
    Charlotte Price, par prochein amy, and Others, v. John White, Benjamin F. Hunt, William Burgoyne, and Thomas W. Price.
    
      All settlements by the husband upon his wife, ivhether made before, or after the marriage, are marriage settlements within the meaning of the'actof 1785, and, are void, as to his creditors, if not recorded within the time prescribed by that act: and it is immaterial, whether the settlement is voluntary, or supported by a valuable consideration, such as the wife’s equity; and if upon that consideration, whether it be made without, or in pursuance of, a decree for a settlement. So too a settlement, contained in a deed of separation, is a marriage settlement, and must be recorded. Nott, J., dissenting as to the latter point.
      
    
    
      Where, upon a bill by husband and wife, to recover a legacy to her, it was decided by a competent tribunal, that the wife took an absolute estate in the property bequeathed, and the husband was ordered to make a settlement, the interest of the wife under the will, is -res judicata; and if the settlement 
      
      fail, from not being duly recorded, the Court will not review the question, whether the will was not, in itself, a sufficient settlement to protect the pres-petty against the creditors of the husband.
    
    A bequest of personalty to trustees, for a married woman, in trust, “ to permit her, and the heirs of her body, to have and enjoy the free use, benefit, and profits thereof, and not subject to the debts of any body,” vests an absolute estate in her, upon the executor's assenting to the legacy, and the marital rights attach. Semble.
    A decree in equity is not notice of a settlement ordered by it; and where a settlement is ordered to be made by a husband upon his wife, it must be duly executed^ and recorded, or it will not avail against his'ereditors.
    
    
      Where a husband, by a iieed of separation, conveyed to a trustee certain personal estate, to which the wife was intitled, and on which the marital rights had not attached, in trust jor her sole and separate use, and she remained in the separate possession of the property, for more than five years; held, that her possession was adverse, and barred the creditors of the husband, having notice, although the deed had not been duly recorded.
    
    
      A devise of money to be laid out in land, and settled to the use of a married woman, attaches upon land purchased tvith the money, discharged of super-added trusts contained in Hie settlement, which are inconsistent with the limitations contained in the devise.
    
    In the year 1791, the complainant, Charlotte Price, then Miss Charlotte Smith, intermarried with the defendant, Thomas W. Price ; and at the time of her marriage, was intitled, under the will of her grandfather, James Skirving, to a legacy, which had been invested in the purchase of Iwenty-five slaves, by the executors, who held them for her. No settlement was executed before the marriage; but the executors refused to deliver the slaves to the husband, unless he would make a settlement: in consequence of which, he by a deed, duly executed, conveyed the said slaves to certain trustees, in trust for himself and wife, during their joint lives, and after, the death of either, in trust for the survivor, for life, and upon the death of the'survivor, in trust to assign and deliver them to the issue of the marriage. This deed was executed on the 5th March, 1794, but was not recorded until the 2d September, in the same year. As soon as it was executed, the slaves were surrendered to the husband, by the executors.
    Philip Smith, the father of Mrs. Price, died in January, 1796, and by his will, amongst other things, devised to certain trustees, whom he also appointed executors, the sum of fourteen hundred guineas, to be laid out in the purchase of lands, to them, and the survivors, and survivor, of them, and the heirs and assigns of such survivor, in trust, to permit his daughter Charlotte, the complainant, “ and the heirs of her body lawfully begotten, to have, after the land shall be bought and purchased, in manner aforesaid, for her, the free use, occupation, and enjoyment of the same, and not subject to the debts of any body.” Pie also, in the next clause of his will, bequeathed to the said trustees, forty-five slaves, in trust to permit his “ said daughter Charlotte, and the heirs of her body, lawfully begotten, to have and enjoy the free use, benefit, labor, and profits arising from the said slaves, and of their future issue and increase, as herein above mentionedin trust, to and for the same uses’ *ntents> an<^ PurPoses> and according to the true intent, and meaning thereof, and not otherwise.”
    The testator also devised the sum of one thousand guineas, and other personal estate, to his daughter Mary; and bequeathed a very large number of slaves to his sou, Philip Skirving Smith, and after his death to his children, with a limitation over, in the event of his leaving no children, to testator’s daughters, Charlotte, and Mary, equally to be divided between them, or if his said daughters be then dead, to and amongst such of their children as shall be then living. The rest and residue of his slaves, the testator directed to be equally divided, share and share alike, between his said daughters ; and bequeathed the same to the said trustees, in trust, to permit and suf. fer his said daughters, Mary, and Charlotte, “ and the heirs of their, bodies, lawfully begotten, to have and enjoy the free use, benefit, and profits, of the said slaves, and their issue.”
    The testator charged his real estates, which were very considerable, with the payment of the sums of fourteen hundred guineas, and one thousand guineas, devised to his said daughters : and, subject thereto, he devised the whole of his real estate to his son, Philip Skirving Smith, for life, remainder to such of the children of his son, as his said son should appoint; in default of such appointment to all the children of his son, equally; and in default of children, then to his son’s heirs, or heirs at law.
    All the executors renounced, and administration, cwn testamento anneseo, was granted to Benjamin Posted; against whom Price, and wife, on the 14th September, 1796, filed a bill to recover possession of the legacies to her. In this bill Mr. Price offered to make a settlement on his wife, and on the 20th September, it was referred to the master, to prepare a settlement on Mrs. Price, of such estate, and for such uses, intents, and purposes, as are mentioned in the bill. On the 4th October the master reported, that Mr. Price had, shortly before the filing of the bill, executed a settlement on Mrs. Price, of a valuable plantation at Wiltown, on the Ponpon River, which he had purchased for the sum of JS1,348.12 ; and that in consequence of this settlement, and in consideration of it, the administrator had paid to him the sum of fourteen hundred guineas, which had been devised to be laid out in land, for the use of Mrs. Price. The master further reported, that another settlement, of forty-five slaves, had been prepared, and approved by the solicitors of the parties; and he recommended, that trustees be appointed to support the trusts, and that the settlement be executed by Mr. Price. On the same day, the Court, by a decretal order, confirmed the settlement of the Ponpon plantation, and the payment of the fourteen hundred guineas to Mr. Price ; and trustees were appointed to sup. port the trusts of the settlement of the slaves, and it was ordered, that upon Mr. Price’s executing that settlement, he should be put in possession of such part of the testator’s estate as had been bequeathed to the use of Mrs. Price.
    The settlement of the Ponpon plantation, above mentioned, was by lease and release, bearing date, respectively, the 8th and 9th Sep. tember, 1796. The trusts were to husband and wife, for life ; to the husband absolutely, if he survived the wife ; to the use of the wife, for life, if she survived ; remainder to tho issue of the marriage ; and in default of issue, then to such persons as the husband might appoint. Trusts to support contingent remainders were interposed, at the termination of every life estate : and a power was reserved to the husband to sell and dispose of the settled estate, on condition of his settling other estate, of the value of fourteen hundred guineas, upon the same trusts, and with the approbation of the trustees. These deeds were not recorded until the 7th July, 1797.
    The settlement of the forty-five slaves was by deed, bearing date 9th November, 1796. The trusts were, to husband and wife, for life, not subject to their debts; to the husband, for life, not subject t.o his debts; to the wife, for life ; on the death of the survivor, to the children of the wife; and in default of issue, to the survivor of husband, or wife. A power was reserved to the husband, to sell any of the slaves, upon condition of settling other property of equal value. This deed was not recorded until the 7th July, 1797.
    Mr. Price, subsequently, by virtue of the power reserved to him in the settlement of September, 1796, sold the Ponpon plantation ; and, by deed bearing date 26th June, 1805, conveyed a plantation at Toogadoo, to the trustees, upon the same uses and trusts, and subject to the same proviso, as are specified in the settlement of September, 1796. This deed was never recorded in the office of the Secretary of State.
    Shortly after this period differences unhappily occurred between Mr. and Mrs. Price, in consequence of which they separated ; and during the separation, to wit, in the year 1811, Philip Skirving Smith, the brother of Mrs. Price, died intestate, unmarried, and without issue. By this event Mrs. Price became intitled to a moiety of the slaves bequeathed to the intestate by his father, under the limitation over, contained in the will, to the testator’s daughters, the complainant, and Mary, who had since intermarried with William Jones : and being the only sistel of the intestate, of the whole blood, Mrs. Price likewise became intitled, under the act of 1791, to the whole of the real estate devised to the intestate by his father ; and also, to all the real and personal estate, to which the intestate was intitled in absolute property, vide Jones, and Wife, v. Price, and Wife, 3 Desaus. 165. Administration of the estate of Philip Skirving Smith was granted, first to Mrs. Price’s uncle, Col. William Skirving, and upon his death to Mr. Price. The friends of Mrs. Price, thereupon, interfered, in order to obtain a settlement upon her of the newly acquired property ; when, to prevent a suit in equity, a compromise was suggested, and agreed to. fn pursuanee of this agreement, an indenture was executed by and between Mr. Price of the first part, Mrs, Price, of the second part, and Thomas Rhett Smith of the third part; by which it was stipulated, that Mr. and Mrs. Price should be permitted to live separate, and that a plantation at Chyhaw, and fifty-one slaves, being one third of the whole number, should be settled to tho oolc and separate use of Mrs Price; that a plantation at tho ilorso Shoe, and one other ^h'd ^le s^avesi should be settled upon Mr. Price, for life, with remainder to such of his children as he should appoint; and that the remaining third of the slaves, and the residue of the real estate, consisting of a plantation at Ashepoo, of 490 acres, a tract on the Great Swamp, of 500 acres, a tract of 300 acres, called Bedon’s, at Toogadoo, a tract of 200 acres in St. Bartholomew’s Parish, and 1100 acres in the State of Georgia, should be conveyed to Mr. Price, absolutely. This decree was executed on the 31st December, 1812, but was not recorded until the 3rd August, 1813.
    On the 4th May, 1813, Mr. Price executed a conveyance, of the Chyhaw plantation, and fifty-one slaves, to a trustee, for the separate use of Mrs. Price, conformably to the agreement contained in the deed of separation. And, subsequently, conveyances were executed, pursuant to the agreement, of the lands and slaves, stipulated to be conveyed to Mr. Price, as well those that were to be settled upon him for life, with remainder to his children, as those which were to be conveyed to him absolutely. None, however, of the deeds, which were executed in pursuance of the stipulations contained in the deed of 31st December, 1812, were ever recorded.
    Mrs. Price took possession of the Chyhaw plantation, and the fifty-one slaves, conveyed to her use, and remained in possession for five years ; when she was induced to surrender them to the management of her husband, upon his agreeing to pay her the sum of $2,000, per annum, which was regularly paid to her by his factor, the defendant, White.
    It was subsequently, and only a short time before the filing of the bill, discovered, that the tract on Toogadoo, called Bedon’s, which had been conveyed to Mr. Price, as a part of Philip Skirving Smith’s estate, had been purchased by him as a gift to his sister, Mrs. Price; and that, in fact, as early as June, 1808, he had duly conveyed it to trustees, for her sole and separate use, for life, with remainder to two of her sons, and with divers limitations over. This conveyance does not appear to have been ever recorded.
    The defendant, John White, was the factor of Philip Skirving Smith, and upon his death, continued to do the business of the estate for Mr. Price. In this relation, Mr. Price became gradually indebted to him for advances of money, and indorsements, which Mr. White was obliged to pay, until the debt amounted to a very considerable sum. Mr. Price being unable to pay the debt, gave him, as a security, a mortgage of one hundred negroes, including a part of those settled on Mrs. Price and her children. On the 15th May, 1819, Mr. Price confessed a judgment to Mr. White, on a bond in the penalty of $60,000, to secure Mr. White for advanees made, and to be made, and also to indemnify him against his indorsements; and at the commencement of this suit, there was due to Mr. White, by Mr. Price, the sum of $43,107.88. In October, 1824, Mr. Price was arrested under a ca. sa., at the suit of another creditor, and was admitted to the benefit of the insolvent debtors act, upon executing an assignment of his estate, including all his right, title, and claim, to the real and personal estate comprised in the foregoing settlements. The defendants, John White, Benjamin F. Hunt, and William Burgoyne, were appointed assignees ; and John White, being the principal creditor, offered to sell under his execution: whereupon this bill was filed, in Septem. ber, 1825, by Mrs. Price, and her children, to restrain the defendants from selling any part of the settled property.
    The bill charged the defendant, White, with express notice of all the deeds, and prayed that they might be enforced. The bill further prayed, that the settlements of 1790 might be reformed, so as to conform to the will of Philip Smith.
    An injunction was granted, and a receiver appointed, upon filing the bill; and the receiver was directed to pay to Mrs. Price, during the pendency of the suit, the sum of $2,000, per annum, heretofore agreed to be paid to her by her husband.
    The defendant, White, by his answer, explicitly denied all notice of the settlements, or of any of them. He admitted that he knew that Mr. and Mrs. Price lived separate, and that Mr. Price informed him he had relinquished the Chy haw plantation and negroes to her; but he knew nothing of the particulars. And he averred, that so far from being apprized of the existence of any settlements, he was assured by Price, that the property was all his own ; and under this impression, Price, by persuasion, and plausible pretences, drew him on to make large advances, and in his absence prevailed on his partner to make other advances, far beyond what he ever intended : and that it was not until August, 1823, when his advances to Mr. Price had all been made, and his liabilities for him incurred, that upon his insisting that Price should provide another indorser for his notes in bank, he was, for the first time, made acquainted with the existence of the settlements mentioned in the bill. The defendants insisted, that none of the settlements could avail against creditors, being all void, either for not being recorded at all, or not recorded within the time prescribed by law. They further insisted, that they were intitled to the benefit of the power, contained in the settlement, of selling the Toogadoo plantation, on securing to Mrs. Price, the sum of fourteen hundred guineas; and that all the property contained in Price’s schedule, was liable to his creditors, except the tract of land, called Bedon’s, on Toogadoo.
    The cause came on for hearing at Charleston, in January, 1827, before De Saussure, Chancellor, who pronounced the following decree.
    De Saussure, Ch. There are many important and difficult questions involved in this case, and I approach it with hesitation, and even with reluctance: for whatever may be the decision, it may, and probably will, work a hardship on one side or the other; either on a respectable lady and her children, who have been hardly dealt with ; or upon a highly respectable gentleman, who is a bona fide creditor, to a very large amount, himself, and who is also the assignee of other creditors.
    The first question relates to the twenty-five slaves, and their , issue, which were purchased for Mrs. Price, during her minority, with a sum of money bequeathed to her by the will of her grandfather, Dr. James Skirving. His executors refused to assent to the legacy, or to deliver the slaves so purchased, until a settlement mac|e< This was acquiesced in by Thomas W. Price, the husband, who conveyed the same, by deed bearing date the 5th of March, 1794, to certain trustees, in trust, for the joint use of the husband and wife, during their joint lives; then to the use of the survivor for life; and after the death of the survivor, to the use of the children of the marriage. This deed was recorded on the 2d September, 1794, being later than the time limited by the statute, for recording marriage deeds; which declares void all marriage settlements, not recorded within three months from the execution thereof.
    
    
      It was urged for the complainants, that the statute does not apply to cases of settlements made after marriage. The statute is not explicit as to what marriage settlements were intended; but in the construction of the statute, the Courts have decided, that it does apply to settlements after marriage, as well as to those before marriage. And this doubtless on the principle, that the less favored post-nuptial settlements, which are not allowed to be valid in all cases, as against creditors, even when duly recorded, could not be intended to' be exempted from the obligation of being recorded, and thus put on a better footing than ante-nuptial settlements. Whatever were the reasons, however, I consider the point settled by the decisions; and the settlement as to the slaves before mentioned, cannot, therefore, be held to be valid as a settlement.
    It was, however urged, that the negroes in question were conveyed, and held in trust, for the benefit of Mrs. Price, by consent of the husband, who could not have reduced the slaves into possession, unless he had so consented ; and that he, and his creditors claiming under him, cannot set up the non-recording in due time, to defeat the rights of Mrs. Price, as that was a fraud on her, which ought not to prejudice her. To this it is answered, that it was not the duty of the husband, but of the trustees, to record the deed ; and that however strong the argument might be, as against the husband, it does not apply to his creditors. They stand upon their legal rights ; and do not, as was argued, stand merely in the shoes of their debtor, Mr. Price. The statute was enacted for their benefit, and not for the husband.
    It was further argued, that if the non-recording of the post-nuptial deed does avoid it, as a settlement, the parties were remitted to their original rights ; and that the property in question should be considered as held by the executors, or trustees, as before their assent to the legacy, and before the possession had been delivered to the husband. This is a very ingenious view of the subject, and ^as great force when applied to another state of things, as will be hereafter shewn; but not in the question as to these twenty-five slaves. The effect of it, so applied, would be to defeat the statute altogether. In point of fact, then, the possession was in the husband, by the consent of the executor, who had previously held the slaves in the ordinary way, and not for the separate use of Mrs. Price; and that possession could have been qualified by the recording of the settlement, which last was not done in time. So far, therefore, as regards these twenty-five slaves, and their issue, I am of opinion, that they are liable to the creditors of Thomas W. Price, the husband; unless some other ground be relied upon, and sustained, on a further view of the whole case.
    The next question relates to the property, comprised in the will of Mrs. Price’s father, Philip Smith, in which she had an interest. And, first, with respect to the slaves bequeathed in trust for her. Upon examination of the last will of Mr. Philip Smith, it will be seen, that the provision made by it for her, was in trust, and substantially for her separate use: for the property was not to be subject to the debts of any person ; which must mean the debts of any person, to which they might possibly become liable, without such restriction, such as her husband. This will, then, made a settlement. The testator had a right to make it, and it was, and is, obligatory. Any attempt to change, or vary, the interest thus given, and thus limited, in contravention of the will of the father, was void. No further settlement was requisite ; and if one was attempted, in Court, or out of Court, and has become invalid, and void, for want of recording, or from any other cause, that cannot shake the pre-existing right given by the father, as limited by the will; So far, therefore, as regards these slaves bequeathed to trustees, for Mrs. Price, by her father, the right remains unimpaired in her. It will be remembered, however, that where a husband is permitted to have the possession of the separate estate of the wife during the coverture, the account to which she may be intitled cannot be carried further back than one year preceding the husband’s death.
    The next question relates to the slaves bequeathed by Philip Smith to his son, Philip Skirving Smith, for life, with limitations to his daughters, and their issue. The son died intestate, and without wife, or child : and by a decision of this Court, in the case of Jones, and Wife, v. Price, and Wife, 3 Desaus. 105, it was settled, that the limitation over to the two daughters, of whom Mrs. Price was one, was good, and valid, and that they were intitled to equal moieties of those slaves; which decree was carried into effect. By recurrence to the' will of Philip Smith, it will be seen, that it provides the same uses, and trusts, and expresses the same intents, and purposes, as to these slaves, as with respect to the other slaves bequeathed directly to trustees, for the daughters. The same reasoning, therefore, applies to these slaves, as to those bequeathed to trustees, directly for Mrs. Price, in the first instance, of which we have already spoken and decided.
    The next question relates to the slaves acquired by Philip Skirving Smith, himself, during his life. He died intestate; and Mrs. Price, who was the only sister of the whole blood, there being no brother, was intitled to these slaves. But after the death of Col. Skirving, the administrator of Philip Skirving Smith, Mr. Price, the husband, administered, and acquired possession of these slaves ; and I am of opinion, that the marital rights attached, and the slaves became bis property, and liable to his debts, unless secured by some effectual settlement, or other instrument. The instrument relied on in this case, was a deed of 31st December, 1812, which operated as a deed of separation between Mr. Price, and his wife ; and an agreement through a trustee, that the slaves to which Mrs. Price was intitled on the death of. her brother intestate, should be divided into three parts, one third to Mrs. Price, separately, one third to Mr. Price, and one third for the children. This deed was recorded, and was followed up by the deed of 4th May, 1813, to give effect to the former, but the latter was never recorded. In my judgment the marital rights had attached before these deeds, and these slaves will be liable to the debts of the husband, upon the same principles as apply to the twenty-five slaves, first above mentioned.
    We come, now, to consider the questions which relate to the lands. These consist of three distinct classes. First: The lands devised by the father to Philip Skirving Smith, with limitations to his heirs at law. Second: The land purchased with the sum of fourteen hundred guineas, bequeathed by Philip Smith, the father, to be laid out in land, for the benefit of his daughter, Mrs. Price. Third : A tract of 300 acres of land, called Bedon’s, which Philip Skirving Smith conveyed to trustees, for the sole and separate use of Mrs. Price, for life, and then to her children, whom he names, free from the control, or debts, of her husband.
    As to the first. Philip Skirving Smith dying intestate, without wife, or child, Mrs. Price, his only sister of the whole blood, became intitled to the inheritance of these lands, as his heir at law, if the limitations of the will were to the heir at law of the son, Philip Skirving Smith, or jointly with her sister of the half-blood, Mrs. Jones, if the limitations were to the heirs at law of the testator. This last has not been made a question in' this cause, nor is Mrs. Jones a party to this suit. We will then consider Mrs. Price as inheriting all the lands devised to her brother, as his heir at law. Of that inheritance, she could not be divested by any act of her husband. Nothing could divest her but her voluntary renunciation of her inheritance, or the decree of a competent Court, made in a cause, in which she was a voluntary party, properly made so, and for her benefit. The non-recording of any settlement, made with or without the sanction of a competent Court, could not affect her right to the inheritance, as in cases of personal estate; for the non-recording of a settlement has no other effect than to nullify the settlement. It is as if no settlement had been made. That, as to personal property lets in the marital rights, which give the absolute estate to the husband, unless as above stated, such personal estate was guarded by the will of the donor, and was effectually settled by it, which, certainly, requires no recording. As to the rea' es^ale °f wife, comprised in a settlement, which is not re» corded in due time, such non-recording lets in the marital rights of l^e ^us'mn^> suc^ as were, as if no settlement had been made; and that amounts only to a life estate. The inheritance, remains, then, untouched, and Mrs. Price is intitled to these lands.
    The second question as to the land, relates to a tract purchased with the fourteen hundred guineas, bequeathed by Philip Smith, to purchase land for his daughter, Mrs. Price. All the reasoning applicable to the first question, in relation to the land, applies also to ■this. Whether included in the settlements, or not, the ultimate inheritance remains in Mrs. Price, unless other considerations interpose. The only question, which can arise, grows out of the fact, that the fourteen hundred guineas were laid out in the purchase of the Ponpon lands, under a decree of the Court, on a settlement pro. posed, reported by the master, and accepted, but not recorded. , By the terms of that settlement, Mr. Price was at liberty to sell that land, provided he settled fourteen hundred guineas, in other land. Mr. Price did sell the land, and it has been sold, subsequently, tó* several persons, in succession, and is, now held by the last purchaser, for valuable consideration. It would be most mischievous to disturb these sales, and these purchasers. Their purchase, and the possession, ought to protect them: nor is there any inducement to strain so immoderately, to protect the wife ; for it is conceded by the counsel for the defendants, in his able argument, that Mrs. Price is intitled to the benefit of fourteen hundred guineas, in the after purchased lands on Toogadoo. She must have the benefit of that.
    Another question, if question it can be called, relates to the tract of 300 acres of land, called Bedon’s, conveyed by Philip Skirving Smith, to trustees, for the use of Mrs. Price, for her separate use for life, and at her death to her children. There can be no doubt as to her right to that estate;
    In the discussion which has been had, it has been argued, that settlements made under the authority, and in pursuance of, decrees of the Court of Equity, are rendered void, if not recorded in the time prescribed by the statute. From the views which I have taken of this case, it does not appear to me, that such a construction would affect its results. But I am desirous, that I should not be understood as acquiescing in this doctrine. It is very questionable to say the least of it. The statute evidently looked to settlements made by the parties themselves ; to deeds in pais. The object in requiring such deeds to be recorded, within a limited time, is publicity, so as to prevent false credits. That object is obtained by the decree of the Court ordering a settlement. Such decree is notice to all the world. Indeed it is carried much ■ further, for even lis pendens, is notice to all the world ; and those who deal in relation to the subject in controversy, do it at their risk, and take the consequences. In pronouncing that settlements under decrees are not ■acted upon by the statute, it is not under the vain pretence that Courts can dispense with statutes; but it is a judicial decision, that the statute was not intended to have, and has not, any application 
      to settlements made under decrees of Court. The decree is, substantially, the settlement; and even if the parties never acted under the decree, and never executed deeds, it appears to me, that the decree would operate as a settlement. This is a question of construction, and does not go so far as the doctrine of the Courts in relation to another statute. I mean that for recording mortgages. That provides, distinctly, that the first recorded mortgage shall prevail; and there is no qualification. But the Courts have decided, that if the mortgagee, who holds the first recorded mortgage, knew when he took it, that there tvas a prior mortgage, though not recorded, he shall not be permitted to avqil himself of the benefit of the statute, because he had actually the knowledge of the fact, which the recording prescribed was intended to give him.
    With respect to the deed of the 4th May, 1813, which was never recorded, it was conceded in argument, and justly so, that whatever might be the fate of the property under it, on other grounds, there is one of great importance, which is, perhaps, conclusive ; and in truth it is so, in my judgment. It is, that the possession went under that deed, and has been uninterruptedly held for more than five years, by Mrs. Price, as of her separate property, on an absolute and continued separation from her husband, with his consent; he not having reduced that property into possession.
    I believe that I have touched on all the principal points of the case: Many of the letters, and other papers, are explanatory of the history of the case; but I could not attach weight to the declarations, and constructions of Mr. Thomas W. Price, in favor of his wife’s claims, after he had become hostile to Mr. White, who had rendered him most essential services, and long sustained him in his embarrassments. I am sensible that the views which I have taken are too briefly stated, considering the magnitude and difficulty of the questions in the case. But the deficiencies will be amply made up, before the Court of Appeals, to which this cause ought to be carried, by the copious and able arguments of the counsel on both sides, of which I have had the benefit in writing. It is ordered, and decreed, that the rights of the parties be established according to the principles and decisions above made, and stated, on each particular point. And that a reference be had before the master, to report what may be necessary to give effect to this decree.
    From this decree the defendants appealed, except as to so much of it, as relates to the settlement of 1794; and they now moved that the same might be reversed, or modified. ■
    ■Petigru, for the motion.
    The first question made by the appeal, respects the interest which the complainant took under the will of her father, Philip Smith. The defendants object to the decree of the Chancellor on that question, because it is res judicata under the decree of 1796. The bill and answers have been lost, but the decree has been preserved ; and that, and the deed prepared under it, and approved by the master, and confirmed by the Court, furnish abundant evidence, that the precise question was adjudged.
    But if the decree were not conclusive, and the question were now °Pen’ yet the judgment of this Court must now conform to the decree. The terms used in the will of Philip Smith, create a fee-simple conditional at common law, as to the lands, and give an absolute estate in the slaves. Fearne, 101. The reservation, that the property should not be liable for any debts, is inconsistent with the result desired, and cannot exist with it. The liability to debts is inseparable from the right of property.
    The statute of uses was intended to suppress the frauds incident to secret trusts; and although they have to some extent been preserved by the decisions of the Courts, yet it is under such limitations, and restrictions, as to guard against the mischief. Gilbert on Uses, 74,130. Hopkins a. Hopkins, 1 Atk. 571,2 Bl. Com. 337.
    It may be urged, that the statute of uses is applicable to lands, only ; and it is true, that trusts of personal property were probably unknown before the statute. But equity follows the law, and executes the trust, wherever the statute would execute the use; and the same legal consequences, growing out of the intention of the parties, follow from trusts, whether of real, or of personal estate. Co. Litt. 290, b. note 249.
    The Courts will not suffer the legal rights of the husband, to be defeated by implication in favor of the wife; and it is only in those cases, where the intention of the donor, to give a separate estate to the wife, is clearly expressed, that it will be carried into effect. 2 Roper, Husb. and Wife, 163, Clancy, 262.
    A chattel held in trust for the wife, is subject to the same rule, as if it had been given directly to her, unless it is expressed to be for her sole and separate use; and this must not be taken by intend, ment, but must be explicit. Bates v. Dandy, 2 Atk. 207, Jarman i>. Woolloton, 3 T. R. 620. The limitation over of a personal chattel was unknown, until it was effected by the invention of trusts; but it is absurd to say, if property is given to A., for the use of B., that the estate in it is not in B.
    The second question is, as to the effect of not recording the several deeds. All the writers on the subject speak of ante, and post, nuptial settlements. Battersbee v. Farrington, 1 Swanston, 106 ; Atherley on Mar. Settlements, 155 ; Reeve’s Dom. Rel. 174; 1 Rop. Husb. and Wife, 301. If a marriage be had, a settlement made, and a portion paid, this is a good marriage settlement. Hylton v. Biscoe, 2 Yes. 304.
    Marriage settlements are divided into ante-nuptial, and post-nuptial; and this division is recognized by the act of 1792, which in the proviso makes a particular provision for such marriage settlements as are made before marriage. So too, in the deliberate opinion of the late Constitutional Court, in the case of Lubbock v. Cheney, IN. & M. 444, it is laid down distinctly, that both sorts are comprehended in the recording act. “ The preamble of the act of 1785,” it is said, “ speaks in general terms of marriage settlements ; and the first enacting clause says, all and every marriage settlement now existing: nor is there any thing to be found in any of the enacting clauses of either act, which points to a distinction between settlements made before, and those made after marriage. All, then, are comprehended in the enacting clauses.” 1 N. & M. 448.
    If post-nuptial settlements are within the enacting clauses of the act, it follows that settlements made in pursuance of a decree, enforcing what is called the wife’s equity, must submit to the same rule; for the Court of Equity cannot dispense with, nor abrogate, a law of the land, and order that a settlement, which the law says must be recorded, in order to its standing good, shall be made, and stand good, without recording: and respect for the character of the Judges of the Court, obliges us to conclude, that when they directed a settlement, they intended a lawful settlement; and neither meant to overrule the law, nor to take away from creditors the benefit, and security, which the law provides for them, in requiring such settlements to be recorded within three months. Neither did they mean to give their decree an extraordinary operation, and to make it stand in the place of a conveyance ; for the plain words in which they have spoken, import the contrary, and there is no authority for the position, taken for the first time in this case, that a decree is notice to all the world.
    Mr. Price became intitled to the estate, in virtue of his marital rights, and the motive to a settlement was, that the fortune came to him in virtue of his marriage ; so that in any view, the settlement must be regarded as having been made in consideration of his marriage. If a fortune accrue to the wife, and the provision already made, is inadequate, she is intitled to have a further provision made for her; and this is another instance of a post settlement made in consideration of the marriage. Clancy, 515. All the motives which apply to the publicity of ante-nuptial, apply equally to post-nuptial settlements.
    The third question is, whether the decree can be considered as notice of the settlement, so as to dispense with the necessity of recording. Decrees in Equity are not, of themselves, notice, except to parties. Sugden on Vendors, 538. Lis pendens is notice, and necessarily so, for the purchaser pendente lite takes the place of the party ; but no one is bound to take notice of the decree, except the parties to the suit. Worsley v. Earl of Scarborough, 3 Atk. 392.
    Equity acts upon the person, and not upon the thing. It is otherwise at law : there the judgment operates upon the thing. Equity, by acting upon the person, can compel a conveyance ; but when the conveyance is made, it is regarded as the act of the party, and as such, is subject to all the regulations imposed by law. Co. Litt. 290 b. note 249. Whaley v. Dawson, 2 Sch. and Lefr. 372. Recording is one of the regulations to which marriage settlements are subject; and it must be observed, whether the parties make it in pursuance of a decree or not. Ordering titles to be made by the master, is a usurpation peculiar to our Courts ; but it has never gone so far as to make the decree stand for a title, without a deed executed by any one.
    But it is said, that the property is bound by the decree. This, • however, is not the law, as is well illustrated by the cases of Glaister v. Hewer, 8 Ves. 196, and Murray v. Lord Elibank, 10 Ves. 90. Could the Court say by their decree, that the settlement should bind creditors, although not recorded ] Certainly not; and yet this is, in effect, what is claimed.
    Ford, contra.
    
    It is not true, that Courts of Equity act only on the person and conscience of the party. They act sometimes in rem,; and decrees in equity are put upon the same footing with judgments at law. Herbert’s case, 3 P. Wms. 117 ; Self v. Madox, 1 Vern. 458 ; 2 Mad. Ch. 325; Murray v. Ballou, 1 Johns. C. R. 578.
    The act of 1784, P. L. 338, expressly recognizes the operation of decrees in Chancery on real estates; and the act of 1785, P. L. 361, subjects them to sale under writ in nature of a fi. fa. on a decree, in the same manner as on judgments at law. And in Tel-fair v. Telfair, 2 Desaus. 275, where a specific performance was decreed against the vendor of land, the judgment of the Court proceeds upon the ground, that its decree should stand for a title. It is said, that the execution of titles by the master, in this State, is a usurpation ; but if it be so, it is a very wholesome one. The practice is coeval with the existence of the Court: and it is consecrated by time, and constitutes the law of the Court.
    It is said, that the deeds executed under the decree of 1796, are marriage settlements. Settlement is a generic term; marriage settlement is specific. A settlement may be made, upon other than the consideration of marriage. A settlement may be made by will; and this surely is not a marriage settlement. Those settlements made before, or at the time of marriage, or after, in pursuance of marriage articles, or a previous agreement, are the only settlements which rest upon the consideration of marriage ; and they alone can with any propriety be denominated marriage settlements. The rights which accrue to the wife after marriage, are technically called her equity; and although the Court will compel a settlement, before letting the husband into the possession, this is a settlement of her equity, and not a marriage settlement.
    The whole of Mrs. Price’s estate fell to her after the marriage. It was incumbered with a trust. The husband could not at law recover the possession. His remedy was in equity only, and the Court would assist him upon no other terms, than his making an adequate settlement. The consequence is, that he takes subject to the terms of the decree ; and the wife’s equity so fastens on the estate in his possession, as to be inseparable from it. Philips v. Brydges, 3 Ves. 127; Ainslie v. Medlycott, 9 Ves. 17 ; Lady Elibank V. Montolieu, 5 Ves. 737 ; Clancy, 516.
    (Mr. Ford was proceeding to argue the question as to the lands, when the defendant’s counsel conceded, that Mr. Price having recently died, his interest in his wife’s real estate was at an end; and they disclaimed any right to either of the tracts of land.)
    Mr. Ford continued. Mrs. Price took possession of the slaves, conveyed to her trustee by the deed of separation of 1812, and remained in the exclusive possession of them for more than five years. It is true they went into the possession of her husband afterwards, but it was upon hire, and his possession must be regarded as the possession of his wife’s trustee. The defendant, White, knew that these slaves had been relinquished to Mrs. Price, by her husband ; and as the factor of the husband, he paid the annual hire of $2,000. Although, therefore, he may not have known the particulars of the settlement, he did know of her separate possession, and as to him, that possession must be regarded as adverse.
    The settlement of 1796 is preserved by. the deed of separation of 1812, and must be taken as part of it. The legal estate was in the trustee, and the statute of limitations is a bar to both Price, and his assignees. The deed of 1812 is not within the purview of the registry acts. It is not a marriage settlement, but the reverse; a deed of partition made upon a divorce, or separation. The evils to be provided against by the act of 1785, were those which resulted from the identity of possession, whilst the interests were distinct; but a deed of separation destroys the identity of possession, and so destroys the necessity for recording.
    Besides, the act of 1785, literally subjects the property only to the payment of the debts of the person, for the benefit of whom the settlement was made. P. L. 358. The settlement in this case was made for the benefit of Mrs. Price, and under the terms of the act the property is liable for her debts ; but there is nothing in the act to make the property liable to the debts of Mr. Price. Let it not be said, that this is a merely literal construction. Surely the terms of an act are not to be strained for the purpose of visiting a forfeiture upon the widow, and orphan ; upon the helpless, and defenceless ; upon those whose rights, it is the especial object of the law to protect. Precisely the same construction was given to a similar statute of Virginia, by the Supreme Court of the U. S. in the case of Pierce v. Turner, 5 Crunch, 154 ; and all we ask, is the benefit of that decision.
    But Price has never had any such possession of the property, as renders it liable to his creditors. The possession of a husband as executor, or administrator, is not such a possession as will attach the jus m'ariti. Ex Parte Wells, and Elms, 3 Desaus. 155. Price’s possession was only as administrator. His own assignment, or an assignment by operation of law, would not divest the wife of her equity. His assignees, therefore, could not be in a better situation, than himself. He was bound by the deed of settlement, although not recorded, and so are they. Clancy, 442 ; Roberts on Fraud. Conv. 291; Bosvil v. Brander, 1 P. Wms. 458, and see Mr. Cox’s note to that case; Macaulay v. Philips, 4 Ves. 18.
    A mere equitable interest cannot be taken in execution on a fi. fia., at the suit of a creditor. Cadogan v. Kennett, Cowp. 432; Doe v. Routledge, lb. 706 ; Nunn v. Wilsmore, 8 T. R. 521 ; Scott v. Scholey, 8 East, 467. Price’s interest was purely equitable : he could have come at it only in equity, and he would have been compelled to make a more favorable settlement. If an estate accrue to the wife during coverture, and the Court decree a settlement of the wife’s equity, it is secured from the creditors of the husband. Clancy, 443. The husband cannot charge, or assign, his wife’s equity, even for a valuable consideration, or in payment 0f his debts, without an adequate settlement on her. Pryor v. Hill, 4 Br0i c c 139 . Keany xJdall, 5 Johns. C. it. 464 ; Haviland v. Myers, 6 Johns. C. R. 25; Haviland v. Bloom, 16. 178 ; Sexton v. Wheaton, 8 Wheat. 239.
    If the husband has got possession by improper means, the Court will decree him to be a trustee for the wife ; and much more will it protect a settlement made under its own authority : and whenever the husband makes such a settlement of his wife’s equity, as the Court would impose, the Court will equally interpose its authority, to protect it against his creditors. Rob. Fr. Conv. 281; Bennet v. Davis, 2 P. Wms. 316 ; Tyrrel v. Hope, 2 Atk. 561.
    Mr. Price, the husband, obtained possession of the property, on the faith and assurance of his making the settlement required. The Court itself ordered it; and it would be unjust, that this should operate to exclude the wife.
    King, same side.
    The books do not furnish any description of what constitutes a marriage settlement. 1 Rop. Husb. and Wife, 306 ; Campion v. Cotton, 17 Ves. 271. The law recognizes two sorts of marriage settlements ; those made before, and those made after marriage: but they must be on the consideration of marriage, to constitute them marriage settlements; and that consideration renders the deed valid, even as to'creditors.
    A merely voluntary settlement to the use of wife and children, is void as to creditors ; and cannot, therefore, be regarded as a marriage settlement. 4 Cruise, Dig. 383 ; Power v. Bailey,! Ball & Beatty, 49; Forrest v. Warrington, 2 Desaus. 254. It follows, that deeds of the latter description, do not come within the purview of the registry acts as marriage settlements. Ward v. Wilson, 1 Desaus. 401; Lennox v. Gibbes, lb. 305; Garner v. Garner, 16. 437; Taylor v. Heriot, 4 Desaus. 227 ; Hanion v. M’Call, Harp. Eq. 170.
    In all the cases of post-nuptial settlements, it will be seen, that they refer to a portion, or some other good consideration, and not to a settlement merely voluntary. Ramsden v. Hylton, 2 Yes. 304 ; Ward v. Shallet, lb. 15. But suppose that a stranger, as the father, covenants with the husband to pay money, or do any thing else, in consideration that the husband would settle an estate, of which he was possessed, to the use of the wife and children. Is this a marriage settlement ? Certainly not. It is a purchase for a valuable consideration. So, if, as in this case, the husband, in consideration that the executor, or trustee, will deliver up to the husband, the estate held in trust for his wife, agrees that he would make a settlement on her ; this is not a settlement in consideration of the marriage, but in consideration of the surrender of the trust estate.
    But was it ever heard of, that a settlement made under the decree of the Court, was a marriage settlement ? The Court of Equity will, if the situation of the wife require it, give her a third, a half, or even the whole, of her equitable estate, in exclusion of the assignees of her husband, if he is a bankrupt. Vandenanker v. Desbrough, 2 Vern. 96; Ex Parte, Coysegame, 1 Atk. 192; Worrall v, Marlar, 1 Cox’s Cases, 153; Basevi a. Berra, 3 Merivale, 674. And if the husband do voluntarily, that which equity would have compelled, and which would have bound his creditors, will the Court say, that she is in a worse situation ? Anonymous, 1 Desaus. 113 ; Cape v. Adams, lb. 567.
    A settlement made by the husband, for the use of his wife and children, although not recorded, was held good against creditors, even without notice, in Hudnal v. Teasdall, 1 M’C. 227. A marriage settlement, although not recorded, was held good against creditors with notice, in Givens v. Branford, 2 M’C. 152. And see May Simons, Charleston, 1827, Decree Book, p. 168; Randall v. Morgan, 12 Ves. 97.
    The statute does not vest the use in personal chattels. It follows, then, that the legal estate was in the trustees, and the liens of Price’s creditors could not attach upon it. The answer of a codefendantis evidence, if he succeeds to the right of the other, and becomes a privy in estate. Osborn v. U. S..Bank, 9 Wheat. 739, 831. The answer of Price states, that Mrs, Price was neither a party to, nor was she examined in, the suit determined in 1796; and therefore, she is not bound by it. Murray v. Palmer, 2 Sch. & Lefr. 484 ; Sperling v. Rochfort, 8 Ves. 464.
    She is not bound by the recitals in the deed of settlement and separation. A recital proves nothing, Stoughton v. Lynch, 2 Johns. C. R. 210 ; Co. Litt. 353 b.
    It may be admitted, for argument, that a decree is not notice to a purchaser; but it has no where been determined, that a creditor stands in the situation of a purchaser. It is said, that decrees are upon the same footing as judgments at law : and every one knows that judgments at law bind lands, even in the hands of a purchaser without notice. Sugden, 557. It may be said, that this is no decree, because it was not enrolled ; and therefore, was not notice. The enrollment of decrees has never been in use in our Courts ; at least not as a general practice, and the instances of enrollment at all are very rare. Courts of Equity act in rem, as well as in personam ; and if so, the decree of 1796 fixes the rights of the parties, and is notice to creditors. Thompson v. Brown, 4 Johns. 619, 633 ; Kershaw v. Thompson, 15. 609, 614; Farley v. Farley, 1 M’C. Ch. 517.
    It may be urged, that the deeds of 1812, and 3813, are void, on the ground that they violate the law of marriage, as they are agreements for separation; but even the laws of England are opposed to this conclusion, and there is no question, that these contracts have always been allowed, and enforced in this State. The distinction is, that equity will not enforce contracts of this sort between bus-band and wife, except through the intervention of trustees. 1 Mad. Ch. 385 ; Worrall v. Jacob, 3 Merivale, 256.
    The defendant has sold a part of the negroes secured by the settlement of 1813, and according to the rule in equity, complainant has a right to indemnity from him. 2 Mad. Ch. 148 ; Ashe v. Livingston, 2 Bay, 80.
    Hunt, in reply.
    Is the deed of 1790 a marriage settlement? If so, it is void for want of recording. If it is not, then recording was not necessary. The rule in equity is, that if the husband can get at the wife’s fortune, without the aid of the Court, the Court will not interfere, and the intervention of trustees makes no difference. 1 Mad. Ch. 484, 485 ; Howard v. Moffatt, 2 Johns. C. R. 206. The distinction between trusts executed, and those that are not, consists in the nature of the trust. If there is any thing which requires the active agency of the trustees, the trust is not executed, and the legal estate remains in the trustee ; but if he is a mere passive agent, the law executes the trust eo instanti: and the rule is the same as to real and personal estate. Burgess v. Wheate, 1 Eden, 195, 223, 249; Carvvardine v. Carwardine, lb. 36, and see note ; Brydges v. Wotton, 1 Ves. & Bea. 137 ; Lord Deerhurst v. Duke of St. Albans, 5 Mad. itep. 232 ; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 550; Sir Edward Turner’s case, 1 Vern. 7; Jewson v. Moulson, 2 Atk. 421.
    Are the limitations in the will of Philip Smith, so far as they restrict the absolute interests given to Mrs. Price, void ? They, unquestionably, are so. The limitation to the heirs of her body is too remote as a limitation, and the whole vests in her ; and the restriction, with regard to the liability for debts, is inconsistent with the right of property, and, therefore, cannot stand with the bequest of property in the thing.
    But it is contended, that the decree of 1796 binds the property as to creditors. It is, certainly, true, that lis pendens is notice to a purchaser ; but it is denied, that decrees are so, or that they bind the estate. Equity acts only in personam, and not in rem. The proceedings in rem are an usurpation ; but admitting, that usage has sanctioned it, the right to proceed in personam is not taken away. The proceedings in 1796, were in personam, and they must be governed by the appropriate rules. Style v. Martin, 1 Ch. Cas. 150; Bishop of Winchester v. Paine, 11 Ves. 194; Gaskell v. Durdin, 2 Ball & Beatty, 167.
    The deed of 1796, made under the decree, is, then, the act of Price. Tt is a marriage settlement, and ought to have been recorded. The considerations recited are, the marriage, and a fortune accruing. If it is not a marriage settlement, then it is without consideration, and, therefore, void.
    As to the deed of separation of 1812. Price was in defat at the time of its execution, and unless it had marriage for a consideration, which would make recording necessary, it was voluntary, and void. If separation was the consideration, then the deed is void, as being against marriage. At law, if the vendor remain in possession of chattels sold, so long as to hold himself out as the owner, and gain a credit on them, creditor’s rights attach. It is a legal fraud. Price remained in the exclusive possession of the slaves given to his children, and, according to this rule, they are liable for his debts. The slaves in the possession of Mrs. Price, are in no better situation. Husband and wife cannot separate their identity: they remain one in law, notwithstanding a deed of separation; and her possession is his. How were the creditors to know that they were separately intitled under this deed 1 Besides, Price resumed the possession, but then it is said he paid the annuity. How were creditors to know this ? All they knew was, that Price was in possession.
    
      
      The doctrine of the present decision, on this subject, is greatly restricted by the later case of Bank v. Brown, 2 Hill’s Ck. 558. This case is, in fact, overruled by that of Bank v. Brown. The settlements set aside in Price v. White, were not all voluntary; and indeed there was but one, that of1794, which could be cailed so. That of 1796, which was declared void, was supportedby the same consideration as the settlement of the town house, in Bank v. Brown, which was sustained by the Court; to wit, the wife’s equity: and the only difference between the eases, was in favor of the settlement of 1796, as that was made under a decree for a settlement, and was executed before the wife’s legacy was surrendered to the husband; whereas in the settlement in Bank v. Brown, the money was paid to the husband, without a decree, and before the settlement was executed, and even before the settled property was purchased. The case of Bank ». Brown, has therefore in effect decided, that marriage settlements, within the meaning of the acts of 1785, are settlements supported by the marriage consideiation; and, consequently comprise, only settlements executed before marriage, or, if after marriage, in pursuance of previous articles. It is said, it is true, in Bank v. Brown, that voluntary conveyances by the husband, to the use of the wife, after marriage, are to be regarded as marriage settlements; but this was obiter merely, as the question did not arise in the case. And it is difficult, on principle, to support this distinction between voluntary settlements, and settlements upon consideration. A voluntary settlement may be unavailing against creditors, from the mere want of a consideration; but if the marriage consideration be of the essence of a marriage settlement, then the absence of all consideration, cannot render a conveyance a marriage settlement. Nor is there in the policy, more than in the terms, of the act of 1785, any thing that requires the distinction. Voluntary settlements are, in truth, less dangerous than settlements supported by a consideration. Tho former are open to attack, although recorded; while •the latter are invulnerable, and the only protection of the creditor is, the notice furnished by recording.'
    
    
      
      Aet of 1785, P. L. 357. A portion of this act, as it is printed in the collections of the public laws, is wholly unintelligible. It has frequently occasioned embarrassment in practice, and has defied the ingenuity of the bar, and the bench, to give a sensible construction to its terms. In the ease of Screven v. Bostick, at Coosawhatchie, in January, 1827, it was ingeniously contended, that this act should be construed in connexion with the 47th section of the County Court act, P. L. 372, which requires clerks of County Courts, twice a year, to transmit to the office of the Secretary of State, “ memorials of all such deeds, settlements, &c., as shall have been proved, and recorded in their respective Courtsand it was insisted, that the exception in the marriage settlement act, “of such as shall be recorded, or lodged in the said office,” must have been intended to apply to marriage settlements, which had been recorded in the County Courts. The two acts were ratified within nine days of each other, and were probably passing through the usual stages of legislation at the same time. In conformity with this view, the Chancellor, by whom the cause was heard, decided that a settlement, recorded in a County Court, was not void, on account of its not being recorded in the office of the Secretary of State. 2 M’C. Ch. 413. It has been suggestedby Judge Brevakd, that the act was not correctly printed; 2 Brev. Dig. 45, note: but iu the early case of Lennox v. Gibbes, in 1792, 1 Desaus. 303, the Chancellor, who delivered the decree of the Court, said, that in consequence of the obscurity of the act as printed, the Court had procured a certified copy of the original act as ratified, from the Secretary’s office, and had found it verbatim et literatim the same as the printed copy. In that case, the Court actually decided, that the part of the act in question was inoperative, by reason of its being wholly unintelligible. It has since been ascertained, that the error, for there was an error, originated in the engrossment of the act, from the bill as passed by the Legislature. The bill originally offered, was amended in its passage, which occasioned several interlineations, arid erasures; and in engrossing the act, some of these interlineations were inserted in the wrong place. This appears from the original bill, which was discovered by the late Hon. Thomas S. Grimke, among the papers of his father, Judge Grimke, who was Speaker of the House of Representatives when the act was passed. An inspection of this hill, at once furnishes a clue to the error, and provides the means of correcting it, as will be seen by the following copy of the part of the act in question; which is given as it appears in the printed copies of the acts, but with the words which are erroneously inserted italicized, and divided into sections, and numbered in the order in which, as it appears by the bill, they ought to have been copied. By reading these passages in the order in which they are numbered, the language of the whole is rendered clear and intelligible, to wit:
      “And all that shall hereafter be entered into, for securing any part of the estate, real, or personal, in this State, of any person, or persons, whomsoever, shall, within three months after the execution thereof, be duly proved, and in like manner, (2 to be recorded; excepting such as shall be) (1 recorded, or lodged in the said office,) (4 And in case amy person, or persons,) (3 entered in without the limits of this State, which shall be recorded, or lodged to be recorded, in the said office, within twelve months from the date thereof.) whomsoever, interested in such marriage deed, &e.”
      Thesepassages being taken up in the order specified, the whole section will read thus:
      
        “Beit enacted, That on or before the first day of September next, all and every marriage contract, deed, or settlement, now actually existing, after being duly proved, shall be recorded, or lodged in the Secretary’s office of this State, to be recorded; and where such contracts, or marriage settlements, or the parties thereto, are without the limits of this State, then, and in such case, the parties interested therein, shall be allowed twelve months from the passing of this act, to record, or lodge such contract, as aforesaid, in the office aforesaid, to be recorded. And all that shall hereafter be entered into, for securing any part of the estate, real, or personal, in this State, of any person, or persons, whomsoever, shall, within three months after the execution thereof, be duly proved, and in like manner recorded, or lodged in the said office to be recorded; excepting such as shall be entered in withoiit the limits of this State, which shall be recorded, or lodged to be recorded, in the said office, within twelve months from the date thereof. And in case any person, or persons, whomsoever, interested in such marriage deed, contract, or settlement, shall neglect, or refuse, to record, or lodge the same, in the manner, or within the times before mentioned, and in the office aforesaid, to he recorded, then the same, in respect to creditors, shall be deemed, and is hereby declared to be fraudulent; and all and every part of the estate thereby intended to be secured to such person, or persons, shall be liable to the payment and satisfaction of the debts due, and owing by such person, or persons, in as full and ample a manner, to all intents and purposes, whatsoever, as if no such deed, contract, or settlement, had been ever made, or executed.”
    
   Coicock, J.

In reviewing the decree of the Chancellor, in this case, it will not be necessary to make any previous statement of the facts, as they are sufficiently stated in the decree, and brief; and I will refer only to such of them as may be necessary in the argument.

The case depends, in a great measure, on the construction of the act of 1785, requiring marriage settlements to be recorded within three months of the time of their execution; and I shall, therefore, in the first place, state the views of the Court on that point. On the one hand, it is contended, that the act embraces only such deeds, as are founded on the consideration of marriage, that is, either made before marriage, but in contemplation of it, or after marriage, in consequence of articles entered into, or a bond given to make the settlement, before the marriage. On the other hand, it is said, that the act embraces all settlements, whether made on the marriage, as a direct consideration, or at any subsequent period of time, by a husband on his wife, either of her property, possessed before, or after marriage, or of his property, or a part, or the whole, of both. And I am free to confess, that I have had great difficulty in coming to a conclusion on the subject, and that I have considered it as one of the first importance to the community.

On the marriage of a woman, her property becomes her husband’s ; but the law does allow a separate interest to be created. Inasmuch, however, as even in such cases the property usually remains in the possession of the husband, and, of course, under his control, it is impossible that the community can distinguish between that which belongs to the husband, and that which is the separate' property of the wife, unless there be some public place of record, in which the deed which creates such interest should be found. To effect this purpose, then, was, certainly, the great object of the Legislature, in passing the recording acts. The term used seems to have been intended as a general one, and is comprehensive enough to embrace both kinds of settlements : but, although I have not been able to find any thing in any of the books, like a definition of a marriage settlement,! think it must be admitted, that they do seem to favor the distinction which is contended for by by the complainant’s counsel. Mr. Atherly, in treating on the subject of settlements, does speak of some made after marriage, as “ marriage settlements;” but it is only of those which have been so made in consequence of articles previously entered into : and when he pursues the subject, and comes to speak of other settlements made after marriage, he uses the terms ’post-nuptial settlement, as if in contradistinction to marriage settlements, eo nomine.

We must, then, look to the mischief which the Legislature intended to guard against, and see if it does not, or may not, exist, as well in regard to the one kind of marriage settlements, as to the other, pursuing the distinction made in the argument; and, I think, but little observation is necessary, to shew, that it is as important to {jlc interests oflhe community, that settlements made after marriage, although arising out of the connexion, should be recorded, as those made before, and in which it may be said that marriage is the direct consideration. All property which comes to the husband during the coverture, from whatever source, or at whatever time, may be considered as much the property of the husband, as that which he acquires with hia wife, on his marriage ; and if this could be secretly conveyed to her use, a deception might be as well practised, as it may be by a secret conveyance of that, which she may have possessed before marriage. But it is replied, that the rights of creditors were already sufficiently protected by the statute of Elizabeth, and the common law in such cases, and, therefore, it was not intended, that the act should embrace them: for if a man, who is in debt, settles his property on his wife, it may be avoided; and if he be not in debt, no injury is done. This is, certainly, a strong view of the subject, and would be conclusive, if it covered the whole ground. But it is obvious, that a settlement, such as those we are now considering, may be made of a wife’s equity, which the creditors could not touch : but if the deed be not recorded, a further indulgence, or even a further credit, might be given on the faith of the property; and so, too, in the case of a man who is not at all in debt at the time of making the settlement. He might obtain a credit on the faith of the property seen in his possession, which might be prejudicial to the rights of others : and, indeed, it has been questioned, whether, under any circumstances, such settlements were not injurious to the interests, not only of the community, but of the parties themselves, by encouraging indolence, and luxury, in the husband, and exciting expectations, or hopes, in the creditors, which are, for the most part, disappointed. Upon the whole, I am satisfied, that post-nuptial settlements are within the mischief, which the Legislature intended to guard against, by the recording act, and, therefore, to be considered as embraced within its provisions.

This construction of the act would put an end to the claims of the complainants, but for some peculiar circumstances, which have been relied on by her counsel. In their very elaborate argument, anticipating the possibibility of such a construction as we have given to the act, it was contended, as to the first deed of the 5th March, 1794, that if the deed is void, the parties are to be considered as standing in their original rights; and that the twenty-five slaves mentioned in the deed, and purchased with the money left by her grandfather, must be considered as held by the executor, her grand uncle, in trust for her. But this is at war, both with the facts of the case, and with the law arising out of them. They were not held in trust for her, and were delivered to the husband, under the impression that the deed would secure them to her. Once they were reduced into possession, they were absolutely the property of the husband, and, as to them, therefore, we concur with the Chancellor, that they must go to the creditors.

The same argument was also urged as to the property left to the r^nlainant by the will of her father. That, it is clear, was given to trustees for her use ; but by the decision of a competent tribunal, it was decided, that she took an absolute estate in the personal property, which vested in the husband, who by the decree of that Court, was ordered to make a settlement. I say, was ordered to do so ; for this is putting it in the strongest light, for the complainant : and even then I think the deed must be recorded. The Chancellor, however, says, that the Court had no right to interfere with the will of the father, as the property was settled on her by that will, by being placed in the hands of trustees, to be held for her benefit. I have before said, that this was the decision of a competent tribunal, and therefore we could not now disturb it; but if it were still open for consideration, we should give the same construction to the will. And I cannot doubt, that although the Court may have refused to interfere; yet as all the parties were before them, and the trustees consenting, and relinquishing their trust, the Court had the power to order the settlement.

But on this point it was urged by the complainant’s solicitors, that as to the deeds made by order of the Court of Equity, it is not necessary that they should be recorded, for the decree of the Court, was notice to all the world : and the same view of the subject is taken by the Chancellor in his decree. No direct authority has been produced to support this position, and the cases to which we have been referred, only shew, that the decrees of the Court of Equity, are considered, in the distribution of assets, as equal to judgments at law. They go no further. The case of Brown v. Thompson, from 4 Johns. C. R. 634,is to this point; and so is the great case, as it is called, of Morrice v. The Bank of England, Cas. Temp. Talb. 217: but they establish no more. In the last mentioned case, in a contest between creditors who had obtained judgments at law, and others who had decrees in Chancery, Sir Joseph Jekyll, the Master of the Rolls, directed that the decree creditors, being prior in time, should be first paid : and this is the extent of that case. The case of Coit v. Owen, 2 Desaus. 456, determines nothing more, than that a decree, formerly made, cannot be revised by a subsequent decision ; and it lets in some creditors to be paid out of a fund subject to their debts. The case of Woddrop n. Price, 3 Desaus. 203, decides no other matter, than that the decrees of the Court of Equity, are put on the same footing as judgments'at law.

But if the power of the Court of Equity, when acting directly on the property, be admitted in the fullest extent, it cannot apply to this case: nor could this decree, by any possibility, operate, practically, as a notice. For the Court did not act on the property, except through the husband. They ordered him, to make a settlement of a certain portion of the property. Now, suppose one should go to the records of the Court, to obtain information. He would find an order by the Court, that Mr. Price should settle so many negroes, and so much land, on his wife; but that would not enable him to determine what negroes, or what land, was settled. He would still have to go further, and would naturally be led to the recording offices.

/I am not aware of any case, decided either in the Court of Equity, or in a Court of Law, in this State, where any thing, short of direct notice, has been considered as equivalent to recording ; and I am one of those who think, that the Courts went too far, even in admitting that; for my experience has satisfied me, that it leads to perjury, besides being a departure from the positive requisitions of a legislative act: which, it must be admitted, is at all times dan. gerous, and invariably produces litigation. Wherever a settlement is ordered by a Court of Equity, I think it should make a part of \the order, that the deed be immediately recorded ; for it certainly is an interference intended for the benefit of the wife, and, therefore, should be completed by the officers of the Court.

The Court, however, concurs with the Chancellor, on the last ground, on which he rests the complainants’ right to the slaves, intended to be conveyed by the deed of 1812, and contained in the schedule annexed to that deed. As they passed directly into the hands of the trustee, with the consent of the husband, and before he had reduced them to possession; and remained in his possession, for upwards of five years; and this was known to the principal creditor, who was the factor for both husband and wife; such possession must be considered adverse to the claims of both husband and creditors, and consequently vests the property in her. No one could be defrauded by this arrangement, for no credit could have been given on the faith of this property. The decree is therefore affirmed in this particular, but must be, in other respects, so reformed, as to accord with the views, which are herein expressed, of the rights of the respective parties. And as the counsel for the defendants have abandoned all claim to the real estate, it is only necessary to say, that the decree of the Chancellor, as to that, is also affirmed.

As some of the conveyances disposed of the estate, and inheritance, of the wife, particularly the deed of the 4th May, 1813, whereby she conveyed her lands to a trustee, for the purpose of conveying them to her husband, Thomas W. Price, it is proper that all such deeds made by her should be cancelled, that they may not embarrass her title at law. It is, therefore, by the consent of all parties, ordered, and decreed, that all such deeds, and especially the deed of the 4th May, 1813, be cancelled.

After the delivery of this opinion, it was contended, that the claim to the Toogadoo plantation must be excepted, as standing on different grounds from that to the other lands; and the counsel on both sides have submitted their arguments in writing. These have been duly considered, and the Court are unanimously of opinion, from a review of the origin, and all the circumstances relative to the Toogadoo plantation, that it is the rightful inheritance of the complain, ant, Charlotte Price, and that, consequently, she is intitled to the immediate possession.

Johnson, J. concurred.

Nott, J.

I concur in the opinion which has been delivered in this case, in relation to'the deeds of 1794, and 1796. I consider these as marriage settlements, or contracts, within the meaning of the act of 1785, and therefore void, for the want of recording. I differ in opinion with regard to the deed of separation. I think that directly the reverse of a marriage settlement; and that it did not, therefore, come within the provisions of that act. Besides, the wife had the separate, and exclusive possession, and enjoyment of the property, of which Mr. White had notice, as he was her factor. The children may be considered as standing in a different situation. The property given to them, continued in the possession of the father. He continued to receive the rents, and profits of the land, and the services of the slaves ; and to use and enjoy the property, and to exercise every act of ownership over it, as if he had the sole, and exclusive right. It might, (therefore, very well be considered as fraudulent against creditors.

With regard to the Toogadoo plantation, it cannot, in any point of view, be considered as a marriage settlement. It was an actual purchase, or exchange, by the trustees, for the use of the wife. It was not necessary, therefore, that it should have been recorded in the office of the Secretary of State. It was sufficient that it was recorded in the office of the Register of Mesne Conveyances, where all deeds of that sort are required to be recorded.

I do not think that we have any thing to do with any other deeds, and particularly where other persons are concerned. I am opposed, therefore, to interfering with them by cancelling, or in any other manner. I am also further of opinion, that it does not belong to this Court to determine in what order the debts shall be paid. There is no such question involved in the case; and it was one, therefore, on which we ought not to express any opinion.

Decree modified.  