
    Thomas Hargroves and Susan, his Wife, formerly Susan Wheeler v. Edward Meray and Sarah A. Meray, his Wife, and John T. Vausse.
    Equity -will entertain jurisdiction of a bill by the administratrix to make property conveyed in a voluntary deed of lier intestate, liable to bis debts, and to prevent it from being removed from the State. [*226]
    When in a settlement by the husband for the separate maintenance of his wife, the trustee covenants to save the husband harmless against the wife’s debts, this is regarded such a valuable consideration as will protect the property from the husband’s debts. [*226]
    A deed from a man to a woman with whom he had lived in a state of adultery, held to be voluntary, and the property thereby conveye'd, (after exhausting the assets at the death of the grantor,) decreed liable to his debts. [*227]
    Settlement on a wife, when decreed. [*228]
    On the 5th of April, 1821, William Wheeler a married man, gave by deed to Sarah A Evans, a girl who was then with child by him, seven negroes in the following manner, viz :
    “ South Carolina, District of Charleston. — Know all men by these presents, that I, William Wheeler, of the above named parish, and in the said district, do hereby give and bequeath, and by these presents do give and bequeath unto Sarah A. Evans, daughter of Mary Evans, widow of John Evans, at present living and residing in the parish above mentioned, all that family of negroes, viz: Aprilj Caesar, Ohloe, Betty, Nancy, Patty and Ellen, to hold and keep the said negroes, with the future issue and increase during life, and at the expiration of the life of the within named Sarah A. Evans, all that is herein bequeathed shall go to her heirs forever. But in case she has no heirs, and her brother, Elias Evans, be living, at the time of her death, it is my will and desire that he may be fully empowered with authority to act, and by these presents under my hand and seal, he is considered by me, after the death of the within Sarah A. Evans, to be the sole owner of the within mentioned negroes, *2281 tm<^er the provisions already inserted in the *deed of gift. 'In witness whereof I have hereunto affixed my hand and seal, this 5th day of April,-1821.” Signed and sealed in the presence of three witnesses. ”
    On the 19th March, 1828, the plaintiff, Susan, then Wheeler’s wife, having separated from him, filed her bill for alimony, alleging the intercourse between him and Sarah A. Evans, as the cause of separation. On the 20th May following, the bill for alimony was compromised by Wheeler’s conveying, by a deed of separation, to a trustee, for his wife, the property that was her’s before marriage.
    The deed was signed by all the parties, and the trustee covenants to save him harmless against his wife’s debts. Sarah A. Evans married Meray, but left him and returned to Wheeler, with whom she continued to live. In July, 1829, Wheeler died intestate ; administration was committed to the plaintiff, the widow. Meray seized the negroes contained in the paper of 5th April, 1821, and with the assistance of the other defendant, Yausse, was carrying them off out of the State. The administratrix filed this bill for an injunction to prevent the negroes from being carried off; to have an account of Wheeler’s debts, and directions for the payment of them, and the paper aforesaid, if fraudulently obtained, set aside or reduced, if it should be determined to come within the provisions of the Act of the Assembly respecting gifts, to the injury of wife and children; or the negroes disposed of as assets of Wheeler, if the paper should be declared a will — and for general relief.
    The injunction was granted on the 18th September, 3829, and the defendants answered — Edward Meray insisting on his marital rights, Sarah Meray claiming her equity under the instrument, and Yausse claiming the negroes as the agent of Meray, and denying the jurisdiction of the Court, as well as all fraud.
    In January, 1830, the cause was heard by Chancellor De Saussure upon the bill, answers and evidence.
    His Honor ordered a reference to inquire into the amount of Wheeler’s estate and'his debts.
    The defendant, Meray, appealed, and in April, 1831, the Court of Appeals sustained the jurisdiction, and extended the order of reference to inquire whether the paper was intended as a deed or will, and to admit parol evidence on the point, reserving the question as to creditors for the coming in of the report. Susan Wheeler, the plaintiff, married with the other plaintiff, Hargroves, and the *suit was continued by a bill of revivor in their names. She rendered her account as L administratrix, and the master reported the claims rendered against the estate. The plaintiff having elected to take her dower, the' lands were sold, aud all the estate of Wheeler is exhausted; the only assets to pay his debts are the negroes which he conveyed to defendant, Sarah, and the negroes and cattle which he conveyed to the plaintiff’s trustee, as above mentioned. The commissioner also took the evidence of Mary Evans, mother of the defendant. She stated that the defendant was put to live with Wheeler’s wife, and was debauched by him when under fifteen years of age ; her child was born before she was sixteen. That the paper of the 5th April, 1827, was handed to witness by Mrs. Wheeler, and Wheeler told her he had done wrong, and made over the negroes ; and Mrs. .Wheeler told her the negroes were intended as a compensation, and that she had selected them herself; the child was not then born. That Sarah went from Wheeler’s house to a house on his plantation, and took one of the negroes with her. Witness had the paper recorded by the advice of Mr. Cordes. Mrs". Wheeler left her husband, as witness believes, by the advice of her friends, and Sarah went back to his house with her child. She executed a paper, as witness believes, renouncing all right to the negroes during Wheeler’s life. Meray was Wheeler’s overseer, and married Sarah with his consent. A week before the marriage, Sarah left Wheeler and came to witnesses’ house. Meray knew of the paper and promised to make a settlement, but Sarah would not wait for it. She was soon anxious to return to Wheeler and did so, which caused a separation. She was with Wheeler when he died, and refused, after his death, to return to Meray, as she said she was afraid he would treat her child ill.
    Mr. Brougton’s letter (which by consent was received in evidence) states the particulars respecting a deed he prepared at the request of Wheeler, and with the assent of Sarah Evans, to correct a mistake in the deed of April, 1827, as the intention was to give the property after his death, which was executed. Neither this paper nor the paper of April, 1827, can be found.
    At January, 1834, the cause was heard by Chancellor De Saussure, who made his decree declaring the paper of April, 1827, a will, and the negroes only liable to creditors after the property conveyed to the use of the plaintiff, Susan, by the deed of separation.
    Mnn *From this decree the plaintiffs appealed, and insist that whether J the paper of April, 1827, be considered a deed or will, the property thereby disposed of is subject to the claims of Wheeler’s creditors, and that between the deed to the plaintiff’s trustee and the paper under which defendants claim, the plaintiffs are entitled to a preference, because—
    1. The plaintiff, as an injured and innocent wife, was entitled to alimony ; and the covenant of her trustee was an additional consideration, and the settlement was moderate and reasonable, consisting only of the property she brought to Wheeler on her marriage.
    2. Because the provision for Sarah Meray is at best purely voluntary ; and there is no ground for distinguishing her case from that of any other woman freely embracing a life of criminality, and accepting from a married man the reward of prostitution.
    The defendant, Meray, also appealed, and now moved that the bill be dismissed—
    1. Because the administratrix has shown no equity to entitle her to sue in this Court; and if it be held that the negroes are part of Wheeler’s estate, there is a plain and adequate remedy at law.
    2. Because, if the paper is a deed, even if a life estate was reserved, as intended-, to Wheeler, yet, on his death, the estate was absolute in Sarah A. Evans, and the marital rights of the husband attached by his reduction into possession.
    3. Because if the paper is a will, none but an executor or administrator with the will annexed can sue for the property.
   O’Nealr, J.

The plaintiffs have not insisted on regarding the paper under which the defendants claim as a will; and, as it appears.it may be more beneficial to the defendant, the donee, Sarah, to regard it as a deed, it will be so treated in this opinion. For it is beyond all doubt, that if it is a will, the property conveyed by it would be not only liable to debts, but also that only one-fourth part of the nett value of Wheeler’s estate at his death, after payment of his debts, could pass under the said paper regarded as a will to the said Sarah.

It is first contended by the defendants, Meray and Yausse, that the Court has no jurisdiction of the ease : that objection was met, answered and decided by the former opinion of this Court. But it may now be 1=226] well enough to add some other views in relation to *the jurisdiction of the Court over the case, in the aspect in which it is now to be regarded. For it seems now to be conceded that the paper in dispute, regarded as a deed, is not liable to any objection on account of its exceeding, at the time of its execution, the proportion of Wheeler’s estate, which by law he could convey to a woman with whom he might be said to be then living in a state of adultery. This concession now removes the ground of jurisdiction on which the case was then rested.

It is still, however, (even if it was an open question) maintainable on other grounds. The bill was filed by the administratrix of Wheeler, to prevent Meray and Yausse from carrying the negoes beyond the jurisdiction of the Court. This she had the right to do, in order to test the question whether they were assets liable to the payment of her intestate’s debts, and in the meantime to prevent them from being, by the act of the defendants, rendered unavailing. At law she would have no remedy ; for if the deed to Sarah A. Evans (now Meray) was to be regarded, as we think it ought to be, as merely voluntary, she could not as administratrix, at law have objected to it.

But there is no doubt that the property was liable to the debts, and in equity the administratrix might well be allowed to take the necessary steps to preserve the property for, and keep it within the reach of creditors. When to this is added the fact that the creditors might have attempted to make liable the property settled upon her at the- time of her separation from her husband, although it might not in fact be liable to their claims, yet this would be a good ground of coming into equity, to have the property clearly liable to the payment of debts applied in exoneration of the property conveyed to her.

The question of jurisdiction being thus cleared from all difficulties, it remains to be considered and shown (as I have already intimated) that the property conveyed to Sarah A. Evans, is liable for the debts of the donor, William Wheeler, after exhausting the assets, real and personal, of which he died possessed. The conveyance to a trustee for the separate use of Mrs. Wheeler, now Mrs. Hargrove, was not only found on a good, but also a valuable consideration. For the trustee covenanted to save the husband harmless against his wife’s debts. This, in equity, is regarded as such a valuable consideration, as will protect the property thus conveyed from the husband’s debts Atherley, in his Treatise on Marriage Settlements, p. 319, speaking of settle- r*o9Y ments by way of separate maintenance, says, “ with respect to the ■- validity of such settlements, as against the husband’s creditors, I may observe, that where the husband is indemnified against his wife’s debts, that there there is no doubt of its validity.” In this position he is certainly sustained and borne out by Stephens v. Olive, 2 B. C. C. 92, in which the Master of the Rolls (Sir Lloyd Kenyon) held that the covenants by the trustees, in the second settlement, to indemnify the husband against the debts which the wife might contract after separation, was a valuable consideration, and therefore that this settlement, although made after the debt due to the plaintiff was contracted, was also good against him.” .To the same effect is'the decision of Mr. Justice Buller, (sitting for the Lord Chancellor,) in the case of Compton v. Collinson, 2 B. C. C. 386

The case of St. John v. St. John, 11 Ves. Jr., 536, does not militate against this position. The property settled on the wife, as her separate maintenance, being thus entitled to be protected against the debts of the husband, it cannot be made liable by the fact that she delivered her husband’s deed to Sarah A. Evans, to the mother of the said Sarah, and her statement that she had selected the negroes for her. This was the act and statement of a feme covert, and not binding on her after her discoverture.

It was no doubt done with a good intention, and with the hope that thus the unfortunate and guilty connection might terminate. But in this expectation she was deceived by the act of the said Sarah, as well as her husband: she cannot therefore now be blamed for insisting on her legal rights. The deed to Sarah A. Evans was preceded and succeeded by cohabitation with Wheeler ; it cannot be considered as resting on a valuable consideration. It might have been difficult to sustain it at all, were it objected t® as altogether invalid. In the case of Hill v. Spencer, Amb. 641, Lord Camden, however, allowed a bond to a common prostitute, for an annuity of £50 per year, executed by a man who had kept her two years, to stand. He said, “in this case the bond was not given for a consideration, but was voluntary.” This is, I think, the true view in which this conveyance must be regarded. As a voluntary conveyance, it is void against existing creditors, and being set aside for them, subsequent creditors would be entitled also to come in and be paid. There is, however, another view which makes it void against subsequent creditors, *9981 if there should *be no creditors now unpaid who were such at the ¿ execution of the deed. The donor retained possession during his life. This rendered the conveyance fraudulent against subsequent creditors.

This view of the case defeats the marital rights of Meray to the property, for until the debts are paid off, his wife has no legal estate in it: her right is a mere equity to have the balance which may be left, after payment of debts, delivered and paid to her. It is the duty of the Court, where the decree of the Court would be necessary, as it is in this case, to put the husband legally in possession of the wife’s fortune to decree a settlement.

It is ordered and decreed that the defendants do deliver the property conveyed to Sarah A. Evans, (now Meray,) by Wm. Wheeler, with the issue and increase thereof, if any, to the Commissioner of this Court, and that he do sell the same, on a credit of twelve months; that out of the proceeds he do pay such debts of William Wheeler as may remain unpaid, after exhausting the other assets of the deceased, and the costs of this suit, and that he do report the terms and trust of a settlement to be made of the balance of the said proceeds on the said Sarah A. Evans. It is also ordered and decreed that the Commissioner do advertise for the creditors of William Wheeler, to render in to him their demands within twelve months, and that he take an account of the assets of the intestate in the hands of the plaintiff.

Johnson, J., and Harper, J., concurred.  