
    Bank of the United States, Bank of the State of South Carolina, and the State Bank, vs. Charles T. Brown, and his Wife, Mrs. S. E. Brown, and their children, and Mr. Stevens, Trustee, and others.
    Heard before Chancellor Desaussure, Charleston, May Term, 1835.
    The bill is filed in this case by the bank creditors of Mr. Charles Brown, to set aside certain deeds and conveyances stated in the bill, as void, against creditors, being post nuptial settlements, made or obtained, by á husband, who was indebted at the time; and also, not duly recorded.
    The first deed which I shall notice, is among the last in date, but most easily disposed of. That of the 10th November, 1829, by Charles Brown, conveyed to J. A. Keith and P. T. Keith, a plantation at Goose Creek, and forty-one negroes, in consideration of natural love and affection. This deed was recorded on 7th December, 1829, in the office of the secretary of State, on 15th December, 1829, in Charleston, office of mesne conveyance; and on 21st December, 1829, at Georgetown. There were debts subsisting against Mr. C. Brown, at that time. The deed was purely voluntary, and this part of the case was properly abandoned by the counsel, and the property must be subjected to the claims of the creditors.
    The next is the deed of the 1st June,-1824, by which Mr. Benjamin Elliott, the commissioner in equity, conveyed a house and lot in Charleston, at the corner of George and Anson streets, in consideration of $11,000, to S. N. Stevens, in trust, for Mrs. S. A, Brown, during her life, to her sole and separate use, remainder to her children, by C. Brown, and their heirs. This deed was recorded in the office of mesne conveyance, on 16th July, 1824. If this be a valid deed, it will protect - the property in question, from the claims of complainants. That depends upon whether it is to be considered a marriage settlement. For if it is, it cannot be sustained, for it was not recorded according to the statutes, requiring and regulating the record of marriage settlements. The deed was; not made by the husband. The property never was vested in him. It was bought and paid for by the money of Mrs. Brown, in the hands of the administrator of the estate, who gave it according to his testimony, expressly to pay for the house and lot, and to take the conveyance to a trustee for the wife and children. The administrator was not bound to pay the money to the husband, with, out a settlement, and if, instead of requiring a settlement, he laid the money out in land for the lady and her children, it would have been good, and not subject to the claims of the husband, or his creditors. This was done by the court in Price and White. It appears to me, therefore, that this deed must be sustained, and the property held for Mrs. Brown, and her children, not subject to the debts of the husband.
    The next deed is that of the 19th January, 1825, executed by Charles T. Brown to trustees, by which, in consideration of love and affection, he conveyed to them Sandy island plantation, and forty negroes, in trust, for his wife, for life, to her sole and sepa, rate use, remainder to her children by Mr. Brown, and their heirs.
    It was contended for the defendants, that this was not a marriage settlement, and it was important to insist on that, because, if if should be considered a marriage settlement, it was not recorded ac. ✓ cording to law; for it was recorded in the office of mesne con-veyanee at Georgetown, alone. An attempt was made to supply this defect by proceedings in court, which were stated, The deed, however, acquired uo additional strength by these proceedings, and must be decided upon its own merits.
    It appears to me, to come clearly within the statutes, and cannot be sustained- It preceded the renunciation of her inheritance by Mrs. Brown, to her own large real estate, and cannot, I think, be made to come within the idea of a purchase, even with the aid given to the case by the evidence, and by the powerful argument of counsel.
    I would willingly protect this lady and her children, if I could, as she carried so large an estate in marriage, to her husband. But the laws, for wise reasons, prescribe the course which should be pursued, to make family arrangements, and to secure their iega} authenticity, without prejudice to third peisons and creditors. If these regulations are neglected, and injury results to the family, it is the fault of those who ought to have interposed, and acted more cautiously. The conveyance was in consideration of love and affection, and Mr. Brown was then largely indebted, and no proof that the money of the estate was applied to pay for the property.
    I am of opinion that this properly must, according to the decided cases, be subjected to the demands of the creditors. The decision in Prescot and Hubbell, went very tar, and is, with difficulty, reconciled to other decisions, and does not conclude this case.
    The next deed is of the date of 7th February, 1826, by which Robert Heriot, th'e commissioner in equity, conveys to J. A. Keith, and J. T. Keith, twenty nine negroes, for the consideration of $10,077, in trust, for the use of Mrs. Brown and her children. This deed recites, that Mrs. Brown had renounced her inheritance in her real estate, and her husband got the benefit of it. That these negroes were bought with the funds of her father’s estate, and she was entitled to this provision, as a purchaser. This is a difficult, paTt of the case. If we consider the deed as a marriage settle, ment, then not being recorded, according to the statute oí 1823, it would be void. It appears to me, however, to have been a purchase, in consideration of the wife’s renunciation of her inheritance in real estate, of large value. The property, in question, never was vested in Mr. Brown, but passed directly from Mr. He-not, the grantor, to the trustees, for Mrs. Brown ; and the presumption, that it was paid for out of tne estate of Mrs. Brown, founded pn the state of things, and on the want of private funds by Mr. Brown, and on the evidence, satisfies my mind. It appears to me, therefore, though doubtfully, that this deed is valid, as a purchase, and must be sustained against the claims of creditors.
    It is, therefore, ordered and decreed, that so much of the bill of complaint as seeks to set aside the'conveyance of the 1st June, 1824, for the house and lot in Charleston, and to subject the same to the claims and liens of creditors of Charles T. Brown, and so much of the bill as seeks to set aside the conveyance of the 7th February, 1826, for twenty-nine slaves, and to subject the same to said creditors, be dismissed.
    It is further ordered and decreed, that the property and estates comprehended in the deeds of the 17th' January, 1825, (to wit,) Sándy Island and forty slaves ; and in the deed of 10th of November, 1820, (to wit.) the Goose Creek plantation, and forty-oue slaves, are, and are hereby subjected to the creditors of said Charles T. Brown, according to their legal liens, and that the same be sold to"satisfy the said debts, at the next sale’s day, or at such times and places, and on such terms, as the court may direct, under any arrangement made between the parties. Costs to be paid by defendants. ' _
    _ HENRY W. DESAUSSÜRE.
    
      Grounds of Appeal.
    
    From so much of this decree as subjects Sandy Island and ne-oroes to the creditors of Brown, the defendants, trustees for the wife and children, appeal, and hops the same may be reversed, for the following, among other reasons :
    1. That the said deed is not, in any sense of the term, a marriage settlement, but a purchase, by the husband, of the wife’s inheritance. '
    2. That it was competent for the defendant to prove a consideration for the said deed, beyond the consideration stated in the deed itself; and that the evidence is sufficient to establish, that the said deed was the consideration for Mrs. Brown’s release of her iuheri. tance. That the consideration thus received by Mrs. Brown, was reasonable, and no injury was done to the creditors of Mr. Brown, as they have had the benefit of the large fortune which Mr. Brown acquired by his marriage.
    EGLESTON & FROST, Solicitors for the Appellants.
    
    The complainants likewise appeal from that part of the decree, ■which dismisses so much of their bill as seeks to set aside the settlement of a bouse and lot of land in Charleston, contained in the deed of 1st June, 1824, and the settlement of twenty-nine slaves, contained in the deed of 7th February, 1826, and to subject the said land and negroes to the complainants’ demands ; and they move that such part of said decree may be reversed, and the said land and negroes be ordered to be sold for the payment of the debts to complainants, on the following grounds :
    1. That the said land and slaves were purchased with the funds of the defendant, Charles T. Brown, and the settlements were, therefore, without any valuable or sufficient consideration to support the same ; and having been made after his indebtedness to the complainants had commenced, are fraudulent and void.
    2. That the settlements embodied in the said deeds, are also void, for not being duly recorded in the offices of the secretary of State, and register of mesne conveyances, conformably to the provisions of the acts of the general assembly, in such case made and provided.
    3. That the decree, in the particulars above mentioned, is, in other respects, contrary to law, and to equity, and good conscience.
   Chancellor D. Johnson

delivered the opinion of the court.

The grounds of the defendants’ appeal grow out of a deed executed by the defendant, Brown, on the 10th of January, 1825, by which he conveyed to trustees, for the use of his wife, a plantation on Sandy Island, and forty slaves. The consideration expresssed, is natural love and affection, but the proof is very abundant that Brown was, at the time, negociating the sale of a large real and personal estate, which he afterwards sold for $120,000, and which he had acquired by the wife ; and that the deed above mentioned, was the inducement to Mrs. Brown to join in the conveyance of the land to Col. Hunt, and renounce her inheritance, and that this was the true consideration.

As a mere voluntary conveyance for the use of the wife, the deed would necessarily be void as to the creditors of Brown ; and regarded as a marriage settlement, it was equally void, not having been recorded in the office of secretary of State; the questions then arise ;

1st. Whether parol evidence was admissible, to shew that Mrs. Brown’s renunciation of her inheritance entered into the consideration of the deed, and whether that is a sufficient consideration to support the deed against creditors.

2d. If the consideration be valuable, whether the deed ought to have been recorded in the office of the secretary of State, as a marriage settlement.

The general rule is, that parol evidence is inadmissible, to add to, or vary the terms of a deed, or to shew any circumstances incon. sislent .with it; and if the converse of the rule be true, it follows, that any thing may be admitted which is inconsistent with it. On this principle, parol evidence has been admitted to supply a consideration, where none has been expressed in the deed, and to show a particular consideration where that expressed was general, as for divers good causes and considerations.” 1 Phil. 481, 2, 3. And 1 cannot perceive why, if there are two considerations existing at the timo of the execution of the deed, one only of which is expressed, parol should not be admitted to show the other, and better; so far from tending to contradict the deed, its object is to support it, and must necessarily be consistent with it; the addition of a circumstance necessary to give it effect; and it strikes me that this is the more reasonable, where it is a third party, a stranger, who seeks to avoid the deed on account of the want of consideration. The case does not rest, however, entirely on this question, and it is not necessary to decide it. The true consideration of the renunciation of Mrs. Brown’s inheritance in her real estate, was subsequent to the execution of the deed of 19th January, 1835, and I take it as well settled, that a deed void for. want of consideration, maybe supported by parol proof of a subsequent valuable consideration. In this, there is clearly nothing inconsistent with the deed, but the proof of a substantive independent fact, arising subsequently to its execution. This pointis expressly relied on in McDowall and Black vs. Gist, decided not long since in Columbia, and to which I refer for the argument. Atherly, in his Treatise on Marriage Settlements, page 159, in speaking of the consideration necessary to sup. port settlements after marriage, that giving up an interest in the settler’s estate, will be a sufficient consideration, although it is not expressly relinquished in consideration of the settlements, and although not relinquished by the same deed, or another at the same time, for if it is done about the same time, so that it be reasonably presumed to be part of the same transaction,. it would be presumed so, and looked upon as the consideration which produced,the settlement. Now, had the settlement preceded the relinquishment of Mrs. Brown’s inheritance, and independent of the parol proof, these deeds furnish, very strong intrinsic evidence of the true consideration. There is another principle on which this deed may be supported. The complainants come here to be relieved against an advantage which the defendants possessed at law, on the ground, that the consideration being love and affectiots only, the deed is void as to creditors. Now, the proof is very conclusive, that Mrs. Brown renounced her inheritance on the faith that a pros vision had been made for her by this deed. The witness, Smith,says, expressly, that she would not have renounced but on that as. surance ; and if evidence of this fact is admissible, it is very clear that the right and justice of the cause is with her. In the Marquis of Townshend vs. Stangroom, 6 Ves. 328, which was a bill for the specific performance of an agreement to lease a farm, Lord Eldon admitted parol evidence, to show that the written agreement was not according to the terms stipulated in the treaty, and he observes, that if parol evidence is to be excluded in equity, because if is at law, all the cases of hard bargains, unconscionable agreements, and agreements entered into by mistake or surprise, must be struck out, and lie refers to a MS. note of Lord Hardwieke, in the case of Rick vs. Jackson, in which his lordship says that he had ofteu known parol evidence in cases where an attempt had been made to obtain, by a decree of the court, a further security, or more ample interest thau the party was iu, by the possession of the paper itself, to show that the demand was fraudulent and unfair, and in which relief had been refused on that ground. This is exactly that case. The complainants come here to ask the court to set aside the deed of the 19th January, 1835, that they may be let in as creditors of Brown. The effect must be to deprive Mrs-Brown of the equivalent for which she stipulated, when she re. leased her inheritance in a very ample estate, and reduce her to-a state of comparative want. I think she is protected by the principle.

In Prescott vs. Hubbell, decided in this court in 1827, it was held that a conveyance by the husband to the use of the wife in con-«deration of her renouncing her dower, in lands which he had sold, was sufficient to support the conveyance against the creditors of the husband. So in McMeckin vs. Edmonds, l Hill ch. 288, where the laud of the husband was sold by the sheriff under the execu. tion, and the purchaser, a stranger, conveyed to trustees, for the use of the wife, the husband having paid the principal part of the purchase money, it was held that the conveyance was good against the creditors of the1 husband, and it follows that the renunciation of the wife’s inheritance in her own lands, and of which no power can deprive her, but with her own consent, must be equally valid. Our registry act requires all “ marriage settlements” should be recorded in the office of the secretary of State, within a limited time after they are executed, and declares that they shall be void, unless they are so recorded. But there is some diversity oí opinio» as to what constitutes a marriage settlement, within the meaning of the act — prima facie, the terms obviously import a settlement' founded on the consideration of marriage ; and could not, therefore, directly apply to settlements entered into after the marriage, unless made in pursuance of articles previously entered into ; but in Prince vs. White, Carolina Law Journal, it was held that a voluntary settlement made by the husband after marriage, to the use of his wifej-was within the mischiefs contemplated by the statute, and was void unless so recorded ; that I then, and still think, was going quite far enough, extending the construction of the statute- to its utmost limits, it never could have been intended to apply to all conveyances for the use of a married woman. If a parent thinks proper to convey or devise an estate to the separate use of his married-daughters, with wiiat propriety is that denominated a marriage settlement ? Marriage does not enter into the consideration ; and did the legislature in framing the act, contemplate this state of things, and intend to provide for it under the term, “ marriage settlement l’* I think not — they might, and would have employed more appro-; priate terms. So if a stranger convey to the use of a married woman, or if she invest her pin money, or her other separate funds, in lands, and procure them to be conveyed to trustees to her separate use, what could be more foreign than the terms, “ marriage settlement,” applied to these transactions ? But the cases of Prescott vs. Hubbell, and McMeekin, are direct authorities on the point. They are not marriage settlements within the meaning of the act; and in what do these cases differ from the case where the wife acquires an estate on exchange for her inheritance, whether she obtains it from her husband or a stranger Í

I conclude, therefore, that no settlements or conveyances falls within the purview of the act, except such as are founded on the consideration of marriage, and entered into before the marriage or afterwards, in pursuance of previous articles, or voluntary conveyances by the husband to the use of the wife, after the marriage.

The grounds of appeal, on the part of the complainants, are entirely covered by the foregoing observations. William S. Smith, the administrator of George Smith, the father of Mrs. Brown, advanced to Brown $11,000, to purchase a house in town, to be conveyed to the use of Mrs. Brown ; and he did, accordingly, so invest it; no provision having been before made on Mrs. Brown, the administrator was right in insisting on these terms. The conveyance of Robert Heriot to Keith, of twenty-nine negres to the use of Mr@> Brown, is expressed to be in consideration of the renunciation of her inheritance ; and on the principles laid down, the consideration in both cases are valid against creditors ; nor was it necessary to record the deeds in the office of the secretary of State.

Egleston<& Frost, and Petigeu and Dunkin', for Brown and wife

Desaussuhe and Bailey, for the banks.

Filed 21st March, 1837.

ín the discussion of the case, some remarks were made by the counsel, as to the magnitude of the provision made by these deeds for Mrs. Brown; and clearly the law would not justify the husband in attempting to defraud his creditors by using the interests of the wife, as a cover for making an unreasonable settlement on her. But it will be remembered that Mrs. Brown was otherwise wholly unprovided for. That on the death of her father intestate, an estate, consisting of lands, estimated at §60,000, which sold, with a part of the negroes only, brought the large sum of $120,000, descended to her, and that the highest conjectural estimate of the value of the property, secured to her, does not exceed $45,000. No direct question has been made on the subject. It is, therefore, unnecessary to enter into a minute calculation of the reasonableness of the provision ; and 1 confess, that under the circumstances, I should not be disposed to look into it with too much exactness — ■ with proper diligence the creditors might have saved themselves out of the large estate which Brown has dissipated.

It is, therefore, ordered and decreed, that so much of the decree of the Circuit Court as subjects the lands and negroes described in the deed, from the defendant, Brown, to John A. and P. T. Keith, of the 19th January, 1825, with the payment of Brown’s debts, be, and the same is, hereby set aside and reversed. In other respects, it is affirmed.

DAVID JOHNSON.

We concur,

WILLIAM HARPER,

3. JOHNSTON. ■  