
    Yerby vs. Lackland, et al. Garn. Beeding.
    Tender tlae act of 1795, ch. 56, no atU'< hmnit caii is f^u* except the attaching creditor appears by »b.e proceedings to bé a citizen of this «$nt» or of some other of the U State&
    
    It is not bufficieuuhal lie appears to be a eitizeii of tlie 17. States., “
    
    One may be a citizen of the div triet of Colunma, or of either of the «ither tomtoms of the U Statesy a!nd not be a ci'izeii of any one of the srUi'03, within the moaning of tlusaid act of 1795, ah. 50; and no citizen of the said district* or of the tiTL*iturie!>, can issue an attachment vue’er time act.
    ArPE«. from Montgomery county court. The now appellant, as plaintiff in the court below, ip order to obtain an attachment under the act of 1795,. ch. 56, produced to. the clerk of that court an affidavit, with a promissory not® thereto annexed, together with a warrant from a justice of the peace of that county, directing the attachment to be is-, .sued. The affidavit is qs follows: “State of Maryland, Montgomery county, to wit: On this fourth day of February 1819, personally appeared before me, the subscriber, a justice of the peace for the county aforesaid, John Yerby, a citizen of the United States of Jlrnei ica, and made oath on the Holy Evangels, of Almighty God, that Craven P. Beeding is justly and bona fide indebted to him in the full and just sum of three thousand seven hundred and fifty-eight dollars current money, over and above all discounts. And the said John Yerby further made oath at the sanm time, that the said Craven P. Heeding, to his certain knowledge, is not a citizen of the state pf Maryland, and doth not reside therein,. . Jesse Leach.”
    
    An attachment was issued in the usual form on the 4th of February 1819, and was laid upon sundry parcels of land claimed by Heeding in right of his wife, and also laid in the hands of the executors of James Lackland. and of James C. Lackland, as garnishees, on the 18th of February 1819, who appeared and pleaded Nulla Bona. To this plea, there was a general replication, and certain interrogatories were exhibited to the garnishees, which they answered.
    At the trial it was agreed, that James Lackland, deceased, died in the year 1814, having by his will, dated the 9th of October 1813, devised, among other things, as follows: “I will and devise, that all my estate, both real and personal, remain under the care and control of my executors hereinafter named, until all my children arrive at full age; and after they all arrive at age, and two thirds of them demanding a division, I will and devise, that all my estate, real and personal, shall be equally, divided between all my children or their heirs, and that those of my children to whom 1 have made advancements shall bring such advancements into hotchpot, as a part of my estate, before such division takes place. 1 further will and devise,, that it my executors hereinafter named, shall be of opini - 
      'm that they can make any advancements tó my són T)en-i ¿is Lackland, out of the profits arising from my estate, after supporting my children that are single, that they muy in their discretion, advance him any suni as a. part of Lis portion of my estate, so as not to exceed his full portion of my estate; and provided any cf my children should marry before a division of my estate takes place, I hereby authorise and empower my executors to make such advancements to either of my children so marrying, so as not to exceed their portion of my estate, as they in their discretion may think proper.” James Lack!and\eJt, at the time of his death, eight children, his devisees, to take his estate real and personal, according to the terms and conditions of his said will, and the youngest child arrived at the age of 21 years in May 1820. Rosetta Deeding, then Rosetta Lack-land, was one of the children and devisees of James Lack-land, and the property mentioned in the schedule of the she-j’i.Tin this case was a part of the estate 0Í James Lackland at ■¿lie time of Isis death. In the spring of the year 1816, Craven P. Beading intermarried with Rosetta Lackland, one of the slaughters and devisees as aforesaid of James Lack-land, and at. the time of their intermarriage, and at the several times hereinafter mentioned, the estate, real and personal, of James Lackland, was held by the devisees in common, and undivided, nuder the care of the executors named in the will, according to the terms and provisions of the same. After this marriage Craven P. Deeding received from the estate of James Lackland, at various periods and dates, personal properly to the value of S1129 10. In February 1818, the real estate of James Lackland, being then held in common under the will aforesaid, and. the devisees of the age of twenty-one finding it impossible to have a sale or division of the real estate, without legislative interference, they the said children and devisees, with the aid and consent of the guardians of those under age, procured the passage of an act of assembly of this state, 1817, ch. 215, entitled. “An act to appointtrustees for the sale of the real estate of James LucMand, late of Montgomery county, deceased.” By this act, William Dame and Dinnis Lackland were appointed trustees to make sale of all the real estate of James Lackland, upon certain terms and conditions, first giving bond, with security to be approved by the orphans court of the county. The money" arising from the sale of the said lands, after the payment .of expenses and the debts due by the estate of James Lack-land, was directed to be paid over to hiádeviseés, or to his? her or their guardian or guardians, representative or representatives, in equal proportions. The trustees entered into bond, agreeably to the direction's of this act of assembly, on the 15th of August 1818, but had not sold any part of the land therein mentioned at the time the attachment in this case was laid on the property in question. After the passage of the act of assembly, but before any sale was made under it, C. P. Beeding, and Rosetta his wife, executed and delivered; on the 21st day of February 1818, and which was duly acknowledged and recorded, an indenture, conveying and transferring to James C. Lackland all their right.and title to one eighth part of the real estate of James Lackland, deceased, “to have and to hold the said estate and interest so as aforesaid described, and hereby bargained and sold, or meant, mentioned, or intended hereby so to be, and every part and parcel thereof, to the said James C. Lackland^ his heirs and assigns, for ever, in trust for the intent and purpose,.that he hold the same, and receive the rents, issues and profits, for the separate and exclusive use and benefit of the said Rosetta A. Beeding herein named; and that if the said estate shall be sold under an authority from the Maryland legislature, or by any other legal, authority, that then he the said James G. Lackland, shall have and receive the proceeds of the sale, so far as they the said Graven P. Beeding and Rosetta A. Beeding, or either of them, would be entitled if the sale had been so authorised and made before the execution of this instrument of writing; and the said proceeds, so received, he the said James G. Lackland, and his heirs, shall hold and employ for the sole separate and exclusive use and benefit of the said Rosetta L,. Beeding,' and her heirs and assigns, for ever.” On the 19th of September 1818, Craven P. Beeding, duly executed, acknowledged, delivered and recorded, an indenture, conveying and transferring to James G. Jiackland all his personal property, and directing the same to be sold, and out of the proceeds to pay certain of his creditors, and the residue, if any, to be divided amongst all his other creditors, &c. On the 15th of October 1818, Craven P. Beeding drew certain drafts on William Dame and Bennis Lackland, as trustees under •the act of assembly aforesaid, one in favour of Jl. Taney, admitted to be for a valuable consideration, and the other in favour of James C. Lackland, which were by them accepted, with the following proviso: “provided however, that it. shall not be payable by us until a sale of the estate of James Lackland, deceased, and not then unless allowed by the court, which shall hereafter govern us in the payment of the money felling due for Rosetta L. Beeding’s part. And provided also, that if the conveyance to James C. Jjackland should be sustained as valid for the whole interest conveyed, or the draft in said Lackland’s favour, this day by us accepted', be sustained in the whole, then this acceptance shall be void.” In the summer of- fall of 1819, V. P. Heeding became an insolvent debtor in the county of Washington, in the District of Columbia, where lie then lived, and had lived for more than three years before, and obtained fiotn one of the judges of the circuit court for the county aforesaid, a discharge according to law, under the acts of congress provided for the relief of insolvent debtors. It was also agreed, that the promissory notes filed with the affidavit made by the plaint ill, were drawn by C. P. Heeding, and delivered to the plaintiff, and that C. P. Bee 'ing was not a citizen of the state of Maryland when the affidavit in this cause was made by the plaintiff) and the attachment was issued an-:! laid. Also that the plaintiff resides, and always has resided in Gcorge-Town, in the District of Columbia; and that after (lie said notes were drawn and delivered, they were (as it had been intended they should be,) endorsed by the plaintiif and Janies Melvin, and son, and discounted, for the accommodation. í»f Heeding, 'at the Bank of Columbia, in renewal of certain other notes of the same amount, and similarly drawn and endorsed, and discounted before them, and which had been coniinued in said bank, asan accommodation to Deeding, for a year previous to the date of those now filed; and that when the said last notes fell due, they were not paid by Deeding, but taken up and paid by the plaintiff, Deeding having; then failed or stopped payment, and having been considerably indebted for some time before and at the time of his conveyances and drafts herein before mentioned. It was further agreed, that the affidavits of the several defendants, relative to the real and personal estate of James Lackland, and the proceeds and profits thereof, and Deed* 
      
      ing’s interest therein, should be considered a part of thiá statement. On these facts the plaintiff'prayed the court to instruct the jury, that the deed from Craven P. Deeding; and Rosetta his wife, to James C. Lackland, dated the 2.1st of February 1818', and the draft in favour of James C. Lackland, were fraudulent and void as against the plaintiff; that Deeding, by his intermarriage with his said wife, became seized of an interest in the lands of which her father died seized as aforesaid, and upon that interest the plaintiff had a right to lay ah attachment, and having laid it thereon, was entitled to a condemnation thereof in satisfaction of the amount of his claim; as also for the sums stated to be and to have been in the hands of the defendants, as garnishees, for the reiits and profits thereof, at the time of laying the attachment, and since. The courtj [Ridgely and ÉSlgour, A. 3-3 gave the following opinion; The plaintiff hath prayed the court to direct the jury, upon the aforegoing statement offacts, that the deed from Beetling, and wife, to James C. Lackland, dated oil the 21st of February 1818, and also the order in favour of James C„ Lackland, bearing date on the 15th of October 1818, drawn on Dame and B. Lackland, are fraudulent and void as against the plaintiff. That Deeding, by his intermarriage with his 'wife, became seized of an interest in the lands of which her father died seized, and upon that interest the plaintiff had a right to lay an attachment, and is entitled to condemnation thereof, in satisfaction of his claims; also condemnation for the amount of all sums of money stated to be and to have been in the hands of the defendants, as garnishees, arising from the rents and profits of said testator’s real estate at the time of laying said attachment and since. Upon this application to the court three questions arise for their consideration and direction — First. Whether the deed from Beetling and wife to James C. Lackland, dated on the 21st of February 1818, and the order drawn by Beetling on Dame and 2). Lackland, dated the 15 th of October 1818-, ana conditionally accepted by them on the 19 th of the same month, are fraudulent and void against the plaintiff? The court are of opinion, that fraud is a fact that may as properly be inquired into in a court of law as in a court of equity. That by the intermarriage of Seeding and wife, (there being no previous marriage contract between them,) be the husband, in virtue of his marital rights, acquired an interest in the wife's proportion of her father’s real estate, subject to the terms prescribed in the father’s will. That it being admitted by the parties that Heeding was indebted to the plaintiff, (at the time of the execution of the said deed and at the time the saitiorder was drawn,) to the amount for which this suit is brought, and the said deed appearing on the face of it to be a voluntary deed without valuable consideración, it is therefore declared by the court to be void against the plaintiff*, an antecedent creditor, and of no legal effect to defeat the plaintiff’s claim in the present suit; and that the order drawn on Dame and D. Lack-land by Heeding, in favour oí’James V. Lackland, as trustee for the separate use of his wife, (being founded on the supposed right of die husband to make such a disposition, although previously involved in debt,) and being in pursuance of and in conformity of the deed of trust aforesaid, is also deemed by this court to be null and void, so far as the plaintiff'may be affected as a creditor.
    With respect to the second question, whether the plaintiff had a right to lay his attachment on the undivided interest in the real estate acquired by Beading's wife under the will oi her father, and have condemnation thereof in this suit? will depend on the present condition of the real estate. By the act of assembly of 1817, referred to, the real estate of the testator, James Lackland,, was placed under the power and control of trustees, who accepted the trust, gave bond and security for their lailhfui performance, and who have proceeded to execute the same long before the present attachment was laid upon the lands. It is therefore the opinion of the court, that die trustees have acquired such a disposing power and interest in the lands, that the present attachment cannot affect or bind die same, even if it had been laid in their hands, and they had been made parties to the suit. That the plaintiff' lias no remedy in the present suit against the said real estate, hut his relief is in a court of equity, where trusts are alone cognizable.
    In relation to the third question respecting the rents and profits, &c. received by the defendants, the court are of opinion, that whatever sum or sums of money which were in the hands of the defendants as executors, and received as the wife’s proportion of the rents and profits, or in ¿ho hands of the defendant James C. Lackland, as trustee, are liable to. be affected by the present attachment,, and condemnation may be rightfully had therfeon, not only the. monies in their hands at the time of laying the attachment, but all monies, respectively received' by them since that period to the present time. After this opinion was given, it was further admitted, that the defendants, James C. and; George L. Lackland, had in their hands, at the time the at-, tachment was laid, the sum of-, which had been received on’account of the rents and profits of the lands of' the testator, and- retained as Rosetta Bceding’s share of-the same; and that since then they have received the further. sum of-, and retained the .same, (or paid it over to, Mr. Beeding,) on the same account. It was also admitted, that of the lands of the testator, one: tract called-, was sold- by Dame and B. Lackland in May 1820, for. 552000, and that out of that sum 55600, with the interest on that part of the purchase money from the. time of .the. sale, was retained on account of .a debt due from the testator, which debt had been either actually paid, or the. funds as aforesaid retained for that purpose, and that there was no other debt known or believed to be outstanding, against the estate; and. that Mrs. Beeding’s share or in-, ferest in the balance of the purchase money was in the. hands of Dame and £). Lackland, the trustees, appointed by the act of assembly, and, had not been paid over to, Beeding or Mrs. Beeding, or to James C. Lackland, but remained in their hands to be paid over to James C. Lack-land, as her trustee, on the determination of this suit, in case the deed, to him from Beeding and wife, or the draft and acceptance of the trustees aforesaid, should be sustained as valid against the plaintiff. It was further agreed, 1 that of the lands of the testator some were occupied by the defendants, George L. Lackland, and some by James C. Lackland, under an agreement with the other b^irs to. pay rent of —--r, annually, and that some of said, lands were rented out by defendants to others, and that some were in wood and untenanted. That the said lands lie. in, this county, &c, and that the yearly value of them is -, and the gc-s, value of those still remaining unsold is SI 2,800. Upon this statement, and the affidavits of the defendants, the plaintiff prayed the court to instruct the jury, that the defendants had no right to sett-off against the plaintiff’s claim for the rents coming into the defen-; dams’’ hand» after the laying of the attachment, their demand for the &5G0 stated in their affidavit to have been over paid .Heeding on account of ihe personal estate. But the court refused to give the said instruction as prayed, but instructed the jury, that the defendants might retain and apply the said rents, as they came into their hands, to the credit of their said claim, on said Heeding. To this refusal and opinion, as also to the opinion before delivered by the court, the plaintiff excepted; and the verdict and judgment being for the defendants, he appealed to this court.
    The cause was argued before Buchanah-, Ch. J. Eahle, Martin, and Hi-erhen, J.
    
      F. S. Key, for the Appellant,
    contended, 1. That BeeK mg’s interest in the land, notwithstanding the act of assembly, was such as to be liable to attachment. 2. That the executors had no right to retain out of his wife’s proportion of the rents and profits, for what they had advanced Beetling, beyond her fair proportion of the personal esl ate, even if there was evidence (winch there was pot,) of their having made such advance.
    Magruder, for the Appellees,
    relied on Shivers vs. Wilson, 5 Harr. & Johns. 130, as conclusive against the plaintiff’s recovery.
   Earle, J.

delivered the opinion of the court. In the. only bill of excepti ms filed in this cause, there are two. opinions delivered by Montgomery county court, unfavourable to the claims of the appellant. In the one the court decide, that the lands atiached are not subject to condemnation for the debt of the appellant; and by the other, they refuse on his prayer to instruct the jury, that the defendant had no right to set off against the appellant’s claim for rents coming into the defendant’s hands after laying the attachment, their demand for 0300 stated in their affidavit to have been overpaid Heeding on account of the personal estate..

Without examining or adopting the reasons assigned for either oí those opinions, this court affirm this judgment.

The appellant was not entitled to have condemnation of any part of the property attached in this case, having failed to show himself of that description of'persons who, have a right to issue an attachment under the provisions of the act of 1795, ch. 56. By that act the remedy is confined- to citizens of this state, or some-other of the United Slates, and it no where appears on the face of this record, that the appellant is either the one or the other. On the contrary it appears, that he resides, and always lias resided m George Town, in the District of Columbia, being neither a citizen of Maryland, nor of any other of the United- States, but a citizen of that district of territory only. .The case of Shivers vs. Wilson, determined in this court, (5 Harr. & Johns 130,) is decisive of this question, being a case in all respects analagous to this. There, as here, the plaintiff in the inferior court is described to be q citizen of the United States, without designating him a citizen of Maryland, or some of the. United States, and his case was decided not to be within the provisions of the aforesaid act of 1795, ch. 56.

The appellant here having failed to bring his.case within the provisions of that act, the court below were, right in deciding that the lands attached were not liable to^ con» demnation for his debt, and in refusing to give any opinion b;iat might enable him to. recover.

JUDGMENT APEÍRMED,,  