
    Davidson & Simpson vs. Admiral Graves, and Baron Vandersmissen, et. al.
    
    Heard before Chancellor Desaussmre, Charleston, January Term, 1834.
    The bill in this case was filed in June, 1824. Its object was to set aside certain deeds .by Admiral Graves and wife, and the marriage settlement of their son, Samuel C. Graves, as void against the complainants, to whom both the father and son were largely indebted. Admiral. Graves, Baron- Vandersmissen and wife, the trustees of their son’s marriage settlement, Wm. Robertson, trus. tee under a deed of 23d May, 1821, and others of the defendants, answered the bill. It was after due notice, (the bill taken pro-confesso against a number of the defendants, among whom were Sir James R. Colleton and wife,) and a commission was sent to England for the examination of witnesses; and there can be no doubt, Sir James had full knowledge of the suit. It came to trial before Chancellor Thompson, in the Circuit Court, in January term, 1828, who decreed for the complainants, and that the deeds complained of should be set aside. The defendants then appealed from his decree to the Appeal Court, and in the February term, 1828, of the Appeal Court, that court by a very luminous decree, sustained with some modifications, not important to the questions now about to be considered, the Circuit Court, decree. To these decrees in the registry of the court, 1 refer. Baron Vandersmis-sen and his lady, at these trials, were absent from the State, but contended by their counsel, that they were entitled to a lien on the specific lands and negroes that had been set apart to them in 1817, under a deed of 17th June, 1817, reciting an agreement before marriage to secure a marriage portion of £6000, and which deed was recorded in this State, as a marriage settlement, within the time allowed to persons residing beyond seas ; and they also contended that they were entitled to the security of the deed of the 23d of May, 1821. They failed wholly in the Circuit Court, and the Appeal Court determined that the recital in the deed, after marriage, was not evidence of a written agreement before marriage, and sustained so far the decree of the Circuit Court, and directed all the deeds to be set aside as against the complainants ; but as they considered the settlement as recorded in time, and that the debt, though voluntary, was good as against Admiral Graves, but not against creditors, they decided that they were entitled to the security, which they had obtained on the lands which had belonged to Mrs. Graves, and which at the time that the security was given, were not liable for the Admiral’s debts. So soon as this decree was made known to Baron Vandersmissen, in Europe, he immediately wrote to inform his counsel in this country, that the anti-nuptial written contract, recited in the deed of the 17th June, 1817, had been placed by him in the hands of his counsel here, who in 1824, prepared his answer to the complainant’s bill, and that it was then in his hands. That counsel, between the preparing of the answer in 1824» and the trial of the case in 1828, had been raised to the bench. The anti-nuptial contract was in his possession, and under the special circumstances of the case, and on the most satisfactory evidence, the Appeal Court, in February term, 1829, at Charleston, allowed the decree to be so far opened as to receive that anti-nuptial written contract as part of the evidence, after an application for that purpose, had been refused in the Circuit Court; and with this additional evidence, on the principle esta. Wished by the appeal decree, Baron Vandersmissen and lady, were considered entitled to the benefit of their security on the negroes, as well as on the lands, that had been made specifically liable to them in 1817.
    After these proceedings also were known in Europe, Sir James Roupel Colleton and his lady, against whom the bill had been taken pro. confesso, and who it should seem were well advised of the progress of the case, in May, 1830, filed their petitition for a re-hearing, so far as they were concerned under the statute, which allows four years for parties boyond seas, against whom a decree has been made in a bill taken pro. confesso against them, on the usual notice to come in and claim a re-hearing, and in the order of the 21st May, 1830, on their petition, the case, so far as they are concerned, has now been tried. It is unnecessary to repeat in substance, what already has been so fully and ably stated in the circuit decree of the chancellor, who first tried this case, and in the appeal decree, of 1828. All the evidence which was then produced, has been again laid before the court. Mrs. Sarah Matthews, who appears to have been an inmate of the family of Admiral Graves, in 1819, at the time, or a little before Sir James married lady Colleton, was examined on commission. She proved, that before the marriage, Admiral Graves promised to settle £0000, on his daughter; indeed, that he alleged that this amount was at that time already settled on her by the deed of 25th November, 1815, called the Bristol deed, and she thinks something was written to a lawyer on the subject, but she does not say what it was. To her examination is attached the copies of two letters of Admi. ral Graves to Mr. Davidson, one of the defendants, taken by her from the original furnished to her by Sir James. Sir James and lady Colleton, were married at the Hague, on the 12th December, 1819. On the 20th May, 1820, Admiral Graves executed a bond to Sir James, in which he promised to secure a portion of £6000, to lady Colleton, and refers to the Bristol deed, as securing to her that amount; and on the 3d of November, of the same year, 1820, hejand Mrs. Graves, executed another bond for that sum.
    The answer of Sir James and lady Colleton, allege the promise of Admiral Graves to secure this fortune, but they do not pretend that any memorandum, in writing, of their promise, was given prior to the marriage ; and I think it quite evident that there was no such anti-nuptial written agreement. Sundry letters were produced on both sides, which as they have no special bearing on the opinion, which I have formed in this case, I shall not particularize. On the 23d May, 1621, Admiral and Mrs. Graves conveyed all their ne-groes, as per schedule, to Wm. Robertson, in trust for themselves during their joint lives, and the life of the survivor, and then to Samuel Colleton Graves, absolutely, on his paying £7000, to his sister, Mrs. Radcliffe, and £6000, to each of his sisters, Baroness Vandersmissen, lady Colleton, and Miss Graves, to be paid within one year and a day after the death of the survivor of Admiral and Mrs. Graves, provided, that if the said sisters received from Admiral Graves and wife, or from S. C. Graves, any part of the said sums, the same shall be received in part of this amount; the negroes at Colleton to be specifically subject to these sums, or any obligations which R. Graves and wife may have given for them to the daughters ; the sum of £7000 to Sophia Louisa Radcliffe, being what was before secured to her. On this deed the defendants mainly rely to support their claim. The Bristol deed referred to by Miss Matthews, was revoked by Admiral and Mrs. Graves, on the 10ih of July, 1817, upwards of two years before the marriage of Sir James. She (the witness, Miss Matthews,) was a witness to the deed of revocation, and also to the deed subsequent to that revocation, conveying the Colleton Barony, which had been the foundation of the Bristol deed, to Samuel C. Graves. . It may be observed, that she is a very willing witness to all the questions put to her by the defendants, and answers reluctantly and evasively the cross interrogatories of complainants. She seems to have forgotten entirely the execution of these deeds. The Bristol deed was executed too, at the time when the Admiral was considerably indebted to the complainants, and judgment has been recovered against him on his bond, of ihe 2d May, 1814, conditioned for the payment of six thousand pounds sterling, on which, five thousand pounds of principal, exclusive of interest, still remains unpaid. If the Bristol deed, therefore, had remained unrevoked, on the principles of this court, established in the cases of Izard and Izard, and Price vs. Price and others, it could not be sustained against the complainants. But I am satisfied that this deed was effectually revoked by the deed of 10th July, 1817, and could not, as was contended for by the defendants, in any manner supply the place of a written memorandum before marriage, or anti-nuptial contract. At the former trial of this case, it was strongly urged in favor of Baron Vandersmissen and his lady, the existence of that deed, at the time of their marriage, and at the date, the 17th June, 1817, of the postnuptial contract, reciting an anti-nuptial, was, with the other circumstances, satisfactory evidence of the existence of the previous written agreement, and would sustain the duly recorded settlement. But the majority of the court did not sustain that view, and held that the existence of that deed was not sufficient evidence of a previous written contract. The first case then made for the Baron and his wife, was on this very point, as it appears to me much stronger than that of the present defendants, and yet the court postponed their settlement on all the property of Admirel Graves, to the claims of the creditors. In this case, the deed of 1815, was revoked, more than two years before. the marriage of the defendants, and Miss Matthews, who seem so desirous to sustain their claim, was, as I have stated, a witness to that revocation. The bond of 20lh May, 1820, more than six months after the marriage, refers to no anti-nuptial contract; but then makes a promise, in writing, in the present tense, at a time when there was no reason to anticipate the events that have since occurred, and leading very strongly to the inference that no other promise was given. The engagements of parties, put into writing at the time, are incomparably more to be relied on, than the frailty of memory, after the lapse of a number of years. ■ But in- this case it is not pretended, certainly not proved, that there was any anti-nuptial written contract; and I take it to be the settled law, that a previous written contract is required to maintain a post nuptial contract against existing creditors. It would be a work of pure supererogation to examine this subject, after the full and elaborate investigation which it received from' the Appeal Court at the former trial before it of this case. In that decision I cordially concur, and it appears to me to be conclusive on the claim of the defendants. Their counsel ingeniously and ably endeavored to distinguish their case from that first made by Vandersmissen, and insisted that Admiral Graves was bound, both in honor and in honesty, to give the bond of May, 1821, and that as he was bound to give the bond, he had a right to secure it, and he did secure it by the deed of the 23d May, 1821. Now this is assuming the very point at issue. It may be admitted that the Admiral was bound, in-honor, to give this bond. It is admitted to be good against him, but It is void as against his creditors, it is, in other words, a voluntary bond, and must be postponed to the complainants.
    I do not see how the bond in this case, can be distinguished from the contract with Vandersmissen, except that the contract was, and the bond was not, recorded in timé. The contract was under seal, as well as the bond. It was, in all respects, as high an obligation. It had been executed during the existence of the Bristol deed, and yet the court postponed it to the creditors. The deed of 23d May, 1821, cannot assist the claim of the defendants. That deed was executed between Admiral Graves and wife, Samuel C. ■ Graves, and Mr. Robertson, as trustee. It provided, as- has been stated, for a life estate in the negroes, to Admiral Graves and wife, and the survivor of them, with a remainder over to their son, on his paying their daughters’ portion. The defendants were not, otherwise, parties to this deed. Now it is manifest, that if the bond is' supposed to be secured by this deed, and the bond was voluntary, and must be postponed, the deed cannot give it' a preference, and if, as was strenuously contended, the deed provided for a different debt, a portion to a daughter, subject to legal rules, essentially different from those that govern the bond, then it is equally voluntary. It is obligatory, certainly, on Admiral Graves, and on all claiming under him, but it is void as against the complainants. Besides, it was urged by the complainants, that the deed is void for reserving the life estate, to the grantors. That Admiral Graves, and the representatives of Samuel C. Graves, and William Robertson, the trustee, who represented all the parties, wore before the court in 1828, and the deed was declared void, as against the complainants. That it did not protect Vandersmissen’s marriage contract, which had higher equities than that of these defendants, and that the bond of May, 1820, could not be connected with this deed. Were this a doubtful case, those views might be entitled to much consideration ; but they do not seem to me necessary, to enable the mind to come to a satisfactory conclusion.
    Sir James and Lady Colleton, and their witness, Miss Matthews, insist, that this claim is for a marriage portion. Their counsel seemed, sometimes, to consider it as a debt, and sometimes as a marriage portion. There is no doubt that the bonds were given for a marriage portion, and the' deed of May, 1821, intended to secure such a portion. Now, as a marriage settlement, it is admitted that these deeds were not duly recorded ; that is, that they were not recorded within the time required by law. To escape from the consequences of this omission, the counsel were driven to the necessity of contending that our marriage settlement acts were not intended for the protection of foreign creditors. This is a novel doctrine. It would indeed be strange, and reflect little honor on the jurisprudence of the country, if such a doctrine could be maintained. There is nothing in the acts to countenance it; on the contrary, the special provision that contracts in consideration of marriage, executed beyond the seas, shall be recorded here within twelve months, or they are void as against creditors, that is to say, void as within this State, as regards all the property affected by them in this State, shows, conclusively, that it never was the intention of our legislature to make any distinction between the foreign and the resident creditor; and they are, assuredly, equally entitled to the benefit of this law. It follows, therefore, that this marriage contract, even though it had been executed before marriage, or had been founded on a written anti-nuptial contract, not having been recorded in time, is void as against the complainants.
    On the whole, it is to my mind very clear, that the claim of the defendants must be postponed to that of the creditors.
    It is, therefore, ordered and decreed, that the orders and decrees of this court, and of the Court of Appeals, made at the former hearing of this case, when the bill was taken, pro confesso, against the defendants, be, and they are hereby, now confirmed against them. Thart the claim of the defendants be postponed to the claims of the creditors, and that these defendanrs do pay the costs of this suit, from the time of the filing of their petition for a re-hearing.
    HENRY W. DESAUSSURE.
    
      The defendant, Sir Jamos R. Colleton, now appeals upon the ground, that the testimony in the cause proved a deliberate intention on the part of Admiral Graves, to deceive and defraud Sir James and his lady. That they had, therefore, as the plot sue-ceeded, a good cause of action against him, and could have recovered against him, in an action at law, exemplary damages for the injury done to them. That the two instruments, executed by him in May and November, 1820, were not, therefore, voluntary deeds, but were fouuded upon valuable consideration, to wit, the fraud committed ; that they were not marriage settlements, marriage not being, in any manner the consideration ; that as obligations given in satisfaction of a debt, they did not require to be recorded, any more than any other bond, for a tort or trespass ; that the deed of Admiral Graves, and Louisa C. Graves, to Samuel Colleton Graves, of May, 1821, was not, therefore, voluntary, as far as Sir James and his lady were concerned, and must be sustained as between them and Simpson and Davidson; that whatever right Simpson and Davidson had to set aside that deed, as against other persons therein provided for, they had no claim, either in law or equity, to sot it aside, as to Sir James and his lady.
    LEGARE & EGLESTON, for Appellants.
    
   Mr. Justice O’Neall

delivered the opinion of the court.

On examining this case, it seems to me, that it will be better understood by first stating, in a plain way, the facts necessary to a decision of the claim made by Sir James Roupel Colleton, and then the views of the court upon the case so made.

By the deed of the 23d of November, 1815, (commonly called the Bristol deed,) Admiral and Lady Graves, conveyed the Fair-lawn and Devil’s Elbow Baronies, to Pinckney and Tunno, in trust for such persons, and on such conditions, as Admiral Graves and wife, during their joint lives, should, by deed, direct and appoint, with a power of revocation and appointment of new trusts ; and until such joint direction, to the use of Richard Graves, and his assigns, for life ; then to Rutledge and Stapleton, for five hundred years ; and after, the expiration ot the five hundred years, and subject thereto, and to the trusts thereof, then to Samuel Colleton Graves, only son of Admiral and Lady Graves, for life, and after his death, to his heirs, male ; and in default of such, then to his heirs, female, with a power of appointing among the daughters; in default of this issue, then to the eldest daughter of Admiral and Lady Graves, Mrs. Radcliffe, for life, remainder in strict- settle, ment to her issue ; in the event of her death, without issue, the same provision, on the same condition, is made successively to each of the other daughters, and their issue, viz., Louisa Catherine ¡Collcton Graves, (now Yandersmissen,) Séptima Sexta Colleton Graves, (afterwards Séptima Sexta Colleton Colleton,) and Olivia Séptima Colleton Graves. The term • of five hundred years is de* cltirtxi by the deed, to be upon the trust, that Rutledge and Staple» ton shall, immediately, upon the death of the survivor of them, the said Admiral Graves and wile, by demise, sale, Or mortgage of the Baronies, comprised in the-term of five hundred years, raise or borrow thirty thousand pounds, and dispose of it as follows, viz. Sitfi thousand pounds to Samuel C. Graves, and six thousand pounds to ®aeh of the daughters of Admiral Graves and wife, in such man* ner as they, by deed or will, shall appoint, and in default of such ■appointment, at their respective marriages, if after the death of ■Admiral and Lady Graves ; but if before, then, in three months af* ter the death of the survivor' of Admiral Graves and wife. Then, follows a provision to invest the tvventy.four thousand pounds, if the daughters should not be married at the death of such sürvivor ij or if no appointment had been made, until their portion^' became payable. The negro slavts upon the Baronies are conveyed upon the same trusts. On the 10th of May, 1817, this deed was revoked; on the 12th of July, of the same year, Admiral and Lady Graves conveyed the Baronies, in fee, to Samuel Colleton Graves.

Sir James Roupel Colleton, and Séptima Sexta Colleton Graves^ were married at the Hague, in December, 1819, and m a more formal way, at London, in February, 1820. Before their marriage, Admiral Graves represented to Sir James, that his daughter’s fortune, six thousand pounds, was secured by the deed of 1815. On the 23d of May, i 8s0, Admiral and Lady Graves executed a bond to Sir James and wife, for six thousand pounds, with interest-at five per cent, from the day of their marriage ; of which surft they, in the said bond, say “ being the amount of the fortune we promise to give our daughter, ¡séptima Sexta Colleton, as her fortune, or marriage portion, which is to arise out of,- and is now settled on, certain lands in the State of South Carolina, of the States of" the United States of North America, as is fully expressed by a deed of settlement, made some years previous,to the marriage of our said daughter, Séptima Sexta Colleton, and which deed reserved to ourselves the power of making such alterations, as we plight deem prudent during our joint lives ; but our said daughter* Séptima Sexta Colleton, beii-g now married with the aforesaid James Roupel Colleton, Bart,- we, the aibreviid Richard Graves, and Louisa Carolina, wife of the above named Richard Graves, do hereby give up that right of alteration, as expresen in U.e aforesaid, or any other deed.” On the 3d of November, 1820, Admiral and Lady Graves, executed their bond to Sir James Xlou-pell Colleton and wife, in the penalty of twelve thousand pounds, conditioned.for the payriient of six thousand pounds, with interest at five per cent., on the 31st of October, 1821. On the 23d of Slay, 1821, Admiral and Lady Graves, m consideration of natural love and affection for their' children, conveyed to William Robertson, the slávés on Colleton Neck, upon the trusts, that Adntiírál and Lady Graves, should have the use, benefit, and profit, of the slaves, during life, and the life of the survivor; then to Samudl Colleton Graves, absolutely, on his paying seven thousand pounds t'o Mrs. Radcliffe, six thousand pounds to Mrs. Vandersmissen, six thousand pounds to Lady Colleton, and six thousand pounds to Olivia Colleton Graves; which said sums, to the said parties, were by the said deeds, declared to be payable a year and’ a day after the death of the said Admiral and Lady Graves, or the survivor of them. This deed contains the following provision : “ Hereby ratifying and confirming such securities and obligations, any of the daughters, aforesaid, may have" in part, or in" the whole, for the aforesaid sums, respectively granted to them, for which payments well and truly to. be made, the said slaves are rendered liable, as full and effectually, as if a mortgage for that purpose had been-specifically executed.”

Lady Graves is dead'; so is Lady Colleton. Admiral Graves is still alive. From May, 1814, Admiral Graves was much embarrassed'. Oh the 2d of May, 1814, he and his son, Samuel C. Graves, executed their penal bond of twelve thousand pounds, conditioned for the payment of six thousand pounds, with five per cent, interest, to Crawford Davidson, one of the complainants, which bond is unpaid, and is a part of the demands, embraced by the bill, in 1820 and 1821, Admiral Graves was hopelessly insolvent ; being compelled to abandon the soil of his birth, and live abroad, to avoid the claims of his creditors.

Sir James Roupell Colleton contends, that the deed of the 23d of May, 1821, is to have the effect of a mortgage, or alienation, for valuable consideration, of the slaves mentioned in it, to the amount of six thousand pounds, with the interest at five per cent', thereon' ; and is so far to be sustained and preferred to the claims of tile complainants, creditors of Admiral Graves, inasmuch as Admiral Graves’ bonds are to be regarded, either as given to satisfy a fraud committed by him, in representing to Sir James, before his mar. j-iage, that his daughter’s fortune was secured by (he deed of 1815, which was then revoked ; or in consideration of a parol contract before marriage, to settle on her a portion of six thousand pounds.

Before examining the bearing and effect of these respective positions, I will remark, that if it was conceded that the bonds were executed, as a satisfaction of the fraud alleged to have been committed by Admiral Graves, upon the marital rights of Sir James, it would be difficult to conceive that they could be secured by the deed of 1821. For the provision of that deed speaks of securities in favor of the daughters, in part, or-in whole, for their marriage portions, and for their payment, gives the deed the effect of a mortgage. If the bonds were executed as a composition for the fraud, then they are not embraced by that provision. For they do not then answer to the description of the securities mentioned in it.

- But waiving this preliminary objection, and conceding that the bonds were executed as a satisfaction of the alleged fraud, and may be connected with the deed, it will be necessary to examiue, 1st — Whether, in point of fact, a fraud was committed by Admiral Graves, to satisfy which, he executed the bonds 1 2d — Conceding it tobe true, can the deed be sustained as against the complainants, creditors of Admiral Graves 1

1st. I speak of the bonds, as the bonds of Admiral Graves alone : for, notwithstanding they were executed by Lady Graves, as well as the Admiral, yet being a. feme covert, the bonds, as to her, were absolulely void, and must be regarded in law as the bonds of Admiral Graves alone. The fraud, if any, according to the proof, was committed by both Admiral and Lady Graves. It is difficult to conceive of any adequate motive on the part of parents, to commit such a fraud, and more especially, on the part of the mother. But I think, that it would be difficult to make out the existence of a legal fraud in this case, it is possible, and Í think that is made out by the proof, that Admiral and Lady Graves, did represent that their daughters fortunes were secured by the deed of 1815, when, in fact, that deed had been revoked. So far, this was a misrepresentation, which, if it had deprived the defendant, Sir James, of any benefit, might have been a fraud. But according to that deed, he could have acquired no right to demand his wife’s portion, until after the death of both Admiral and Lady Graves ; and during their joint lives, they possessed an unlimited power of revocation. So that Sir James could have sustained no damage by the revocation of that deed, before his marriage, although he Jfiighf, at his marriage, have been induced by Admiral and Lady Graves, to be-., ijieve it to be unrevoked.

On the face of the bonds, it is obvious, that they were not intended for any other purpose than as securities for Lady Colleton’s fortune, which her parents supposed they were able to give to her. The first speaks in terms of the six thousand pounds, as the fortune of Lady Colleton ; and not as a fortune due to her befor® marriage; but as a fortune which her parents, after marriage, say,. “ we promise to give our said daughter.” This bond asserts, that this sum was settled on lands in South Carolina, with a power of revocation in Admiral and Lady Graves, and Admiral and Lady Graves, in terms, bind themselves to give up that power. This bond; it cannot, surely, be pretended, is a satisfaction for a misrepresentation, previous to marriage, about the daughter’s fortune, when it speaks of a present, and not a past, promise, to give; and when it sets out as true, the very facts charged as a misrepresentation, and moieover binds the Admiral and his lady, not to revoke a deed which had been revoked three years. It it was accepted by Sir James and Lady Colleton, it would negative the existence of a misrepresentation, as to the daughter’s fortune before marriage. The second is a money bond, and is payable to Sir James and Lady Colleton. This fact shews that it could'not have been intended as a satisfaction of a fraud committed on Sir James. If it had been, it would have been payable to him alone. It, as well as the former bond, fairly point to foe wife’s fortune, as the matter intended to be thereby secured,

2d. If, however, it be conceded that these bonds were executed in satisfaction of the misrepresentation of Admiral aud Lady Graves, to Sir James, before his marriage, that their daughter’s fortune was secured by the deed of 1815, which was uurevoked, and that this constituted a legal fraud, still Í apprehend, that the deed of 1821, fcannot be sustained as against these complainants. These matters which are conceded, cannot place the deed of 1821, upon any higher Or other ground than that of 1815. It will, as I conceive; stand precisely upon foe footing, as if that deed had been ’unrevoked, and in 1821, Admiral and Lady Graves had recited it, and had directed that Lady Colleton’s portion should be charged upon the slaves. For the fraudulent misrepresentation (if it be so,) can only as against Admiral Graves, set up that deed. In equity, the party making such a misrepresentation, will be held to it, as if-true. In Landon vs. Morris, 5 Sim. 247, (6 Con. Eng. Chan. Rep. 410,) the plaintiff previous to his marriage with the daughters of John Ready, wrote to be informed what provision Mr. Ready intended to make for his daughter; he replied in writing, that he was at that time unable to give up more than a house at Bath, and & freehold estate in Cheshire, called Coppenhail, and that another estate called Oakhanger Hall, and three houses in Lime street, London, were entailed on Ins daughter after his decease. Mr, Ready, at the marriage of the plaintiff and his daughter, was a widower : he subsequently married, and died leaving his widow and daughter surviving him. By his will, he left all his estate, real and personal, to his widow. It was found after liis death, that of the houses in Lime street, London, Mr. Ready, under the will of Susannah Weedon, was tenant in tail male, with the immediate reversion to himself in fee. It was held that the letter was to be considered as, or in the nature of the marriage articles : and that the plaintiffs were entitled to have it-and the proposal therein con. tained carried into execution, and to have the houses conveyed to Mrs. Landon conformably to the representations contained in the letter, and that the plaintiffs were entitled to the possession of the bouses, and to the rents and profits thereof, from the death of Mr, Ready. That case and this are alike in every respect, except that the misrepresentation there was by letter in answer to an inquiry, as to the provision which the father intended to make. So far, that is much the strongest case, and the letter there was considered as articles before marriage, and as such the party was bound by them. But the analogy of the ease to this is in tho misrepresents, lion there, that the houses were entailed on his daughter : and hero, that a deed existed which had been revoked. In 6 Ves. 182, the Lord Chancellor says, it is a very old head of equity that if o representation is made to another person, going to deal in a matter of interest upon the faith of that representation, the former 'shall make that representation good.” - It is hence, unquestionable that Sir James is entitled as against Admiral Graves, to set up the deed .of 18 L5. But it is another question, whether that deed can be ah lowed to defeat the rights of the complainants. It is, as Í think, perfectly clear that it cannot : and if it cannot, the deed of 1821, as against them, cannot stand. For it in this respect, and on this point of the argument, depends on .the deed of 1815. it must be remembered that Admiral Graves, in 181.4, was- deeply indebted ; that one of the debts then due, six thousand pounds with its accruing interest, is unpaid. The deed of 1815, was purely voluntary : a mere family arrangement. Stopping here, it must, according to Izard and Izard, and the former opinion in this very case, be adjudged void. But when its provisions are adverted to, where» by the use in the lands and slaves are reserved to the use of the grantors for life, with a general and discretionary power of appointment in remainder, and a sweeping power of revocation at will, it never could have borne an argument, that such a deed was not to be adjudged covinous and void against creditors. According to this view, the misrepresentation of Admiral Graves would not help the defendant Colleton, against the complainants. 1 have given the utmost legal effect to it. For it cannot be, that because Admiral and Lady Graves said their daughter’s fortune was secured by the deed of 1815, that this declaration should have an effect beyond that deed. To say so, would be to give a verbal declaration the same effect, as written articles, and to repeal the statute of frauds and perjuries. In Montacute vs. Maxwell, 1st Pr. Wms. 618, which was a bill by the wife against her husband ; be had before marriage promised her, that she should enjoy her own estate to her separate use, and had agroeed to execute writings to that purpose, and had instructed counsel to draw such writings : when they were about to be married, the writings not being perfected, the defendant desired that this might not delay the match, but engaged upon bis honor, that she should have the same advantage of the agreement as if it wore in writing, drawn in form by counsel, and executed ; upon which the marriage took effect, and afterwards, in reply to a letter from the plaintiff reminding him of his promise, he wrote her a letter, saying, that ho was always willing, she should enjoy her fortune, as if sole, and that it should be at her command. The defendant pleaded the statute of frauds and perjuries, and Lord Chancellor Hard wicke, sustained the plea upon the ground, that the plaintiff’s waiver of the execution of (he arth cles, was from her reliance on the plaintiff’s word and promise, which by the statute was void : and that the letter did not recite or promise the performance of the agreement. That case was, I think, much stronger for the plaintiff than this : the execution of the articles there was prevented by the assurance of the defendant. Here no articles were prepared : no settlement was demanded, the defendant relied upon an assurance, that in 1815, a deed was executed, which secured his wife’s portion. So far as the existence of the deed was concerned, he has been allowed the full benefit of the misrepresentation : but as to the security of the portion, he relied upon the opinion of Admiral and Lady Graves, instead of examining the registry of the deed. Their representation that the fortune, was secured, cannot have a greater effect than their pvo-fíúse to make it secure, which according to Montacute vs. Maxwell, would be void by the statute oí frauds and perjuries.

if, however, the deed of 1821, is to be considered independent of its connection with that of 1815, thon it can only be sustained fay shewing that the lien which it gave to Lady Colleton, was in consideration oí articles before marriage. For, until this was done, the- settlement, or conveyance would be post-nuptial and voluntary, and void as against creditors. This view is sustained by the former judgments, on that part of this case, which passed upon the rights of Baron Vandersmissen and lady : and by the case of Izard vs. Izard.

But it is said that the bonds were in consideration of the previous verbal promise to secure the fortune of Lady €oHeton,>afld that this was a valuable consideration, and hence that the deed would be good. But if even this was so, i think that the deed must still fail. For that deed is upon the trust that the grantors, Admiral and Lady Graves should have the use, benefit, and profit of the slaves during their joint lives and that of the survivor. This trust renders that deed covinous and void as against creditors : and being illegal on this account, it cannot be helped by the supposed valuable’ consideration. ' It is, however,- unnecessary to pursue this view : for the proposition of the defendant, Sir James, that the verbal promise to secure the fortune of Lady Colleton can sustain the bonds, is unten able In the first place the bonds do not recite any such verbal promise, and according to Read vs. Livingston, 3 J. C. R. 492, notwithstanding an ante-nuptial verba) agreement was proved, they must be regarded according to their execution, as post-nuptial and voluntary.

In the second place, a parol promise in consideration of marriage is void : bonds and deeds executed in conformity thereto, after marriage, are merely gratuitous and must as voluntary securities and conveyances, be postponed to creditors. 12 Ves. 73, 74. 3 J. C. R. 481.

But a third objection is to my mind decisive of the whole case ; all proof of a verbal promise before marriage, is inadmissible and cannot be heard. When the statute is pleaded or interposed, as an objection to hearing the proof, as in this case, it must be first decided on : and if the case made, or proposed to be proved is within the statute, the evidence is not heard. In this case, that objection niust exclude all the proof beyond the fact, that Admiral and Lady - Graves represented the deed OÍ 1815, as u»r§Ybked, when in fact it was revoked.

It is ordered and decreed.; that Chancellor DesattssttRe’s decree' be affirrrfed.

JOHN B. O’NEAL L.

We concur,

JOSIAH J. EVANS,

A. P. BUTLER,

B. J. EARLE,

DAVID JOHNSON.

Í concur in the result.

J, JOHNSTON

Gantt, J. absent in the Circuit Court,  