
    Wilson, Adm’r, v. Trawick and others.
    A conveyance from husband to wife, with intent to defraud, hinder, or delay the creditors of ■, the grantor, or to deceive purchasers from him, is valid as against his heirs. (Note 80.)
    Appeal from Harrison. This suit was instituted in the District Court at the Spring Term, A. D. 1848, and was tried at the December Term, A. D. 1849. A verdict and judgment were rendered for the plain till, and the defendant has appealed to this court.
    _ In 1817 James Adams intermarried with Axy Lowe, in the State of Mississippi. Axy Lowe (Adams) died in said State in 1819, survived by her husband and one child, Elizabeth Ann, (one of the plaintiffs, and now the wife of ."Richard D. Jones.)
    In _182i> James Adams intermarried in the same State with Lois G-. Lowe, and in the fall or winter of 1842 removed to Harrison comity, Texas, with his family and property, being then largely indebted in the State of Mississippi. In June, 1843, iie executed to Benjamin Longa deed of trust on fifteen negroes, of the estimated value of five or six thousand dollars, to secure the payment of two notes, one for §S90, dated November the 13th, 1842, payable to John Stone, Jr., one- day after date, and assigned by him to Lois G. Adams; and the other for §3,500, dated January 10th, 1S41, and payable the same day to Lois G-. Adams.
    On the 5th day of March, 1S14, said Long sold said negroes on the promises of said Adams, in Harrison county, to the highest bidder; and the said Lois <3-., wife of the said James Adams, bid them off for six hundred dollars.
    The bill of sale in the record purported to have been made pursuant to said deed of trust and sale. On the 17th day of June, 1845, said James Adams died iti said county. His wife, the said Lois, administered upon his estate, but did not include in tiie inventory any of the negroes mentioned in tiie bill of sale.
    In August, 1847, the said Lois G-. Adams died, and soon thereafter Thomas D. Wilson (the defendant) took out letters of administration on her estate, included said negroes in the inventory of her property, and thereafter possessed and administered them as belonging- to her estate.
    Janies Adams was survived by Elizabeth Ann, (plaintiff,) only child of his first marriage, and six children by his second marriage, (with tiie said Lois G-.,) all of whom were made defendants, except George Washington, who died before the death of his mother.
    This suit had in view two objects : one, to make the negroes mentioned in the deed of trust and bill of sale subject to the debts of James Adams; another, to recover for the plaintiff, Elizabeth Ann, her distributive share of her father’s estate.
    
      C. M. Adams, for appellants.
    Appellants insist that the petition is insufficient, Ac.
    1st. Because it contains no cause of action.
    The de<>d, Ac., canuot be attacked by any person but a creditor. (Vide Peters’ Digest, 309.) A deed executed to defraud creditors is valid between the parties'at common law and under the statute of frauds. ^Neither grantor nor his heirs can allege want of consideration. (Vide 2 Bibb R., 01.) A fraudulent deed is good against, all the world except creditors and purchasers, and to contest tiie validity thereof a creditor must have obtained judgment and execution. (Vide Bibb R., 417.) Any contract under our statute of frauds is good, except as against the persons whose debts are to be delayed or hindered. (Vide Statute of Frauds, Digest, p. 4iU.) A wife may contract with her husband, even by parol, after marriage, for a transfer of property from him to her. (Vide 2 Kent, 106; 2 Johns. Oh. R., 587.) A promissory note given to the wife, with the consent of her husband, held, (after his death,) that she was entitled to the same as her separate property. (20 Pick. R., (Phelps v. Phelps,) 2 U. S. Dig., 110.)
    Tiie notes and deed in trust cannot be considered as intended to operate as a will. A will is a disposition of property to take effect after tiie death of the testator. The deed in trust, given to secure the payment of the notes executed by James Adams in favor of Lois G., was tobe enforced upon default of payment, and was enforced, by his consent, in his lifetime. But if these instruments, bjr any possibility, should be regarded as of a testamentary character, yet they would have been inadmissible as evidence in tiie District Court as such unless they had been probated in the County Court, which court 1ms exclusive jurisdiction over the probating of wills. (2d vol. Geo. Reports, p. 32.)
    
      TV. P. Hill, for appellees.
    I. The notes described in the deed of trust constituted the consideration of the deed and the ground of all the proceedings 1 under the deed.
    A note, made payable or indorsed to a married woman or her order, whose husband is under no civil incapacity, becomes immediately, by operation of law, payable to the husband or his order, and lie may, at his election, indorse, negotiate, or sue upon it in his own name. (Story on Bilis, sec. 92; Id., sec. 128; 8 Mass. R., 229-30.)
    If this is the rule as between the wife and a stranger, a fortiori is a note, made by the husband to a stranger and transferred to tiie wife, no evidence of debt in favor of the wife against the husband. In the absence of all proof as to whether the consideration was paid by the husband or wife, the presumption of lawr is that it was paid by the husband. If it'was in fact paid by the wife out of her separate estate, and was not intended as a gift to the husband, toy averring and proving these facts the presumption of payment by the 1ms-band would be rebutted, and the wife would be entitled, in equity, to reimbursement out of the estate and to like privileges as belong to other creditors.
    As the principles of law and equity which, it is conceived,, govern and decide this point also govern and decide many other points in this case, they will be here stated.
    “In regard to contracts made between husband and wife after marriage, as “fortiori tlie principles of tlie common law apply to pronounce them a mere “ nullity, for there is deemed to be a positive incapacity in each to apply to “the other.” But equity will, under peculiar circumstances, give full eli'eet and validity to post-nux>tial contracts.
    She may become the creditor of her husband and entitled to reimbursement out of his estate, and to the like proceedings as belong to other creditors, where she unites with the husband to pledge her estate for his debts and pays them out of her separate estate. (1 Story’s Eq , secs. 1372-73-71-75-76-77.)
    There is no pretense here that any part of the consideration of the note was paid by the wife, or that she in any manner whatever contributed to its payment. The proof is that the entire consideration was paid by the husband, and the legal effect of the facts proven is that the note was absolutely paid and extinguished as between all the parties to it.
    Can a note thus void become the foundation on which to raise a trust for any purpose, and especially a trust to provide for tlie payment of such notes ?.
    
    “A promissory note from husband to wife is void as to themselves and all “subsequent parties.” (Sweat v. Hall, 8 Verm. R., 187; 2 IT. S. Dig., 504, sec. 211; Cage v. Acton, 1 Ld. Raym. R., 515.)
    Again, James Adams and his wife both admitted that the deed of trust was executed to secure the property from his creditors and to Mrs. Adams and his children.
    The general rule that husband and wife cannot contract' with each other holds both at law and in equity. A deed from a husband to a wife during coverture is void at law, and equity has frequently refused to lend assistance to such a deed.’ (7 Johns. Ch. R., 60 ; Stout v. Ayloff, 1 Chan. R., 33; Moyse v. Gyles, 2 Vern., 380 ; 17 Johus. Ch. R., 60.)
    But equity allows of a contract between husband and wife made in good faith and based upon her separate estate as an exception to the general rule; and the person seeking the benefit of the exception must bring himself within the rule which allows the exception to operate in His favor. Í have not been able to And a single case at law or equity in which a contract between husband and wife was sustained, except upon the single ground that tlie contract was based upon the property or estate of tlie wife which she held and owned separate and independent from tlie husband. When not so based they are' mere nullities, and such it is admitted are the notes in this case.
    It follows from tlie nullity of the notes that the deed of trust and bill of sale are nullities. There can be no consideration for the trust and no object which it can accomplish.
    When a conveyance is made of land or other property without any consideration, express or implied, an implied resulting trust or use is raised in favor of the grantor, his heirs, &c. (2 Story’s Eq., secs. 1107, 1138, 1200.)
    If the propositions already argued are established, it is almost needless to say that tlie sale made by the trustee Long was void.. It was an attempt to execute a void trust in favor of the grantee, except it be a resulting trust in favor of tlie grantor, which could not be executed by said sale.
    Contemplating it most favorable for the appellants, it ought to be set aside for gross inadequacy of price. “ Gross inadequacy of price and inequality in “ a bargain, though not constituting per se a ground to avoid a bargain “in equit}r, yet naturally leads to tlie presumption of fraud, imposition, or “undue influence. In such cases courts of equity interfere on the satisfactory “ground of fraud. And when there are other ingredients in the case of a “ suspicious nature or peculiar relations between tlie parties, gross inadequacy “ oí price must necessarily furnish tlie most vehement presumption of “fraud. (6 Ga. R., 515, 525; Story’s Eq., secs. 214, 245, 24G.)
    If the consideration of six hundred dollars had been really paid, would it not he unconscionable in Mrs. Adams, or her representatives, to attempt under all the circumstances to hold the negroes against tlie said James Adams or any of tlie lawful heirs? The testimony shows that no money was paid, but that possibly a credit was entered on said notes of the sum bid for the negroes.
    The doctrine of simulated sales, as between husband and wife, does not exist by the rules of equity. (Grefen’s Ex’rs v. Lopes, 1 Gond. La. It., 349.)
    In this case the plaintiff’s testator, finding himself in difficulties and menaced with unjust law suits and prosecutions, thought tit to provide a friend who-might cover a part of his propeity; an act of sale past with tlie sole view of covering, by a simulated sale, the premises for tlie testator, who in reality received no consideration therefor. The plaintiff (executor of the vendor) sought restitution of the property conveyed and was heard, and restitution awarded. The court say that they are unable to discover any distinction between the case before them and the cases in Douglass, 471, Tenant u. Elliott, 1 Bos. and Pul., 3; Lucaussade v. White, 7 T. R., 533, and Cotton v. Thurland, 5 T. R., 405; and that they are all cases in which tlie court lent their aid to-the plaintiff', who sought to extricate himself from difficulties in which he found himself in consequence of his violation of the law, of his having entered into a forbidden contract. (Montamot and Wife v. Debon, 3 Mart. Cond. La. R., 256.)
    In tliis case the deed cannot operate as a donation, because equity will not permit a wife to take the whole of a husband’s estate while lie is living; for it is not in the nature of a provision for her, which is all the wife is entitled to.
    But the defendants claim the protection of the statute of frauds. (See Laws of the Republic, 4 Vol., p. 23.)
    II. I answer that although the gifts, grants, and conveyances, men-tioiied in the act to prevent frauds, are taken to be clearly and utterly void as to those whose debts, interest, <fco., are delayed, defrauded, &e.; yet it does not confirm or make valid such conveyances as to all other persons, but as to all other persons it leaves the general rules of law to operate as before the passage of the act. Ex. gr. If the parties were incompetent to make the conveyance upon that ground it would he void, and the statute would not reach it. Just as in this case, husband and wife were incompetent to make tlie contract with each other, and, therefore, the deed is void with or without the statute of frauds.
    No one will contend that the conveyance of a lunatic or idiot would be valid' and within the statute of frauds, simply because he has no legal or mental competency to contract. But the wife is as totally incapable, both in law and* , equity, (except where she lias equities growing out of her separate estate,) to-make a contract with the husband, as is a lunatic or idiot. The only possible ground on which they could contract at all with each other is based upon some separate estate or interest of the wife.
    The extent to which tlie courts go in sustaining a purchase by the wife from .the husband,'or a conveyance by tlie husband to trustees for tlie use of the wife, is well defined in the ease of Arundel v. Pliipps, 10 Vesey, Jr., 180.
    In t-liat case tlie wife purchased from tlie husband, and tlie purchase was sustained ; but there were several ingredients of great merit to uphold the conveyance, as bona fules, actual valuable consideration out of tlie wife’s separate estate, (peculiar kind of property, paintings, prints, &e., belonging to the mansion house.) the subject of conveyance.
    In that case it is conceived that the statute of frauds was not deemed to-aPPbh and that the absence of the above mentioned ingredients would have-made the purchase of tlie wife from the husband a mere nullity.
    The argument may be stated thus: The statute of frauds only defeats or gives effect to conveyances which possess the attributes that are necessary to the legal existence of a contract; the statute does not operate upon nullities, but upon legal entities; it does not fight lifeless forms, but rather the substance and matter of fraud exercised by the will of parties competent in law to produce a legal entity.
    In the case at bar, there being- no equities t0»clothe the wife with power to ■make the contract set out in the pleading, the contract itself could not exist, ■and there is nothing- on which the statute of frauds can take effect.
    The circumstances and facts of the case were peculiarly proper for the jury to inquire into and determine. They have done justice, and the appellees aslc that their solemn determination be not disturbed.
    Any other decision than that which the jury has made would — the appellants themselves being witnesses — work gross wrong and injustice. The decision as made gives to each child its equal distributive share of the paternal estate. This court is lmmbly asked to consider whether for technical reasons a verdict ought to be disturbed which determines a right which heaven hath given, and which a jury hath sworn to be just and legal.
   Lepsoomb, J.

The- question of law, and the only one presented by the record in this case, lias been long and firmly settled. It arises under the statute of frauds, and it is: can any other person than a creditor or purchaser impeach the consideration of a deed or bill of sale upon the ground of fraud? It has been uniformly lield by the ablest jurists from the first enactment of the English statute down to tiie present period, that such deeds could not be -attacked on the ground of the consideration by any others than by creditors ■and innocent purchasers, who alone were intended to be protected by the statute. And we are not aware of a single opinion to the contrary whore the ■common law jurisdiction prevails. A different rule is believed to prevail under the civil-law jurisprudence.

The case of Danzey and others v. Smith et al., decided by this court, 4 Tex. R., 411, is a strong case, and in its features is not distinguishable from the one before us. The deed in that case was made to the daughter, and was most clearly made with a view to hinder and defraud creditors; and after the death of tlio maker of the deed, liis widow and other children brought suit to set aside the conveyance, on the ground that its consideration was to defraud -creditors. It was a case of great hardship upon the widow and the other -children, but we did not feel ourselves authorized to grant relief by laying -down a now rule, repugnant to the uniform doctrine on the question.

In Bryant v. Kelton & Uzzell, 1 Tex. R., 433, the same rule was recognized; .and we say “ that it was in the character of creditor only that the plaintiff liad “ a right to dispute the claimant’s title.” Whether justice and morality would •so far overbalance sound policy as to call for an extension of the rule, so as to place heirs upon the footing of creditors and purchasers, is a question we are not authorized to answer, because it properly belongs to the legislative department of our State government.

The petition in this ease shows no claims of creditors, and there is no presence of its being necessary for their benefit tiiat the conveyance should be set .aside, and, as in Danzey’s case before cited, it was demurrable out of court fox-want of showing a legal cause of action. The judgment is reversed and cause remanded.

Reversed and remanded.

Nora SO. — McClenny v. Floyd, ante 159.  