
    Martin vs. Olliver et als.
    
    I. A husband not indebted may make a voluntary settlement on his wife, and if not made with a view to evade future indebtedness, it will be valid.
    2 A husband conveyed to a trustee, for the benefit of his wife, for five hundred acres of land, three slaves, four hundred dollars, and all his book accounts, amounting to about seven thousand dollars, with reversion to himself, if he survived his wife. The deed was registered, and he became subsequently indebted without the means to pay. It is held, that neither the magnitude of the sum settled, nor the provision that the property should revert to him in the event he survived his wife furnished evidence of a fraudulent intent; that the registration of the deed charged all future creditors with notice of the conditon of the estate, and that in such case it would require clear and satisfactory proof aliunde of an actual intent to defraud future creditors to set aside such deed.
    On the 26th of October, 1841, the defendant, W. S. Olliver, conveyed to the defendant, Isaac A. Olliver, five hundred acres of land, in Haywood county, slaves Ezekiel, John, Beck, all the lands, negroes, and other property, to which he might succeed, or had succeeded as an heir of' his father and mother, all his cash on hand, amounting to about four hundred dollars, and all his book accounts, amounting to about seven thousand dollars, in trust.
    1. To hold the land and. negroes for the sole and separate use and benefit, and-for the maintenance and, support of his wife, the defendant, Adeline A. Olliver, from his free control and future debts.
    2. To permit his wife to use, rent, or hire said land and negroes at her discretion, and receive the hire, rents, and profits without accounting to said trustee.
    3. To sell any or all of said lands and negroes at her request in writing, signed by two witnesses, and invest the proceeds in such other property as she might direct, to be held to the same uses. . ■
    4. To collect the accounts assigned, and all moneys due or to become due to the grantor, and pay the same, ^together with the four hundred dollars on hand, to his wife, to be used at her own discretion; or, at her request. invest the same in any property she might choose and direct in writing, witnessed by two subscribing witnesses, to be held on above trusts.
    5. To convey to the grantor, in case he survived his wife, all accounts and claims remaining uncollected, and hand over to him all cash collected and not handed to his wife, or invested by her direction.
    6. Finally, “ said property to be owned and held by him thenceforward absolutely.”
    This deed was duly proven and registered.
    W. S. Olliver, the grantor, having become indebted to complainant in the sum of two hundred and twenty-four dollars for medical services rendered his family, and having removed from Tennessee, and left certain of the aforesaid slaves here, the complainant attached them as said Olliver’s property, by the present bill in equity, charging the conveyance, of the 26th October, 1841, to be voluntary, fraudulent and void, as to subsequent creditors.
    The bill was dismissed at the hearing on the proofs. The complainant appealed.
    
      Meigs, for the complainant.
    In the construction of the 13th Elizabeth, chap. 5, sec. 2, it was at first held, that all voluntary conveyances, that is, all conveyances not founded on a pecuniary or other valuable consideration, were fraudulent and void against actual or future creditors. Oro. Eliz., 350; 2 Atk., 152,
    But it was soon settled, that the statute only extended to voluntary conveyances; first, where the grantor was indebted at the time; or, second, where the deed was also fraudulent. 1 Atk., 15, and note 2, by Sanders.
    
      In Townsend vs. Windham, 2 Yes.,' sr., 11, Lord Hard-wicke, says: “If there be a voluntary conveyance of real estate or chattel interests by one not indebted at the time, though he afterwards becomes indebted, if that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequent creditors, that will be good; but if any mark of fraud collusion, or intent to deceive subsequent creditors appear, that will make it void” 1 Sw., 113; 6 Hum., 215, 220; 5 Hum., 336; 3 Hum., 41-6,
    In all cases, the question of fraud must be decided by reference to the motives of the party making the deed or assignment. Nunn vs. Willsmore, 8 T. R., 521.
    But the grantor being indebted at the time, is not the only badge of fraud; several other circumstances may also afford a strong presumption of the transaction being mala fide. Thomas and Fraser’s edition of Coke’s Rep., vol 2, pp. 212, 213, note B. to Twyne’s case.
    The circumstances relied upon in the present case, to manifest the mala fides of the deed of trust, are the following:—
    1. The sweeping nature of the conveyance, — being of all the grantor’s lands, slaves, money, and accounts, and expectances. Eniwick vs. Gollard, 5 T. R., 420.
    2. The money on hand, four hundred dollars, and moneys due and to become due to the grantor, were, when collected, to be paid to his wife, to be used at her discretion; — a disposition which seems calculated to produce no other legal consequence, but' prevent his future creditors from reaching the fund in question, — since, as soon as paid to his wife, the marital right would eo instanti, attach upon them, and make them his for all purposes other than the payment of his debts.
    
      3. The money not paid to the grantor’s wife by the trustee is to be paid to the grantor himself, in case of his surviving; and all uncollected choses in action, included in the assignment are, in like manner, to be handed back to the grantor, in said case of survivorship.
    4. The real property and negroes conveyed are also to revert to the grantor in case he survives his wife.
    And so, the effect of the conveyance is, to give his whole estate to his wife during the joint lives of himself and wife, remainder to himself, thus compelling his future creditors to wait till his death, to make this property liable to their demand, while, nevertheless, he may effectually enjoy it during life. •
    
      Fogg and Trimble, for the defendants.
   McKinney, J.

delivered the opinion of the court.

On the 26th of October, 1841, the defendant, W. S. Olliver, made a conveyance of certain real and personal property to Isaac A. Olliver, in trust, for the separate use and benefit, and for the support and maintenance of the wife of the former, which was shortly afterwards proved and registered in the mode prescribed by law. It appears from the proof, in the record, that the defendant, William, was free from debt, at the time of the execution of the conveyance, and there is no evidence, except that supposed to exist upon the face of the deed, of any purpose, or intention at the time, on his part, to contract future debts, or liabilities: nor does it appear, from any thing in the record, that any subsequent debts were created by him; except the physician’s bill, due to the complainant, which occurred some considerable length of time after the conveyance, and which cannot reasonably be supposed to have been contemplated at the date of the conveyance. It further appears, that at the time the debt to the complainant was contracted, he had not only constructive but actual notice of the existence of the deed of settlement.

It is attempted, however, in the argument here, to impeach the conveyance, upon the ground, that it is apparent, from the face of the deed, that it was made for the grantor’s own benefit, and with the view to defraud bis future creditors.

This proposition cannot, in our opinion, be maintained in this case; and, we think, it would be very difficult to maintain it in any case, where the husband was not indebted at the time of the conveyance, in the absence of clear and satisfactory proof, aliunde, of an actual intent to defraud subsequent creditors. Because, the deed being required to be registered, is constructive notice to all persons of its existence : those who deal with the husband, after the execution of the deed, have the means of acquiring full knowledge, and are charged with knowledge, at their peril, of the true condition and title of the property of which he may be the ostensible owner, and if they trust him upon the faith of such visible ownership, it is the fault of their own indiscretion and want of vigilance, but they cannot, in any proper sense of the term, be said to have been defrauded.

But this consideration aside, the circumstances or badges of fraud relied upon, are insufficient, in our opinion, to afféct the validity of the deed.

Whether the conveyance embraced all the estate of the grantor as is alleged, does not appear' from anything in the record before us, but admitting that it did, this of itself would not make it fraudulent. It is well settled, that a person not indebted at the time, may make a voluntary settlement for the benefit o'f a wife or child, and if not made with a view to his being indebted in future, it will be good. And, as is said in the case of Sexton vs. Wheaton, 8 Wheat., 229, it a man has a right to make a,voluntary settlement of a part of his estate, it is difficult to say how much of it he may settle. The magnitude of the estate conveyed may awaken suspicion and strengthen other circumstances, but taken alone it cannot be considered as proof of fraud.

The four hundred dollars in cash, delivered to the trustee and directed to be paid to the wife, together with all such other sums of money as might be collected upon the accounts transferred, to be used at her discretion,” would not again become the property of the husband. To the extent stipulated in the deed, the husband has voluntarily abridged his marital right, or rather, has conferred upon his wife the power of acting as a feme sole, and in that character the money would be received by her from the trustee, free from, and in exclusion of, the husband’s marital right. True, she might in this, as in every case, give it to the husband, or to another, and this right, if compatible with the power conferred upon her, in the deed, cannot be controlled.

We do not perceive how the provision contained in the deed, that such part of the property, conveyed therein, as might remain undisposed of, at the death of the wife, should revert to the husband in the event he survived her, can be regarded as evidence of a fraudulent intent in reference to subsequent creditors.

If the deed would have been good without the provision, certainly it will not be vitiated by it, and subsequent creditors who may, by probability, derive a benefit from it have less to complain of than if a contrary disposition had been made of the property.

Whether or not this provision secures to the husband any thing more than the law, in its absence, would have secured to him is a question which need not now be considered.

The decree of the Chancellor, dismissing the bill, is affirmed.  