M. Cobb, and George Sea-born were partners with Jesse Cobb in the purchase of these slaves, and that all of them had express notice of the marriage settlement.
    All of the defendants deny partnership in the purchase, and insist that the purchase was by Jesse Cobb alone. Jesse Cobb explicitly denies all notice of the marriage settlement, and whatever may be my suspicions, I cannot point to the evidence which satisfies me judicially that his ahswer is contradicted. He must go free, as his co-defendants sustain his denial; hut they are left to uphold their own burdens.
    I am of the opinion that E. M. Oobb and George Seaborn must he treated as interested in the purchase, nominally made by Jesse Cobh. They gave the securities for the purchase; they paid the money. Jesse Oobb, their near relation, was irresponsible, and was put forward to avoid the consequences of notice to them of the settlement, which will be presently considered ; but they do not deny their being sureties for the purchase money, and their actual payment of the price. When, in addition to this, there are the facts above narrated of their being partners in the traffic of slaves, and of the active interposition of E. M. Oobb (who was usually the prominent actor in purchases for the firm) in this particular purchase; I think that I should sacrifice substance to, form, and be over exacting in proof of particulars, if I did not hold that E. M. Oobb and George Seaborn were practically interested in the purchase of the slaves in question. Moreover, there is a letter from George Seaborn to the plaintiff, dated May 10, 1853, which certainly commits the writer, and as I think E. M. Oobb as well as himself, after the previous proof of partnership and complicity between him and E. M. Oobb. In this letter, while endeavoring to excuse himself, he clearly admits notice of the trust to himself, and asserts communication of this knowledge to E. M. Oobb, and in substance asserts that E. M. Oobb was the real purchaser of the slaves.
    In his answer, E. M. Oobb states that he-understood “ that the slaves, or a part of them in the possession of A. 0. Campbell, was a trust estate, but he had no definite knowledge of any settlement thereof by deed or otherwise” — that the defendant, George Seaborn, as agent of the trustees, sold some of the trust slaves — and that J. T. Sloan acted as agent for the trustees for some years — and that he was advised by George Seaborn not to purchase the slaves from Campbell and wife as a law suit might follow by the trustees. I think this answer admits notice of the settlement, or 'which is the same thing, notice of such facts as were sufficient to put the respondent on the inquiry as to the settlement. Besides, this, the prompt negation of this defendant at Gaillard & Sloan’s and again at E. B. Benson’s, that he was buying the slaves, serves to show that he knew of the trust, and wished to avoid the consequences of notice, by putting forward as the ostensible purchaser an irresponsible brother to whom it might be impossible to trace notice.
    George Seaborn in his answer admits that he had heard of the trust deed, but says that he does not recollect having ever seen it. This with his letter and his previous management of the trust estate, clearly affect him with notice.
    I think that the liability of E. M. Cobb in this case might be established independently of his supposed partnership in the purchase of the slaves, from the fact of his aid and co-operation in the removal of the slaves from the State. Picket vs. Picket, 2 Hill Ch. 471; Bird vs. Aitken, Rice, Ex. 73; Pettus vs. Smith, 4 Rich. Eq. 197. In this particular certainly, and I may add generally, the case is not so strong against George Seaborn, and I have had some hesitation in holding him liable at all. But the faith to be attached to his answer is impaired by the fact that originally in his answer, and again in his letter, he denies all connection with this transaction although so recent, even that he signed the notes for the purchase money; although he admits the latter fact in his amended answer. E. M. Cobb in his answer professes that E. M. and J. T. Cobb took from Jesse Cobb h^ obligation for the purchase money, but he produces no such paper.
    It seems to me plain that a fraud has been practised in the purchase and removal of these slaves; and my only apprehension is, that from imperfect discrimination, I may have fixed the offenders upon insufficient evidence.
    The defendants insist that the creditors of A. C. Campbell should be made parties to the bill, and that defendants should have a discount at least to tie value of A. '0. Campbell’s equitable interest in the slaves. The conduct of some of these creditors, as exhibited by the present state of the pleadings and proofs, is certainly not approved by the Court, but it may be that they could justify themselves, if they were regularly litigants, and nothing is intended to be prejudged. The plaintiff having the legal estate in the slaves, has properly interposed to prevent the destruction of the trust property by him having an equitable estate for life in combination with others; and the liability of his equitable interest to creditors is not a defensive equity to be made by answer, although it might constitute ground for relief in a bill properly framed by creditors or those entitled to represent them. But in such a bill the Court would not permit those claiming through the husband to despoil the equitable estate of the wife, without a careful consideration of all the equities and securing some provision for the wife. Burnett vs. Bice, Speer, Eq. 579; Jones vs. Fort, 1 Rich. Eq. 50; Brooks vs. Penn, 2 Strob Eq. 113.
    It is ordered and decreed that E. M. Cobb and George Sea-born account before the Commissioner with the plaintiff for the real value of the slaves Jim, M.olly, George, Sam and Frances, and for their hire or interest from January 29, 1853, and that they pay the costs of the plaintiff. Let Jesse Cobb and A. C. Campbell pay their own costs.
    The defendants, Edwin M. Cobb and George Seaborn, appealed and moved this Court to reverse the decree and dismiss the bill, on the grounds:
    1. Because, the deed of trust set up by the plaintiff is in effect a marriage settlement, and is void and of no effect, for want of registry in the offices of Secretary of State, and of Mesne Conveyance, within three months from its execution.
    2. Because these defendants are neither parties nor privies to the said deed, but are strangers; and it is earnestly insisted, that, under a proper construction of the Act of 1823, the deed is, as to them, an absolute nullity, and that even notice to them its existence, would not, and could not, give it validity.
    3. Because, if notice can be made to supply the place of recording as to strangers, it must be direct and express notice of the deed itself, and not a vague, indefinite impression derived from hearsay, or other unauthentic sources; and neither the pleadings nor the proof in this case brings home to these defendants such notice as dispenses with registry.
    4. Because, it is not shown by either the pleadings or the proof, that these slaves are a part of the trust estate. Nor do the pleadings or proof affect these defendants with notice that they are of the trust estate.
    5. Because, it is repeetfully submitted, that the facts of this case do not show any such interference by these defendants with the slaves in controversy as would amount to a conversion at law, and as equity follows the law, no recovery can be had in this court.
    6. Because, it is of the essence .of a conversion, that the party sought to be charged, should intend to interfere with the rights of property, and should not do so by accident, mistake, or ignorance; and it is respectfully submitted, that the proof fails to show an intentional interference on the part of these defendants with the rights of the plaintiff.
    7. Because, it is again submitted, the facts of the case do not establish a combination between these defendants and Jesse Cobb, to defraud the trust estate, or any one else, or that these defendants were in any way interested in the purchase of these slaves. On the contrary it is submitted, that the facts are susceptible of an explanation, and ought to receive it, which exonerates these defendants.
    8. Because these slaves were in law and in justice and equity liable for A. C. Campbell's debts — especially for purchases for necessaries for his family and the trust estate; and as the whole purchase money was thus applied, there is neither law nor justice nor equity in this proceeding.
    And failing on these grounds, they moved for a new trial, or modification of the circuit decree, on the grounds :
    1. Because, it is respectfully submitted, the Chancellor erred in refusing to make the creditors, who received the purchase money of these slaves, parties to this proceeding; to the end that they might be required to show that these slaves, or at least A. C. Campbell’s interest in them, were liable for their demands, and that they were entitled to the money they had received, or failing to do that, that they might be required to refund the money.
    2. Because, it is competént for the Court to decree between defendants, on pleadings and proof arising between plaintiff and defendants; and to make a proper decree in the premises, all the parties in any way interested, and especially such as instigated the sale of the slaves, should be before the Court.— Whereas the circuit decree only reaches or operates on a part of them, and its effect is to give the slaves to one, their proceeds to another, and make a third pay their value.
    8. Because, if these defendants are to be made liable at all, they should only be made liable for the difference between the true value of the slaves and the price ($2,600) that they sold for, as that much of their value has already been properly applied ; or if not properly applied, it is in the hands of A. C. Campbell’s creditors, and should be refunded by them; to which end they should be parties.
    
      Heed and Vandiver, for the motion.
    
      Sullivan, Mcdowen, contra.
   The opinion of the Court was delivered by

Johnston, Ch.

I cannot concur in the decree against the defendant, Seaborn.

It is true that this defendant, (having been agent of the trustees,) is chargable with notice of the trusts, though he never saw or read the deed. But the offence for which the decree makes him responsible, is the having been a party to the purchase of the trust property, with a view to its being carried off: which is far from a necessary consequence of his knowledge of the trust deed.

It appears to me that Seaborn is shown to be above all suspicion in this matter. He cautioned E. M. Cobb against having any thing to do with the purchase; and the only fact that connects his name with the transaction, is, that one of several blank notes, which he had previously executed by way of lending his name as surety to Cobb for general purposes, was filled up and used by the latter for the purpose of taking up the demands of Campbell’s creditors. This was done in the absence of Seaborn, and without his knowledge.

With regard to the defendant, E. M. Cobb, I am of opinion the decree is sustained by the facts put in evidence, and the reasoning of the Chancellor; — to which nothing need have been added, had not a new point been suggested in the argument here.

The trust deed, (properly regarded as a post-nuptial settlement,) was not duly registered under the statute of 1823. The decree, however, holds the deed to be effectual as to E. M. Cobb, who is concluded to have had notice of it; and the point raised here is, whether notice to a subsequent creditor or purchaser deprives him of the right of objecting to the non-registration of the instrument.

It is admitted to have been settled in the case of Fowke vs. Woodward, and subsequent cases, and upon the soundest principles and authorities, that the parties to the instrument are as much affected by actual notice as they could be affected by the constructive notice arising from registration. But it is contended that the doctrine should not be extended to third persons. The objection assumes, for example, that though it is right to conclude the parties from averring against their deed, on the ground that, being parties to it, they must have full knowledge of it, — yet it would be wrong to conclude the scrivener who drew it up and attested its execution, and, therefore, had the same notice. It would be a fraud in either of the parties to defeat the provisions of an instrument of which they had notice: but an attesting witness may, without fraud, turn round, purchase the property, and defeat the conveyance.

It has always been the law, — and the authorities quoted in Fowke vs. Woodward, show it, — that it is fraud in any party, whether party to the instrument or stranger, to do any act going to frustrate or defeat the rights created by or arising under a deed of which he is cognizant: and the act done by him is set aside for that fraud, and the deed declared to be unaffected by it.

It is true that if the deed be incomplete, — if it be not fully executed, — and if it be left in that condition, — and there be no consideration in the case upon which a complete execution can be enforced; then, not only strangers, but the parties themselves, may disregard the instrument, notwithstanding their knowledge of what has been done towards its execution. It is null, and cannot affect them. But if all has been done that is necessary to its execution, it is to be taken as a complete conveyance, and every attempt on tbe part of those who have notice of the fact, to destroy the rights existing under it, is to be treated as a fraud.

Now, in Fowke vs. Woodward, it was settled, as a necessary point in the case, that the statute of 1823, does not contemplate registration as part of the 'execution of the instrument. The terms of the statute were considered, and compared, among others, with those of the statute for the registration of leases, and the Pennsylvania statute for recording mortgages: and, taking the decisions in these analogous cases into consideration, it was deliberately held that the instrument was complete as to its execution the moment it was delivered. Besides being expressly decided, it was a necessary point in the judgment; for how could the Court make the deed binding on the parties, any more than on strangers, unless it was executed, so as to be in fact and in law a deed ?

If the deed, while unregistered, is a deed between the parties, why may it not be a deed as to third persons ? It is a deed between the parties because of their knowledge: why should it not operate as to others having knowledge ? It is a deed, a valid and effectual instrument, as to all who have knowledge or notice, whether party or stranger; and, if it be not so regarded in law, an agent by whom the instrument is transmitted for registration, may keep it off the registry for the statutory period, and then purchase and hold the property.

“ The Legislature,” as observed by Chief Justice McKean, in Levinz vs. Will, “ did not mean, nor did they, in fact, enact that express personal notice when given, shall have no effect; nor could they entertain an idea of defeating fair and honest bargains.” The Chief Justice here refers to a principle which operates apart from, and would have operated if no registry law had ever been enacted. If we transport ourselves, in imagination, to a time anterior to all laws requiring registration, we shall see that the principle to which he tacitly refers, was a principle necessary in the administration of justice: to wit., that the contracts entered into for the purpose of defeating prior contracts well known to the actors, are fraudulent, and should be set aside for mala fides. This principle still exists and must prevail, notwithstanding the enactment of recording Acts, unless expressly and clearly repealed in those Acts: just as a jurisdiction existing in a Court is not abrogated by the creation of a similar jurisdiction in another Court. The statute before me does not repeal the prior doctrine in relation to, the effect of notice, in terms: and the generality of its phrases should not be construed into a repeal, when we consider that the object of the statute was to extend and not to abridge the effect of notice, by providing additional means for communicating it: — thus superadding presumptive to actual notice for the preservation of existing contracts.

If I am not grossly mistaken, it is impossible to sustain the objection made in this case, without trenching upon the substance of what is decided in Fowke vs. Woodward. But there is a subsequent case which in my opinion very materially bears upon the objection brought forward here. I mean the case of Footman vs. Pendergrass.

That was the case of a voluntary post-nuptial settlement made by a husband on his wife and children, which was not recorded. Several years after its execution, the husband borrowed money from a person who was held to have had notice of the deed, which debt he secured by a mortgage on the settled personal property. The difference between that case and the present, is, that in that case the defendant was a subsequent creditor; — here, he is a subsequent purchaser, or assisting in a subsequent purchase.

That difference was held, by Chancellor D unkin, in that case, to be immaterial. “I am unable,” says be, “to find any decision of our own Courts, in which a deed has been declared voidfin favor of a subsequent purchaser, which would not have been declared void in favor of a creditor.”

And in that case it was held that the subsequent mortgagee was so affected by notice of the settlement, that his mortgage was disregarded, and the rights of the parties under the settlement enforced.

It is ordered that the bill be dismissed as against the defendant Seaborn; in all other respects the decree is affirmed and the appeal dismissed.

DáRGAn and WARDLAW, CC., concurred.

Dunkin', Ch.,

dissenting. I have been unable to concur in this judgment.

The plaintiff is the trustee in a post-nuptial settlement of A. 0. Campbell and wife, executed in 1885. It is unnecessary to notice the deed of 1888. Neither of them was recorded according to law. The trustee resides in Beaufort, Campbell and wife, in Pendleton. By the terms of the instrument, the property was to be held for the joint use of husband and wife, during their joint lives, &e., with a power to the trustee to sell any part of the property and re-invest to the same uses. The trustee, residing in Beaufort, had at one time appointed G-eorge Seaborn as his agent; but, for three or four years prior'to 1st January, 1853, John T. Sloan was the agent of the trustee. He stated in his evidence that at the latter period his agency ceased.

On 29th January, 1853, A. C. Campbell and his wife joined in a bill of sale of four of the negroes included in the settlement to Jesse Cobb, for the sum ,of two thousand six hundred dollars. The whole amount was applied to the payment of the debts of A. C. Campbell, the sum of eighteen hundred dollars being received by John T. Sloan, who had been the agent of the trustee until the first of that month.

The decree discharged Jesse Oobb for want of notice. But the Chancellor held, from the evidence, that M. M. Oobb was concerned in the purchase, and decreed him to account for the real value of the four slaves, with interest from 29th January, 1853. The answer of E. M. Cobb denied that he was a purchaser of the negroes; but he also averred that, although he had heard that the negroes, or some of them, in Cambell’s possession, was “a trust estate,” yet, “that he had no definite knowledge of any settlement of them by deed or otherwise.” The Chancellor infers, however, from the whole answer, that the defendant, E. M. Cobb, “ admits notice of the settlement, or, which is the same thing, notice of such facts as were sufficient to put the respondent upon the inquiry as to the settlement.” I agree entirely with the Chancellor, that E. M. Cobb is affected with notice of such facts as might have put him on further inquiry, which, deligently prosecuted, would have resulted in actual knowledge of the settlement and all the provisions of it. But this is the utmost extent of the evidence, or of the admissions of the answer, and no more weight is, or can justly be ascribed to either.

The defendant has appealed from the decree, upon the following, among other grounds, viz.:

1. Because the deed of trust is a marriage settlement, and is void and of no effect for want of registry in the offices of the Secretary of State and of Mesne Conveyance within three months from the execution thereof.

2. Because defendant was neither party nor privy to said deed, but is a stranger; and it is insisted that, under a proper construction of the Act of 1823, the deed is, as to him, an absolute nullity, and that even notice to him of its existence would not give it validity.

3. That if notice can be made to supply the place of recording, as to strangers, it must be direct and express notice of the deed itself, and not a vague indefinite impression derived from hearsay, or other unauthentic sources — and neither the pleadings nor the proof, bring borne to tbe defendant such notice as dispenses with registry.

It was further insisted that, in any event, the interest of A. C. Campbell in the settlement, should be made available to the defendant for his debts which had been paid from the purchase-money.

In Steele vs. Mansell, 6 Rich. 437, it was held by a majority of the Court of Errors, that an absolute conveyance of land, though not recorded until four years after its execution, had priority over a subsequent conveyance of the premises recorded within six months from the date, but after the prior deed. The Court declared that such had been the current of decisions upon the Acts of 1698 and 1785, but they expressly state, that the decisions had been otherwise in relation to marriage settlements, and that with regard to those instruments, recording is of no avail, if done after the time prescribed by law. “We pretend not,” say the Court, “to assail those decisions. They well consist with what we hold of ordinary conveyances under the joint action of the Acts of 1785 and 1698. In 1785 the provisions concerning marriage settlements were peculiar, and, thence onward, they have been stringent and progressively exacting.” “A marriage settlement is also peculiar, and has been looked on with jealously. It is a restraint upon the marital rights — >a modification of results, which, without it, would have ensued from the marriage; and usually it is contradictory of the evidence which possession and other visible signs give of ownership. Marriage is a conveyance, open and notorious — equivalent to a written instrument duly recorded, and generally extensive in its operation. Strong reasons of policy have been thought to justify the imposition, and stern enforcement of severe terms before priority over it is conceded to a deed of the parties, making for their special case a change of its legal effect, which, if not cautiously guarded, might easily become the means of defrauding innocent third persons.” These remarks strikingly illustrate the distinction which has always prevailed between marriage settlements and other conveyances in reference to the registry law, and they also point out the reasons for the distinction. Many jurists have expressed their deep regret that, even in respect to ordinary conveyances, express notice had been held to dispense with registration as between strangers to the instrument — that the salutary provisions of the Act had been frittered away, and the policy of the law defeated in the vain attempt to prevent particular, or occasional injustice. The evil is not so much in the principle which recognizes such exception, as in the difficulty of applying it with safety in any ease, and without the hazard of introducing more extensive mischief. But, for the reasons so clearly stated in the judgment of the Court of Errors, the Legislature have always manifested particular jealousy in relation to marriage settlements, and, for the protection of the community, have prescribed, in strong and unambiguous terms, the character of notice which shall affect those who are dealing with the ostensible owners of property. The course of legislation upon the subject is instructive. By the Acts 1785 and 1792, (4 Stat. 656; 5 lb., 203), marriage settlements not recorded within three months from the execution thereof, in the office of the Secretary of State, were declared null and void with respect to creditors and bond fide purchasers and mortgagees. These terms are sufficiently plain; and for thirty years after the enactment of these laws, the judicial history of the country affords no instance of any exception engrafted on the statute. Givens vs. Branford was decided in 1822, by a divided Court, upon a special verdict. It is there stated to have been “ the first time that the question has arisen under the Act of 1785,” and that “there was some difference of opinion” in the Court. It was ruled, however, by a majority of the Court, that “the actual notice of the marriage contract received by the plaintiff was sufficient to bar his claim to the settled estate.” This decision was not published until the following year (1828); and, in December of that year, the Legislature passed an Act which declared that “no marriage settlement shall be valid until recorded in the office of the Secretary of State, and in the office of the Register of Mesne Conveyances of the district where the parties reside; provided, that the parties shall have three months to record the same, and if not recorded within three months, the same shall be null and void.” It was for some time supposed by many, that the general terms of this Act applied as well between the parties as to strangers. And in Baskins vs. Giles, Rice Eq. 324, Judge Johnson, who had concurred with the majority of the Court in Givens vs. Branford, intimates the opinion, that the Act of 1823, so construed, was “a wise regulation.” “The numerous evils, and many vexatious law suits, which have grown out of the neglect to record deeds,” says he, “are familiar to every one.” He adverts to the doctrine, that notice to subsequent purchasers and creditors should supply the want of recording, and says, that “ the titles to many of the largest estates, both real and personal, have depended often on questionable proof of notice.” But in Fowke vs. Woodward, Speer Eq. 233, it was ruled that recording was no part of the instrument itself, and that, therefore, the contract was binding between the parties, though not recorded according to law. This decision is in strict conformity with the provisions of the Acts of 1785 and of 1792, and with the general policy of the registry law. But, considering the time at which the Act of 1823 was passed, immediately after the first decision of the Courts that actual notice of a marriage settlement, as of any other deed, dispensed with the necessity of recording as to creditors and purchasers, and the acknowledged mischief which had frequently resulted from the doctrine, as applicable to ordinary conveyances, it is not too much to suppose — it is due to the clear and emphatic language of the Legislature to affirm — that the object was to cut up by the roots this fruitful source of litigation and uncertainty in relation to marriage settlements, and by declaring the deed ineffectual “until recorded in the offices of Secretary of State and of Mesne Conveyances,” to protect purchasers and .creditors, not only from the false signs of apparent ownership, but from having their titles depend upon what Judge. Johnson styles “questionable proof of notice.” It is justly remarked by the Court of Errors, in Steele vs. Mansell, that, “marriage settlements have always been looked upon with jealousy”- — that “ the legislative provisions concerning.the.m have been peculiar —have been stringent and' progressively exacting.” But this jealousy has', arisen from the peculiar-nature of the contract and the danger to the community from the condition of things which'it creates. The “ progressively exacting” ■ legislation to which the Court adverts,.has.been principally directed to the requirements of recording, and recording promptly. 1 ‘ Marriage itself,” says the Judge, “ is a conveyance, open and notorious,” and, in order to give priority to a deed of the parties making for their special case a change of the legal effect of marriage, has been thought to justify the imposition and stern enforcement of severe terms, in order to protect the rights of third persons. Besides, in the common transfers of property, the ordinary instinct of self-interest would prompt the parties in possession to place on record their muniments of title. But a marriage settlement is a. restraint upon the marital rights of the husband’s dominion over property-of which he is the possessor and apparent owner. Practically he may be, at least, indifferent upon the subject. ■ With much reason then has the law jealously provided against the supineness, or neglect, or fraud of thpse ■ interested under the instrument, by requiring this character of notice in order to sustain their rights under it.

Although, in reference to ordinary conveyances, our Courts have adopted the exception introduced by the English Courts to the registry laws,- yet, as remarked by Chancellor Be Saussure, “ we have followed them ivith rather'more guarded steps. We require the notice of the deed to be brought home clearly and positively.’” It is impossible, from any part of the testimony, to infer any such notice on the part of the defendant, E. M. Cobb. Nor is tbe decree placed on tbis ground. The Chancellor says, “ I think this answer admits notice of the settlement, or which is the same thing, notice of such facts as were sufficient to put the defendant upon the inquiry as to the settlement.” No case has, I believe, carried the doctrine to this extent, in reference to marriage settlements, either before or since the Act of 1823. It appears to me inconsistent not only with good policy, but with the plain provisions of that law. Being about to purchase, or having purchased, from one in possession of slaves, and with all the apparent marks of ownership, an idle by-stander, or sincere friend, suggests that it is a trust estate. This is certainly enough to put the party on the enquiry. He searches the office of Secretary of State, finds no deed on record, concludes that the suggestion was an unfounded rumor, or, at least, feels himself safe under the protection of the statute, and completes his bargain. Is he not only to lose his money, but to pay for any extra value that may be fixed on the slaves, because he did not further prosecute his searches, ascertain who was the trustee, and go to Beaufort to enquire of the trustee as to the provisions of the deed, and the authority of the cestui que trust to sell ? If the doctrine affirmed be applicable to marriage settlements, it appears to me practically to abrogate the salutary provisions of the statutes, and to substitute for the certainty of law, the vague remembrance of witnesses, or the doubtful inference of magistrates. Marriage settlements are wholly unobjectionable in themselves. They are regarded with jealousy by the community, only because of the danger to which they subject those who may deal with the parties. The Legislature have, therefore, declared that no marriage settlement shall be valid until recorded in the proper offices, and if not recorded within three months, shall be null and void. And (as is elsewhere said) who will undertake to prescribe for the Legislature what provisions they shall impose for the purpose of protecting the community? Yet, by the construction which is given, the law is-rendered rather a snare than a shield. Persons relying upon the law, relax or limit, their, vigilance, and suffer the penalty of their confidence. In Steele vs. Mansell, the case of McCartney & Gordon vs. Ferguson, 2 Hill Ch. 180, is cited, as illustrating the distinction between marriage settlements and ordinary conveyances. The settlement was recorded in the Register’s office, (by misapprehension as the law then stood,) within the period prescribed by law, and in the office of the Secretary of State, but after the period. Nearly twenty years after the recording of the deed in both offices, a debt was contracted by the husband with a merchant of Charleston, where the instrument was on record. The deed was declared null and void as to creditors, because not recorded in the office of the Secretary of State within three months. Some general remarks of the Court may be well applied to the Act of 1823. “There is no room in the construction of the Act, to say (observes the Judge) that it has been substantially complied with, and its ends answered.” “ The Legislature have excluded all construction of a supposed intention by the use of plain words,” &c. “In the construction of a statute, I know no rule more safe than to adhere to the sense of the Legislature, as manifested by the plain and literal meaning of the words used. To adopt any other rule would be to legislate, not to construe.” But if a deed for twenty years spread upon the proper records in the city where the parties resided, be not regarded as notice, or rather cannot be construed to dispense with the positive requisitions of the statute as to the time of recording, how can the “plain words” of a more recent and “more exacting law” be construed to have “ its ends answered,” by notice of such facts as might put thé party on the enquiry ? When, too, the first stage of such enquiry would assure him that, if any such deed existed, it was as to him void in law? The Acts of 1785 and 1792, already required settlements to be recorded in the office of the Secretary of State. If, in that part of the Act of 1823, declaring them to be invalid until recorded in the office of the Secretary of State, the Legislature had any meaning, it was' to preclude construction, and to prevent any substitution of notice for-that prescribed by the statute. I am, for these reasons, of opinion that the defendant’s third ground of appeal is well taken.

But the defendant has paid the purchase-money, (two thousand six hundred dollars,) which has been applied to the payment of creditors of A. C. Campbell, and he holds the bill of sale of himself and his wife. In any event, I think, that in the accounting, he is entitled to all the interest of A. C. Campbell in the premises,’and that he is also entitled to be subrogated to the rights of the creditors, whose claims he has extinguished, to the interest of A. C. Campbell in the trust estate under the provisions of the deed.

Decree modified. 
      
       Speer Eq. 233.
     
      
      6) 1 Dallas, 430.
     
      
       3 Rick. Eq. 33.
     