
    William Pickett, executor of Gabriel Scott, deceased, vs. Winston Banks, administrator of Margaret D. Richardson, deceased.
    Under the statute of 1822, (How. & Hutch. 314, sec. 34,) requiring deeds affecting the title to personalty to be recorded in the county where the property remains, and declaring them void as to purchasers without notice, and all creditors, when the property conveyed in them is removed to a different county, and the deeds are not recorded there within twelve months from the date of the removal, marriage settlements by the husband, of personalty, on the wife before marriage are included.
    By the word “ creditors,” in the act referred to, judgment creditors, or creditors having a lien, are meant; and if personal property, thus settled by the husband on the wife before marriage, be thus removed to a different county from that in which the settlement is recorded, and remain there for several years, and a judgment be there obtained against the husband, and execution thereon be levied on the property so conveyed, it will not be subject to the judgment lien, notwithstanding the marriage settlement be not recorded in the county to which the property has been removed, and where the judgment was rendered, provided the judgment creditor before he obtained his judgment had notice of the marriage settlement.
    An unregistered deed is not void as to general creditors, unless perhaps to those who have been induced to deal and give credit to the apparent ownership ; nor is it void as to judgment creditors, if they have notice of it before the judgment be rendered.
    In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge.
    The following facts were proved, viz.: On the 25th day of August, 1830, in contemplation of a marriage to be solemnized between Wiley W. Richardson and Margaret D. Reid, both of the county of Wilkinson, in this state, the said Wiley W. Richardson executed a deed of trust to one Wm. Reid, as trustee, securing to Margaret D. Reid and her heirs, free from the marital right of said Richardson, by way of marriage settlement, an exclusive and separate right of property in sundry negro slaves, amongst which are the slaves Peter and Abner, which were then held and possessed by Margaret D. Reid, in her own right. This deed was executed by all the parties and attested by two witnesses, and was proved and recorded in the probate clerk’s office of Wilkinson county, on the 26th of October, 1830.
    The marriage took place, and Richardson and his wife, in the latter part of 1834, removed from the county of Wilkinson to the county of Yazoo, bringing with them the two slaves in controversy, together with a large amount of other personal property, including several negro slaves. Richardson continued in possession of these slaves, Peter and Abner, from the time he first removed to Yazoo, up to the time of plaintiff’s execution being levied on them; and kept them on the plantation on which he and his wife had lived together during all that time.
    In 1839, Mrs. Richardson openly claimed said negroes as her own property; and her husband, in that year and since, stated that his wife claimed property in them. Richardson always held these negroes as the property of his wife, and the matter was so spoken of by the family. The plaintiff had said, after these negroes were levied on, that he knew at the time he had them levied on, that Mrs. Richardson claimed them as her own, under a marriage contract. It was also proved on the trial that the plaintiff, in 1837, said that the negroes in controversy belonged to Mrs. Richardson, by virtue of a marriage settlement.
    On the 27th of May, 1842, William Pickett, executor of one Gabriel Scott, deceased, suing for his own use, recovered a judgment against Wiley W. Richardson, for the sum of $660.80, on a note whioh bears date March 7th, 1836. Execution issued on this judgment on the 25th of June, 1842, and was levied on the negro slaves Peter and Abner, of the value of $700.
    Margaret D. Richardson, wife of the said Richardson, claimed these slaves so levied on as her own separate propertjr; made the required affidavit, and, together with her husband and security, executed the proper bond to try the 'right of property, according to the statute.
    An issue was made up, to try the right of property, at,the November term, 1842, of the circuit court; and at the May term, 1843, there was a mis-trial. The death of Mrs. Richardson being suggested, the case was subsequently revived against Winston Banks, her adminisrator ad colligendum.
    
    At the May term, 1845, the cause was again tried; and, on this evidence, the claimant, by counsel, offered in evidence the contract of marriage settlement above stated, which was objected to by plaintiff, because it was not recorded in Yazoo county until 1839, in which year it had been duly recorded in the county of Yazoo; but the court overruled the objection, and permitted it to be read.
    
      This being all the evidence, the plaintiff moved the court to instruct the jury: “That, if they shall believe, from the evidence, that neither Pickett, nor the executors of Gabriel Scott, deceased, had notice of the existence of the deed of marriage settlement in favor of Margaret D. Richardson, or that she claimed said negroes levied on as her separate property, at or before the time the note was made, (March 7th, 1836,) which was the foundation of the judgment, under which the levy in this case was made; then the law is with the plaintiff in the execution, and the property levied on is liable for the debt.” Which instruction the court refused to give, but instead thereof, gave the following, at the request of the claimant: “If, during the time the negroes in controversy were in this county, they were in the possession of W. W. Richardson and his wife, who lived together during that time as man and wife, and said W. W. Richardson claimed and asserted no other title to said ne-groes than that which he acquired under said marriage settlement; then it was not necessary to record said marriage contract in this county, and the law is for the claimant.” And further : “If the jury shall believe that Wm. Pickett, the plaintiff, had notice of the execution of the deed of marriage' settlement before the date of the judgment, that circumstance dispensed with the necessity of recording said deed in the county, in order to protect the title of Mrs. Richardson to the negroes in controversy against the claim of the plaintiff.” To which opinion of the court, in refusing the instruction asked for by plaintiff, and giving those asked by the claimant, the plaintiff excepted, and took his bill of exceptions. The jury found a verdict for the claimant, and the plaintiff sued out this writ of error.
    
      W. R. Miles, for plaintiff in error.
    There are but two facts complained of in the proceedings of the court below, i. e., allowing the marriage settlement to be read in evidence to the jury, and refusing the instructions asked for by plaintiff. Both of these errors are settled by the case of Moss v. Davidson, 1 S. & M. 112. This court held that, unless the marriage settlement followed the property, and was recorded within twelve months in the county to which the property was removed, it was void as to subsequent purchasers and creditors without notice. This was a decision made in view of our statute, and thus relieves me from the necessity of reviewing some apparently similar (but really dissimilar) cases in the Virginia, Tennessee, and U. States Reports.
    
      John Battaile, for defendant in error.
    1. It has often been decided, that the statute of Virginia, 1 Rev. Code of Va. 362, Tate’s Dig. 94, like our own, (How. & Hutch. 343,) which makes unrecorded deeds void as to creditors and subsequent purchasers, means creditors of, and subsequent purchasers from, the grantor; and that a marriage settlement, conveying the wife’s property before marriage to trustees, by a deed to which the husband was a party, although not recorded, protects the property from the creditors of the husband. Pierce v. Turner, 5 Cranch, 154; 5 Rand. 211; 5 Munf. 86; Morgan v. Elam, et al., 4 Yerg. 375. The case in 1 Leigh, 443, decides nothing in opposition to this construction. So in Tennessee. 8 Yerg. 33, 42. So in this state. Palmer v. Cross et al., 1 S. & M. 48.
    2. But it will be contended, that the case of Moss v. Davidson et al., 1 S. & M. 112, is a decision adverse to the above cited authorities. Not so. It was decided under a different statute. In that case the feme covert abandoned her title to the property. It passed out of the possession of both husband and wife, and was removed into another county by a third party, a purchaser from the husband and wife. In the present case, there was no change of possession. The deed of marriage settlement gave to the husband the management, control and profits of the property. Of course he was entitled to the possession of the property, the wife living with-him. In contemplation of law, he was the trustee of the wife, and in such a case his possession was her possession. 10 Ves. 151; 6 S. & M. 693.
    3. Pickett had notice, it is distinctly proven, before judgment, of the existence of the deed of marriage settlement; and this dispenses with all necessity to prove the registration of the deed. By the statute of this state, creditors are, alike with subsequent purchasers, affected by notice of a prior unregistered deed. Notice is equivalent to registration as to all persons. Unregistered deeds shall not be avoided in favor of creditors with notice. 1 S. & M. 70.
    4. The term “creditors,” in the statute concerning the recording of conveyances, means creditors having a lien, as by judgment, mortgage, &c., and not creditors at large. 1 S. & M. 106; Freeman, Ch. R. 85, 98; 2 Lomax, Dig. 367,368; 2 Rand. 384; 1 Pick. 164; 2 J. C. R. 144. Notice, after the credit given and the debt contracted, is just as effectual as before. Freeman, Ch. R. 85, 98; 1 Pick. R. 164.
    
      R. S. Holt, for defendant in error, on same side.
    1. The statute making unrecorded deeds void, as to creditors and purchasers, means creditors of, and purchasers from, the grantor. This is the familiar and long established construction of the terms of the act. 5 Cranch, 154.
    2. The proof embodied in the bill of exceptions shows that Pickett had notice of the unrecorded deed of marriage settlement before obtaining judgment, and when he was a mere creditor at large of Richardson. This actual notice rendered the registration of the deed unnecessary. The statute in relation to the registration of deeds, and declaring them void, if unrecorded, as to creditors, means lien creditors, and not creditors at large. 1 S. M. 106; 2 Leigh, R. 99 ; 2 Rand. R. 384; 1 Pick. R. 164; 2 J. C. R. 144; 4 Dana, R. 258; 2 Lomax, Dig. 367, 368; 1 Freem. Ch. R. 85; 1 Pick. R. 164.
    3. And by an authoritative construction, it has been held, that a creditor, under the statute, is affected by actual notice of the unrecorded deed, equally with a purchaser. 1 S. & M. R. 70.
    4. It is immaterial, whether the notice was received before or after the credit was given. 6 Rand. R. 618 ; 4 Dana, R. 258; 1 Freem. Ch. R. 85, 98; 1 Pick. R. 164.
    5. The deed of marriage settlement gives to Richardson a right to the possession and control of the property during coverture; or if the deed does not entitle him alone to the possession, it certainly gives him' that right in conjunction with his wife. They being themselves the persons claiming, and having title to the property under the deed, and they removing with the property to Yazoo county, and there retaining it in their possession, it was unnecessary, under the language of the fourth section of the registration law, for them to have the deed recorded in that county. Had they permitted the property to be removed to that county by another, and to remain there in another’s possession, a case would have arisen for the application of this section of the statute. I Leigh, 448.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an attempt to subject two slaves to an execution against a husband, and is resisted by the wife, on the ground that the slaves are protected as her separate property, by virtue of a marriage settlement. The judgment from which the execution emauated, was obtained in May, 1842, arid was founded upon a promissory note, made by the husband in March, 1836. The marriage settlement was executed and recorded in Wilkinson county, and the two slaves were removed to Yazoo county in the latter part of 1834; but the marriage settlement has not been recorded in Yazoo county.

It was determined in Moss v. Davidson, 1 S. & M. 112, that the statute of 1822, H. & H. 344, sec. 4, requiring deeds respecting the title of persona] property to be recorded in that county in which such property shall remain, and declaring all such deeds void, as to all purchasers for a valuable consideration without notice, and as to all creditors, when such property is removed to a different county, and the deed is not recorded there within twelve months from the date of such removal, applies to marriage settlements, by which the husband settles personal property on the wife before marriage. Upon this subject, the case of Palmer v. Cross, 1 S. & M. 48, does not hold a different opinion, but settles that the act does not apply to conveyances made prior to its passage.

But even an unregistered deed is not void as to general creditors, unless perhaps to those who have been induced to deal and give credit on the apparent ownership. They have nó lien upon any particular'thing, and contract upon personal responsibility alone; and therefore, by the term “creditors,” must be meant those possessing a judgment or lien. Dixon & Starkey v. Doe ex dem, Lacoste, 1 S. & M. 106. It was proved in this case that the plaintiff in execution had notice of the marriage settlement prior to the date of his judgment, and we need only add that an unregistered deed cannot be avoided in favor of a creditor with notice.

The circuit court, therefore, properly admitted theyinarriage settlement in evidence, and charged the law correctly to the jury.

The judgment is affirmed.  