
    Prior and Others v. Kinney’s Executors.
    Decided, Feb. 18th, 1820.
    I. Fraudulent Conveyances — Conveyance by Wife Immediately before Marriage — Fraud on Husband’s Creditors. — An agreement was made between two unmarried sisters, that the property of the one who should die first, or be first married, should, in either event, belong to the other; in consideration of which agreement, one of them, by a deed of gift executed two days before her marriage, conveyed all her slaves to her said sister, who, after the marriage, lived partly with her, and partly with her brother; permitting the husband, (who was in embarrassed circumstances.) to have the use of the slaves,, except two, whom the donee retained in her own immediate employment, and principally to wait upon herself. This deed, tho’ admitted to record on the oath of one of the subscribing witnesses, only, who also swore to the hand writing- of another who was dead, was ad judged not to be fraudulent as to the creditors of the husband; notwithstanding a judgment for a debt had been rendered against him, and was unsatisfied, when it was executed, and when the marriage was solemnized.
    In the Superior Court of Chancery for the Staunton District, a Bill was filed by Jacob Kinney, setting forth that he obtained a Judgment, in the County Court of Kanawha against Allen Prior for 1061., with interest from the 25th of April 1801, ’till paid, and costs; that he issued execution thereon the 17th of June 1803, and another execution the 24th of September in the same year; that it appeared by the Sheriff's return on the first of these executions, that Elizabeth Lewis claimed the negroes on which it was levied; the return on the second, was only in these words, “not sold on account of sickness:”- — that the claim of Elizabeth Lewis was fraudulently set up to screen the property from the execution, being founded on an instrument of writing recorded in *the said County Court, executed by Peggy the wife of the said Prior, (formerly Peggy Lewis, sister of the said Elizabeth,) after her marriage with him, and with no other intent, nor for any other consideration, than to screen the property from the payment of his debts; his circumstances being known to be much embarrassed: — that, if the said instrument bore date before the marriage, it was so dated to give it the colour of having been then executed: that it never was legally admitted to record: that Prior had always been in possession of the slaves, and claimed them as his own ; that they were taxed to him; that Elizabeth Lewis did not live with him, nor take any kind of authority over them, except it might be to claim them if taken by any officer for his debts: that they had remained in his possession more than five years before the institution of this suit, and ought now to be considered as his property, in relation to his creditors.
    The Complainant prayed that Allen Prior, Elizabeth Lewis, and Andrew Don-nally the Sheriff oi Kanawha, be made •defendants to the Bill; that the said Prior and Lewis by their answer should say, upon what consideration the writing before referred to was executed, and for what purpose ; whether it bore date on the day when it was executed, or not; was it before or after the marriage of said Prior and wife? what was the date of the marriage? who was in possession of the slaves from the time of the said marriage, and upon what terms? that by a decree of the Court the said slaves should be sold for satisfaction of the said judgment, &c.
    Elizabeth Lewis, by her answer, said that, long before the marriage of her sister Feggy Lewis with Allen Prior, it was agreed between them, that, which ever of the sisters should happen to die first, or be first married, the property of the one so married or departed this life, should, in such event, belong to and become vested in the surviving or unmarried sister; that witnesses were called upon to attest this mutual agreement; and, in consideration thereof, when her said sister Peggy, about six or seven years afterwards, became engaged to marry Allen Prior, she, a short time before the marriage, executed *the instrument of writing, alluded to in the Bill, which was not antedated, but actually executed on the day of it’s date: that this respondent, after the said marriage, lived .partly with her said sister and husband, and occasionally with her brother Andrew Lewis; that she permitted her brother-in-law, Allen Prior, to have the use of the said slaves, except two of them, Maria and Charlotte, whom she had always retained in her own immediate employment, and principally to wait upon herself; but she never at any time intended thereby to divest herself of her right of property therein; nor could she believe that the said Prior ever pretended to claim them as his property: that she believed the taxes on the said negroes had always been regularly paid, for her, sometimes by her brother Andrew Lewis, and sometimes by the said Prior.
    The defendant Prior answered, to the same effect, in relation to the title to, and possession of, the slaves; stating, also, that the first execution on the said judgment had been quashed by the Court from which it issued, and all the subsequent proceedings vacated, on the ground that more than one year had intervened between the rendition of the judgment and the issuing thereof; that, at the time the said slaves were taken in execution, and for a long time since, this defendant had in his possession ample personal property, unincum-bered, out of which the debt and costs of the Complainant might have been made; and that the marriage between this defendant and Peggy Lewis was solemnized the 25th of May 1803.
    No answer was put in by the Sheriff; and no depositions were filed on either side.
    By the exhibits, it appeared, that the deed of gift, from Peggy Lewis to Elizabeth Lewis, in consideration of natural love and affection, and one dollar in hand paid, was dated the 23d of May 1803, and admitted to record at November Court 1803, being proven by the oath of Andrew Lewis, one of the subscribing witnesses; and it ueing farther proven by the said Andrew Lewis that the subscription of Charles Lewis, another witness, was the proper hand writing of the said Charles Lewis deceased.
    *The Plaintiff having died, the suit was revived in behalf of his executors.
    On the 17th of April 1813, CHANCELLOR BROWN pronounced the following decree.
    “In this case, the conveyance of the slaves relied upon by the defendant Elizabeth Lewis, and which the defendant Allen Prior says was executed with his knowledge and consent, is dated only two days before the marriage of the defendant Allen, and when there was a judgment against him for the money now claimed by the plaintiff. This latter fact appears from the defendant’s own shewing, where he says the execution was quashed because it was not issued for more than twelve mouths after the rendition of the judgment. Now the execution, which was quashed, was issued in September 1803, and the conveyance is dated in May 1803. I can have no doubt, on the whole view of this case, that the conveyance was intended to defraud the plaintiff of this very debt, and perhaps other creditors also; and, as the defendant Prior admits the possession of part of the slaves, though not as his own property, I believe the sale and conveyance, which has not been proved and recorded as the law directs, fraudulent as to creditors, both in law and in fact: — and as, from the quashing the execution, and the other circumstances in the case, the plaintiffs would be greatly delayed, if not entirely defeated in the recovery of their debt, by the fraudulent conduct of the defendants, if this Court did not interfere; it is therefore adjudged, ordered and decreed, that the defendant Allen Prior pay to ' the plaintiffs the sum of 1061., with interest thereon from the 25th day of April 1801, ’till paid, and $2 83, and 15s. costs, together with the costs of this Court; and the conveyance of the 23d of May -1803, from Margaret Eewis to Elizabeth Eewis, for the slaves therein mentioned, is hereby declared fraudulent and void, so far as it goes to affect the rights of the plaintiffs, or delay or hinder them in the recovery of their debt; and, so far, the same is hereby annulled.” • ‘
    From this decree the defendants appealed.
    Eeigh for the appellants.
    *Nicholas for the appellees.
    
      
       See monographic note on "Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
      The principal case is cited and its decisi on discussed in Land v. Jeffries, 5 Rand. 230,258,267.
    
   The following was the opinion of the Court of Appeals.

So much of the decree in this case, as declares the Deed of May 23d, 1803, from Margaret Eewis to Elizabeth Eewis, to be fraudulent and void, so far as it goes to affect the rights of the appellees, and subject the negroes thereby conveyed, and their issue, to their claim, is hereby reversed with costs; and the residue of the said decree is affirmed.  