
    SPARTA:
    DECEMBER TERM, 1833.
    Cains and Wife’s lessee vs. Jones.
    A deed of gift of land, to take effect after the death of the donor, is valid.
    A deed of land made in consideration of marriage, is upon a valuable consideration.
    A deed of land to a legitimate or illegitimate grandchild, is voluntary, and must yield to a subsequent deed executed Iona fide, in consideration of money or marriage.
    A deed made in consideration of marriage which has not been proved and registered within a year after its execution, takes effect from its registration, and will be preferred to a subsequent voluntary deed which has been proved and registered within a year, and before the registration of the first deed.
    The sum of ten dollars being stated as the consideration of a deed for land of considerable value, is merely colorable, and the payment of that sum by the grantee would not make him a purchaser iona fide.
    
    Whether a deed made upon consideration of marriage, was obtained by fraud or not, is a question of fact for the jury.
    A deed of settlement upon marriage, procured by the party and her friends, by fraudulent contrivances, and with the intent of obtaining the property, from an old and drunken man, is void, and a voluntary grantee of the same land, would be preferred.
    This was an action of ejectment, brought by the plaintiffs in error, against the defendant in error. On the trial in the circuit court, the plaintiffs read a deed from John Wright to Nancy Williams. The deed recites, “that said John Wright, for and in consideration of the love and affection he bears towards the said Nancy Williams, she and the said Wright being engaged to be married in a short time; and for and in consideration of ten dollars to him paid by the said Nancy, he hath given and granted, and doth give and grant,” &c. This deed was executed on the 27th June, 1821, was proved in August, 1824, and registered in October, 1824. John Wright and Nancy Williams intermarried in August, 1821. After the death of Wright, said Nancy intermarried with Cains. The defendant read a deed from said John Wright to him. This deed recited, “that for and in consideration of the natural love and affection which the said John Wright bears to the said Henry Hollingsworth Jones, he, the said John Wright, hath given, granted, aliened and confirmed, unto the said Henry H. Jones, after the death of me, the said John Wright, all the right, title, claim and demand, that I now have to the following described tract of land,” &c. This deed was executed in August, 1821, and was proved and registered in October, 1S21. The proof shows that Jones was the illegitimate grand son of Wright; that Wright was quite an old man, very much addicted to drink; that Nancy Williams was a young woman of about twenty-five years of age; that herself and friends seemed very solicitous to procure the deed of marriage settlement, and used considerable exertion to bring about the marriage, though it does not appear that any direct fraudulent contrivance was resorted to in order to attain their ends. The proof also shows that the land was worth a great deal more than $10.
    
      The circuit court charged the jury, that the deed upon its face afforded sufficient evidence that it had been executed in consideration of the marriage to be had between the parties. That a deed founded on a marriage contract is for a good and not a valuable consideration, and if no registered within twelve months, must give way to a sub sequent voluntary deed proved and registered before it That an illegitimate child stands upon the same footing in regard to conveyances as one born in wedlock. That the conveyance to Jones was a deed, and not a testamentary paper. That it would operate as a covenant to stand seized by Wright to the use of Jones; that if Jones’ conveyance was dated in August, 1821, and registered in October, 1821, and Nancy Williams’ deed was executed in June, 1821, and not registered until 1824, the deed to Jones will take effect from its date, and thereby overreach the plaintiffs’ deed, and take precedence in the eye of the law, because the eldest deed, and be available to hold the land against the plaintiffs. The jury found a verdict for the defendant, and a motion being made for a new trial, and overruled, the plaintiffs excepted to the opinion of the court, and prosecuted a writ of error to this court.
    
      W. Ji. Wade, for plaintiffs in error.
    The deed from J. Wright to Nancy Williams, dated 27th day of June, 1827, is founded on a valuable consideration. 1. The $10 recited is a valuable consideration, and is as good, say the books, as if the consideration had been $1000. 5 Hob. Rep. 76: 2 Jac. Law Die. 28. 2. Marriage is a valuable consideration, and the deed recites it. Nancy Williams stands in the same situation on account of the marriage treaty, as a purchaser for full consideration in money: 2 Tho. Coke, 278, 280 n: Plowd. 58: Rob. on Fr. Con. 101-2-3-4-5: 2 Jac. Law Die. 227-8, 230-1: do. 27.
    
      If the deed to Nancy Williams is founded on a valuable consideration, has Jones such a conveyance which, if first registered, will take effect over and give precedence to it, because hers was not registered ?
    The conveyance to Jones is void against a purchaser for a valuable consideration, 1. Because it is voluntary to a stranger without consideration. 18 Vesey, 100: 9 East, 59: 16 John. Rep. 47. 2. There is a purchaser for valuable consideration, which, although subsequent in time, will take precedence over a former deed to a volunteer, or one founded -on good consideration. Cro. James, 158: 2 Bl. Rep. 1019: 2 Cowp. 297: 2 Vesey 101: 2 Tho. Coke, 279, note. 3 It is void, because it is to take effect in future. 16 John. Rep. 527: 2 Bl. Com. 4. The conveyance is testamentary from- its reading, and cannot operate as a deed. Rob. on Frauds, 337: 2 Vesey, Jr. 204: Cru. Digest, title 38, ch. 4, sec. 6. 5. The conveyance to Jones cannot be considered a covenant to stand seized, because it is to*a stranger in blood. 16 John. Rep. 527, 536: 2 Bl. Com. 338.
    The conveyance to Jones, if taken in either point of view, whether, 1. A conveyance for good consideration-; 2. A deed to a volunteer or stranger; 3. A covenant to stand seized; or, 4. A testamentary paper, will become in law wholly inoperative, and of no effect against a purchaser for valuable consideration, whether precedent or subsequent.
    The question which arises upon the two conveyances, is this: If Nancy Williams bought for a valuable consideration, and did not have her deed registered in twelve months, and before registration, Wright conveyed to a stranger without consideration, will the deed to a volunteer take precedence over that to a purchaser? All the books answer that it could not.
    The court erred in charging the jury, 1. That a deed founded on a marriage contract, is for good, and not valuable consideration: 2. In placing a'natural born child upon the same footing as to conveyances, as one born in’ wedlock: 3. That the conveyance to Jones was a deed, and not a testamentary paper: 4. That it could operate as a covenant to stand seized: 5. That if Jones’ conveyance was dated in August, 1821, and registered in October, 1821, and Mrs. Williams’deed dated in 1821, and not registered until 1824, “the defendant’s deed will take effect from its date, and thereby overreach the plaintiffs5 deed, and take precedence in the eye of the law, because the eldest deed, and be available to hold the land against the plaintiffs.”
    A deed founded on a parol contract to marry, is as good and binding as if the contract had been in writing; for either party may maintain an action against the other on a promise to marry, although the promise is not reduced to writing. Chitty on Contracts, 157, 158: 4 Jac. Law Die. 256. • A bond reciting that a marriage was to take place, and that the intended wife was to have the disposal of £200, was adjudged good. 3 Cro. 376: Yelv. 226-7: 4 Jac. Law Die. 256.
    This case is not like that of Caines and wife vs. Marley, decided by this court in 1831. 
       Every material feature of the two cases are different. In that case, Jones’ deed was oldest. It was also for slaves, and could take effect in future., The deed to a trustee for Mrs. Williams was executed after the marriage, and could not, under our statute of frauds, be founded on parol promises to marry, made previous to the marriage. The deed being for slaves was good, although possession was not taken, or a present interest vested. It is quite dif-erent as to land.
    In the case before the court, the deed was executed before the marriage, for a consideration in money, and “being about to marry.” It is a conveyance to a stranger, founded on valuable consideration, and without con-¿ilion or reservation, and must therefore overreach all i , i precedent or subsequent conveyances to volunteers.
    
      
       2 Yerger’s Reports, 582.
    
   CatRon, Ch. J.

delivered the opinion of the court.

On the 2?th of June, 1821, John Wright executed a deed for the land in controversy to Nancy Williams, which was proved in August, 1824, and registered in October of that year.

In August, 1821, John Wright 'executed to Henry Hollingsworth Jones, his illegitimate grandson, a deed for the same land. This deed was proved and registered in October, 1821.

The deed to Nancy Williams not having been proved and registered within one year from its date, took effect only from the time it was registered. Act of 1819, ch. 47.

To obviate this objection, one ground assumed is, that the deed to Jones is void. That it does not convey a present estate, but attempts to convey one to take effect in future. The operative words are, that he, the said John Wright, hath given, granted, aliened, and confirmed unto the said Henry H. Jones, after the death of me, the said John Wright, all the right, title, claim and demand, that I now have, to the following described tracts of land, &c.

That it was the intention of John Wright to convey a present estate cannot be doubted; and it is equally manifest he intended to reserve a life estate to himself. To this, it is apprehended there can be no valid legal objection. Cains and wife vs. Marley, 2 Yer. 582. But were it otherwise, then the condition would fall, and the deed stand. Deeds are taken most strongly against the grantor. It does not lie with him to say, I inserted a condition destructive to your supposed title, and you take nothing. 4 Cru. D. 329: Martin’s N. C. R, 28: 2 Yerger, 584.

It is next insisted, llie deed to Jones is voluntary, because be was illegitimate, and m law a stranger to John Wright. That the deed to Nancy Williams was executed in consideration of marriage, and consequently avoids that made to Jones by force of the statute of 27th of Eliz. 2. That it was made for the valuable considera- ■ tion of ten dollars expressed upon its face, and for this reason has the same effect.

The circuit court pronounced the deed to Jones not voluntary, and instructed the jury that Jones stood on the foot of a legitimate grandson, and therefore the deed to him ' was of validity to resist the deed to Nancy Wright, although this was executed in consideration of a marriage to be had between her and John Wright. That Nancy Wright’s deed not having been registered until October, 1824, was the younger legal title, and must give .way to that of Jones.

The deed to Jones was voluntary, and would have been equally so, had he been the legitimate grandson of John Wright.' A deed to children, or to a wife, made in consideration of love and affection, must give way by force of the 27th Eliz. to a subsequent deed executed on a , bona fide consideration of money or marriage. Rob. on Fr. Con. 81, and authorities cited: Ib. ch. 3, sec. 1, 187: Chapman vs. Emory, Cowp. Rep. 298.

. In the argument, it seemed to be taken for granted, that if Jones had been the legitimate grandson of John Wright, then his deed would have stood on the same foot with one executed in consideration of marriage, and the date of registration would determine who had the better title. This grew out of a mistake in confounding the constructions of the 27 Eliz. for the protection of purchasers, with that of 13 Eliz. made to protect creditors. The consideration of blood is good to protect the donee against the subsequent creditors of the donor, hut not against the previous creditors. As to these, it is taken as fraudulent and void. So of the 27 Eliz. A deed to a W1fe an(} children, has uniformly been holden to be vol- , . ’ ' , . untary, and void as against a subsequent purchaser tor a valuable or good consideration; that of money or marriage. The statute makes no exception in favor of the consideration of blood; and were the courts to except the wife and children, and grand children, the statute would be almost a dead letter.

The deed would always be made to those, as is the fact in a great majority of instances, at any rate, in cases where property is intended to be covered.

If the deed to Nancy Williams was. made in consideration of marriage, then it is superior to that of Jones, although the younger title, because of its subsequent registration.' It recites, “that the said John Wright, for and in consideration of the love and affection he bears towards the said Nancy Williams, she and the said John Wright being engaged to be married in a short time; and for and in consideration of ten dollars to him paid by the said Nancy, he hath given and granted, and doth give and grant,” &c. In August, after this deed was made, John. Wright intermarried with Nancy Williams.

The circuit judge, in substance, instructed the jury, that the deed upon its face afforded sufficient evidence that it had been executed in consideration of the marriage to be had between the parties, and this court thinlcs he adjudged correctly. That such was the intention of the parties there can be no doubt, and we think it sufficiently expressed. But one seeking to set aside a voluntary. deed for a good or for a valuable consideration, must be a bona fide purchaser. Rob. Fr. Con. ch. 6, 366, 520. For instance: the colorable consideration of ten dollars, cannot be relied upon; one paying this sum' would not be a bona fide purchaser. RTob. 370: 2 Cowp. Rep. 278. So if it be true, as insisted on at the bar, that this young woman of twenty-five, and her friends, by fraudulent contrivances, obtained the deed to her, and procured an old doated and drunken man to marry her, with the fraudulent intent of obtaining his property, then the deed would be fraudulent. Nancy Williams would not be a bona fide purchaser for good consideration, and Jones would have the better title. How this point is, a jury must determine. The judgment will be reversed, and the cause remanded for another trial.

Whyte and Peck, Judges, concurred.

Green, J.

dissented — was of opinion the deed attempted to be made to Jones, was a testamentary paper; no present interest was taken, and the deed void as a deed, and could only be taken as the will of John Wright.

Judgment reversed.  