
    *R. B. Screven, Administrator of C. E. Leacraft and J. Seabrook v. Bostick and Wife, formerly E. Singleton.
    Before a creditor can resort to equity to obtain relief out of the assets of his debtor, he must shew that he has obtained judgment at law, and that execution cannot be made at law, and that it cannot be enforced without the aid of equity. If a creditor wants relief touching- the personal assets of his debtor, he must show that he has taken out execution at law, and pursued it to every available extent against the property before he can resort to equity. It is not enough that he lias judgment and execution, he must show that his execution cannot be enforced without the aid of equity. Where there is no administrator or executor, suit can neither be maintained at law nor equity, against an estate. If there be no executor or administrator, the creditor may lake out administration. If a party make himself liable as executor of his own wrong, he is as much liable at law as in equity. If the defendants are not liable as executors, they are only liable to the executor or administrator, who alone can sue. Where the bill is not filed for the specific property, equity will not retain jurisdiction for a discovery of the issue of slaves, &c. It is not sufficient to show that the subject matter is within the jurisdiction, the complainant must show his equitable right to bring the defendant into that court.
    
      Quaere. If the statute will run before administration'?
    This was a bill to set aside a deed called a marriage settlement, by which the late Thomas Singleton conveyed eight slaves (by name) to R. Bostick, in trust for his wife for her life, and after her death to her children. The deed bore date 25th August, 1790, and was recorded in Lincoln county, in September, 1790 (Lincoln county was one of the divisions of Beaufort district, under the county court law,) and in the clerk’s office in April, 1810. The deed was executed by Thomas Singleton, and stated that he had promised when he married Elizabeth Roberts, that he would execute, as soon as he became of age, a marriage settlement or instrument of writing, for certain slaves, named in favor of his wife and her children, in consideration of what he obtained by her. In pursuance of which promise, and in consideration of eighty-five pounds nineteen shillings and seven pence paid to him by John Roberts, the father of his wife, he, the said Thomas Singleton, conveyed the slaves, Josey, Doll, Belinda, Nelly, Charity, Frank, Dublin, and Lucy, to R. Bostick in trust for his wife as a separate estate to maintain the family. And at her death to their children, and if no issue to the survivor. Thomas Singleton administered on the estate of Palmer in 1807, and gave bond to the ordinary with C. E. Leacraft and Thomas W. Seabrook as his sureties. The administrator committed a devastavit, and went off from the country and died. T. W. Seabrook died, and D. Ramsay administered on his estate. A suit was brought by the ordinary on the bond, and a recovery had against *Seabrook’s administrator, and (as complainant stated in his bill) against D. Rhodes, the first [administrator of C. E. Leacraft, and a verdict obtained against them for 85,000, and judgment entered up thereon, and that the money had been paid in equal moieties by the estates of Leacraft and Seabrook. Thomas Singleton’s estate was insolvent, unless the slaves and their issue comprehended in the deed of trust were liable for his debts. There had been no administration on Singleton’s estate. The complainants brought no suit at law, but filed their bill in this court on the 20th of March, 1824, to set aside the deed in question, and to make the slaves liable to the demand. Mrs. Singleton, the widow, had remained constantly in possession of the slaves.
    
      The defendants made several objections to their liability. They contended that a suit at law should have been brought by the complainants against the proper representative of Thomas Singleton, and their demand established there before suit could be brought in equity. The legal representative of Singleton could alone be sued. The objection that there was no administrator of that estate was not sufficient, for they might administer.
    The complainants in this part argued, that the deed in question was postnuptial, voluntary, and not recorded according to law. It should have been recorded in the secretary of State’s office. Braubright & Gluse v. Wingate, 2 Const. Rep. 521, Tread. Ed.
    The defendants, in reply, contended, that the complainants knew, even before they became sureties, that the deed existed, and therefore they were bound by it. They also relied on the lapse of time and the statute of limitations.
    January, 1826. *DeSausstjre, Chancellor. The first objection taken by the defendants was, that a suit at law should have been brought to establish the demand. I do not think, however, that can be sustained. There has been no administration on Singleton’s estate, and the decided cases shew, that where there is no legal representative of an estate, suit may be brought here against those in possession of the property. Besides, a discovery is sought as to the issue, and an account for their hire and labor. To which it may be added that the judgment at law against the estates of Leacraft and Seabrook, in the characters of sureties for Singleton, has established the amount of the devastavit of Singleton, and the bill is to set aside the deed and clear the way to make the property liable. Admitting, then, the suit here to be properly brought, the question is to be tried on its own merits.
    The complainants contend that the deed in question was postnuptial, voluntary, and not recorded properly.
    It was certainly postnuptial, for so it states on its face : but the deed states further, that it was executed in pursuance of an agreement before marriage, but not then executed, because Thomas Singleton was not of age. This, taken alone, might not be sufficient to protect the provisions of the deed, for the agreement must have been parol, and some other evidence of its existence might be properly required, else the statutes might easily be avoided. All postnuptial settlements are not necessarily void; they are good as between the parties, and are sometimes supported against creditors. The complainants further contend, that the deed was voluntary, and therefore void as to creditors. And the counsel cited many cases on the point, and they rely on the decision of Briggs v. Brently, in this court. I have refreshed my memory as to that case, and I found it turned on very different circumstances. It was not a provision for a family ; but between com-PaTatively *stt'angers, and the consideration vague, and not complied with. In short, an imbecile old man was imposed upon. The reported cases are exceedingly perplexed, and some of them contradictory, and none of them come precisely up to this case.
    But the defendants contend that the deed was not voluntary. It imports a pecuniary consideration on the face, which is not contradicted by any evidence, and is corroborated by one or more of the witnesses who testify to the payment of the money by Mr. Roberts, the father, to satisfy a debt of Singleton’s. The amount of the consideration is not weighed in golden scales in cases of marriage settlements. To this it should be added, that there was no evidence of Singleton’s being in debt at the time of the execution of the deed. They became bound in 1807, and recovery was had from them in 1818 and 1819.
    The complainants contend, that the deed was not recorded according to law. Mr. Petigru has shewn, I think, that the county court of Lincoln, where it was recorded, was then the regular place to record such deeds. There is a great perplexity and confusion in our laws, respecting the recording of deeds, which it would be desirable to have corrected; but I think this was properly recorded in 1790. There were other circumstances, and a later date in Taylor in Herriott's case, in Georgetown, and an intermediate statute. Besides, as to the existence of the deed, the weight of evidence is, I think, with the defendant, that Mr. Leacraft and Mr. Seabrook knew of it before they became securities for Thomas Singleton, and meant to rely on his honor.
    The defendants also rely on the lapse of time and the statute of limitations. The time, to be sure, is very great. It was upwards of a third of a century from the execution of the deed to the filing of the bill; and six years from the time judgment was obtained by the ordinary* against the estates of Leacaft and Seabrook to the filing of the bill; and during all the time in which the sureties had an interest to inquire, they knew that Mrs. Singleton held and claimed the slaves as her own. Under all the circumstances stated, I am of opinion that the complainants cannot sustain their claim. It is therefore ordered and decreed that the bill be dismissed.
    From this decree the complainants appealed, and made the same grounds that they made below.
    15th March, 1837.
    Martin, for the appellants.
    As to the ground, that there is no legal representative of Singleton made a party, as between these parties the defendants, if the negroes were the property of Singleton, are executors in their own wrong, and they will not be permitted to deny it. Besides, if they had sued as executors or administrators, the defendants would be entitled to insist that as such they were concluded by the deed, although it was fraudulent. Again, the complainants were entitled to a discovery as to the consideration of the deed, the increase of the slaves, and as to the yearly hire of the negroes. If some of the matters in issue were of equity cognizance, the court would not turn them round on an incidental matter of law cognizance. As to the statute of limitations, the judgment was in 1818, but the payment was not made before 1831, and the bill was filed in 1834, so that four years had not elapsed after the payment, and until then the complainants were not bound, to sue. The statute of limitations did not begin to run before administration granted. 3 Yern. 694. If it were admitted that the defendants did not stand as executors of their own wrong, how could the complainants have proceeded at law, there being no administrator. Rob. Fraud. Con. 642. The deed was void, not having been recorded in the secretary of State’s *of- r*4ir fice. Cheney v. Lubbock, 1 Nott & M’Cord, 444. The evi- *- dence of notice was but equivocal, which was not enough. It must be explicit. Tait v. Crawford, 2 M’Cord, 152. Givens v. Branford, 2 M’Cord, 152. Blades v. Blades, 1 Eq. Ca. Abr. 358. If the deed was not a marriage settlement, it was void as to creditors, because the' consideration was inadequate.
    Petigiiu, in reply.
    The objection that there was no administration on the estate of Singleton was insurmountable. As between the defendants and complainants, the defendants had a right to the possession of the negroes. They could not be sued as executors of their own wrong, and the first question was whether the complainants could maintain their surety against the defendant. To enable a creditor to go into equity to set aside a deed as fraudulent, he must first establish his rights at law, and show there are no funds of the debtor out of which it can be paid. Brinkerhoff v. Brown, 4 Johns. Cha. Rep. 071, 682 — 687. If the property was liable to Singleton’s debts, the complainants were not entitled in exclusion of other creditors. The complainants should have administered. As administrators' they might have filed a bill to set aside the deed on the ground of fraud. Wilson v. Wilson, 1 Desaus. Rep. 401. The consideration of £85, although inadequate, was a motion to make it; and it was a circumstance opposed to its being fraudulent. Atherley on Marriage Settlements, 185, 165. Russel v. Hammond, 1 Atk. Rep. 13. There was no pretence that Roberts practiced on Singleton to obtain this deed, and if Singleton has sold this property bona fide to any other for that price, his creditors would have had no right to impeach the contract. A voluntary deed was not void as to subsequent creditors, unless it was made with a fraudulent *intent. Sexton v. Wheaton, 8 Wheat. Rep. 229. 3 Johns. Rep. 190. 5 Yes. 384.
    Seventeen years intervened between the dale of the deed, and Singleton’s incipient liability to this demand; and it cannot be presumed that it was done with a view to that transaction. This was not strictly a marriage settlement, and therefore need not have been recorded in the secretary of State’s office. Atherley, 165, note.
    
    March, 1827.
   Curia, per

Nott, J.

This case is now submitted to this court, on the grounds which were urged in the court below. And although the bill has been dismissed by the chancellor, and this is a motion to reverse that decision, 1 shall begin with the arguments relied on by the defendants in opposition to that motion.

The principal ground relied on (to put it in the words of the decree) is that a suit at law should first have been brought to establish the demand. On that subject the rule, as laid down by Chancellor Kent in the case of Brinkerhoff v. Brown, 4 Johns. Cha. Rep. 676, as the settled rule in chancery, is that if a person wants relief touching the personal assets of his debtor, he must show that he has taken out execution at law, and pursued it to every available extent against the property before he can resort to equity for relief. It is not sufficient that he has established his demand. It is not sufficient even that he has obtained judgment and issued execution, but he must show that it cannot be enforced without the aid of the court of equity, before that court will afford relief, and the principle appears to be well sustained by the cases therein referred to. The court of equity cannot know by anticipation that an effort to obtain the debt at law will be ineffectual. And if such an allegation is to furnish a ground of equity jurisdiction every creditor may go at once into the court of equity for relief. It is contended that the *want of administration gives jurisdiction to the court of equity. We have had occasion more than once to investigate that question. In the case of Farley v. Farley, in Columbia, 1 M’Cord’s Cha. Rep. 506, and the case of Gregorie v. Forrester during this sitting, the subject was fully examined. We then came to the conclusion, and for reasons perfectly satisfactory to my mind, that the want of administration was as good a ground of objection to entertaining a suit in equity as at law. If there is no executor, and no one will administer, the creditor may take the administration on himself. The ground upon which a bill may be maintained against a person in possession of the property is because by possessing himself of the property he becomes liable as executor in his own wrong; but the same intermeddling will make him equally liable in that character at law. If the defendants are not liable as executors, then they are not liable at all except to the executor or administrator. In the case of Humphreys v. Humphreys, 3 P. Wms. 349, Lord Chancellor Talbot ruled that even the next of kin, who was entitled to the administration, should not be permitted to prosecute his bill until he administered. And in the case of Elders v. Vauters, 4 Desaus. Rep. 155, the former court of appeals in equity held, that a purchaser who had been ten years in possession under a sale from the next of kin, and where it was admitted that there were no debts, should not retain the property against the administrator afterwards appointed. It is contended that the complainant is seeking for a discovery of the issue of the female slaves, and an account of their labor. But it will be recollected that this is not a bill for the specific property. The question is, whether the defendants are liable as executors, and for that purpose it is not necessary to inquire into the number or names of the slaves, nor the value of their labor. The judgment at law does *indeed show the amount of the devas-tavit committed by Singleton, but it does not show that the complainants have paid that much for him. And ‘if it did, it would not follow that his estate was still indebted to them to that amount. And if both those facts were admitted, it would still remain to be proved that their rights might not be enforced at law. It is not sufficient to show that the subject matter of the bill is within the equity jurisdiction ; it must appear that the complainant stands in relation to the defendant as will entitle him to the aid of that court for relief.

Suppose upon the return of the subpoena in this case the defendants had come into court and disclaimed any right to the property, and offered to deliver it up to any person who was entitled to receive it. The complainants could not have received it, for they have no right to the property, nor do they pretend to any. They have no execution against Singleton, and therefore could not have levied on it. They would then have been precisely in the situation they were in before the bill was filed, unless we are prepared to say that every creditor, ■when there is no administration, may go at once into the court of equity to recover his debt against any person in possession of the property. Without going into the merits of the case, therefore, I am of opinion that the bill was properly dismissed. But I am disposed to concur in opinion with the chancellor, that the complainants were barred by the statute of limitations, though I have not looked so minutely into the circumstances of the case as to enable me to come to a definite opinion on that question. It appears to me that it is no answer to the plea, that there was no administration, when the only ground on which the bill can be sustained is that the defendants are executors. If the complainants had administered, it might then have become a question whether they would have been barred by the wrongful possession* of the defendants. On that question, however, I shall express no opinion at present, as I think, on the other ground, the motion must be refused.

Decree affirmed.  