
    Harrison &c. v. Carroll &c.
    January, 1841,
    Richmond.
    (Present Tucker, P., and Brooke, Cábele, Stan-arb and Allen, j.)
    Husband and Wife — Relinquishment of Dower— Parol Agreement to Settle Personal Property on Wife in Consideration of — Effect as to Creditors — Case at Bar. — Husband and wife agree by parol, that the husband shall settle personal property to the separate use of the wife, and that the wife shall relinquish her contingent right of dower in certain lands of the husband, which he proposes to convey for the benefit of creditors. The settlement upon the wife is executed accordingly. Afterwards a creditor of the husband obtains judgment against Rim, sues out a fieri facias thereon, and delivers it to the sheriff. And then the wife, in pursuance of her agreement, joins her husband in a deed conveying the lands. JlETii), the property settled on the wife is liable to the execution of the judgment creditor, and equity will not restrain him from proceeding to make his debt out of the same.
    By a deed dated the 5th of May 1822, between William Brent junior of Stafford county of the first part, *John M. Conway and Philip Harrison of the second part, and Winifred L. Brent, wife of the said William Brent, of the third part, reciting that the said Winifred had “agreed to make a surrender of dower in various valuable tracts of land, and in sundry lots and houses in town property, in consideration of the said William Brent’s promising and agreeing to settle the following described and named property to the separate use of the said Winifred,” it was witnessed that the said William Brent, in pursuance, fulfilment and execution of the said agreement on his part, and in consideration thereof, and also in consideration of one dollar paid him by the parties of the second part, had granted, sold and conveyed, and did thereby grant, sell and convey to the said parties of the second part, twenty-five slaves and a large amount of other personal property, upon trust, to be held by them for the separate use of the said Winifred during the life of her husband; and at his death, if she should survive him, to be transferred and delivered to her; or if she should die before hirn, then to be transferred and delivered to such persons as she, by writing in the nature of a last will and testament, should appoint, or, in default of such appointment, to her right heirs. The deed was admitted to record in the office of Stafford county court the 7th dayof Maj' 1822.
    By another deed, dated the 17th of June 1822, between William Brent junior of the one part, and Philip Harrison and John M. Conway of the other part, it was recited as follows:
    “Whereas Winifred E. Brent, wife of the aforesaid William, has agreed, in consideration of a proper provision and settlement to be made upon her, and for her sole and separate use and behoof, free from all manner of control on the part of her said husband, to sell, convey and surrender her right of dower in and to all the real estate of her aforesaid husband, consisting of various large tracts of land, and various houses and lots *in the city of Richmond, and the towns of Manchester, Fredericksburg and Alexandria, and elsewhere; and has relinquished her right of dower in a large real estate sold by the said William unto one W. H. Fitehugh, to enable the said William, out of the proceeds of the sale of the same, to discharge and satisfy large debts due and owing by him to various persons, and which purchase money has been applied to that object: and whereas the said William has, in pursuance of the agreement aforesaid made upon the aforesaid consideration, heretofore by deed of bargain and sale bearing date the 5th day of May 1822, and now of record in the office of the county court of Stafford, conveyed unto the aforesaid Philip Harrison and John M. Conway, in trust for the sole and separate use of the aforesaid Winifred, certain slaves and other property in the aforesaid deed mentioned, and herein after mentioned: and whereas it is doubted whether the aforesaid deed does sufficiently and clearly set out and specify the consideration upon which the same was made: and whereas, since the execution of the aforesaid deed, the aforesaid Winifred, — in consideration of the agreement of the said Williams, made with the aforesaid Philio and the aforesaid John M. Conway her trustees, for her and for her benefit, to execute another deed for the aforementioned properly conveyed as aforesaid, to them, in trust for her sole use and benefit, so that the same conveyance shall be free from all exception and made more perfect, — has agreed, and in execution of the said agreement has, by various deeds and indentures bearing date on the day of the date of this indenture, conveyed, renounced and relinquished unto trustees, for the purpose of discharging certain large debts of the aforesaid William, her right of dower in very large and valuable real estate of the said William, as in the said several deeds will be more at large seen
    *In consideration of which premises and agreements aforesaid, and of one dollar to him in hand paid, William Brent granted, bargained and sold to Harrison and Conway, the same slaves and other personal property which had been conveyed by the deed of the 5th of May, to be held for the separate use of Winifred E. Brent in the same manner as specified in that deed.
    This second deed was executed and acknowledged by William Brent on the 17th of June, the day of its date, before his execution of any other deed of the same date, and was, on the same 17th of June, admitted to record in the officer of Stafford county court.
    The deeds of trust from William Brent and wife, referred to in the recital of the last mentioned deed, were three in number. All of them bore date the 17th of June 1822, and were duly admitted to record in the office of Stafford county court on the following day. That which was first executed and acknowledged b3>' William Brent, and first admitted to record, contained a recital substantially the same with that in the deed admitted to record on the 17th of June; it recited also that Brent and wife, by their deeds of even date therewith, had granted to Eliza J. Carrington an annuity or rent-charge of 666 dollars 67 cents, and to John Monoure and Hancock Eustace, in trust for Adelaide Elwes, an annuity or rentcharge ■of 250 dollars, both of which were charged upon and to issue out of a tract of land in Stafford county, containing 824 acres; and then, in consideration of the premises, and of one dollar paid to the grantors, it conveyed to Harrison and Conway the said tract of 824 acres (subject to the said annuities or rentcharges) upon a trust for the separate use of Winifred E. Brent, similar to that contained in the said deed recorded on the 17th of June. But the trustees were authorized, for the purpose of extinguishing the annuities, to make sale of the land conveyed to them, , except a part lying within certain specified bounds, and containing *337 acres; and the surplus proceeds of such sale, after extinguishing the annuities, were to be applied by the trustees in payment of such debts of William Brent, secured by the two other trust deeds of the 17th of June (to be presently mentioned), as. should remain unpaid. It was also provided that if the provision for the said Winifred, made by this and the previous deeds to Harrison and Conway, in lieu and satisfaction of her right of dower in the real estate of the said William Brent, should, contrary to the opinion and expectation of the parties, upon legal investigation and decision be deemed excessive, the trustees should make sale of such excess, and apply the proceeds to the payment of the debts secured by the other deeds aforesaid.
    By the. deed which was next in the order of execution, acknowledgment, and admission to record, Brent and wife conveyed to John Macrae and Walter Jones a tract of land in Stafford county, containing 499 acres, and several other lots and parcels of land, constituting in the whole a large and valuable property, upon trust to make sale of the same, and apply the proceeds in payment of certain debts of William Brent, which were specified in the deed and in a schedule annexed thereto. The debts specified in the deed itself were to be paid first, in a certain order; and after they should be fully satisfied, the surplus of the proceeds of sale was to be applied in the ratable payment of the debts mentioned in the schedule. Among these was a debt stated to be due to Charles Carroll of Carrollton, by a judgment recovered in the superior court of law for Stafford county, amounting to about 7500 dollars. The deed provided also that the trustees ‘ ‘shall pay and satisfy any other debts for which the said William Brent or his estate may be liable, if any there be not included in the schedule hereto annexed, and of which he the said William will furnish a schedule hereafter.” And there was a further provision that the trustees should hold the surplus, if *any, after payment of the said debts, to the sole and separate use of Winifred B. Brent, in the manner specified in the deeds already mentioned.
    The last of the deeds in the order of execution, acknowledgment, and admission to record, was one by which Brent and wife conveyed and assigned to Philip Harrison certain lots in Richmond and Manchester, and all other real estate of Brent whatsoever and wheresoever, not included in any of the deeds already mentioned, together with all debts of everjr description due to him, upon trust to sell the real estate and collect the debts, and apply the proceeds to the' payment of the same creditors, for securing whose demands the trust deed to Macrae and Jones was executed. This deed contained also the following provision: “And moreover the said William being desirous of paying and satisfying all his just debts, and apprehending that he may, from forgetfulness, have omitted to place upon the annexed list and schedule all such as may be due and owTing by him, it is required that the said Philip, out of the trust funds aforesaid which may come to his hands, if sufficient there be, shall pay and satisfy such other claims as may now exist, and may be hereafter placed upon schedules and lists aforesaid, and in such priority as the said William may direct.” The surplus after payment of all the debts was to be held by the trustee for the sole and separate use of Winifred B. Brent.
    In October 1822, Harrison, Conway, and mrs. Brent, by Harrison her next friend, filed their bill in the superior court of chancery held at Fredericksburg, against Charles Carroll of Carrollton, William Brent, and Enoch Mason, the deputy sheriff of Stafford; setting forth the agreement between mrs. Brent and her husband, (to the same effect as recited in the deeds), and the execution of the several deeds of the 5th of May and 17th of June, in pursuance and fulfilment of that agreement; that mrs. Brent was at all times willing and ready to *perform the" agreement on her part, and the delay to perform it by executing the deeds relinquishing her right of dower, arose without her agency, from her husband’s impression that such delay would not jeopardize the provision made for her, or prejudice her interests, and from the consumption of time in ascertaining and classing his • debts, and preparing the deeds; that the defendant Carroll, having obtained a judgment against William Brent at the preceding May term of the superior court of law for Stafford county, for ^1340. 13. 1. sterling, with interest from the 7th of June 1816, and costs of suit, had, on the 13th of June 1822, sued out a fieri facias thereon, which on the 15th of the same month was delivered to the defendant Mason, the deputy sheriff; that Carroll, pretending'that the deeds of settlement on mrs. Brent were fraudulent and void as to him, had urged the said deputy to levy the execution, and the same had accordingly been levied on a part of the slaves and other property settled, which had been advertised for sale by the sheriff. The bill prayed that Carroll and the deputy sheriff might be restrained from further proceedings under the execution, and that the property levied on might be restored to the possession of mrs. Brent.
    An injunction was awarded according to the prayer of the bill.
    The answer of Brent conformed to the statements made in the bill. Mason failing tó answer, the bill was taken pro confesso as to him.
    Carroll, in his answer, admitted that his execution was sued out, delivered to the .-sheriff, and levied, as stated in the bill. He insisted that the whole of the transactions between Brent and his wife were fraudulent as to him: that at all events the «deed of the 5th May was not valid, and his execution having- been delivered to the sheriff, and a lien thereby acquired on the property in question, before the deeds of the 17th *June were executed, those deeds could not affect the lien, or give validity to the first deed.
    The only testimony in the cause was that of a witness who deposed to a conversation held with mrs. Brent herself, about the end of March or beginning of April 1822, in which mrs. Brent stated that her husband and herself had made such an agreement as that set forth in the bill.
    The cause coming on to be heard the 10th of May 1823, the court of chancery was of opinion that the deed of the 5th of May, as well as the deeds of the 17th of June, were fraudulent and void as against the execution of the defendant Carroll; and therefore dissolved the injunction, and dismissed the bill with costs. Prom which decree the plaintiffs appealed to this court.
    Harrison, for appellants.
    Morson, for appellees.
    
      
      Of the cases reported in this volume, this is the first which was argued before Judge Allen.
    
    
      
      Husband and Wife — Settlements—Consideration-Relinquishment of Dower. — In the opinion of the district judge (whose decree was affirmed by the circuit judge) in Smith v. Kehr, 22 Fed. Cas. 587, it.is said: “Where a post-nuptial settlement is made in consideration of relinquishment of dower, and of maintenance, especially where the wife’s trustee joins in the covenants, that the wife will, in consideration of the settlement made, relinquish all claims to dower in her husband’s estate, and will contract no debts on his account, etc., such a settlement is for valuable consideration, and will be upheld in law, and cannot be assailed in equity by the husband’s creditors, unless the amount so settled on the wife is unreasonable or excessive: Worrall v. Jacob, 3 Mer. 268; Stephens v. Olive, 2 Brown, Ch. 75; Clancy, Mar. Wom. 358; Compton v. Collinson, 2 Brown Ch. 304; Hale v. Plummer, 6 Ind. 123; Harvey v. Alexander, 1 Rand. (Va.) 219; Wiler v. Gray, 36 Miss. 510; Bullard v. Briggs, 7 Pick. 536; Harrison v. 
        Carroll, 11 Leigh 484; Hargroves v. Meray, 2 Hill Eq. 226; 35 Pa. St. 357; 2 Story, Hq. Jur. § 1427 et seq.; Madd. Ch. Prac. 275, 387.” The principal case is also cited for this proposition in William & Mary College v. Powell. 12 Gratt. 385, and note-, foot-note to Burwell v. Lumsden, 24 Gratt. 443; Gatewood v. Gatewood, 75 Va. 412; Strayer v. Long, 80 Va. 562. 10 S. E. Rep. 574. See monographic notes on‘‘Husband and Wife” appended to Cleland v. Watson. 10 Gratt. 159, "Nraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348, and “Dower” appended to Davis v. Davis, 25 Gratt. 587.
    
   STANARD, J.

I am of opinion that the decree of the court below, dissolving the injunction that had been awarded the appellants, and dismissing their bill, is right, and ought to be affirmed. To entitle the appellants to the relief they sought, it be-hoved them to shew an unexceptionable title, paramount to and overreaching the lien of the creditor whose execution they sought to intercept and defeat. Such title is not shewn. The conveyance of the 5th of May, standing alone, must, I think, be taken as voluntary and as to existing creditors. The alleged consideration of that deed is a parol agreement between husband and wife, that the wife should convey her dower interest in certain real estate of her husband, which he intended to devote to the payment of debts. Assuming that such parol agreement, precise and definite in its terms, was distinctly proved to have been made before the execution of the conveyance of the 5th of May, but sti'll remained wholly Unexecuted on the part of the wife at the time the lien of the creditor, by force of his judgment and execution levied, attached, the deed, as to such creditor, must be treated as voluntary and without valuable consideration. The agreement which is the ostensible consideration, in no wise bound the wife, and in respect to every legal obligation on her, or remedy on the part of the husband or his creditors, was a mere nullity. It is not questioned by me that the dower interest of the wife may constitute a valuable consideration that will support a postnuptial settlement, and that such settlement, made in consideration of the conveyance or surrender of such dower interest, may be supported against the claims of creditors. In such case, a consideration passes from the wife beyond recaí. In the case of a mere parol unexecuted contract between husband and wife, (if indeed such communications, imposing no obligation and giving no remedy, can be properly dignified by the name of contract) nothing passes from the wife, no obligation is incurred, and no remedy exists to compel her to convey any thing. Value cannot be predicated of that which imposes no obligation and gives no remedy. The deed of the 5th of May remained in the predicament of a voluntary one without valuable consideration, when the lien of the creditor, by his judgment, and execution thereon delivered to the sheriff, was consummated; and that Hen was in full force, and ought to have full effect, unless it be dislodged by the subsequent deed of the 17th of June. The only way in which that deed can operate that effect is by connecting it with the deed of the 5th of May; by considering it as supplying that valuable consideration, in the dower rights actually conveyed, of which the deed of the 5th of May was destitute, and by relation giving that deed effect from its date, as one for valuable consideration. This pretension ascribes to the wife, or rather to the husband and wife, (for she could not convey ^'without his concurrence,) the faculty, on their mere volition, to cancel and defeat the lien of the creditor. It would make one of the firmest liens that the creditor can acquire, effectual or nugatory at the irresponsible will of the debtor. To state such a pretension is to condemn it. The deed of the 17th of June, under the most favourable view, and giving it the utmost effect that a deed of that date can have, did not displace or overreach the lien of the creditor, and gave no just warrant to the court of equity to interfere by injunction to arrest the creditor in his course. On this insulated view of this case, and without expressing any opinion on several other objections, taken and very forcibly urged in the argument, to the interference of tne court of equity in this case (some of which would in all probability equally sustain the opinion I give), I am of opinion that the decree dissolving the injunction and dismissing the bill was right, and ought to be affirmed with costs.

Decree affirmed.  