
    *Lewis & als. v. Caperton’s Ex’or & als.
    July Term, 1851,
    Lewisburg.
    (Absent Cabelll. P. and Moncure, J.)
    1. Deeds of Trust — Postponement of Sale — Effect as to Creditors. — A deed executed bona Me to secure a loan of money, not to be enforced for ten years, is a valid deed as against creditors of the grantor.
    2. Same — Same—Same.—A deed which, conveys without a schedule, household furniture, the various kinds of stock on a farm, bacon and lard, to secure a bona fide debt, but not to be enforced for eighteen months after its execution, is valid against creditors, though the deed was made without the knowledge of the creditor, and the grantor was indebted to insolvency at the time of the conveyance.
    3. Same — Same—Same.—A deed which conveys land to secure a bona fide debt, which is not to be enforced for two years, and only then or afterwards upon a notice of the sale for one hundred and twenty days is valid against creditors.
    4. Same-Same — Reservations—Effect.—-Such. a deed is valid though the execution of the deed is postponed for five years from the date of the conveyance ; and the rents and profits of the property in the meantime, is reserved to the grantor.
    5, Same — Reservations—Effect.—A deed which conveys future rents and profits of property conveyed in other deeds, which were reserved to the grantor in the previous deeds, for the purpose of paying a bona Jide debt, is valid against creditors of the grantor.
    
      *6. Sale of Land — Title Retained — Other Surety Given— Effect. — A vendor of land retains the title in accordance with the contract. He has a lien on the land for the purchase money, as against creditors or incumbrancers of the vendee; and this though the vendee has subsequently executed a deed by which he conveys other property to secure the purchase money.
    7. Postnuptial Settlement— Failure to Record — Effect as to Creditors. — a postnuptial settlement made by a husband on his wife, of personal property derived from her father’s estate, but of which he retains possession, not having been properly recorded, is void as against the creditors of the husband.
    149 "•‘8. Fraudulent and Voluntary Conveyances — Con= veyanceof Proceeds of Wife’s Lands in Trust for Husband and Wife — Effect as to Creditors. — A deed made by a husband embarrassed at the time, by which he conveys the proceeds of his wife’s land which had been sold, and the note for the purchase money made to him, in trust for himself and his wife for their lives and the life of the survivor, and during his life to be under his control and management, is voluntary and fraudulent as to creditors.
    9. Same — Knowledge of Grantee — Effect.—A deed which conveys land to secure a bona Jide debt due to the grantee, and also a debt to the grantor’s wife, which is voluntary and fraudulent as to his creditors, and the nature of which debt is known to the grantee, is null and void as a security for the first as well as the last mentioned debt, as against subsequent incumbrancers and creditors of the grantor.
    10. Same — Proof That Consideration Bona Fide — Decla= rations of Wife. — The declarations of a wife at the time she executes a deed or at other times, that she has executed or does execute the deed because her husband had promised that he would settle or because he had settled upon her certain property derived from her father’s estate is not suilicient evidence of a contract between them for such a settlement in consideration of her relinquishment of her right of dower in her husband’s land, and thus to support such settlement if made, against creditors or incumbrancers, even to the extent of a reasonable compensation for the right of dower which she relinquished.
    11. Same — Successive Deeds Conveying Same Property —Effect When Some Are Declared Void. — There being several deéds, conveying in succession the same property, and not merely the equity of redemption therein, every successive incum-brance binds all the property not absorbed in satisfaction of the previous valid incumbrances. And if some of the incumbrances are declared void at the suit of a creditor of the grantor, such creditor is not entitled to have his debt substituted in the place of such void incumbrance to the extent thereof; but the subsequent valid incum-brancers have preference.
    12, Deeds of Trust — Several Deeds Enforceable at Different Times — Rents and Profits — Case at Bar.— Property covered by various deeds of trust which may be enforced at different periods, having been sequestrated at the suit of a judgment creditor of the grantor; when the Court disposes of the trust subjects and the rents and profits thereof, the creditor will only be entitled to the rents and profits of the different trust subjects up to the earliest period when either of the valid incum-brances covering such subject was authorized to be enforced. And the different incumbrancers will each be entitled to the rents and profits of the subject covered by his deed from the time he was authorized by the terms of the deed to enforce it.
    13. Same — Failure of Wife to Join In First Deed — Joining of Wife in Second — Effect.—The wife of the grantor not having joined in the first deed conveying land to secure a debt; but uniting in a second deed conveying the same land to secure another creditor, the second incumbrancer is entitled to the value of the wife’s contingent right *of dower in the land, to be paid out of its proceeds, as against and in preference to the first incumbrancer.
    14. Same — Relinquishment of Dower — Settlement 01» Wife — Consideration.—Quaere ; If the wife’s relinquishment of her contingent right of dower in land, where there is no complete alienation of the estate by the husband, but a mere incum-brance given for the security of a debt, constitutes a sufficient consideration for a settlement on the wife.
    This was a bill filed in the Circuit court of Monroe county in October 1842 by Hugh Caperton against John B. Lewis and the trustees and cestuis que trust in twelve deeds executed by Lewis, eleven of which were charged to be fraudulent and intended to hinder and delay the plaintiff, a creditor of Lewis, in the recovery of his debt. The pleadings and proofs exhibit the following facts:
    John Lewis devised to his two sons John B. Lewis and Thomas P. Lewis, the Sweet springs, in the county of Monroe, with a considerable body of land in Monroe and Alleghany counties; the Sweet springs tract proper containing one hundred and fifty-nine acres. By an agreement under their hands and seals bearing date the 25th of September 1834, Thomas P. Lewis sold to John B. Lewis all Thomas’s right and title in and to the Sweet springs, together with all other lands bequeathed to him by his father, situate in the counties of Monroe and Alleghany, for the sum of 20,000 dollars, with legal interest from the first day of the next January 1835; the amount to be paid by annual payments extending to the year 1846; but no conveyance was made.
    By deed poll bearing date the 9th day of February 1837, and prepared and probably executed in South Carolina, John B. Lewis conveyed to William E. Haskell, the Sweet springs tract of land containing one hundred and fifty-nine acres, for the purpose of securing to Haskell the payment of 10,000 dollars with - its interest, which he at that time borrowed from Haskell, and *for which he gave his bond with his brother William L. Lewis as his surety, payable in ten years; the interest thereon to be paid annually. Mrs. Caroline S. H. Lewis, the wife of John B. Lewis was not a party to this deed, but she signed it, and her privy examination having been taken before two justices of the peace for the county of Monroe, the deed with the certificate of the privy examination of Mrs. Lewis, was admitted to record in the clerk’s office of the county of Monroe.
    By deed poll executed in South Carolina and bearing date the 11th day of January 1839, John B. Lewis, upon the consideration as expressed in the deed of natural love and affection, and of one dollar, conveyed to William L. Lewis twenty-four slaves by name, which the deed stated had been allotted to John B. Lewis in right of his wife, on a division of the negroes of the estate of her father William JR. Thomson of South Carolina; also the sum of 7000 dollars, then vested in a note drawn by William S. Thomson and others in his favour, the consideration of which was the interest of Mrs. Lewis in the real estate of her father William R. Thomson. This conveyance was in trust for the use and benefit of himself and wife during their lives and the life of the survivor, and during his life to be under his control and management; and if he should invest the said 7000 dollars in property the same was to be subject to the same trusts; and upon their death to their children who should survive either of them.
    This deed was admitted to record in the Orangeburgh district, South Carolina, on the day of its date, upon proof of its execution by a witness thereto ; and was recorded in the clerk’s office of the County court of Monroe on the 9th of January 1840. The endorsement of the clerk on the deed is:
    1 ‘The foregoing was presented in this office, and which, together with the certificate of its acknowledgment, was admitted to be recorded, which was done.” The clerk who was examined *as a witness, stated that John B. Lewis took the deed to the clerk’s office and handed it to the clerk with a request that he would record it, and give it to him before he left; which was done. The deed was not reported to the Court or advertised at the courthouse door; but this omission was accidental.
    Between the period when John B. Lewis purchased the interest of Thomas P. Lewis in the Sweet springs property, and the end of the year 1841, he proceeded to make improvements upon it at great cost; and in 1841 he was largely indebted: Among his creditors was Hugh Caperton of Monroe county. In February 1841 Lewis executed to Caperton two single bills, one for 5641 dollars 57 cents, and the other for 13,102 dollars 83 cents. And about the same time he with James L. Woodville as his surety, executed another single bill to Caperton for about 4520 dollars 25 cents. In December 1841 Caperton instituted suits upon the first two of these single bills, and recovered judgments thereon in May 1842.
    Soon after the service of the process upon Lewis at the suit of Caperton, he seems to have visited South Carolina; and whilst there he executed two deeds poll bearing date the 24th of February 1842. The one reciting that he was indebted to William L-Lewis of Orangeburgh district, South Carolina, as trustee of the wife of John B. Lewis, in the sum of 7000 dollars, by a promissory note bearing date the 1st day of June 1839, with interest, and also in the further sum of 5200 dollars, by a promissory note in favour of William L. Lewis, dated the 1st of September 1841, with interest; for the purpose of securing the said sums of money with interest, he conveyed to said William L. Lewis a tract of one thousand acres of land, including the Sweet springs tract. This deed was admitted to record in South Carolina; and was also admitted to record in the clerk’s office of the County court of Monroe on the *15th of March 1842, upon the certificate by two justices of the acknowledgment thereof by John B. Lewis. And although Mrs. Lewis was not a party to the deed, and did not sign it, her privy examination was taken and certified.
    The other deed executed at the same time conveyed to William L. Lewis for the same purposes, all the grantor’s household and kitchen furniture 'used at his dwelling or other houses on his plantation in Monroe county, and his horses, mules, cattle, hogs, sheep, wagons, gear and all the plantation tools and implements belonging to said plantation. This deed was also recorded in South Carolina, and afterwards in the proper office here upon the certificate of John B. Lewis’ acknowledgment before two justices of the peace for the county of Monroe.
    By another deed which bore date the 11th of March 1842 John B. Lewis, reciting that he was indebted to John Cochran in the sum of 500 dollars, conveyed to Henry Mas-sie all his personal property, described as consisting of household furniture of all the varieties of such property, and bacon, lard, hogs, mules, horses, cattle and sheep, in trust that if the said Lewis should on or before the 1st day of October 1843, pay to John Cochran the sum of 500 dollars, with interest from the 11th of March 1842, then the indenture to be void, otherwise the trustee should after the said 1st of October 1843, proceed to sell &c., and pay to Cochran the said sum of 500 dollars with the interest due thereon. This deed was duly admitted to record on the 15th of March.
    By another deed dated the 16th of March 1842, Lewis reciting that he was indebted to Thomas P. Lewis 16,000 dollars, conveyed to Massie the Sweet springs with all the lands attached thereto either by purchase or inheritance, lying in the counties of Monroe and Alleghany, and all the right, title and estate of the said Jyewis therein, and all his hogs, horses, cattle, 'x'sheep, plantation utensils of every kind, wagons &c., bedsteads, beds, mattresses, &c., &c., &c., carriage and harness, Jkitchen furniture and cooking utensils, and table furniture of every kind, books and paintings, in trust to secure the execution of the agreement between himself and Thomas P. Lewis for the purchase of the moiety of the Sweet springs property. And if the said John B. Lewis failed to comply with that agreement then the trustee was authorized to sell after giving six months notice.
    On the same day John B. .Lewis and Caroline his wife conveyed to James L. Wood-ville the same lands mentioned in the last deed, in trust to secure a debt of 8500 dollars due to the branch of the Bank of Virginia at Buchanan: This deed provided that upon a failure to pay the interest on the 17th of December of each year, or the failure to pay the principal on the 20th of March 1844, the trustee should proceed to sell upon one hundred and twenty days notice ; and pay to the bank the said sum with the interest due.
    On the same day Lewis conveyed to Henry Massie the same lands to secure a debt of 5535 dollars due to William P. Phillips of the town of Charlottesville, with interest from the 1st of October 1841. This trust was not to be executed before the 1st of October 1845, and in the meantime Lewis was to take the profits of the property for his own use and benefit. And the same provision was contained in the preceding deeds. The three last mentioned deeds were admitted to record on the 17th of March 1842. ,
    
    On the 4th of April 1842, Lewis conveyed the Sweet springs land to Massie for the purpose of indemnifying James L. Wood-ville as his surety in a bond to Hugh Caper-ton for 4520 dollars 25 cents, dated the 24th of February 1841. This trust was not to be executed before the 4th of April 1844; and in the meantime Lewis was to take the profits to his own use. This *deed was recorded on the 11th of April. And on the 29th of the same month, Lewis for the purpose of securing the same debt, conveyed to Massie the Sweet springs tract, and also all his lands adjoining the Sweet springs, and especially a tract below the Sweet springs called the lower place, and a tract of four hundred acres above the Sweet springs next the mountain, with all the furniture on the premises at the Sweet springs, upon trust that Lewis should be permitted to retain possession of the property, giving to the trustee for the further security of Woodville, the profits of said springs for two years from the date of the deed after defraying the necessary expenses of keeping the .same. And if any part of the debt remained due on the 29th of April 1844, then that the trustee should proceed, upon ninety days notice, to sell and pay &c. This deed was recorded on the 5th of May.
    On the 5th of April 1842, Lewis and wife; for the purpose of securing Andrew Allen and numerous ’Other creditors, conveyed to Massie all Lewis’s lands in the counties of Monroe and Alleghany, being the same lands before conveyed, upon trust to sell after the 5th of April 1843, for the purpose of paying two small debts due to Samuel Price and Joseph Damron; and in trust to sell after the 5th of April 1847, to pay the other creditors mentioned in the deed. In this deed John B. Lewis warranted the property conveyed, against all claims except such persons as claimed under and by virtue of deeds of trust then of record in the clerk’s office of the County court of Monroe. This deed was admitted to record on the 11th of April.
    On the 1st of May 1842 Lewis, for the purpose of securing a debt of 590 dollars due to John H. Peyton, conveyed to Massie,. beds, bedsteads, mattresses, pillows &c. &c. &c., groceries of every kind, bacon, salt, lard, table furniture, cooking utensils, plantation tools, sheep, cows, calves, stock cattle, together with old hay standing *in the meadows, also the crop of grain then growing upon the plantation, with the then present growing crop’ of grass, upon trust to sell after the 1st of May 1844, upon a notice of two months, and to pay the debt. This deed was admitted to-record on the 9th of May.
    On the 5th of April 1842, John B. Lewis executed another deed to Massie and William L. Lewis, in which after reciting that his wife Caroline S. Lewis in consideration that said John B. Lewis would convey in trust for her use the slaves therein after named, did join in a deed conveying the Sweet springs and all other real estate belonging to John B. Lewis in the counties of Monroe and Alleghany to James L. Woodville in trust for the benefit of the banks, and that she had on like consideration on the same 5th of April 1842 joined to convey the same real estate to Henry Massie in trust to secure various and numerous creditors, and in a deed conveying to Charles R. Thomson real estate in South Carolina devised to her by her father William R. Thomson, in consideration of the premises and of one dollar, conveyed to Massie and William L. Lewis twenty-six slaves, by name, being the same mentioned in the deed of 11th of January 1839, upon trust that the said slaves should remain in the joint possession, use and enjoyment of John B. Lewis and his wife Caroline S. during their joint lives, for their support, and to enable them to support and educate their children, and upon the death of John B. Lewis in the lifetime of his wife, for her support and that of her children; and at her death to be divided among the children. This deed was recorded the 11th of April 1842.
    By another deed bearing date the 18th of August 1842, John B. Lewis, reciting that it was his intention by the deed of the 5th of April, to secure the slaves therein mentioned to the exclusive use of Mrs. Lewis and her children, b.ut that by a mistake of the draftsman *of that deed an interest was reserved to John B. Lewis, and he considered himself morally and legally bound to secure the said slaves with their future increase for the exclusive use and enjoyment of his wife and her children, she having given an ample consideration therefor in the relinquishment of her right of dower in his estate and in the conveyance of her maiden lands in South Carolina, in consideration of the premises and of one dollar' conveyed the same slaves with their future increase to Massie and William L. Lewis, for the exclusive use, benefit and enjoyment of the said Caroline S. Lewis and her children by John B. Lewis. This deed was admitted to record the 22d of August 1842.
    The deeds to secure Cochran. Peyton and Phillips seem to have been executed without the knowledge of these gentlemen ; and Mr. Peyton states in his answer he did not see the deed to secure him until he saw it as an exhibit in this cause; though the debts were no doubt due to them from John B. Lewis. And although some of the creditors in the general deed, may have known that Lewis was about to execute a deed to secure them, none of them were informed of or assented to its provisions before the deed was executed.
    It appears that Mrs. Thomson the mother of Mrs. John B. Lewis died in 1838, and that upon her death the land and slaves devised to her for her life, passed under the will of her husband, to his children, of whom Mrs. Lewis was one. Mrs. Lewis’s interest in the land was sold to William S. Thomson and two others for 7000 dollars, and they executed their note to John B. Lewis for that sum. The slaves except perhaps three, mentioned in the deed of January 1839, were slaves derived by Mrs. Lewis from the estate of her father, and it appears that Mrs. Thomson had put into Mrs. Lewis’s hands 800 dollars of the assets of her husband’s estate with directions to invest it in negroes, and that this sum *was invested in the three negroes not derived from Mr. Thomson’s estate.
    It appears further that about the time of the division of the slaves and the sale of the land, John B. Lewis declared his purpose to convey his wife’s property in trust for her; and accordingly after the division and sale, and before taking actual possession of the slaves, he executed to William L. Lewis the deed of the 11th day of January 1839. And soon thereafter, he was permitted to take possession of the slaves and bring them to Virginia; and to receive from the purchasers of the land the 7000 dollars which they owed therefor; he executing to William L. Lewis as trustee of Mrs. Lewis, his note for the same amount, as a borrower of the trust fund.
    The only evidence other than that furnished by the deeds, that John B. Lewis executed the deeds in favour of his wife, upon any valuable consideration, were the declarations of Mrs. Lewis. One witness stated that in May or June 1837 she had heard Mrs. Lewis say in the presence of her husband, that she had made over her right in the Sweet springs upon the condition that he was to make over to her all the property that was coming to her from her father’s estate. And that in 1842 she heard Mrs. Lewis say again, that she made over her right to the Sweet springs in another deed, because her husband had told her he had made over to her by deed the property coming from her father’s estate. So the justices of the peace by whom the privy examination of Mrs. Lewis was taken as to her execution of the deeds to Haskell, to Charles R. Thomson for her land in South Carolina, and to secure the Bank of Virginia and the general creditors of her husband, stated that at the time Mrs. Lewis executed the three last deeds and immediately before signing them, she stated that she was induced to execute them in consideration of Dr. Lewis’s securing *to her the negroes made over in the deed of January 11th, 1839, and the price of her land in South Carolina, but that she made no such statement in relation to the deed to Haskell.
    When Caperton recovered judgments against John B. Lewis in May 1842, he sued out executions both of fieri facias and capias ad satisfaciendum ; but the first were returned “no effects,” and the latter, “not found. ” At a subsequent day Thomas P. Lewis his bail, surrendered him into custody, and he took the benefit of the act for the relief of insolvent debtors, surrendering nothing but his equity of redemption in the deeds herein before mentioned.
    When the plaintiff filed his bill he prayed for an injunction to, restrain the defendant Lewis and all others from selling, conveying away or otherwise disposing of the slaves and other personal property mentioned in the deeds aforesaid. This injunction was awarded by one of the Judges of the Circuit court; and it was ordered that unless John B. Lewis or some one for him, should enter into bond with good security in the penalty of 15,000 dollars, with condition to have the slaves and other personal property forthcoming to abide the future order of the Court, the sheriff should take possession, and make out an inventory thereof, and hire out the slaves until the next term of the Circuit court of Monroe county; and make report of his proceedings to Court.
    Subsequently in December 1842, upon the application of Caperton to the same Judge, the prior order was modified so as to authorize Lewis to retain the slaves in his possession until the next term of the Circuit court of Monroe, upon his executing a bond with security in the penalty of 5000 dollars. And it was further ordered that the sheriff should sell the live stock, other than slaves, and the hay and other provender, on a credit of *six and twelve months; and if John B. Lewis should consent thereto, that the sheriff should rent out the springs and the appurtenances and fixtures until the 1st day of January 1844.
    At the October term of the Court for 1843' the cause came on to be heard on a motion to dissolve the injunction, when the Court being of opinion that the deed of the 11th of January 1839 was void as to the creditors of John B. Lewis, because it was not properly recorded, overruled the motion. And not deciding whether the deeds of the 5th of April and the 18th of August 1842, were good either in whole or in part, referred it to a commissioner to ascertain the value of Mrs. Lewis’s dower interest in the Sweet springs property on the 16th day of March 1842, the period at which she united in the deed to secure the debt due to the Bank of' Virginia; and also to ascertain the value of the slaves conveyed in trust for the benefit of Mrs. Lewis by the said deeds of the Sth of April and 18th of August 1842, at the time they were conveyed. And it was further ordered that A. Dunlap who was appointed a commissioner for the purpose, should proceed to hire out the said slaves for one year from the termination of the period for which they were then hired out; and also to rent out the Sweet springs property and the land adjoining with the furniture thereto belonging, for one year from the termination of the then existing lease.
    The commissioner appointed to ascertain the value of Mrs. Lewis’s dower interest in the lands, and the value of the slaves conveyed in trust for her, reported the value of the dower interest of Mrs. Lewis in the property at 952 dollars 25 cents; and the value of the slaves conveyed in trust for her at 6900 dollars.
    This report was excepted to by the counsel for Mrs. Lewis; but as this Court does not consider or pass upon the question as to the value of Mrs. Lewis’s dower ^interest, it is unnecessary to state the principles or facts upon which the commissioner based his report, or the exceptions to it.
    The property was regularly rented and hired out from year to year- under the directions of the Court. And in the progress of the cause Thomas Henning having recovered a judgment against John B. Lewis for about 188 dollars 90 cents with interest and costs, on which Lewis took the benefit of the act for the relief of insolvent debtors, said Henning was made a defendant in the suit. And the cause came on to be heard in May 1847, when the Court made a decree, by which Mrs. Lewis’s exceptions to the commissioner’s report were overruled, and the statement fixing Mrs. Lewis’s dower interest at 952 dollars 25 cents was confirmed; the deed of the 11th of January 1839 was held to be void as to creditors because not duly recorded; and the deeds of settlement of the Sth of April and the 18th of August' 1842, to be valid to the extent, but only to the extent of the value of Mrs. Lewis’s contingent dower interest in the estate of her husband, which appeared to have been the consideration of said deeds. It was further held that Caperton and Hen-ning had liens for the payment of their debts upon the said slaves, subject to the aforesaid claim of Mrs. Lewis, and also upon the equity of redemption in the real and personal property conveyed by John B. Lewis in the deeds herein before mentioned, and also upon any other property held by said Lewis. And it was decreed that Caperton recover from John B. Lewis the sum of 18,758 dollars 88 cents, with interest and costs; and that Henning recover from said Lewis the sum of 205 dollars 54 cents, with like interest and his costs.
    The decree further authorized Mrs. Lewis to take slaves to the amount of her interest, or to take the money; and directed a commissioner to sell the slaves not *taken by Mrs. Lewis, and if she | elected not to take slaves, to pay to her from the proceeds of the sale the said sum of 952 dollars 25 cents, with interest from the 1st of January 1843; and to pay the remainder of the proceeds of the sale of said slaves to Caperton and Henning rata-bly upon their debts aforesaid.
    And it was further held that all the other deeds, except the deed given to secure the debt due to John H. Peyton, were valid, and that the creditors in said deeds were entitled to satisfaction of their several debts therein mentioned out of the proceeds of the sale of the property according to their respective priorities; but that Caperton and Henning were entitled to the rents and profits of the said mortgaged and trust property since the same had been sequestered and leased out under the control of the Court. And trie decree directed the said rents and profits to be paid ratably to them.
    It was further held, that the property conveyed to secure the debt of John H. Peyton was of a kind so perishable as to be unfit to be conveyed as a security, and that deed was therefore declared to be void, and the proceeds of the sale of that property and of all the other personal property of John B. Lewis, . which was not embraced in any of the deeds declared to be valid, was decreed to be divided ratably between said Caper-ton and Henning. And the decree then proceeded to direct certain commissioners to sell the real and personal estate conveyed in the several deeds aforesaid in the mode prescribed in the decree; and then proceeded to direct the application of the proceeds of sale among the various creditors mentioned in the deeds; and the remainder after satisfying them to be paid to Caperton and Hen-ning. Prom this decree separate appeals were obtained, first, by John B. Lewis and his wife and her trustees William L. Lewis and Henry Massie; second, by Allen T. Caperton, executor of Hugh Caperton; third, by James L. Woodville, who complained that by the ^decree he had been deprived of the rents and profits of the springs, which had been conveyed in the deed given to secure him; and fourth, by the Bank of Virginia, which claimed that as in none of the deeds prior to that to secure the bank, Mrs. Lewis had relinquished her right of dower, the bank was entitled to have the value of that interest applied to the payment of its debt.
    Baldwin, Price and Cooke, for Mrs. Lewis and her trustees.
    Eskridge, Boyd and Price, for Woodville and the Bank of Virginia.
    The Attorney General and Patton, for Caperton’s executor.
    
      
      The cause was argued before Judge Moncure’s appointment.
    
    
      
      Deeds of Trust — For Benefit of Creditors — Postponement of Sale — Reservation in Favor of Grantor — On this subject the principal case is cited in the following cases: Dance v. Seaman, 11 Gratt. 782, and note; Gordon v. Cannon, 18 Gratt. 398. and note; Sipe v. Earman, 26 Gratt. 569, and note; Brockenbrough v. Brockenbrough, 31 Gratt. 590, and note; Young v. Willis, 82 Va. 299; Paul v. Baugh, 85 Va. 960. 9 S. E. Rep. 329; Keagy v. Trout, 85 Va. 394, 7 S. E. Rep. 329; 3 Va. Law Reg. 298; Gardner v. Johnston, 9 W. Va. 407; Cohn v. Ward, 32 W. Va. 39. 9 S. E. Rep. 43. See also, foot-note to Wickham v. Lewis Martin, 13 Gratt. 427; Livesay v. Beard, 22 W. Va. 590; Klee v. Reitzenberger, 23 W. Va. 755; Harden v. Wagner, 22 W. Va. 365, 371; Shattuck v. Knight. 25 W. Va. 597; Knight v. Capito, 23 W. Va. 643. See monographic note on “SYaudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348; mono-graphic note on “Assignments for the Benefit of Creditors” appended to French v. Townes, 10 Gratt. 513.
    
    
      
      Sale of Land — Title Reserved — Other Security-Effect. — In Mansfield v. Dameron, 42 W. Va. 796, 26 S. E. Rep. 527, it is said: “Under the old law giving an implied lien for purchase money on conveyance of the legal title, as under the present law, where a lien is reserved, it is a difficult matter to show a waiver of a lien; it must be clear. But it is more so where the title is reserved — First, because the very retention of title plainly manifests an intent to still hold the land liable; and, second, a court of equity is so unwilling to make a man give up his land for nothing. The force of this fact — the retention of the legal title-will be found often emphasized as of controlling influence. See Coles v. Withers. 33 Gratt. 186. 193; Lewis v. Caperton's Ex'or, 8 Gratt. 148; Hess v. Dille, 23 W. Va. 90; Warren v. Branch, 15 W. Va. 28; Judge Adlen’s opinion in Yancey v. Manck, 15 Gratt. 300; Bart. Ch. Prac. 936; 1 Lomax Dig. (2d Ed.) 266. Where the vendor has a lien and a bond, he has two securities, as in this case, and could resort to either; the lien being a security, not for the note, but for the very debt. 33 Gratt. 195. So long as that debt exists, the courts will not presume that the chief security has been surrendered, unless upon the clearest and most convincing testimony. 1 Hil. Mortg. 448-458. Same in Yancey v. Mauck, 15 Gratt. 310.” See, in accord, citing the principal case, Yancey v. Manck, 15 Gratt. 307. and note; Day v. Hale, 22 Gratt. 163; Coles v. Withers, 33 Gratt. 194, and note; Stoner v. Harris, 81 Va. 460; Dunlap v. Shanklin, 10 W. Va. 662.
    
    
      
      Fraudulent Conveyances — Settlement on Wife-Proof of Consideration — Declarations of Wife. — The declarations of the wife at the time of executing a deed, or at other times, that it was execnted in consideration of a promise of the husband, to make a settlement upon her, or becanse he had made such a settlement, are not suificient evidence of a contract to support such a settlement, if made, even to the extent of reasonable compensation for a right of dower relinquished by her. William & Mary College v. Powell, 12 Gratt. 384, citing Blow v. Maynard, 2 Leigh 29; Lewis v. Caperton, 8 Gratt. 148. The above proposition is quoted in Perry v. Ruby. 81 Va. 326, citing, in addition to those cases above, Price v. Thrash, 30 Gratt. 523; Campbell v. Bowles, 30 Gratt. 663; Fink v. Denny, 75 Va. 668; Hatcher v. Crews, 78 Va. 465.
      Postnuptial settlements are presumed to be voluntary, and the burden of proving valuable consideration rests on those claiming under them; and where the bill alleges them to be voluntary, the answer denying the allegation does not shift the burden, but the defense must be proved. Lewis v. Mason, 84 Va. 738, 10 S. E. Rep. 529. citing, in addition to the authorities above, 1 Dan. Ch. Pr. 843, note, 7 and cases there cited; 2 Story’s Eq. 1529 ; 2 Rob. Pr. (old Ed.) 320; Paynes v. Coles. 1 Munf. 373; Ruth v. Owens, 2 Rand. 507; Beckwith v. Butler, 1 Wash. 224 ; 4 Min. Inst. (2d Ed.) 1193. See, in accord, Robbins v. Armstrong, 84 Va. 812, 6 S. E. Rep. 130, citing the principal case, and, among others, Armstrong v. Lachman, 84 Va.726, 6 S. E. Rep. 129; Jones v. Degge, 84 Va. 686, 5 S. E. Rep. 799.
    
    
      
      Deeds of Trust — Equity Practice — Several Deeds Enforceable as Different Times — Rents and Profits. — See principal case cited in Hudson v. Dismukes, 77 Va. 248; Baugher v. Eichelberger, 11 W. Va. 226.
      Deeds of Assignment — Preference of Creditors. — In Evans v. Greenhow, 15 Gratt. 156, it is said; “A preexisting debt is, of itself, a valuable consideration for a deed of trust executed for its security; which deed, if it be duly recorded, and was not executed with a fraudulent intent, known to the trustee or the beneficiaries therein, will be valid against all prior secret liens and equities and all subsequent alienations and incumbrances. It is not necessary to the validity of the deed, that it should be executed by the trustee of the beneficiaries, or even that they should know of its existence before the intervention of subsequent claims. The deed being apparently for the benefit of the creditors thereby secured, their acceptance of it will be presumed, until the contrary appears. If any of them refuse it, their refusal will relate back to the date of the deed, and avoid it ab initio as to them. A debtor, even though he be in failing circumstances, may lawfully prefer one creditor to another, and make a valid deed of trust for that purpose. These principles are now well settled in this state, as the following cases sufficiently show: Garland v. Rives, 4 Rand. 282; Skipwith’s Ex’or v. Cunningham, etc., 8 Leigh 271; McCullough, etc., v. Sommerville, Id. 415; Lewis v. Caperton's Ex’or, etc., 8 Gratt. 148: Phippen v. Durham, etc., Id. 457; Dance, etc., v. Seaman, etc., 11 Id. 778; and Wickham, etc., v. Lewis Martin & Co., 13 Id. 427.” See also, on the question of preference of creditors, foot-note to Sipe v, Earman, 26 Gratt. 563; article in 2 Va. Law Reg. 717.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion that the mortgage deed to William E. Haskell, of the 9th February 1837; the deed of trust to Henry Mas-sie, for the benefit of John Cochran, of the 11th March 1842; the deed of trust to James L. Woodville, for the benefit of the Bank of Virginia, of the 16th March 1842; the deed of trust to Henry Massie, for the benefit of William B. Phillips, of the 16th March 1842; the deed of trust to H. Massie, for the benefit of James B. Woodville, of the 4th of April 1842; the deed of trust to H. Mas-sie, for the benefit of Andrew Allen and others, of the Sth of April 1842; and the deed of trust to H. Massie, for the benefit of James B. Woodville, of the 29th of April 1842, are valid and binding incumbrances on the property conveyed by and embraced in said deeds.

The Court is further of opinion, that as Thomas P. Bewis, by the articles of agreement between him and John B. Bewis, of the date of the 25th September 1834, was not bound to convey the lands thereby contracted to be sold to John B. Bewis, until the last instalment of the purchase money was paid, and as he *still retains the legal title as a security for the purchase money, he stands on higher ground than a vendor who, having parted with the legal title, is seeking the aid of a Court of equity to set up and give effect to the implied lien for the purchase money. Holding the legal title, the vendor is not claiming an equity; and he cannot be required to surrender that legal title until the purchase monejT is paid according to the stipulations of the contract: and the doctrine of the waiver of the implied equitable lien of the vendor who has parted with the legal title, when a different security has been taken for the purchase money, does not apply to such a case. The Court is therefore of opinion that the lien for. the whole of the unpaid purchase money due to Thomas P. Bewis and his assignees is, so far as regards the propertj' sold by him, paramount to all the other incumbrances, and must be first satisfied out of the proceeds arising from the sale thereof. And this being so, it is unnecessary to express any opinion as to the deed of trust to H. Massie, for the benefit of Thomas P. Bewis, of the 16th March 1842. For if valid, the Court in marshalling the incumbrances, would require him to look to his first and paramount lien, so as to leave any other fund embraced in his said deed of trust to be applied to subsequent incumbrances ; and as it is manifest the property sold will raise a sum more than sufficient to paj off the purchase money, the said deed of trust, whether valid or invalid, can have no effect upon the rights of the parties.

A majority of the Court is further of opinion, that as the said John H. Peyton has not appealed from said decree, and the decision that the deed of trust in his favour to Henry Massie, of the 1st May 1842, is null and void, not being prejudicial to the rights of any of the other parties before this Court, or complained of by them as erroneous, the correctness of the decree in holding said deed null and void cannot be enquired into upon the present appeals.

*The Court is further of opinion, that the deed of the 11th January 1839, referred to in the answer of John B. Bewis, is void as against the creditors of said John B. Bewis, because the same was not recorded according to the laws of Virginia ; and also because the same was a voluntary post-nuptial settlement, made by an embarrassed man, and which, upon its face, attempts to secure the benefit of the property settled, for himself during life, and retains the control over the same in his own hands. By the sale of the patrimonial estate of the said Caroline S. his wife, and the payment of the purchase money to him, his marital rights had attached thereon, and he could not by a voluntary deed made in fraud of the rights of his creditors withdraw the same from their reach.

And the Court is further of opinion, that as said John B. Bewis was in possession of said slaves in said deed mentioned, the unrecorded and fraudulent deed of the 11th January 1839, could not intercept the marital rights of the husband, so as to exempt the same from the claims of his creditors.

And the Court is further of opinion, that the deeds of mortgage by John B. Bewis to William B. Bewis of the 24th February 1842 were fraudulent and void as against the creditors of said John B. Bewis, so far as regards the alleged debt of 7000 dollars, described as being due to said William B. Bewis as trustee of the wife of said John B. Bewis: The said debt being for the price of the maiden lands of said Caroline S. the wife of said John B. received by him and attempted to be settled and secured for the benefit of said Bewis and family by the deed of the 11th of January 1839.

And the Court is further of opinion, that although the debt of 5200 dollars attempted to be secured by said mortgages of the 24th February 1842, was justly due, yet as the mortgagee accepted said mortgages with a knowledge of the fact that said settlement of the *'7000 dollars was a voluntary post-nuptial settlement, reserving the benefit and control of the property to the use of the grantor for life, and as this fact rendered the same fraudulent and void as against creditors so far as respects the 7000 dollars, the same must be regarded as null and void as it respects the debt due to the mortgagee. The Court is therefore of opinion, that said mortgages of the 24th February 1842, upon the real and personal estate therein described to said William B. Bewis, as mortgagee, to secure the debts therein set forth, are null and void, as against the subsequent incumbrancers and the creditors of said John B. Bewis.

And without deciding the question whether a relinquishment of a contingent right of dower, where there is no complete alienation of the estate by the husband, but a mere incumbrance given for the security of a debt, constitutes a sufficient consideration for a settlement on the wife, as in such case the husband by discharging the debt and procuring a release of the in-cumbrance, would be reinvested with his whole estate, in which the wife would have a claim of dower; the Court is further of opinion, that there is no sufficient evidence of any contract or agreement between said John B. Lewis and his wife, to make upon her a settlement of the slaves named in the deeds of trust to Henry Massie and William L. Lewis, for the benefit of G. S. Lewis, wife of J. B. Lewis, the first of said deeds dated on the Sth April 1842, and the second on the 18th August 1842, in consideration of her release of her contingent dower interest in the estate of her husband. The loose conversations of the parties as proven, furnishes no evidence of such a contract; and though the wife, when she made such relinquishment as set forth in the deeds referred to, may have entertained the expectation that a settlement would be made, such hope and expectation cannot detract from the effect of her solemn relinquishment, or entitle her against creditors *or incumbrancers, without notice of her declarations at the time of making such relinquishment, to any relief against the effect thereof. The relinquishment as to them is to be taken according to its legal effect, as a voluntary act of the wife. The Court is therefore of opinion, that the deeds of trust 'to Henry Mas-sie and William L. Lewis, dated the Sth April 1842, and the 18th August 1842, for the benefit of said C. S. Lewis, are null and void as against the creditors of the husband ; and cannot be regarded as valid .to the extent of the value of her contingent right of dower.

The Court is further of opinion, that as the various incumbrances herein declared to be valid, were taken upon the property conveyed thereby respectively, and as there is no evidence that any of the subsequent incumbrancers took by express agreement subject to the prior incumbrances, the proceeds arising from the sale of the property are to be applied to the payment of the valid incumbrances according to their several priorities. The judgment creditors have no right to be substituted to the position occupied by any of the incumbrances declared to be void: ' The various incum-brancers not having contracted with respect to the equity of redemption alone, have a right to charge the whole subject not covered by previous valid incumbrances. Nor is the right of the general creditors secured by the deed to H. Massie, of the Sth April 1842, to come in according to the order of their incumbrance, impaired in consequence of the grantor having excepted from his warranty the claims of such persons as claimed under deeds of trust of record: Such exception being merely personal to the grantor and no evidence of any agreement recognizing the validity of all previous incumbrances.

' The Court is further of opinion, that the sequestration made at the instance of the judgment creditors, did not change the rights of the parties; and as the in-cumbrancers *by mortgage or deed of trust, were arrested by such sequestration and suit from proceeding to subject said property to sale, they are as against the judgment creditors, entitled to the rents and profits of the property from the time they could have proceeded under their in-.cumbrances. The rents and profits accruing before that time were interests remaining in the grantor, to which the judgment creditors in virtue of their judgments, executions and the release 'of the debtor under the insolvent act, are entitled.

The Court is further of opinion, that the question as to the claim for the value of the contingent right of dower raised by the exception of the Bank of Virginia, can only become material in the event of the real estate not producing a sum sufficient to pay Thomas P. Lewis’s lien for the purchase money, and the mortgage in favour of Haskell. In that event, and as Haskell’s mortgage is subject to the contingent right of dower, there being no valid relinquishment of dower in the deed to him, the Bank of Virginia and the subsequent incum-brancers would be entitled as against Has-kell to the contingent value of the dower interest first relinquished by the deed for the benefit of the bank. But the Court perceiving that the fund will be certainly ample to pay off the two first incumbrances, there is no necessity to make any enquiry as to the value of such contingent claim of dower.

The Court is further of opinion, that in conformity with the principles aforesaid, the proceeds arising and to arise from the sale of the property in the proceedings mentioned, and the interest, rents, hires and profits thereof, should be applied as follows:

1. Out of the proceeds of the sales of the perishable property the debt secured by the deed in favour of John Cochran should be first paid.

2. The residue of the proceeds of the perishable property other than the furniture rented with the springs, *after the satisfaction of the Cochran debt, should be applied to the judgments of Caperton and Thomas Henning pro rata.

3. The proceeds arising from the sales of the slaves an<J their increase, together with the hires which have accrued or shall accrue, should be applied to the judgments of Caperton and Henning as aforesaid.

4. The rents arising from the springs and other property up to the 20th March 1844, to be applied to the judgments of Caperton and Henning as aforesaid, subject however to a deduction therefrom of a sum sufficient to pay the debts of Samuel Price and Joseph Damron, creditors secured by the deed to Henry Massie for Andrew Allen and others, of the Sth April 1842; the said Price and Damron being authorized to enforce said deed for. their benefit on the Sth April 1843.

5. That an account should be taken to ascertain how much of the rents of real estate and furniture should be apportioned after the 20th March 1844, to each, of these subjects, and the rents so ascertained and allowed for the use of the furniture after the 20th March 1844, and also the proceeds arising from the sales of the furniture to be applied to the payment of the debt secured by the deed of trust to Henry Massie to secure James B. Woodville, of the 29th April 1842, and should there be any residue remaining of such rents and proceeds arising from the sale of the furniture, after satisfying the debt secured by said last mentioned deed, such residue to be paid over to the judgment creditors, Caperton and Hen-ning, as aforesaid.

6. The rents accruing from the realty to be ascertained as aforesaid, after the 20th of March 1844, to be applied to the debt due to the Bank of Virginia secured by the deed to J. B. Woodville, of the 16th of March-1842.

7. The proceeds arising from the sale of so much of the real estate as was purchased from Thomas P. Bewis *to be applied first to the payment of the purchase money payable to the said Thomas P. Bewis and his assignees. And in applying the proceeds aforesaid to the payment of the purchase money, the proceeds arising from the sale of said Thomas P. Bewis’s interest in the real estate, other than the tract of 159 acres, known by the name of the Sweet springs, embraced in the mortgage to William H. Haskell of the 9th February 1837, to be first appropriated for that purpose; and if any thing remains unpaid, the balance so remaining to be satisfied out of the proceeds arising from the sale of the moiety of said tract of 159 acres, sold by Thomas to John B. Bewis; the Court being of opinion that as Haskell’s lien extends to but part of the subject, he has a right to require the application of the proceeds in the manner aforesaid, so as to enlarge the fund out of which he alone can look for satisfaction.

8. After the payment of the purchase money the residue of the fund arising from the sale of the entire tract of 159 acres, known by the name of the Sweet springs, to be applied to the payment of the debt secured by the mortgage to Haskell.

9. After the satisfaction of the purchase money and the Haskell debt, the residue of the fund arising from the sale of the lands aforesaid, and all the real estate described in the deed of John B. Bewis to James B. Woodville for the Bank of Virginia, of the 16th March 1842, to be applied to the payment of the balance of the debt due to said bank, after crediting the amount applied thereto arising from the rents as aforesaid, and the debt of William B. Phillips secured by the deed to H. Massie for the benefit of Phillips of the 16th March 1842; and should the fund be insufficient to discharge both debts the proceeds to be ratably divided between the debt of Phillips and the balance due to the bank after deducting the

credit for rents.

*10. The residue of the proceeds arising from the sale of said real estate, to be applied next after the debts due the Bank of Virginia and Phillips are satisfied, to the satisfaction of the debt secured by the deed to H. Massie for J. B. Woodville, of the 4th April 1842, or the balance unpaid after crediting the same with, the rents and proceeds of the sale of the furniture as aforesaid.

11. The general creditors secured by the deed to H. Massie of the 5th April 1842, except the said Price and Damron who are to be paid out of the rents as aforesaid, will be next entitled to come in, the fund to be distributed pro rata among them, if insufficient to pay all the debts; and if any of such debts have been discharged by any security, he is to be entitled to stand in the shoes of the creditor paid.

12. Next the judgment creditors Caperton and Henning will be entitled to payment of any balance due on their judgments, after crediting the same with the proceeds arising from the sales of negroes, hires, personal property and rents as aforesaid.

13. And the residue, if any remain, after satisfying all the other creditors, to be applied to the debt due William B. Bewis in his own right, and the debt due to him as trustee of C. S. Bewis, secured by his mortgages, which though void as against subsequent incumbrancers of the whole subject, and creditors, is good as between the parties.

14. And lastly, if any surplus should remain after the payment of all of said in-cumbrances and judgments, the same or so much thereof as may be equal in value to the price of the slaves and their increase, to be settled and secure^ upon C. S. Bewis, the wife of John B. Bewis, to be held according to the terms and stipulations of the deed of the 5th of April 1842, as explained by the deed of the 18th August 1842. *But before any distribution is made, the sums heretofore allowed under interlocutory orders, are to be deducted, and all the costs incurred in the prosecution . of these suits in said Circuit court, are to be paid out of the funds arising and to arise from sales and rent of real estate, the sales and rent of perishable property, and sales and hires of negroes; the three funds to contribute ratably to the payment of the costs in the Circuit court.

It is therefore adjudged and ordered that said decree, so far as it conflicts with the principles herein above declared, is erroneous, and that the same be reversed and annulled ; and that the appellees in the case of Bewis and wife and others against Caper-ton and others, as the parties substantially prevailing, recover of the appellants their costs here expended, and that the appellants in the other cases recover of the appellees their costs here expended.

And this cause is remanded with instructions, to direct an account to ascertain the proportions of rent to be credited to the real and personal fund as aforesaid; and also to ascertain the whole amount of funds in hand and arising from the sales to be directed, which will remain for distribution after deducting the sums heretofore allowed by the Court, and all costs; and the amount of the several debts towards which the same is to be applied; that a proper conveynace be executed-by the said Thomas P. Lewis, ora commissioner, to the said JohnB., and acknowledged and filed, so that when a sale is made and confirmed, the same may be withdrawn and recordedand that in the meantime commissioners to be appointed by the Court be decreed to make sale of the real property embraced in the several mortgages and deeds of trust herein declared to be valid; and after allowing a proper timé to redeem the property by payment of the debts charged thereon, and also to make sale of the perishable property unsold, the furniture, *and the slaves named in the deeds of January 11th, 1839, and of April Sth, 1842, together with their increase; the slaves and personal property to be sold for cash ; and the real estate to be sold in the following order: first, the tract of 159 acres known as the Sweet springs tract; second, the residue of the tracts of which said Thomas P. and John B. Lewis were joint owners, dividing such residue in such mode as will be best calculated to enhance the price; third, any other lands of John B. Lewis embraced in the deed of trust to secure the Bank of Virginia-; the sales of the real estate to be on a credit of 1, 2, 3 and 4 years, the purchasers giving bond and good security for the amount of the purchase money; and -a lien being - retained on the lands sold for the security thereof, and that said commissioner report, &c.

DANIEL, J-,

concurred in all respects, in the opinion of the -Court, except as to the deed of trust of the 11th day of March 1842, made to secure the debt of Cochran. The want of a schedule, the vague manner in which the property is described, the perishable character of said property, the long time given before a sale could be made, and the circumstances under which the deed was executed, rendered it in his opinion fraudulent and void, as a security for the payment of -the debt to secure which it purports to have been made.

BALDWIN, J.,

dissented from so much of the opinion of the Court as avoids the mortgage security given by J. B. Lewis, of the 24th day of February 1842, in regard to the debt due to William L. Lewis.  