
    Bank of the United States, Bank of the State of South Carolina, and the State Bank, v. Charles T. Brown, and his Wife, Mrs. S. E. Brown, and their children, and - Stevens, Trustee, and Others.
    Husband being indebted, by deed expressed to be in consideration of love and affection, settled a plantation and slaves on his wife. He was then negotiating a sale of a large real and personal estate acquired by his wife, which was afterwards made ; and this deed was the inducement of the wife to renounce her inheritance on the sale of her real estate: on a bill by the creditors of the husband to set aside the settlement as voluntary and fraudulent, and to subject the property to his debts: — Held, that parol evidence was admissible to show that the true consideration of the deed was the wife’s renunciation of her inheritance, and that such consideration was sufficient to support the deed against the creditors. [*562]
    A deed without any consideration at its execution may be supported by parol proof of a subsequent valuable consideration. [*563]
    The registry acts requiring marriage settlements to be recorded, &c., apply only to settlements founded on the consideration of marriage and entered into before marriage, or afterwards in pursuance of articles before, and to voluntary conveyances by the husband to the wife. A settlement by the husband after marriage in consideration of his wife’s renunciation of inheritance in her real estate, need not be recorded as a marriage settlement. [*565]
    And the same reasons apply to and will sustain a deed of a house and lot purchased by funds derived from the estate of the wife’s father, no provision having previously been made for her; and to another deed by the husband settling other slaves on her, expressed to be in consideration of her renunciation of inheritance. [*566]
    The husband may not make an unreasonable settlement on his wife to defraud his creditors — a settlement of less than one-half the value of the fortune he acquired by his wife, is not an unreasonable provision. [*566]
    Heard at Charleston, May Term, 1835 — before Chancellor De Saus-STJRE, who delivered the following decree :—
    The bill is filed in this case by the bank creditors of Mr. Charles T. Brown, to set aside certain deeds and conveyances stated in the bill as void against creditors, being post nuptial settlements made or obtained by a 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 which 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. The deed was recorded on Yth 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. Charles T. Brown, at that time. The deed *was purely voluntary, and this part of the case was properly r^ccq abandoned by the counsel, and the property must be subjected to L the claims of the creditors.
    The next is the deed of the 1st of 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. T. Brown, and their heirs. This deed was recorded in the office of mesne conveyance, on the 16th of July, 1824. If this be a valid deed, it will protect the property in question, from the claims of plaintiffs. 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 without 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 Coui’t in Price and White, Carolina Law Jour., 291. 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 of 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 separate 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 it should be considered a marriage settlement, it was not recorded according to law; for it was recorded in the office of mesne conveyances at Georgetown alone. An attempt was made to supply this defect by proceedings in Court, which were stated. The deed however, acquired no additional strength by these proceedings, and must be decided upon its own merits. *5601 *■*■* aPPears to me, to come clearly within the statutes, and can-J not 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 legal authenticity without prejudice to third persons 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 property must, according to the decided cases, be subjected to the demands of the creditors. The decision in Prescott and Hubbell, went very far, and is with difficulty, reconciled to other decisions, and does not conclude this case.
    The next deed is of the date of Yth of February, 1826, by which Robert Heriot, the Commissioner in Equity, conveys to J. A. Keith, and J. T. Keith, twenty-nine negroes, for the consideration of $10,OH, 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 part of the case. If we consider the deed as a marriage settlement, then not being recorded, according to the statute of 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. Heriot, the grantor, to the trastees, for Mrs. Brown; and the presumption, that it was paid for out of the estate of Mrs. Brown, founded on 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 of >- 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 of 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 19th of January, 1825, to wit, Sandy Island and forty slaves; and in the deed of 10th of November, 1829, to wit, the Goose Creek plantation, and forty-one slaves, be, 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 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.
    From so much of this decree as subjects Sandy Island and negroes to the creditors of Brown, the defendants, trustees for the wife and children, appeal, and hope 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 defendants 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 inheritance. 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 marriage.
    The plaintiffs likewise appeal from that part of the decree which dismisses so much of their bill as seeks to set aside the settlement of a house and lot of land in Charleston, contained in the deed of 1st of June, 1824 ; and the settlement of twenty-nine slaves, contained in the deed of 7th of February, 1826, and to subject the said land and negroes to the plaintiffs’ demand; 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 plaintiffs, on the following grounds:— L - J
    1. That the said land and slaves were purchased with the funds of 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 plaintiffs 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 equity, and good conscience.
    
      Eggleston and Frost, for defendants.
    
      Be Saussure and Bailey, for plaintiffs.
    
      
       Not reported.
    
   Chancellor Joiinston

delivered the opinion of the Court.

The grounds of the defendants’ appeal grew out of a deed executed by the defendant, Brown, on the 19th 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 expressed is natural love and affection, but the proof is very abundant that Brown was, at the time, negotiating 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 the Secretary of State ; the questions then arise:—

1. Whether parol evidence was admissible, to show 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.

*2. If the consideration be valuable, whether the deed ought to -* have been recorded in the office of the Secretary of Slate, 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 show any circumstances inconsistent with it; and if the converse of the rule be true, it follows, that anything may be admitted which is consistent 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 I cannot perceive why, if there are two considerations existing at the time of the execution of the deed, one only of which is expressed, parol should 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, 1825, and I take it as well settled, that a deed void for want of consideration, may be 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 point is expressly relied on in M’Dowall and Black v. Grist, 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 support settlements after marriage, says 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. r^-gg^ *Brown’s inheritance, independent of the parol proof, these deeds L furnish very strong intrinsic evidence of the true' consideration. There is another principle on which this deed may be supported. The plaintiffs come here to be relieved against an advantage which the defendants possessed at law, on the ground that the consideration being love and affection 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 provision had been made for her by this deed. The witness, Smith, says expressly, that she would not have renounced but on that assurance ; 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 v. 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 it is at 'law, all the cases of hard bargains, unconscionable agreements, and agreements entered into by mistake or surprise, must be struck out: and he refers to a MS. note of Lord Hardwicke, in the case of Rich v. Jackson, in which his lordship says that he had often 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 than the party was in, 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 plaintiffs come here to ask the Court to set aside the deed of the 19th January, 1825, 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 release her inheritance in a very ample estate, and reduced her to a state of comparative want. I think she is protected by the principle.

In Prescott v. Hubbell, decided in this Court in 1821, it was held that a conveyance by the husband to the use of the wife, in consideration 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 M’Meekin v. Edmonds, 1 Hill Ch. 288, where the land of the husband was sold by the sheriff under execution, and the purchaser, a stranger, conveyed to trustees *for the use of the wife, the husband having r*ggg paid the principal part of the purchase-money, it was held that L the conveyance was good against the creditors of the 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 of opinion 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 Price v. White, Car. Law Journal, 297, it was held that a voluntary settlement made by the husband after marriage to the use of his wife, 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 what 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?” I think not — they might, and would have employed more appropriate 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 v. Hubbell, and M’Meekin v. Edmonds, 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 ease whore the wife acquires an estate in exchange for her inheritance, whether she obtains it from her husband or a stranger ?

I conclude, therefore, that no settlement or conveyance falls within the Purview °f ^he Act, except such as are founded on the *consider- -* ation of marriage, and entered into before the marriage, or after-wards, 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 plaintiffs, 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 negroes to the use of Mrs. 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 deed in the office of the Secretary of State.

In the discussion of the case, some remarks were made by the counsel, as to the magnitude of the provision made by those 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 wholly unprovided for — that on the death of her father, intestate, an estate, consisting of lands, estimated at $60,000, which when 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 I 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.

Chancellors Harper and Joi-inston, concurred. 
      
      
         Not reported.
     