
    *Taylor v. Moore.
    June, 1824.
    Deed of Trust — Impeachment—Fraud—Witness—Trustee. — Where a deed of trust is impeached as fraudulent, the trustee may he a witness, if he has no interest in the support of the deed, and no participation in the alledged fraud.
    Post Nuptial Settlement — Relinquishment of ‘ Dower Rig-hts. — if a married woman relinquishes dower in lands, under a promise that other property shall he settled on her as a compensation, such settlement will he good, although made after the relinquishment.
    Same — Same.—But if the value of the property settled exceeds the value of the dower relinquished, the deed should he set aside as to the excess, and supported as to the residue.
    This was an appeal from the Richmond Chancery Court.
    James Taylor filed his bill, stating, that he had obtained a decree against the representative of Nathaniel W. Dandridge, for a debt due by the said Dandridge in his life-time: that Ann C. Moore, the wife of John S. Moore, was a daughter, and one of the residuary legatees of the said Dan-dridge, and had received one-fourth part of the residuary slaves and personal estate of the said Dandridge: that the Court of Chancery accordingly decreed, that the said John S. Moore, holding the fourth part of the estate of the said Dandridge, as aforesaid, should pay to the complainant the sum of £296 6s. 9^4, with interest on £185 5s. 3d. from the 7th day of September, 1807, till paid, and one-fourth part of the costs: that an execution was issued against the goods of the said Moore for that amount, and was levied on several slaves, which were the slaves that Moore had obtained upon the division of the said Dandridge’s estate, or their descendants; that they were regularly advertised for sale, when a certain George W. Payne presented a deed for all the slaves in the possession of the said Moore, or which he had received from the estate of Dandridge as aforesaid, and their descendants, by which deed they were conveyed to the said Payne in trust for the said Ann C. Moore during her life, and to her children after her death: and forbade the 'sale: that no person being present to indemnify the Sheriff, the property was restored: that John S. Moore died soon afterwards, and no person  *has administered on his estate, the said Payne and Ann C. Moore having laid claim to the whole of it, under the deed aforesaid: that the said deed was made without consideration, long after the marriage of John S. Moore and Ann C. Moore, and for the purpose of covering the property from the creditors of the said John S. Moore, who was at that time greatly indebted; but even if the deed was good against other creditors, yet as these were the slaves, or the descendants of those, which the said Ann C. Moore derived from her father, they are liable to his claim; the said deed being made in the month of April, 1805, pending the suit brought by the complainant against them, as above stated; in which the said Ann C. Moore was a party, and therefore would be considered bound for the said demand. The bill prayed that George W. Payne, Ann C. Moore, and John S. and Ann C. Moore, children of the deceased, might be made defendants; and that the said deed might be declared fraudulent and void, as to the complainant.
    The answer of Ann C. Moore states, that the deed from John S. Moore to 'George W. Payne, referred to in the bill, was made under the following circumstances: About the time that the deed was executed, the said Moore had determined to dispose of his lands, which were very valuable, and which consisted of three tracts, one in 'King William, and two in Hanover, and the defendant was advised by her friends, that it was a duty she owed to herself and her children, to insist that her husband, (to whom she brought about ten valuable slaves on her marriage) should make some settlement on her, which might serve for her maintenance and that of her numerous family, and eventually as a provision for the latter: that under the influence of this advice, it was distinctly agreed between her said husband . and herself, that he should make such a settlement as is contained in the deed to Payne, in consideration of the defendant’s- relinquishing her right of dower, as aforesaid: that her relinquishments ' of dower were subsequent *to, and induced by, solemn promises on the part of her husband, to make a settlement for the benefit of herself and her children, which promises were carried into effect by ,the deed before referred to; and that there was not any fraud on her part, or any intention to defraud, the complainant or any other person: that as to the allegation that the slaves contained in the deed from her husband, to George W. Payne, were the negroes derived from her father Nathaniel W. Dandridge’s estate, or the descendants of such negroes, thé defendant positively denies that such is the fact, except as to the slave Alexander; all the rest of the slaves in the said deed, being acquired by her deceased husband from his mother, Ann C. Moore, except the said slave Alexander and one named Robin: that as to Alexander, he was formerly the property ■of the defendant’s father, but was sold in the life-time of her husband, to pay a debt due from him, and the defendant, to prevent an execution from being levied on the said Moore, with which he was threatened, agreed to give up her right in the said slave: that the slave Robin was purchased by the defendant’s husband, of Archibald Payne, deceased, and was not acquired froni her father’s estate: that all the slaves acquired from her father’s estate were sold to pay hjs debts: and the defendant believes, that in many instances, they went to pay debts which her deceased husband was bound for, as representing in part the said Nathaniel W. Dandridge, &c.
    The answer 'of George W. Payne states, that about the time that John S. Moore, deceased, was selling off his lands in Hanover to remove to Richmond, to embark in the brick-making business, (in which he had no experience,) the defendant urged on Mr. and Mrs. Moore, that the former was in duty bound to his family, to make a settlement on his wife and children, in consideration of her relinquishing her right of dower in the said lands; and he urged upon Mrs. Moore the impropriety of giving up her right of dower, until such settlement was made: that the *said Moore at first objected, but finally solemnly agreed, in presence of the defendant, and of Mrs. Moore, that if she would relinquish her dower, that “he would make the settlement: that, in pursuance of this promise, the said Moore, on the 10th of April, 1805, executed to the defendant the deed in the bill referred to, which was regularly recorded in Goochland County Court: that he is well convinced that Mrs. Moore relinquished her right of dower, in consequence of the said promises and agreement, and that she would not have made such relinquishment, without the settlement; as she has repeatedly declared to the defendant: that, after the said deed was , executed, the defendant considered himself as having complete control over the slaves thereby conveyed: that he hired out some of the slaves; and others which he deemed necessary for the support of Mrs. Moore, and her children, he suffered to remain with the family: that the defendant does not recollect or believe, that he ever forbade the sale of slaves taken under execution in a suit against the representatives of Nathaniel W. Dandridge, or any other, on behalf of the complainant against the said Moore: that he has been informed, and verily believes, that none of the slaves mentioned in the deed from the said Moore to the defendant, as trustee for his wife and children, were either negroes devised by the said Moore from the estate of Nathaniel W. Dandridge, or the increase of’ such slaves, except Alexander: that Robin was recovered in an action against the estate of Nathaniel W. Dandridge, bought by Archibald Payne, and by him sold to the said Moore: that Alexander was sold in the life-time of John S. Moore, to pay a debt of the said Moore; and Mrs. Moore having consented to relinquish her right in the said slave, the defendant did not interfere at the time, nor has since brought' suit; and the defendant conceiving that thé said deed was executed in good faith, and for valuable consideration, thinks it would be very unjust to deprive them of the said property.
    The suit abated by the plaintiff’s death, and was revived against his executor.
    The other defendants answered, relying on the answers of Ann C. Moore and George W. Payne.
    The deposition of Benjamin Sheppard states, that in the year 1804, Nathaniel, Benjamin and John Sheppard, purchased of John S. Moore, a house and lot in the City of Richmond; that a few days after the purchase, and before a deed had been executed by Moore and wife, Moore applied to the said Sheppards for some money on account of the said purchase, when the deponent refused to let him have any money before a deed with a complete relinquishment of dower was made, and that he must have an opportunity also of getting-some information respecting the title to the said house and lot, as the deponent had been informed that all his, the said Moore’s property, had been conveyed to G. W. Payne in trust for the benefit of Mrs. Moore and her children. The said Moore observed, that there was no such convey-
      anee, and that there never had been. A few days after, when the deponent, went to the house of the said Moore, with two magistrates, for the purpose of taking Mrs. Moore’s relinquishment of dower, Mrs. Moore observed to the deponent, that her feelings had been very much hurt at the observations made by the deponent, concerning the title of Mr. Moore’s property, and observed, that Moore’s property was as free from incumbrance as any man’s on earth, and that Mr. G. W. Payne had not at that time, nor ever had, any in-cumbrance on any part of Moore’s property. The deponent levied an execution on the 30th day of January, 1807, on one of Moore’s negroes; and on the day of sale, G. W. Payne observed to the deponent, that this negro, together with many others, was conveyed by Moore to' him, in trust, for the benefit of Mrs. Moore and her children; but, that it was not his intention, nor that of Mrs. Moore, to prevent the property from being sold for the payment of any of Moore’s just debts, and executed to the deponent a relinquishment to the said negro, by giving him full power to sell him, to satisfy the said execution. The said Payne further observed, that the said Moore had been in the habit of making a great many injudicious bargains, and that it was the intention, of the said Moore, his wife, and of him, the said Payne, to secure the property, so as to prevent it from being sold to satisfy any debts of that description.
    The deposition of George Underwood states, that some time after Moore removed from Richmond, the deponent heard G. W. Payne say, that he had got the said Moore to convey the whole of his property to him in trust, irf order to prevent it from being taken to pay his debts; but afterwards observed, that if care and economy were used, the estate, by its profits, would be sufficient to, pay its debts.
    The deposition of George W. Payne was also taken. He deposed, that some years ago á deed was made for a number of negroes, by John S. Moore to his wife, in which he was made trustee; and he believes that the deed was made in consequence of his having advised Mrs. Moore never to relinquish her dower to certain lands, sold by Moore to Samuel Mosby, unless Moore would secure her as much property, at least, as the dower was worth. This conversation took place in presence of Moore, and gave him great offence; but, shortly after, he promised that he would do as the deponent had advised Mrs. Moore; on which promise, the deponent then advised Mrs. Moore to relinquish her dower; which, after some time, was accordingly done; that he has no recollection of the conversation stated in G. Underwood’s deposition, and is certain that if such a conversation ever took place, it has not been fairly represented; that he believes the property of Moore, independent of that conveyed by the deed, was more than sufficient to' pay his debts; that he understood that Moore sold the said land to Mosby, for three or four thousand pounds; that the trust estate consisted of personal property, and chiefly of negroes, which were, in general, young and expensive, &c.
    *Samuel Mosby deposed, that the land he purchased of Moore cost £3,400; that he thinks Moore had not property enough to pay his debts, at the time of executing the trust deed; and does not know whether the property conveyed in the trust deed, was worth more than the dower relinquished in the land conveyed to him and others.*
    The Chancellor decreed, that as John S. Moore had received, in his life-time, that part of the estate of Nathaniel W. Dand-ridge, to which Mrs. Moore was entitled as residuary legatee of her father, and had executed a refunding bond to the executor of that estate, that his estate, and not the said Ann C. Moore, is liable for that proportion of the debt due to the plaintiff; that the property conveyed by the deed of trust to G. W. Payne, is not subject to the payment of the said debt: that from the evidence, the said property was conveyed in _ consideration of Mrs. Moore’s relinquishment of dower, and the trust property is not proved to exceed in value, the value of the dower relinquished; and, that the bill should be dismissed, without prejudice to any _ other suit that the plaintiff might be advised to bring against the personal representatives of Nathaniel W. Dandridge, for the recovery of the demand in the bill mentioned.
    The plaintiff appealed.
    Stanard, for the appellant.
    Nicholas, for the appellee.
    June 16.
    
      
      Post Nuptial Settlement — Relinquishment of Dower Rights. — That a post nuptial settlement in favor of a wife, made in pursuance of a fair contract for valuable consideration, will he held good, is a doctrine supported by abundant authority. And, although it may have heen made under such circumstances that it must he pronounced fraudulent and void as to the creditors of thehushand, 3etifthe wife has relinquished her interest in property on faith of such settlement, it will he held good to the extent of a just compensation for the interest which she may have parted with ; and this though the settlement may have heen made subsequent to the, relinquishment. William & Mary College v Powell 32 Gratt. 385, citing principal case as authority. To the same effect, the principal case is cited in Penn v. Whitehead, 17 Gratt. 512; Penn v. Whiteheads, 12 Gratt. 81; Burwell v. Ijumsden, 24 Gratt. 446, 447; Glascoch v. Brandon, 35 W. Va. 93, 12 S. E. Rep. U04. foot-note to William & Mary College v. Powell, 12 Gratt. 385. containing excerpt from Glascock v. Brandon. 35 W. Va. 91, 12 S. E. Rep. 1102; Strayer v. Long, 86 Va. 562,10 S. E Rep. 574. And furthermore, participation of the wife in the fraud of her husband will not impair her rights; for it would he sufficient answer to the charge oí fraud, on the part of the husband and wife in executing the deed of settlement, to say that, if there were fraud, and she participated in it, still it will riot he imputed to her by reason of her coverture. William & Mary College v. Powell, 13 Gratt. 387; Penn v. Whitehead, 17 Gratt. 512; Perry v. Ruby, 81 Va, 327; Strayer v. Long, 8© Va. 559, 560. 10 S. E. Rep. 574; Bates v. Swiger, 40 W. Va. 428, 21 S. E. Rep. 877. See further, monographic note on "Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
      Chancery Practice — Answer—Affirmative Matter— Evidence. — If the answer to a bill in chancery alleges anything affirmatively, it is not evidence for the defendant, but it is to be proved by him. To this effect, the principal case is cited in James River &K. Co. v. Littlejohn, 18 Gratt. 77; Jones v. Cunningham, 7 W. Va. 713.
      See further, monographic note on “Answers, In Equity Pleading” appended to Tate y. Vance, 2? Gratt. 571.
    
    
      
      For a more particular statement of the evidence, see Judge Green’s opinion.
    
   The Judges delivered their opinions.

JUDGE GREEN.

Although the first question in order in this cause, seems to bh, whether the evidence given by George Woodson *Payne, the trustee and one of the defendants, was competent and admissible or not; yet as the fate of that question may, in some measure, depend upon the other matter of the record, it is proper to enquire, first, how the case would Stand, exclusive of his testimony.

James Taylor, the testator of the appellant, in 1798, instituted a suit m Chancery against John S. Moore and Ann Catharine his wife, and others, of whom George Woodson Payne was one; and on the 27th of February, 1809, recovered several decrees against several of the defendants, and among others, J. S. Moore. Pending this suit, on the 10th of April, 1805, John S. Moore conveyed to George W. Payne, 17 slaves, a coachee and harness, 2 horses, 2 mules, 4 milch cows, 8 calves, and all his household and kitchen furniture. The deed purports to be made for the consideration of £i,000 paid by Payne to Moore, in trust that, “whereas Ann Catharine Moore, the wife of the said J. S. Moore, is entitled to dower in sundry tracts of land, which the said J. S. Moore is desirous of selling and disposing of. This writing, therefore, witnesseth, that in consideration of a relinquishment of dower in three separate pieces, parcels or tracts of land, two of which tracts of land are lying in the County of Hanover, and in the aggregate, contain 1,236 acres, and the other, in the County of King William, containing 500 acres;” the said Payne was to stand seised and possessed of the property to the use of the said Ann C. Moore for life, and to the use and benefit of such child or children (in equal shares) as the said J. S. Moore may now have or shall hereafter have begotten on the body of the said Ann Catharine Moore. Upon the decree aforesaid against Moore, an execution of fi. fa. issued on 16th day of November, 1809, upon which the officer, Benjamin Sheppard, returned that he had executed it on 4 of the negroes mentioned in the said deed, and the sale had been forbidden by G. W. Payne, trustee for Mrs. Moore, whereupon he had surrendered the property. In October, 1810, *Taylor exhibited his bill against Payne the trustee (Moore being dead insolvent, and no administration on his estate) and the cestui que trusts, stating in substance, the facts aforesaid, and charging that the said deed was made without consideration, long after the marriage of Moore and wife, and for the purpose of covering the property from the creditors of Moore, who was then greatly indebted; and prays, that the deed may be declared fraudulent and void as to the plaintiff, and for general relief; but calls, in terms, for no discovery of the consideration of the deed.

The answer of Mrs. Moore states, that about the time the deed in question was executed, her husband had determined to dispose of his lands, which were very valuable. They consisted of three tracts, one in King William, and two in Hanover; and that she was advised by her friends, that it was a duty she owed to herself, and her children, (ten in number, at her husband’s death, and one born afterwards,) to insist that her husband (to whom she brought ten valuable slaves in marriage,) should make some settlement on her, which might serve for her subsistence, and that of her numerous children, and eventually as a provision for the latter: that, her husband admitting this advice to be correct, it was distinctly agreed between her husband and herself, that he should make such a settlement as that contained in the deed, “in consideration of her relinquishing her right of dower as aforesaid:” that she does not remember whether the said deeds (of relinquishment, I suppose,) preceded or followed the deed to Payne; yet, she positively avers, that the said relinquishments, whatever were their dates, were subsequent to, and induced by, solemn promises on the part of her husband, to make a settlement as aforesaid; and positively denies fraud. She does not believe (never having heard so,) that the plaintiff’s execution had ever been levied upon any of the trust property; states, that she had consented to the sale of Alexander, one of the trust slaves, for the payment of a debt of J. S. Moore, to prevent an execution from being levied on Moore; she giving up her right in the slave so sold.

*The answer of G. W. Payne states, that when J. S. Moore was selling off his lands in Hanover, to remove to Richmond, where he was about to engage in the brick-making business, in which he had' no experience, he urged upon Mr. and Mrs. Moore, that he was in duty bound to his family, to make a settlement on his wife and children, in consideration of her relinquishing her right of dower in said land, and urged Mrs. Moore not to relinquish her right of dower, until such relinquishment (I suppose, settlement,) was made: that Moore at first objected; but, finally, solemnly agreed, in his presence, with Mrs. Moore, that if she would relinquish her claim, he would make the settlement: that, in pursuance of this promise, the said Moore executed, on the 10th of April, 1805, the deed in question to him: that he believes that the deed to Mosby by Moore and wife, was executed before making the deed in question; but, he is well convinced, that Mrs. Moore relinquished her right of dower, as aforesaid, in consequence of the said promise and agreement: that, after the deed was executed, he considered himself as having complete control of the property conveyed, hired out some of the slaves, and others he left with the family, for the support of Mrs. Moore, and her children. He does not recollect that any of the negroes were taken under the plaintiff’s execution, and does not recollect or believe, that he ever forbade the sale: and insists that the transaction was bona fide.

_ The other answers are wholly immaterial. The deed from Moore and wife to Mosby for one tract of the Hanover land, is dated October 16, 1799, and Mrs. Moore was privily examined in the District Court, on the 11th day of April, 1800. The deed to Mosby, for the other tract of land in Hanover, was executed by Moore and wife on the _15th of July, 1800, and Mrs. Moore' was privily examined in the District Court, in September following. The consideration of the first deed was £1,400; of the second, £2,000. No conveyance is exhibited for the King William *land; nor does it appear ever to have been sold by Moore; and, for any thing that appears, she now enjoys her dower in that tract of land.

Benjamin Sheppard testifies, that in 1804, N. B. and J. Sheppard purchased a house and lot of J. S. Moore: that, a few days after, and before a deed was made, Moore applied to him for the payment of some money on account of the purchase: that he refused to pay him any, until a complete deed, with Mrs. Moore’s relinquishment of dower, was made, and until he could make some enquiry as to the title of the house and lot; he having heard that all Moore’s property was conveyed to Payne, for the benefit of Mrs. Moore and her children. Moore affirmed that there was no such conveyance, and never had been. A few days after, he waited on Mrs. Moore, to execute the deed for the house and lot, when she said she had been very much hurt at his observations, made as before stated, to Mr. Moore: that Mr. Moore’s property was as free from incumbrance as any man’s on earth; and that Mr. Payne had not, and never had, any incumbrance on his property. The witness further states, that in January, 1807, he levied an execution against J. S. Moore, on old Tom, one of the negroes mentioned in the deed of trust-that Payne consented that the negro should ‘be sold to satisfy the execution, and .said that this negro, with many others, was conveyed to him by J. S. Moore, in trust for Mrs. Moore, and her children; but, that it was not his intention, nor the intention of Mrs. Moore, to prevent the property from being sold for the payment of Mr. Moore’s just debts; and observed, that the said Moore was in the habit of making a great many injudicious bargains, and that it was the intention of J. S. Moore and Mrs Moore, and of the said Payne, so to secure the property as to prevent its being sold to satisfy any debts of that description. Pie further said, that, in addition to the ■consideration before mentioned, the deed •was made in consideration of Mrs. Moore’s having relinquished her right of dower to *a tract of land sold by Moore and wife to S. Mosby, several years before; and, in answer to an interrogatory by the witness, he said that the execution of the deed of trust had been delayed for no particular cause, but lie considered it was entitled to the same force, as if it had been executed on the day the relinquishment of dower was made, as he considered it as a continuation of the contract. This witness, together with N. and J. Sheppard, had, when he was examined, a cause depending in Chancery against J. S. Moore’s representatives and Bernard Moore; the object of which does not distinctly appear, but was probably, amongst other things, to set aside this deed.

George Underwood testifies, that some time after J. S. Moore removed from Richmond, he heard G. W. Payne, at Archibald Dandridge’s house, in .presence of said Dandridge and others, say, that J. S. Moore had conveyed the whole of his property to him, in trust, in order to prevent its being taken to pay his debts; but after-wards observed, if care and economy were observed, the profits of the estate would be sufficient to pay its debts.

Samuel Mosby testifies to his purchase ■of the land in Planover for £3,400; that Moore purchased another tract of land for £1,000, of which £500 remained due; that he thinks John S. Moore, when he sold the land to the witness, had other property sufficient to pay his debts, but not sufficient at the time he executed the deed to Payne; he knows not the names, age, or value of the negroes conveyed, either when conveyed, or when the deposition was taken; but supposes, (having seen the deed) that the trust property does not exceed in value the dower interest. The residue of this witness’s testimony is either irrelevant, or hearsay, without stating from whom.

Archibald B. Dandridge testifies, that to the best of his recollection, he did not hear G. W. Payne make the declaration to Underwood, stated in his deposition: that he has often heard G. W. Payne say, that the deed was made in consequence of Mrs. Moore relinquishing her *right of dower in certain property, and that he had always advised Mrs. Moore not to relinquish her right of dower, unless J. S. Moore would make over property in lieu of it.

Mary Ellis deposes, that she has heard J. S. Moore say, that he had given his wife several negroes, in lieu of her dower in the tract of land sold to Mosby.

Robert PI. Dandridge testifies, that he heard J. S. Moore say, that he did not convey his property to prevent the payment of his debts, but he had conveyed it in lieu of his wife’s dower.

To the understanding of the effect of this evidence, it is proper to enquire what were the issues m-ade up between the parties, and upon whom the onus probandi lay, in respect to such issues.

1. The plaintiff affirms, that the deed in question was actually fraudulent and voluntary, which the defendants deny.

2. The defendants alledge, that the deed was made, not upon the considerations specified in the deed, but upon other considerations of the same nature (but the answers differ as to the particulars and extent of the alledged considerations) which the plaintiff puts in issue by his replications.

3. The plaintiff alledges that Payne, by his interference, prevented a part of the trust property from being sold under the plaintiff’s execution, which the defendants deny in such a way (though not positively) as to put the fact in issue.

As to the first and third issues, the onus probandi lay upon the plaintiff; the general rule being, that he who holds the affirmation of the issue is bound to prove the affirmation on which he relies. Phill. Evid. 156.

As to the second issue, the onus lay on the defendants for the same reason. Although it be true, that when the plaintiff seeks a discovery from the defendant as to any matter of fact, he thereby, as to the matter so sought to be *discovered, makes the defendant a witness, and therefore the answer is evidence for the defendant, so far as it is responsive to such bill; yet, as to a matter in respect of which the bill seeks no discovery, if the answer alledges any thing affirmatively, it is not evidence for the defendant, but is to be proved by him. In this case, the bill seeks no discovery, whether any other consideration was given by Mrs. Moore, than that specified in the deed.

Although the deed itself in this case, in the absence of all other evidence, would be evidence that the consideration, therein specified, was the true consideration, upon which the deed was made; yet the plaintiff, having proved that the consideration specified in the deed, and purporting to be future, was impossible, because the dower in two' of the tracts of land mentioned in the deed, had been relinquished near five years before the deed was executed, and it not appearing that the dower in the third tract of land was ever relinquished, has thereby shewn prima facie that the deed was voluntary, and therefore fraudulent as to the plaintiff, who was a creditor of Moore at the time of the execution of the deed, and then prosecuting a suit for the recovery of his debt. Against this proof and its consequence, the defendants have nothing to oppose, but the declarations of J. S. Moore and Payne, made after the execution of the deed, (and therefore not competent to be given in evidence, in support of the validity of the. deed,) that the deed was made in consideration of a contract on the part of Moore, made five years before the execution of the deed, to compensate his wife for her relinquishment of her dower in the lands sold to Mosby; and the naked fact, that Mrs. Moore had actually released her dower: from which it is attempted to be inferred, that such an agreement for compensation had been made. To tolerate such an- inference would be practically to authorise every man, whose wife had voluntarily and gratuitously relinquished her dower in his lands, at any distance of time, and when a change of her circumstances made, it expedient to provide *for his wife and children, and virtually for himself, to the prejudice of his creditors. Such an inference would be contrary to the practice of the country; for, the relinquishment of dower by the wives of-persons in tolerably good circumstafices, is usually made without any contract for compensation. And such an inference is, in this case, conclusively repelled, by circumstances which so strongly negativé the allegation of such a contract, that even if the answers were, in this respect, íesponsivé to the bill, they would be over-ruled by the evidence and circumstances of the cause. 9 Cránch, 160.

Even if it were admitted, (which is doubtful at least,) that it was competent to the defendants to insist upon a consideration, different from, though of the same nature as that stated in the deed, Clarkson v. Hanway, 2 P. Wms. 203; 2 Sch. & Lefr. 501; yet the discrepancy between that stated in the deed, and those relied uppn in the answers, affords, in connexion with other circumstances, strong evidence of fraud.

Other circumstances which negative the pretensions of the. defendants, and from which fraud may justly be inferred, are, that the deed was hot executed until five years aftef the pretended contract: that the contract was a profound secret to all the world, except Mr. and Mrs. Moore and the trustee Payne, from the time it is al-ledged to have been made, until a short time before the déed was executed: that Mrs. Moore herself affirmed that her husband’s property was free and unincum-bered, shortly before the execution of the deed, when, if her present claims were well founded, she was entitled to a provision out of his estate, equivalent to the whole which remained:. that the deed was made, pending the plaintiff’s suit: that it embraced all Moore’s personal property, as may be justly inferred from the terms of the deed itself, and the evidence of Mosby: that it was made in contemplation of Moore’s insolvency: that both the trustee and Mrs. Moore had consented to the sale of a part of the property, under execution for the *payment of Moore’s debts, disregarding the interests of the children: that the trustee had declared, aftef the making of the deed, that it was made to cover Moore’s property, from the claims of his creditors, and made other statements inconsistent with the de-fence now set up: that there is manifestly a great disparity between the value of the dower relinquished, and the compensation pretended to be given therefor. As to all these badges of fraud, see Rob. on Fraud. Con. 34, n. 67, 528, 418, 559, 189, 577, 16, 573, 27, n. 21; 9 Rep. 11; 10 Ves. 151; Amb. 596; 8 Co. 80; 1 Vern. 459; 13 Vin. Fraud, C. pl. 2, 3, N. a. pl. 2; Taylor v. Jones, 2 Atk. 602.

These circumstances are so ambiguous, and so inconsistent with the ordinary course of bona fide transactions, as to be conclusive evidence of the fraudulent intent, with which the deed was made; and to justify a Court of Equity in treating it as void against the creditor in this case, without the intervention of a jury.

All these facts have been properly given in evidence against Mrs. Moore, and consequently, against her children, who claim through hen A married woman, being capax doli, is not protected against the consequences of fraud, practised exclusively by herself, or in conjunction with others, at least to the extent of precluding her from claiming any benefit from her fraud, of from the fraud of another, of which she wa.s conusant, as in the case of an infaht. Bauerman v. Radenius, 7 T. Rep. 664, 670, n.; 1 Fonb. Eq. 76; 10 Ves. 161; Phill. Evid. 74, 75. Her acts arid declarations are, therefore, evidence against her, as are the acts and declarations of Payne; because his legal title is the only impediment to the plaintiff’s demand; and if he were plaintiff at law, they would be competent evidence; and because the acts and admissions of all who have acted jointly for attaining a given object, are mutually evidence against each other as to such object.

Although if a fair foundation for such a conveyance had been laid in proof of a ' bona fide consideration, and there *were no grounds to impute fraud to the transaction, other than the inequality of the values of the consideration and the compensation, the transaction might be favoured, so far as not to weigh nicely the respective values of the things given and received, (unless the inequality was so gross as, in itself, to amount to evidence of fraud, as in transactions between strangers;) yet where there is other evidence of actual fraud, such inequality, although not solely sufficient to establish the fraud, is a circumstance entitled to great weight.

. If there had been proof of such a consideration and original contract, as are insisted on, this cáse would have been like the cases of Quarles v. Lacy, 4 Munf. 251; and Blanton v. Taylor, Gilm. 209; where the inequality of value was corrected, and the wife was permitted to retain to the value of the dower interest, surrendered in the confidence that she was getting an indemnity. Those cases turned upon this consideration; that the wife, in the confidence founded on an actual contract with the husband, that she would have a compensation for her dower, had relinquished it; and the fraud was imputed solely to the husband, as otherwise the wife might be irreparably injured. But her privity to the fraud had still the effect of limiting her strictly to an equivalent.

Upon this view of the case, I think Payne’s evidence was inadmissible. But, if it were otherwise, I should think that it would lead to an issue to be tried by a jury; since the other facts in the case so strongly contradict his testimony. It is true, that a naked trustee, against whom no claim can be had, either for costs or otherwise, is a competent witness for his cestui que trusts. Yet, when his title is impeached upon the ground of actual fraud, in which he participated, he is incompetent, because he is liable for costs, and for other consequences, according to _ the circumstances of the case; as here, if the plaintiff succeeded, Payne, if it became necessary for the purpose of satisfying the demand, would be liable to account for the hires and profits of the slaves received by him, as stated in his answer. _ *A _ particeps fraudis is not only liable for costs,'but may be otherwise liable; and is not permitted, by his own evidence, to repel the charge of fraud in which he participated. 1 Mod. Rep. 107; Goss v. Tracy, 1 P. Wms. 387; 1 Black. Rep. 366; Gilb. Evid. 123; 1 Doug. 140; 13 Past. 250; 4 Taunt. 328; 6 Taunt. 320; 1 Ball and Beatty, 104, 414; 2 Vin. 387; Harr. Ch. Prac. 566; Phill. Evid. 43, 48; Amb. 592; 2 Ves. 628-9; Croft v. Pyke, 3 P. Wms. 180. In addition to the other matter in this cause, it appears by Payne’s own deposition, (which may be resorted to for the purpose of shewing his interest, without reading it as evidence in chief,) that when J. S. Moore presented him a deed, which he supposed was made in pursuance of the contract now insisted on by the defendants, he rejected it as no better than blank paper; and he himself caused the deed which was executed, to be prepared. He then caused a deed to be prepared, reciting a consideration which he knew to be false, and conveying the whole personal property of a man in insolvent circumstances, which property grossly exceeded in value the pretended consideration. He repeatedly avowed, that the deed was intended to defeat Moore’s creditors, and treated the property, in some respects, as Moore’s. He was, therefore, not only particeps fraudis, but seems to have been the principal agent in, and contriver of, the fraud.

The third issue is immaterial; but, if it were material, I should think that the plaintiff had failed in his proof; the return of the Sheriff being no evidence against the defendants, especially as the Sheriff was examined as a -witness, and not interrogated as to that fact.

It is admitted, that the deed was fraudulent in conveying, under pretence of making to Mrs. Moore a just equivalent for her dower, property to three or four times the value of her dower interest. If she had been a person sui juris and privy to this, it would have avoided it in toto; but being a married woman, this fraud is not to be imputed to her, nor to her children, who were probably infants, *and who do not seem to have had any agency in the transaction. To whom then is this fraud to be imputed? To Moore and Payne, especially the latter. lie was the broth-in-law of Moore; was the adviser of the original arrangement; no doubt knew well the value of the dower interest; and took an active part in preparing the deed, and, indeed, was the sole actor in that respect. He is the only party to this fraud, who is before the Court. But for this fraudulent excess in the pretended compensation to Mrs. Moore, the plaintiff’s demand might have been satisfied without difficulty, near fifteen years ago; and he would have avoided the delay and expense and vexation of this protracted litigation. Who, then, ought to pay the costs of this suit? Not Mrs. Moore, or her children; who, (upon the supposition that the deed is good to the extent of a just compensation for her dower relinquished,) are innocent; but Payne, the only party to the fraud which has produced all this mischief, who is before the Court.

I think the decree should be reversed, and the deed declared to be fraudulent and void.

JUDGE CO ALTER. _

_ The affirmance of this decree, so far as it declares the deed of trust valid, depends much on the question, whether George Woodson Payne, the trustee in the said deed, is a competent witness.

It is admitted on all hands, that if he is, bona fide, and without combination or participation in any fraud, (if any has been committed in this case,) a mere naked trustee; and has done no act subjecting him to any suit, in consequence of his being trustee as aforesaid; and if the case, independent of his evidence, shews this to be his condition, that then he is a competent witness.

But, it is said, that although he may be, bona fide, an innocent naked trastee, as aforesaid; yet, that if the appellees are unable to prove the real consideration of the deed, ^stated in the answer, that deed must be declared fraudulent and void as to creditors; and, that although he might have been ignorant that the consideration expressed in the deed was not the true consideration, yet that legal, if not actual fraud is imputable to him, and that this is enough to exclude him.

The deed, upon the face of it, expresses the consideration of £1,000 paid by the trustee; but the declaration of the trust states the real consideration, to wit: her relinquishing dower in lands her husband, the grantor in the deed of trust, wished to sell. Now, although the trustee might well know that he had never paid the £1,000, or the $100, or $1, which might have been stated as paid by him to the grantor; yet the deed does not inform him, that the other consideration was incorrectly or untruly stated. Payne does not subscibe the deed, and consequently, it does not appear from it, that he was present at its execution, or had any agency in procuring it to be executed.

Suppose the deed had stated, what Mrs. Moore, in her answer, says was the true consideration, to wit: that when she relinquished her dower in the lands mentioned in the deed, her husband had promised to settle property on her, &c.; and, that -the deed was made in consideration of that promise. This statement in a deed made after marriage, would not have been conclusive on the creditors of the husband. It might, in fact, not have been true; or the deed might have conveyed more than a just equivalent. But, if the'trustee was ignorant of its falsehood, and had no agency in procuring this false and feigned consideration to be expressed in the deed; he surely could not be responsible for this fraud committed by others, unless the second proposition above stated, is correct.

It will perhaps be right to throw out of this enquiry, the answer of Payne. But, if any part of it is relied on to shew his agency, or to charge him with any responsibility, then I think it but justice to take it all together, and *give it all the force of an answer; in the same manner as if we were now about to inculpate him with an actual fraud, and subject him to damages, in consequence thereof. So too, if any part of his deposition is resorted to, in order to prove acts in him, which might subject him to an action: surely it will be right to take all that he says, in order to see whether he has been guilty of actual fraud. We must decide on his liability, according to what appears in this case, not according to what we might suppose would appear in another case. We know not what would be proved, on either side', in such other case.

His answer, if it is to be taken into view, shews that he is innocent of any fraud, and particularly of that charged in the bill, and of which he is not even charged of having any knowledge; viz. that the deed was made long after marriage, and without consideration. In considering this point, it'may also be worthy of remark, that there is no charge of any fraudulent combination on the part of the trustee, to defeat creditors; but he seems to be treated as a mere naked trustee, having the legal title in him of a subject, which, though in him under a deed good between the parties, is nevertheless alledged to be void as to the creditors. It does not even alledge the fact, of which he might have been ignorant, that the lands spoken of in the deed, and for which, it would seem, she was to relinquish her dower, had been conveyed and the dower relinquished long before the execution of that deed.

j.he answer of his co-defendant, it is true, admits that the consideration expressed in the deed is not strictly correct. She states, that she had agreed to' relinquish her dower, on a promise by her husband to make a settlement, without which promise, solemnly made, she would not so have relinquished; but whether the deed of trust was before or subsequent to the relinquishment, she knows not. It turns out that it was subsequent; but if she was ignorant of this, so might the trustee be also. She of course could not have been present at its execution, having trusted *to her husband and friend' to see it done. Being neglected by them, however, until after she had relinquished, the statement in the deed that she was to relinquish, was substantially, though not literally, true. All then that could be said as to the trustee, had he known the facts stated in her answer, and been also apprised that she had already relinquished her dower, would be, that the deed substantially, though not literally, recited a good and valuable consideration; that it was now executed as it would have stood, had it been executed at the proper time. This is not such a false consideration, as to inculpate him with actual fraud; for it could do no injury; was in substance true; and the creditors equally at liberty to controvert it, as they were to controvert the literal truth, had it been stated. Besides, this misrecital of the facts, as the case then stood, could not be such a fraud as to preclude the wife from stating and substantiating the case as it really was; Blainton v. Taylor, Gilm. 209; and unless it is such a transaction as will bind her to the words of the deed, so that she cannot go back to the origin of the transaction, it cannot bind her trustee thereto. But this has not been pretended in the argument.

But it is said, that an execution in favor of the testator of the appellant, was levied on the trust property, and that the Sheriff returned, that the sale was forbidden by Payne as trustee, and no person appearing to indemnify, the negroes were delivered to him.

This execution is dated in November, 1809; in the life-time, as I understand, of Moore the husband. The answer of Mrs. Moore says, that she never heard of such execution being levied; and so does Payne, if his answer is to be regarded. It will appear hereafter, that the deputy Sheriff who made this return, knew of this deed of trust previously, and may have been told that the sale would be disputed, and did not deem it necessary to go to the trouble of actually levying the execution. If the negroes were levied on and taken away without a delivery bond, and *kept until the day of sale, it is strange that these parties should be ignorant of it, or that it could not be proved. The return does not state, that a delivery bond was taken. This return may be evidence against the Sheriff, but is no evidence against the parties. This point was certainly not deemed important, or it could have been proved, if the fact existed; but even this very deputy Sheriff, who is examined for the appellant, is not examined as to this point.

But it is said, that this interposition by the trustee subjects him to an action, if the deed is avoided. True; even the making of the deed, if he united and conspired to commit a fraud on creditors, may subject him to an action for any injury flowing from that deed; but if he can be so inculpated, it will not be contended that he is a competent witness, whether he did this or not.

But, if he believed the deed to be on bona fide consideration, although the parties interested may be unable to prove that consideration, it is admitted that it would have been his duty to forbid the sale, and force the testator of the appellant to give bond to idemnify the Sheriff; or to resort to his bill in equity, as he has done. Unless then, the second proposition can be maintained, that the trustee is to be answerable, even for doing his duty, because the deed is finally set aside, 1 cannot perceive that this act, if it had been proved, would have made him incompetent.

But, it is said, that the witnesses prove, that no such consideration, as that stated in the answer, did exist; that the trustee knew it; and that this proof is even strong enough-to ascertain his disposition, if read in the cause; and that, consequently, he is chargeable as for actual fraud and combination, and so cannot be heard as a witness. Benjamin Sheppard, the deputy Sheriff who made the return aforesaid, is examined. He says, that in 1804, he, with others, purchased a lot in Richmond of J. S. Moore, and being called on for some money before the deed was made, it was refused on the allegation, that they had heard that he, Moore, had conveyed all his property *to George W. Payne, in trust for his wife and children, and that they must have some time to get information as to- the title; and that both Moore and his wife said his property was clear from incumbrance. But, it will be observed, that the subject of this purchase was real estate; and it is not pretended that any of his real estate was ever conveyed to Payne; and, moreover, that this was before the deed of trust in question, of slaves, &c., which was executed in 1805. But, this shews, that a deed in her favor, with Payne, her friend, as trustee, was then spoken of as having been executed, as it ought to have been years before that; and is a circumstance corroborative of her answer; and even if that deed had been executed, or she had believed it had been executed, this conversation as to the real estate, which was, and remained unin-cumbered, would have had no bearing on it. He says, further, that in 1807, he levied an execution on one of J. S. Moore’s slaves, old Tom, he thinks, and that, on the day of sale, G. W. Payne told him of the deed of trust to him, of this slave, and many others, for the benefit of Mrs. Moore, and her children; but, said it was not his intention, or that of Mrs. Moore, to prevent the property from being sold for the payment of any of Mr. Moore’s just debts, and that he executed to the deponent a relinquishment.

The witness further proves, that Payne said that J. S. Moore had been in the habit of making injudicious bargains; and that it was the intention of the said J. S. Moore, Mrs. Moore, and him the trustee, so to secure the property, as to prevent its being sold to secure the payment of debts of that description. So far, this witness is very minute as to every thing that will shew a fraud in the trust; insomuch that he either imputes to Payne a downright falsehood, fabricated for the purpose of destroying his own deed, or that J. S. Moore admitted his own habit of making injudicious bargains, and a wish thus to prevent their payment. Some men are willing rather to be thought knaves than fools; but, here is one who, from this account, *is willing to be thought both. I hardly know which is the most improbable story of the two. Neither, supposing the witness to stand fair, can be accounted for, except that after the lapse of five years (which had passed over between the circumstances spoken of, and the time of taking the deposition, during which, or a part of which time, the witness had been pondering on those circumstances, under the influence of interest,) he may have been led into an error on this subject. Pie is asked, whether he and others have not a suit pending, to set aside this deed, as being void as to creditors? If he had no such suit depending, he could have answered, no. But, he says, a suit is depending by himself and others against the representatives of J. S. Moore and B. Moore, the object of which will appear by a reference to the record. Would he have referred to this record, which might cost the parties great expense to produce, if he could at once have given the answer no to this question? I think not; or, if he could, he has, to say the least, a leaning against the appellees. I take it that he is interested in setting aside this deed, though he may be considered as not interested in this suit; and that, as before said, he has dwelt on these conversations, under the influence of interest, until he really thought what he said was true. How else can we account for his totally forgetting (for, I will not impute a wilful suppression of truth,) what he honestly confesses, when reminded thereof, by cross-interrogatories? He is asked, whether G. W. Payne or Mrs. Moore stated any consideration for the conveyance; or, if he understood that it was intended merely to prevent a further credit to J. S. Moore? He says, (not in the precise words I use, but in substance; for, were 1 to use the very words, some confusion might appear in the witness, which I do not wish to impute to him,) that, in addition to the consideration before mentioned, (that is, the consideration of defrauding creditors,) Payne did say the deed was made in consideration of Mrs. Moore having relinquished dower *to land sold by Moore and wife to Mosby, several years before the deed of trust; and that the witness asked him, why the deed of trust was not executed at the time; to which he answered, that it was delayed for no particular cause, but that he considered the deed was entitled to the same force, as if it had been executed on the very day the relinquishment of dower was made; as he considered it a continuation of the contract. It is said, however, that this is proof of a mere declaration of Payne, that the deed was executed after the relinquishment. But, even in' that view, it goes a great way. Else, why ask, why it was not executed at the time? And why, if only thought of after, should it have been as good, as if made when she relinquished her dower? And how could it be a continuation of a contract, if none had been made?

Instead, then, of an acknowledgment that this deed was altogether intended to defraud creditors, it turns out from all that was said, to be a deed for valuable and fair consideration; but, which the parties, for reasons best known to themselves, did not wish to enforce against this creditor; — • perhaps a small debt, concerning which, they did not wish to involve. themselves in a dispute. This witness, then, shews nothing unfair in the trustee, which creditors can complain of; and it does not appear, that the cestui que trusts have complained.

George Underwood says, that he heard G. W. Payne say he had got J. S. Moore to convey the whole of his property to him, in trust, in order to prevent its being taken to pay his debts; but observed, if care was taken, the estate, by its profits, would pay his debts. This, he says, passed at the house of Archibald Dandridge and in his presence. Archibald Dandridge says, he never heard such conversation, but has frequently heard Payne speak of the deed, and that it was made in consideration of the relinquishment of dower by Mrs. Moore. Now, the above witness might have heard, and doubtless did hear, of such a deed; the consideration might have been *stated, as the other witness says always was the case, when the deed was spdken of in his presence; but this may have been forgotten by the other witness; and it might also have been said, and properly too, if the deed was bona fide, and for the consideration stated in the answers, that the object was to prevent creditors from taking the property, as they would have done, had the deed not been executed; leaving nothing for the wife.

The other depositions, exclusive of Payne’s, tend to prove fairness in the transaction, and to corroborate the answers of both defendants; and the deposition of Payne proves, without doubt, if he is competent and credible, the defence set up.

If Payne’s deposition is rejected, and in consequence thereof this deed is set aside, I can see nothing either in the form of this bill, or in the testimony, which can charge Payne with a combination to defraud creditors, or any thing that can lay him liable to the action of the creditors, or to a decree in this case. As to the hires, if he has paid them over bona fide, to his cestui que trusts, before notice of this suit, he is not responsible; and so far as he has not accounted, he is equally responsible to either party. But, nothing of this kind is put in issue, or alleged as a ground of charge against him; and, if he is responsible, it must be because, however fair his conduct, yet as his deposition cannot be read, the deed must be set aside, and he made responsible for damages; in other words, he being a material witness, and there being no other evidence in itself sufficient to support the whole defence; and as without him, the deed must be set aside, so he cannot be a witness. That is to say, a trustee cannot be a witness, if the cause or defence cannot be supported without him.

I do not think this is the law, and that therefore there is nothing in the second; proposition above-stated.

The .result is, that Payne is a competent witness. I think him also credible,, and consequently the deed cannot *be set aside; and so far the decree is correct. But, I am not prepared to say that the bill ought to have been dismissed.

It will be recollected, that at the time Mosby was examined, Mrs. Moore was a widow; and if she had not relinquished,, would then have been entitled to dower; and he may have had in his mind, the value-of a dower interest actually vested. On the other hand, a man involved in-debt' is about to sell his lands; and his wife will not unite. He will probably sell at a loss, equal to the value of her dower, had it vested on his death. Sales of this kind' must be at a loss. If the right had accrued,, the purchaser could make a previous bargain with the dowress. But here, all is uncertainty. He may improve, and she-knows not how the dower will be laid off,, &c. I think, therefore, a husband can well afford to give a full price for such relinquishment, and that a jury or a commissioner, as the case may be, ought to do-the same.

I' am of opinion, that the decree, so far as it dismisses the bill, ought to be reversed with costs, against all the appellees except Payne, and the cause sent back to the Court of Chancery, to have the value of the dower interest, conveyed by the-appellee Ann C. Moore, as well in the Hanover, as the King William, land, ascertained; unless something shall appear as to the latter which ought to exclude them; and also the value of the property in the deed of trust; and that the appellant receive satisfaction of his judgment out of the latter, so far as it exceeds the former; on which excess, hires and profits are to> be charged, if necessary; and to be proceeded in, to a final decree, according to-these principles.

JUDGE CABETE.

This is a bill to set aside a deed of trust on the ground of fraud.

*The principal difficulty in the case, is as to the competency of George Woodson Payne, the trustee, and' one of the defendants in the cause.

It is perfectly clear, that the mere circumstance of a man’s being trustee, is no objection to his competency; nor is it any objection that he is a co-defendant; nor that he is both trustee and co-defendant.

The true question is, whether he is interested.

It is said, that fraud is odious, and that although a mere naked trustee may be a witness, yet it would be monstrous when a deed is impeached for fraud, in which the trustee participated, and for which he is liable, to permit him to support the deed by his own testimony.

All this is readily admitted. But, the odious nature of fraud is no reason that it should be imputed without proof. On the contrary, it is a strong reason, both in humanity, in justice and in the law, that it shall not be imputed to any person until it is first proved. Circumstances, it is true, will be received, and ought to be received, to establish it. But they must be such circumstances as the law regards as proofs. The mere allegation, by one party, that the transaction is fraudulent, will not suffice. '.Innocence is not to be blackened, nor just-rights defeated by denunciations, however loud, if not supported by testimony..

The deed, in this case, shews no interest in the trustee. He ought, therefore, according to the general principle, to be admitted as a witness, unless it be otherwise shewn that he is incompetent. The .ground alledged, here, is that the deed is fraudulent, and that the trustee participated in, and is liable for the fraud. But, in the language of L,ord Hardwicke, the .allegation must be supported “by material evidence, such as the Court or a jury would lay weight on.” Dixon v. Parker, 2 Vesey, sen. 219. Such evidence is wanting 'in this case. The circumstance mainly relied on by the appellant, is the difference between the consideration stated in the deed, viz: a future relinquishment of dower to be made by Mrs. Moore, and that stated *by the witness, viz: a previous contract to relinquish her dower. But, this seems, to me, an unimportant circumstance. Both considerations were lawful, and either of them would be sufficient. There was, therefore, no motive for misstating the consideration expressed in the deed, and it was, in all probability, the result of inadvertence on the part of the trustee, or of the lawyer who drew the deed.

I see nothing in the record from which to impute censure to Mrs. Moore or her trustee. Moore was evidently a very improvident man. He was desirous of converting his real estate into money, which his wife and her friends thought might be wasted; and they wisely and justly insisted on an equivalent for Mrs. Moore’s interest in the lands. That was effected by the deed of trust. Give to Moore’s creditors all his estate; but do not take that of his bona fide alienees. This would not be allowed even as against an ordinary purchaser for valuable consideration. But what purchaser, even for valuable consideration, is more meritorious than a wife who, as the consideration of the purchase, has relinquished the fast hold which the law gives her on the real estate of her husband? On this point 1 refer to the strong cases of Quarles v. Lacy, 4 Munf. 251, and Taylor v. Blanton, Gilmer, 209.

Much stress was laid on what were said to be the acknowledgment of Mrs. Moore, and her trustee, George Woodson Payne. I will remark, that nothing is less .satisfactory to my mind than a concession or acknowledgment deduced from the evidence of transient conversations. A single circumstance, or a single expression, misunderstood or not adverted to by the witness, will give to the conversation as detailed by him, an aspect entirely different from that which it bore as it fell from the party; and will lay the foundation for inferences which he never dreamt of. As to the declarations of Mrs. Moore, that her husband’s property was unimeumbered, they must be taken in reference to the subject matter of those declarations, his landed estate, and not the personal property, *which was the subject of the deed now in controversy. Besides, at the time when she made those declarations, the deed now in question had not been executed; and, therefore, even his personal property was free. As to the declarations of Payne, that the deed was made to protect the property from the payment of Moore’s debts, in the first place, the evidence on this point is not free from doubt. But, admit it to be what the appellant wishes to represent it, still it proves nothing which can affect the validity of the deed. The declarations of Payne cannot, by any fair construction, when taken in connection with the other circumstances of this case, be considered as referring to the consideration of the deed. It is certainly true, that a deed made on no other consideration than a desire to screen the property which it conveys, from the payment of the debts of the grantor, is clearly fraudulent and void. But, if the deed be founded on fair and legal consideration, (as this was,) it is no objection to the validity of the deed, that the parties intended that the property should be no longer subject to the debts of the grantor. Such object, then, becomes just and legitimate, and is very often avowed in the deed itself. It is always so avowed in every correctly drawn deed of trust in favour of a married woman. In such a case, it is the very object which renders necessary the intervention of the trustee; and never was it more necessary than in the case now before us. The declarations, therefore, ascribed to Payne, not impeaching the consideration of the deed, prove motives perfectly consistent, both with law and equity.

The only circumstance entitled, in my estimation, to any weight, is, that the value of the property conveyed by the deed, exceeds, probably, the value of Mrs. Moore’s interest in the lands. But, if it be excessive, the two cases above referred to, shew that the provision made for the wife, is to be disturbed to the amount of that excess only. The real value of her interest in the lands ought, therefore, to be ascertained; as also, the value of the property ’"conveyed by the deed of trust, in order, that if there be any excess of the latter, it may be applied to the payment of Moore’s debts.

The decree of the Chancellor, so far as it dismisses the bill, ought to be reversed, and the cause remanded to be finally proceeded in, acording to the principles above expressed. 
      
      Hedges Cars and Brooke, did not sit in this canse.
     