
    John E. Rivers vs. Thomas Heyward Thayer, and others.
    A covenant before marriage to settle the husband’s property, or property to be purchased by him, to the use of the intended wife, is supported by the valuable consideration of marriage, and, in the absence of actual fraud, is valid against his creditors.
    If the property be sufficiently described in the body of the marriage articles, no schedule is necessary.
    In marriage articles, the husband covenanted to settle a house and lot which he had contracted to buy, “together with each and every parcel of kitchen and household furniture, wherewith the same shall, and ought to be completely and suitably furnished:” — He Id, that the description was sufficient.
    Description in schedule to marriage settlement, “closets containing glass, china, and silver plate,” held sufficient.
    Bills of sale of negroes to trustee under a marriage settlement, substituted for property included in tne settlement, need not be recorded in order to make them valid as against the creditors of the husband.
    The creditors of a husband have the right to subject his interest under a marriage settlement to their claims, whether such interest be separate, joint, or contingent, and whatever difficulties there may be in defining and reaching it. 
    
    BEFORE DAR GAN, OH., AT CHARLESTON, JUNE, 1854.
    DaR&an, Oh. The plaintiff, who sues for himself, and the other creditors of Thomas Heyward Thayer, who may make themselves parties in this cause, some time in the early part of the year of our Lord 1851, by verbal contract, entered into a copartnership with the said Thomas Heyward Thayer, for the purchase and sale of stocks, with a view to the speculative profits to be derived from sucb business. In pursuance of his engagement, the plaintiff, at different times, advanced considerable sums of money, to be applied to the objects of tbe copartnership. The allegations of the bill, as to the sums advanced, have been fully verified. The business has proved disastrous to th.e plaintiff. The defendant, Thayer, has committed a breach of trust. Instead of employing the funds of the plaintiff in the objects of the partnership, he applied them, for a good part at least, as he admits in his answer, to his own use ; and as to the stocks purchased, he rendered false statements to the plaintiff. The plaintiff has recovered from the said Thayer a judgment by confession for the amount due; under which, he has levied upon the goods of the said Thayer. In this way, he has collected a portion of his debt; but a considerable balance now remains due. The said defendant is at the present time confessedly insolvent, and nothing more can be collected from a levy and sale under execution.
    The said Thos. Heyward Thayer, being about to enter into matrimony with Catharine Barnwell Livingston, on the 6th day of February, A. D., 1843, executed a certain indenture by way of marriage articles, between him, the said Thayer of the first part, the said Catharine Barnwell Livingston of the second part, and Eliza Barnwell Livingston, trustee, of the third part; by which articles, in consideration of the marriage intended to be had and solemnized between the said Thos. Heyward Thayer and the said Catharine Barnwell Livingston, he, the said Thos. Heyward Thayer, covenanted and agreed to settle and convey to certain uses therein set forth, a certain house specifically described, situate in Broad Street, in the city of Charleston, then contracted to be purchased by the said Thos. Heyward Thayer, but not then conveyed to him — and such “ household and kitchen furniture, plate, linen, and so forth,” as would correspond with the style of the house; also four negroes, Anthony, Cora, William, and Jacob; also all the estate, real and personal, to which the said Catharine B. Livingston was then entitled, or to which she might become entitled during the intended coverture. The trusts declared are as follows: “ for the joint use, support, and maintenance of the said Thomas Heyward Thayer and his said intended wife, during their joint lives, not subject to the separate control, debts, contracts, or engagements of the said Thomas Heyward Thayer: and from and after the decease of either of them, that should first depart this life, in trust for the survivor of them for life : and after the decease of the survivor of them, then in trust for all and every the child and children of the said Thomas Heyward Thayer, whether the issue of the intended, or any subsequent or future marriage, share and share alike, as tenants in common, and not as joint tenants, and his, her, or their heirs and assigns, or respective heirs and assigns forever.” Then follows certain contingent limitations, in the event of any of the children dying “ under twenty-one years, or unmarried, or without leaving lawfully begotten issue,” &c. Next is a declaration that the furniture, linen, and plate, shall go to the survivor of them, the said Thomas Heyward Thayer, and Catharine his intended wife.
    The negroes are referred to by their names. The house and lot are particularly described. But the other articles are only described, or alluded to in the following language : “ together with each and every parcel of kitchen and household furniture, plate, linen, and so forth, wherewith the same (meaning the house) shall, and ought to be completely and suitably furnished.” Nor was there any schedule annexed.
    These articles were duly registered, (9th Eeb., 1843.) The marriage was shortly after solemnized. On the 1st July, A. D., 1843, a deed of marriage settlement was duly executed by the same parties, in pursuance of the articles, and for the same uses. To this deed, a schedule of the furniture, plate, linen, and negroes, is appended: which was duly executed according to the form prescribed by law. The deed and schedule were recorded on 29th Sept., 1843. In the schedule, the glass, china and silver plate, are thus mentioned: “ closets containing glass, china, and silver plate,” without further description or specification. When J. D. Yates, the Sheriif, went to the house of the defendant to levy under the plaintiff’s execution, sundry articles of glass, china, and plate, were claimed by Mrs. Thayer as belonging to the trust estate. They were not taken in execution. But Mr. Yptes, in his testimony, has furnished a list of these articles.
    It is further to be'remarked, that in the last mentioned deed, the same negroes mentioned in the articles are conveyed; but in the schedule, two more are mentioned, namely, a maid servant and a seamstress, without further description. Their ñames are not given. This, however, is unimportant, as these two additional negroes,, the maid servant and seamstress, were never purchased.
    The plaintiff has filed this bill to subject the trust estate to the payment and satisfaction of the balance of his demand. The balance due on the execution of Rivers vs. Thayer, is five thousand eight hundred and ninety-nine dollars and fifteen cents, with interest from '23d February, 1853. He charges that a fraud was committed upon him by the defendant, Thomas Heyward Thayer, in the manner in which the debt due him was contracted. He further contends, that the deed of marriage articles was tainted with fraud; and that the whole scheme of a settlement was, in its inception, conceived in fraud of creditors, and that therefore it is null and void in toto.
    
    I am constrained to say, that I think the plaintiff has successfully shown, that a fraud was committed upon him by the defendant, in the partnership transactions between them. Indeed, the defendant makes but a faint denial of this. He “ admits, that his necessities obliged him to sell the stocks which he held on joint account, and that the proceeds were applied to pressing demands against him, till he was unable to meet his engagements.” Independent of this, the evidence fully establishes a ease of breach of trust and confidence against him. But as to the claim of subjecting the trust estate to the payment of his debt, I am unable to perceive that the plaintiff’s case gains any strength from the fact, that the defendant, Thayer, committed a fraud against him eight years after the date of the execution of the deed of marriage settlement. He stands upon the same footing, and no higher, than if he was a creditor of Thayer, whose claim had originated in the most perfect fair dealing. In the observations which will follow, I will therefore leave out of view all that part of the evidence which relates to that fraud.
    
      The evidence relied upon to prove that the marriage settlement was tainted with fraud in its inception, consists mainly of the facts, that the amount of the estate settled was equal in value to nearly the whole, if not the whole of the estate owned by the settlor at the time; that the greater portion of the property settled was not then owned by him : that he was then largely in debt, if not insolvent: that he has been in debt, ever since: and is now totally insolvent. If the plaintiff’s right of recovery depended upon the truth of the foregoing propositions, he would be entitled to the relief which he seeks : for I think he has fully established them all. But admitting them to be true, though calculated to create suspicion, they would be consistent with the supposition, that the defendant, in his intentions, committed no fraud. He might have hoped, and expected to pay all his debts, without infringing upon the settled property. The facts mentioned might have made an irresistible case against a voluntary settlement, in favor of creditors whose claims existed at the time. But this branch of the plaintiff’s case must rest upon a different state of facts.
    Marriage is a valuable consideration. Some have considered it the highest consideration known in law. None would say, it was a lower consideration than money. There is nothing unreasonable in this. The great value of the consideration oonsists in this : that the wife surrenders her person and her self dominion to the husband, and enters into an indissoluble engagement with him, foregoing all other prospects in life; and if the consideration for which she stipulates fails, she can not be restored to the status in quo. She can have no remedy or relief.
    Mrs. Thayer, and the issue, (for the issue are within the marriage consideration,) are the purchasers of the settled estate for valuable consideration. If the transaction was bond fide on her part, although it might be fraudulent on the part of the husband, it would not affect her title. If an insolvent debtor, with the view of evading the payment of his debts, sells his property to a Iona fide purchaser, receives the money, and absconds, the creditors could not claim the property from the honest purchaser. It would be otherwise, if the purchaser concurred in, or was aware of the intended fraud. In that case, he would be liable, though he had paid more than the value of the property. The same principle must prevail in the case of an ante-nuptial settlement. The wife is a purchaser for valuable consideration. She cannot occupy a worse position than the purchaser who pays his money in good faith. Though the husband contemplated a fraud, her title is good, unless she concurred in, or was privy to the fraud. The evidence in this case, as to the question of fraud, does not touch Mrs. Thayer. I do not doubt, but that she believed him to have been in the most prosperous circumstances — as others did, who had, perhaps, better opportunities of knowing. Indeed, it would be a great fraud on h$r, for which the defendant, Thomas Heyward Thayer, would be responsible, if the property should be taken from the wife.' Oampion vs. Ootton, IT'Yes. 262. This was a case, where the settlement was sustained against existing creditors.
    The plaintiff’s counsel candidly admitted, that if the decision in Oampion vs. Ootton was to prevail, he could not hope to recover on this branch of his case. But he cited, and insisted upon Simpson §• Davidson vs. Gfraves, Riley’s Eq. Oases, 232, as furnishing the proper rule upon this part of the case.
    But I do not think, that the circumstances of the case before me come up to those in Simpson Davidson vs. Gfraves. In the latter, the property settled was of immense value, and the wife had a large estate o.f her own, which was also settled. In the present case, the property settled was comparatively small — and though large for the settlor’s means, was not more than was sufficient for the comfortable maintenance of the family. In the case cited, the settlor was hopelessly insolvent at the time : while here, Thayer, though in debt at the time, continued to do an apparently prosperous business for eight or nine years afterwards. It is only recently, that he has become insolvent. The most important distinction is this : that in the case of Graves, the debts were of a prior date to the settlement ; while in this case, the debt which is claimed to be satisfied out of the trust property, was contracted about eight years after the date of the marriage settlement; there being no debt of that date, now in existence, so far as appears. I will further remark, that though this deed of marriage settlement purports to settle the property of the wife in possession, or contingency, it does not appear that the wife ever has had any property whatever, to become subject to the provisions of the settlement.
    It would be far from the truth to say, that in no case, would the Court vacate ante-nuptial settlements in favor of existing,- or even subsequent creditors. If the settlement was fraudulent in its intention, and the wife privy to the fraud, the Court would interpose as a matter of course. Or if the property settled was immensely large, out of-all reasonable proportion, and the wife had an ample estate of her own, which was also Settled, though the marriage consideration is not measured by a pecuniary standard, the Court would give relief to prior creditors, as in Simpson vs. Graves. But it seems to me, that in a case untainted with fraud in its inception, though the settlement embraces all or nearly all of the settlor’s property, that circumstance is entitled to no weight in favor of subsequent creditors, who give credit to the husband with the knowledge that all his property is settled. In such case, the credit is not given upon the faith that he has property. Even voluntary gifts are sustained against subsequent creditors, where there is no fraud.
    Voluntary gifts are vacated at the instance of prior creditors in all cases, whether fraud be intended or not. Subsequent creditors cannot be relieved, unless there be fraud in intention, using that term in contradistinction to fraud arising by presumption of law, in which there may be no corrupt motives. Subsequent creditors can only come in on the ground of actual fraud. Rey vs. Niswanger, 1 McO. Ch. 518. A voluntary settlement, when there are no existing creditors, can not he impeached hy a subsequent creditor, unless it was made with reference to future indebtedness, or attended with some other fraudulent circumstances besides its being voluntary. Hey vs. Niswanger, 1 McO. Ch. 518; Russell vs. Hammond, 1 Atk. 15; Stileman vs. Ashdown, 2 Atlf. 477; 3 John. Oh. 507. Where there are both prior and subsequent creditors, and the voluntary gift, or settlement, is set aside in behalf of the prior creditors, the subsequent creditors are let in. But this principle cannot operate in support of the plaintiff’s claim for two good reasons. First: the settlement here is not voluntary, but for valuable consideration, and the analogy is not good. Secondly, if it were, there are no prior creditors to make the breach, by which the subsequent creditors are let in.
    Failing in his effort to subject the settled estate generally to the payment of his claims, the plaintiff claims to make liable Thayer’s interest in the same. It will be remembered, that by the trusts of the marriage settlement, the estate is to be held for the joint use of Thayer and wife during their joint lives. The particular question here raised, is not free from practical difficulties. True it is, that as a general proposition of almost universal application, property implies on the part of the owner, (if under no disability,) the jus disponendi; and is liable for the payment of debts. These proprietary rights enter into the very nature of the institution of property; and it matters not whether it be a legal or an equitable estate. It is also true, as a general rule, that where the debtor’s property cannot be reached in a Court of Law, the creditor is entitled to relief in this Court. In general, a tenant in common, or a joint tenant, has the right to demand partition of the common property. Yet Thayer, whether living with, or separated from his wife, would have no right, (applying in his own behalf,) to demand a partition of the joint interest of himself and wife. He could not by a sale, or transfer of bis share of the joint interest, induct a stranger into the joint use of the settled estate with his wife. How could a third person have the joint use with Mrs. Thayer of the house and lot, which, by the terms of the settlement, she is to occupy? or of a negro, or an article of furniture, which she is to possess and occupy ? These questions present the difficulties in a strong point of view, and show, that the Court cannot interfere in cases like the present, without inflicting injury upon other and innocent parties : in other words, without breaking up and defeating the scheme of the settlement. If the Court were to order the trustee to rent the house, and to hire the negroes, and to pay over to Thayer’s creditors the one-half of the nett proceeds thereof, this would be to give to Thayer, or which is the same thing, to those representing him, one-half of the income to his separate use, which would be contrary to the trust. Or if the Court were to order the property sold, and the proceeds invested, and one-half to be paid to the wife, and the other half to the creditors, this would be liable to the same objection, and would deprive the wife of the particular house, and the particular negroes, he., the use and enjoyment of which, were secured to her by the trust. She would, in that case, be driven to the shift of seeking out for another habitation, and of hiring other servants, with diminished and inadequate means of so doing.
    The Court of Appeals in Equity has recenthy^had this subject under mature consideration. In Brown vs. Postell, 4 Rich. Eq. 71, the trust was, that the estate, which consisted of ten slaves, should be held for the support and maintenance of the husband and wife during their natural lives, and for the support of his present, or of any other children, during their natural lives: and that after the death of the husband and wife, the estate should be equally divided among such children as should be living, share and share alike. James Postell (the husband) retained possession of the negroes until his death; and his widow, Mary Postell, and her children, had had pos.session of them ever since. Mary Postell contracted a debt ■with the plaintiff, John A. Brown, for necessaries supplied for the family. He obtained a judgment at law against her, execution was issued, and the Sheriff had returned nulla bona on the fi. fa.; and the hill was filed to subject the trust estate to the payment of the demand. The counsel for the appellant contended, that if the Court did not recognize an equity in the complainant’s claim against the trust estate, he should be allowed to enforce his demands out of the individual shares of such of the beneficiaries as had contracted the debt that he was seeking to recover. He claimed the right to enforce his demands against the equitable estate of his debtor individually. In opposition to this claim, this was the language of the Court: “ There are two insurmountable impediments to the Court’s' adopting this latter view of the case. In the first place, he has not framed his bill with this aspect. That is not the case he has called on the defendant to answer, or this Court to adjudge. The second difficulty arises from the nature of the trusts declared in the deed. The Court could not subject the share of one of the beneficiaries of the trust, to his or her debts, without breaking in upon the whole scheme of the trust. The interest of one could not be separated, without injury to the other cestui que trusts. There is no present right of enjoyment in severalty. The Court would not decree a partition. The scheme of the trust, according to the provisions of the deed is, that the estate is to remain as a whole until the death of the survivor of John and Mary Postell. The latter still survives,” &c.
    In Heath vs. Bishop, 4 Rich. Eq. 46, two negroes were conveyed to Burrell Bishop, in trust, to pay over to John G-. Bishop yearly, and from year to year, or as much oftener as necessary or convenient, the net profits, or income from the labor, and hire of the said negroes. The plaintiff' was a judgment creditor of John G. Bishop, who was absent from the State, and without property in the State, upon which an execution could be levied. The plaintiff sought to recover by a decree of this Court, satisfaation of his debt out of the equitable estate of John Gr. Bishop, in the said negroes. The Court of Appeals affirmed' the circuit decree allowing the claim, and decreed that the plaintiff should have satisfaction of his claim out of the equitable claim of John Gr. Bishop, in the said negroes. But the decision was put expressly upon the ground, that John Gr. Bishop had a present vested right of enjoyment in severalty of the said equitable estate. And it was there said: “ If in the scheme of the trust, the rights of a debtor are so mingled with those of other beneficiaries, that they cannot be separated without injury to his co-cestui que trusts; in as much as there is no present right of enjoyment in severalty, and the Court would refuse a partition, the interest of an indebted beneficiary of such a trust could not be made subject to the payment of his debts.” This, I apprehend to be the true rule upon this subject, and must govern the decision in this case; and the rule, as thus expressed, embodies the reason on which it is founded.
    When a disappointed creditor comes into this Court with a claim like the present, he is apt to lose sight of one very important consideration. He is apt to forget, while calling upon the Court to administer an equity in his favor, that there are countervailing equities of other, and innocent parties, equal in justice to his own, founded upon valuable consideration, prior as to time: and which would be superseded, defeated, or disturbed, by granting the relief which the plaintiff seeks. Nor is the Court in any way responsible for this result. It takes away none of the rights of the plaintiff. Without denying the entire justice of his claim, or his right to recover by any of those usual and established forms of proceeding, by which a creditor enforces payment against his debtor, the Court simply refuses to interpose: because, by so doing, existing and vested rights would be disturbed, of equal equity, to say the least, to that of the plaintiff. Prior in tempore, potior est in 
      
      jure. The claim of the plaintiff to subject the joint estate of Thomas Heyward Thayer in the trust estate, can not he entertained.
    I come now to consider that part of the plaintiff’s hill, in which he claims to he subrogated to the rights of Clarence Thayer, as a prior creditor of Thomas Heyward Thayer. To he intelligible in what follows, I must make a preliminary statement of facts. The defendant, Thomas Heyward Thayer, had two sons hy a former marriage, of whom Clarence was one. He became the guardian of his two sons, as to an estate, which they had derived from their deceased mother. At the time of the execution of the marriage articles, the defendant, Thayer, owed his two wards collectively, the sum of six thousand dollars, or thereabouts.' This debt was extinguished by payments from time to time. The whole debt is now satisfied. The plaintiff contends, that the last payment, of about one thousand four hundred dollars to Clarence Thayer, was made out of his funds in the hands of the defendant, Thayer; and he claims to be subrogated as a creditor of Thomas Heyward Thayer prior to the execution of the marriage articles. There are many difficulties in the way of entertaining this view of the case. In the first place, if the plaintiff had been successful in proving the facts upon which the legal proposition is predicated, I am not aware of such an instance of subrogation. Nor was any precedent cited. Again: if Clarence Thayer’s debt still existed, and he was plaintiff in this cause, could his claim prevail against an ante-nuptial settlement, founded upon the valuable consideration of marriage? On this subject I refer to my remarks in the first part of this opinion. In the third place, the proof does not satisfy me, that the payment to Clarence Thayer was made out of the funds of the plaintiff; though there is strong ground for a suspicion, that the possession of those funds contributed to his ability to make the payment. I must state the evidence on this part of the case, referring to my notes for a fuller statement, if necessary.
    
      On the 8th February, 1851, plaintiff put into Thayer’s hands two thousand six hundred dollars, for the purchase of stock on joint account. On the 19th February, 1851, Thomas Heyward Thayer paid his son, Clarence Thayer, the sum of one thousand four hundred and fifty dollars, which was in full satisfaction of the latter’s claim. The shortness of the interval between the receipt of this money from the plaintiff, and the payment to Clarence Thayer, and the embarrassed circumstances of Thomas Heyward Thayer at that time, are, so far as I am able to perceive, the only facts, on -which the plaintiff can rest his assumption, that the money paid to Clarance Thayer was actually his identical money. I do not think this is sufficient to establish the identity. The suspicion that it was the same money, is weakened by the fact proved by an entry to this effect in defendant’s book, (introduced by the plaintiff,) “1851, Feb. 11, to cash paid for one hundred State Bank shares, ten thousand seven hundred dollars;” and by the further fact, that on the 18th February, 1851, the defendant negotiated a discount with the Bank of the State of South Carolina for two thousand seven hundred and thirteen dollars, at thirty days, secured by a pledge of one hundred and thirteen shares of the stock of the Planters’ and Mechanics’ Bank. On the 11th February, 1851, he negotiated a loan or discount with the Union Bank for four thousand five hundred dollars, at thirty days, secured by a pledge of fifty shares of the capital stock of the State Bank. On the 5th January, 1851, he got from the Bank of the State four thousand seven hundred and fifty dollars, on his note, with a pledge of two hundred shares of the Planters’ and Mechanics’ Bank. On the 20th February, 1851, he gave his note to the Union Bank for five hundred and ninety-five dollars, with a pledge of seven shares of the Bank of the State. On the 13th February, 1851, he gave his note to the Bank of the State for four thousand one hundred and eighty dollars secured by a pledge of forty-four shares of State Bank stock.
    All these transactions show conclusively that though at the time of the payment to Clarence Thayer of one thousand four hundred and fifty dollars, on the 19th of Eeb. 1851, Thos. Heyward Thayer was in an embarrassed, and failing condition, he was nevertheless, at that time, in the possession and control of funds to considerable amount. Under these circumstances, it would be a very unwarrantable inference to hold, that the payment to Clarence Thayer was made out of the identical money of the plaintiff.
    I pass on to the consideration of other matters. The plaintiff claims to subject to the payment of his debt, certain negroes, the title to which stands in the name of Elizabeth B. Livingston, the trustee of the marriage settlement of Thayer and wife, namely: a negro named Eliza, conveyed by deed dated 14th of March, 1845, to Elizabeth B. Livingston, as such trustee; a negro conveyed to the same by Geo. C. Mackey, by deed dated 5th August, 1848 ; a negro named Billy Williams. These three bills of sale are to Mrs. Eliza B. Livingston, in trust, or as trustee of Thos. H. Thayer, and his wife C. B. Thayer. They were all recorded in the office of the Secretary of State, Aug. 5, 1852. These negroes are in the possession of T. H. Thayer and wife. How they were acquired by Mrs. Livingston does not appear. There is a power given to the trustee by the deed of marriage settlement, to sell the negroes belonging to the trust estate, and to reinvest the proceeds in other negroes, to the same uses. Whether Mrs. Livingston has exercised this power, has sold all or any of the negroes originally belonging to the trust estate, and has re-invested the proceeds in the negroes above named, does not appear except in the defendant’s answer, where it is stated that such was the fact. There is not a particle of evidence adduced on the part of the plaintiff, impugning the honafides of these bills of sale. They must be presumed to be fair, corroborated as they are by the defendant’s answer.
    The plaintiff contends that these negroes should be subject to his claim, because the bills of sale were not recorded. I am aware of no provision of law, rendering it imperative -upon the purchaser of a negro to record his hill of sale. The Act of 1698 does indeed declare, that where there are two or more sales of the same property, the bill of sale first recorded shall prevail. That statute is inapplicable, for the plaintiff is not claiming as a second purchaser without notice. The Act does not declare that the non-registry of the bill of sale, shall render it void as against the creditors of the vendor. In this case, the possession was consistent with the title. The bills of sale purport to convey the title to Mrs. Livingston, as trustee, &e. There is nothing in the evidence to rebut the prima facie presumption arising upon the face of the title.
    There is one other negro claimed by the plaintiff to be 'Subject to the payment of his debt, in regard to which the circumstances are somewhat different, but the conclusion is the same. .This is a negro boy named September, conveyed by Thos. Key-ward Thayer himself to “ Mrs. Eliza B. Livingston, in trust for Julia Matilda and Philip L. Thayer,” (who are children of Thos. Heyward Thayer by his present wife.) There is nothing in the evidence that tends to impeach the fairness of this bill of sale. If it be fraudulent it was not shown. One of the witnesses testifies, that on one occasion, Thos. Heyward Thayer said to the plaintiff, that September was hi's property; and that the bill of sale though unconditional on its face, was only a mortgage to the trustee for the sum of four hundred dollars of his childen’s money which he had borrowed. But Mrs. Livingston, the trustee, to whom the absolute title was executed, was not present, and I do not perceive how such admissions can affect her title. The claim of the plaintiff, to subject the ne-groes, must also fail.
    I come now to the consideration of the last ground made in the pleadings on the part of the plaintiff. He claims, on good and sufficient reasons, I think, that all the articles not mentioned in the schedule of the deed of marriage settlement are liable to his claim.
    
      There is no schedule attached to the marriage articles, nor any specification or description of the property intended to he embraced in the deed of settlement; except the house and lot in Broad street, which is very particularly described, and the negroes who are described by name; which is sufficiently explicit. The furniture is described in general terms, as I have already explained. The furnishing of the house is referred to in language as follows. After a description of the lot and house to be settled, the articles proceed thus: “ together with each and every parcel of kitchen and household furniture, plate, linen, and so forth, wherewith the same shall and ought to be completely and suitably furnished.” Now this, although binding as between the parties, and capable of being enforced by the wife or trustee, against the husband, is certainly void as to creditors and purchasers. 5 Stat. 203.
    The Act provides that all marriage contracts made after the 1st of June 1793, shall specify and describe the real and personal property intended to be included therein, or have a schedule thereto annexed containing a description of said real and personal estate, which schedule shall be signed and executed by the parties at the time of the settlement, and be subscribed by the same witnesses, and be recorded with the marriage contract ; and in default of which the contract, as to the property not so described, is null and void. No one would be found to say that the description of the furniture, linen, and plate mentioned in the articles, is specific in pursuance of the requirements of this Act. The deed of marriage settlement of 1st July, 1843, contains a schedule of these household articles, which, for the most part sufficiently describes them; and hence arises the question, The articles not containing a description 'of the furniture, &c., is the settlement null as to creditors ? Having been introduced into the deed of settlement, the said deed, as to them, can not stand on the valuable consideration of marriage: I mean of course as to creditors. The settlement, as to these articles, must be considered as post nuptial, and .the consideration voluntary. I do not think that the void agreement of the 6th 'February, (void as to furniture, &c.,) can he made the basis of a valuable consideration to support the conveyance and settlement of property, (not described in the articles,) by the deed of 1st July, 1843.
    The case of the Banlc vs. Mitchell, Rice’s Eq. 389, is an authority for holding that articles of marriage settlement, void as to creditors, (though binding as between the parties,) can not be made the basis for a future settlement after marriage, to be considered as founded upon a valuable consideration. In that case, the articles were duly executed on the 27th February, 1809. They were not recorded until ten days after the time prescribed by law, and therefore void as to creditors. After a long lapse of time, on the 1st March, 1829, in pursuance of the articles, the husband executed a deed of marriage settlement of slaves, and this deed was duly recorded. In the interval between the execution of the articles, and the deed of settlement, the husband had become largely indebted; and it was at the instance, and on behalf of some of these intermediate creditors, that the deed of settlement was vacated. Upon the authority of this case, and upon the construction of the Act, I hold, that the deed of 1st July 1843, as to the scheduled articles, must be regarded as post nuptial and voluntary.
    Considering the settlement as to the scheduled articles, post nuptial and voluntary, are these articles liable for the plaintiff’s debt contracted about eight years afterwards? Under ordinary circumstances they certainly would not. But the evidence sufficiently proves, that Thayer, at the date of the settlement was largely in debt; that he settled, to say the least, a very large portion of his estate upon his wife ; that he has continued in debt from that day, getting more and more deeply involved, until his final and utter insolvency. Under these circumstances, a voluntary gift may be considered as fraudlent even against a subsequent creditor. The conclusion is supported by both reason and authority.
    
      McJSlwee vs. Sutton, 2 Bail. 130, was a case of trover for a slave. The plaintiff claimed as purchaser at sheriff’s ' sale, under an execution dated in 1825, of Nash vs. James J. Sutton, the donor. The defendant, James E. Sutton, who was the son of the donor, claimed by a deed of gift from his father, dated in 1819, some years before the existence of the debt. The question was, whether the gift was valid against the donor’s subsequent creditors. At the time of the gift, Sutton was indebted to the amount of one-half of the value of his estate. The debts subsisting at the date of the gift were all paid, but this appeared to have been chiefly done by contracting new ones; and the amount due by the donor, at the date of the gift, never diminished, but progressively increased, until he died utterly insolvent. The jury were charged by the presiding Judge, that there was no fraud in the case, and the verdict was for the defendant. The verdict was set aside, and a new trial granted, on the ground of misdirection. 1 McC. 228. The Law Court of Appeals gives the reasons for its decision as follows: “ If the donor, at the time of the gift, is indebted, but subsequently pays his debts, and is entirely free from debt, then such precedent indebtedness can not vitiate his gift. But if the old debts are paid off by contracting new ones, or they remain until, out of the general wreck of the donor’s estate, they are paid off, on account of their priority, then the gift is equally as fraudulent, as if to insure their payment, it was to be set aside: for in the first part of the proposition, the original indebtedness was the cause of the subsequent: and in the second, the antecedent debts, by being paid out of the fund common to both, deprives the subsequent, or junior creditors, of all chance of being paid, unless the antecedent indebtedness, as to which the gift is bad, makes it void also as to the subsequent.”
    This reasoning to my mind is satisfactory; and the circumstances of the present case, as proved by the evidence, come precisely up to those of the case cited. The facts of the two cases agree in every important particular. ■ I have therefore come to the conclusion, that the plaintiff ought to have the articles, mentioned in the schedule of the deed of 1st July, 1843, made subject by-a decree of this Court to the satisfaction of his claim : and it is so ordered and decreed.
    I will make one further remark about the scheduled property. I have heretofore said, that in the main, the articles mentioned in the schedule were sufficiently described. There is one exception. Some portion of it, and perhaps the most valuable, is thus described: “closets containing glass, china, and silver plate.” It is obvious, that this is not a sufficient description, coming up to the requirements of the law. The quantity of the silver plate might be increased tenfold, or a hundred fold, and yet the additions not be detected by the description of the schedule.
    It is ordered and decreed, that the defendants, Thos. Hey-ward Thayer, Catharine B. Thayer, and the trustee of the marriage settlement, do forthwith deliver into the hands of one of the Masters of this Court, all the articles of furniture, linen, and silver plate, enumerated and described in the schedule annexed to the said deed of marriage settlement of the 1st July, 1848 ; and that the said Master, after due notice, proceed to sell the same on such day as he may deem convenient and advisable; and that he apply the proceeds to the satisfaction of the plaintiff’s claim.
    The defendants appealed on the grounds :
    1. That the furniture settled on Catharine B. Thayer is declared liable to the plaintiff’s execution, and directed to be sold in satisfaction of his judgment: whereas the trustee and cestui que trusts insist that they are purchasers for valuable consideration of the said furniture, before the plaintiff’s debt was contracted.
    
      2. That the settlement is free from fraud, and the schedule sufficient: that the settlement and schedule are duly recorded.
    The complainants also appealed on the grounds:
    1. Because the marriage contract of the 6th day of February, 1843, does not “ describe, specify, and particularize the real and personal estate thereby intended to be included, comprehended, conveyed, and passednor has it ever had “ a schedule annexed containing a description, and the particulars and articles, of the real and personal estate intended to be conveyed and passed by such marriage contractwherefore, it is submitted, that by the Act of 1792, the said marriage contract is fraudulent, and wholly and entirely null and void, even as to subsequent creditors; and being fraudulent and void, the post-nuptial settlement of the first day of July, 1843, between the same parties, is without any consideration to. support it, and therefore his Honor ought to have decreed that the said settlement is insufficient to protect any part of the property intended to be settled by it, from either the prior or subsequent creditors of the said T. Heyward Thayer.
    2. Because the post-nuptial settlement is entirely void, not only for being without any consideration to support it, but for the reasons upon which it is insisted by the first or foregoing ground of appeal, that the marriage contract is void, viz., that it has no such description or schedule of the property intended to be settled, as is required by the Act of 1792.
    3. That at the time the marriage articles and settlement were executed, the settlor, T. Heyward Thayer, was indebted in an amount greater than the value of all the property owned by him; that the property conveyed in the settlement was-not only his whole estate, but the greater part of it was not then owned by him, and not paid for; that he could not by a settlement convey his future earnings, and for these reasons the settlement ought to have been set aside as fraudulent. .
    4. That the interest of T. Heyward Thayer, under the settlement, ought to have been defined, and made liable to the payment of complainant’s debt.
    5. That the complainant should have been subrogated to the rights of Clarence Cordes Thayer, (a creditor previous to the settlement,) whose debt was paid by T. Heyward Thayer, out of the funds of complainant.
    6. That the four negroes purchased since the marriage settlement was made, and conveyed by bills of sale to the trustee, Mrs. Livingston, canpot be regarded as property substituted under the deed of settlement, and protected thereby, there being no record of any such substitution, agreeably to the requirements of law.
    7. That the continued possession by T. Heyward Thayer of the negro September, after the sale to Mrs. Livingston, attaches to the transaction the character and penalty of fraud.
    8. That the decree is in other respects contrary to Law and Equity.
    
      Yeadon, Be Treville, for complainant.
    Petigru, Petigrew, contra.
    
      
       In Branch vs. Glover, decided at Colleton, January, 1830, the following is the Circuit decree of ,
      Haupek, Ch. The complainant is a judgment creditor of the defendant, Peter S/Glover, and the object of the suit is to set aside, as fraudulent, a settlement executed by the defendant, Peter S. Glover, on the nineteenth day of February, 1818. By that settlement, Peter S. Glover conveyed to Henry C. Glover certain slaves in trust, for the joint use of Peter S. Glover and his wife, during life; to the use of the survivor for life; at the death of the survivor, to the child or children of Peter S. Glover, or if none, to the grantor’s toothers and sisters, of whom the trustee, Henry 0. Glover, was one. Complainant’s judgment was obtained in 1827. The settlement is charged to have been fraudulent as to existing creditors, and to have been made with a view to contracting debts in future. The complainant also seeks to be satisfied the sum of one hundred and forty dollars for the rent of land, rented to Peter S. Glover, in 1823 and 1824, which is charged to have been for the benefit of the trust estate. If the settlement should not be declared fraudulent, complainant claims to be satisfied his demand out of the interest which Peter S. Glover has in the estate. The defendant, Peter S. Glover, by his answer, admits the facts charged in the bill, and consents that the deed should be set aside. The trustee, Henry C. Glover, denies the fraud by his answer. The answer of Peter S. Glover is, of course, conclusive against himself, to the extent of any interest that he may have in the property. I do not consider it, however, as any evidence against the other parties in interest. The answer of one defendant is no evidence against another. Nor is it evidence as the admission of a party against his own interest, or charging himself; for by setting aside the settlement, Peter S. Glover would have the benefit of the property in discharging his debts. I therefore leave that answer out of the question in considering the case against the other defendants.
      The evidence is, that at the time of the conveyance, Peter S. Glover was indebted to one Bayol, in the sum of one hundred dollars, for which judgment was soon after recovered. This judgment was paid off by the trustee, Henry C. Glover, on the 20th March, 1819. The next judgment against Peter S. Glover was entered on the 21st April, 1821, on a note of hand, dated 22d March, 1820. This was Isham Lowry’s judgment for fifty-eight dollars and fifty cents. E. L. Miller’s judgment was recovered in April, 1822, on an account commencing 15th November, 1820. Other judgments were recovered against Peter S. Glover, and he is now indebted to a very considerable extent.
      The first question is, whether the conveyance was void, in respect of the existing debt to Bayol. I agree with the complainant’s counsel, that where an expression is used, like that in Lush vs. Wilkinson, 5 Ves. 387, that, for the purpose of vitiating a conveyance, “ a single debt will not do,” “it must depend upon this, whether he was in solvent circumstances at the time:” or in Taylor vs. Heriott, 4 Eq. R. 232, “ the person so indebted must be insolvent, or at least in very doubtful circumstances,” these expressions must be taken to relate to the situation in which the partyleaves himself, after the exection of' the conveyance. If a person of the largest fortune, owing but a single debt, makes a conveyance of his whole property, so as to leave himself without the means of paying that debt, the presumption of fraud with regard to that creditor is irresistible. The party is insolvent ■with respect to the debt. The evidence was not very clear on this point; but one witness stated that the conveyance included the whole of Peter S. Glover’s property. But it is to be recollected that he did not leave himself without the means of paying the debt. The property was conveyed to the joint use of himself and wife. He had the disposal of the whole income, which was sufficient for the purpose. The present proceeding makes the principal of the property liable so far as Ms interest extends. In the ease of Estwiclc vs. Oailland, 5 T. R. 424, where a party indebted had conveyed his property to trustees, in trust to apply one half the income to the payment of a portion of his creditors, and to pay the other half to himself, this was held in a suit with other creditors, not to be fraudulent. It was not fraudulent to prefer some creditors to others, and as to the portion of the property, of which the profits were to be paid to himself, that remained liable to debts, and Lord Kenyon intimates that a Court of Equity would direct it to that purpose. I think the amount of this debt to Bayol, considered with reference to Glover’s means of paying it after the conveyance, was not sufficient to show a fraudulent intention. I am more confirmed in this conclusion, as the debt was afterwards in fact paid.
      In considering the cases in which subsequent creditors have come to impeach settlements on the ground of existing debts, I have been at some loss to conclude from them whether it is competent for the creditors to do so, when the existing debts have been in fact all subsequently paid off. If, after a voluntary settlement, a party pays off all his debts, this seems to be conclusive evidence of his solvency in respect to those debts. It seems to repel the fraudulent intention, as effectually as when provision is made in the settlement itself for the payment of debts. Yet cases might arise in which the parties were enabled to pay off the existing debts, by means of contracting new ones. Here the fraudulent intention would not be repelled. It might be used as a means to render the fraud more effectual, and equity would seem to require that the subsequent creditors should be put in the place of those creditors whose debts they had furnished the means of extinguishing. At present I am inclined to conclude, that when the existing debts have been paid off previous to the contracting of any of the subsequent ones, there is no ground to impeach the settlement on the score of existing debts. In the present case, the debt to Bayol was paid in March, 1819, and no other debt appears to have been contracted by Peter S. Glover until March, 1820, a year afterwards. It is true, the payment was made by the trustee, and his intentions might be honest, while the grantor’s were fraudulent. But the transaction was concerted between them, and I must conclude they had the same views. If Peter S. Glover was aware that his trustee was ready' to pay off this debt to Bayol, he could not intend to defeat it by means of the conveyance.
      Then, as to the alleged ground of the settlement having been executed with a fraudulent intention of contracting debts in future. There is no other evidence than that the grantor did contract some debts two years subsequent to its execution ; that he afterwards contracted others, until they have gradually swelled to their present amount. But this is not enough. The conveyance Was not left a seoret; it was recorded in the Secretary of State’s office, and in the office of Mesne Conveyance for the district. Stress was laid in the argument on the circumstance that Peter S. Glover had executed a simular settlement before he came of age, which he revoked, by a foi’mal instrument, on the day of executing that now in question. But I do not perceive how this shows a fraudulent intention as to creditors. The obvious effect of it (as it was recorded) would be to deprive him of credit. As to the possession retained by the defendant, Peter S. Glover, after the settlement, that cannot be considered fraudulent, because it was in pursuance of the trust expressed on the face of the deed. See Edwards vs. JIarben, 2 T. B. 587, the leading authority on the subject of fraudulent possession; and lady Arundell vs. Phepps, 10 Ves. 145.
      As to the lands having been rented for the benefit of the trust estate, that is to say, for the support of his wife and family, as well as himself, it is sufficient, without entering into that doctrine, to say that the answer of the trustee denies that the crops were so applied, and there is no evidence that they were. It seems to have been a credit to the husband personally.
      I have already said that I think the whole of his interest in the property is liable to creditors. It remains to enquire what the interest is. The property was conveyed to the joint use of husband and wife for life. This would seem to give them equal interests. At law, when husband and wife are joint tenants of land they hold by entirety. There can be no partition, nor can either charge or convey the property without the other. But a difference obtains in equity. In the ease of Ball vs. Montgomery, 3 Br. C. 0. 339, the stock of the wife, before marriage, was conveyed to trustees, but the uses were not declared during the joint lives of husband and wife. On a bill filled by the husband to have the dividend paid over to him, the Court decreed that he should receive a part only, and that the residue should be paid into Court for the future use of the wife. The husband and wife were separated, she living with an adulterer. The Court would not, therefore, order anything to be paid to her at present, nor was she considered entitled to a separate maintenance; but on the ground of the intention, that the fund should be for the mutual support of both, the husband was held to be entitled only to a part. In an anonymous case, 4 Eq. Rep. 102, the' wife living apart from the husband was held not to be entitled to a separate maintenance ; but as a trust estate, which belonged to her before the marriage, had been conveyed to trustees, to their joint use, half the profits of that estate were directed to be paid to her. It is true, the defendant in that case had made an offer of such provision by his answer, which he afterwards retracted, but the Court recognized the moral and equitable right of the wife to a maintenance out of the property. In the present case, unless the claims of creditors interfered, the husband would be entitled to receive the whole income of the property; but he would be bound to support his wife out of it, and if he refused to do so, the Court would compel him. But he is not entitled even to maintenance independant of the rights of the creditors. It seems to me, therefore, that the only decree that I can properly make, will be to direct his interest in the property tó be sold for the satisfaction of creditors, and that the profits of the residue be paid by the trustee to the separate use of the wife. The answer of the trustee prays, that the slaves which constitute the trust estate, may be sold, and the proceeds invested in public stock. This was not urged at the hearing, but a reference may be had, if desired, to determine on its expediency.
      It is, therefore, ordered and decreed, that the right and interest of the defendant, Peter S. Glover, in the trust property in question, (being an undivided moiety thereof, for the joint lives of himself and wife, and the entire property for the term of his life, from and after the death of his said wife, in the event of his surviving her,) be sold by the Commissioner for cash. That out of the proceeds the costs of this suit be first paid, and the residue, or so much thereof as may he necessary, be paid to the petitioner in' satisfaction of his demand, and the surplus, if any, be held subject to the further order of this Court. And it is further ordered, that the trustee pay over the issues and profits of the other moiety of the said trust property, for the support and maintenance of the defendant, Eliza R. Glover, and to her sole and separate use, for the joint lives of herself and her husband.
    
   The opinion of the Court was delivered by

Dunkin, Oh.

The first and second grounds of appeal taken by the plaintiff will be considered together. By the marriage articles, T. Heyward Thayer covenanted to settle the house and lot in Broad street particularly described, four negroes, Anthony, Cora, William and Jacob, “as also each and every parcel of kitchen and household furniture, plate, linen, and so forth, wherewith the same (meaning the house) shall and ought to be completely and suitably furnished.” No schedule was annexed to the articles.

For the reasons stated in the decree, the Chancellor held this ante-nuptial contract to be null and void as to creditors and purchasers; and that the subsequent settlement, made in conformity with the articles, “ could not stand on the valuable consideration of marriage, but must be regarded as post-nuptial, and the consideration voluntary.”

The Act of 1792, like all other remedial laws, must receive a reasonable construction in reference to the objects to be accomplished. It was not intended to declare a forfeiture in consequence of the violation of a prohibitory law, but to protect creditors and others, who might be misled by appearances, and defeated by latent titles. It is admitted by all that, anterior to the marriage, the intended wife stands, at least, on an equal footing with a creditor or purchaser. The transaction of a creditor or purchaser may be vitiated for fraud, and so may that of the intended wife. But if the transactions are bona fide, they are equally entitled to the protection of the Court. It is scarcely necessary to say that no schedule is necessary if the property to be settled is sufficiently described in the body-of the instrument. A schedule is only required in the alternative ; such are the terms of the enactment, and this construction is recognized in repeated decisions. The description must necessarily be according to the character of the property to be settled. All must be done that can reasonably be required in order to give information, and place persons on their guard. But, as has been said, the contracting parties have rights which are to be regarded as well as those of creditors. It was not denied that the want of such description as the Act required, rendered the whole instrument invalid, and it was then strenuously contended, that, if the contents of a china closet or wine cellar, (although so described,) were not specifically enumerated, it would invalidate the settlement of a large estate. If the Act requires such minuteness of description, it appears to me difficult to resist the conclusion of the argument. But, if a defective enumeration of this chairacter vitiates a settlement, a mis-description would be equally fatal; and few settlements which attempted a description would be proof against such a scrutiny. Our decisions afford no support to the extreme position assumed by the plaintiff. Heriot vs. Higham & Fife, Bail. Eq. 222, was decided more than a quarter of a century ago. . Emily Wakefield was entitled to a portion of a residuary fund in the hands of the executor of her grandfather, Daniel Cannon, and in 1804, in contemplation of her marriage with E. 0. Thomas, her property was settled, with no other description than a legacy under the will of her grandfather, Daniel Cannon, deceased. In 1830 the validity of this settlement was questioned in a suit between Higham and Fife, creditors of E. Gr. Thomas, and the trustees of the settlement.

The instrument was sustained by Chancellor De Saussure, who held the description in the body of the settlement to be sufficient, and that no schedule was necessary. “Newstatutes “ (says he) are always construed according to the subject matter, “ and to give them a fair and full effect and no more.” The first ground of appeal was because the settlement was void for want of a schedule, and of all specifications, subsequently, of the precise property secured by the deed. The Court of Appeals concurred with the Chancellor, and affirmed his judgment. “ It was impossible (they say) to have described the thing settled, a legacy, otherwise than as it is described in the settlement. A schedule, therefore, would have been useless.”

It is not an unusual covenant in articles that any property subsequently accruing to the wife, by inheritance, or otherwise, should be settled to the same uses. Upon the authority above cited, it would be difficult to deny that a settlement of such subsequently acquired property, in conformity'with the covenant, was sustained by a valuable consideration.

Then it was supposed that Allen vs. Rumph, 2 Hill Ch. 1, sustained the views of the plaintiff. But in that case Janet Allen had been for eight years in possession of slaves and other personalty, in which she had an absolute interest with her son Benjamin, under the will of her deceased husband. Being thus in possession of the property, a settlement was executed with no other description than “the said legacy so bequeathed by the said Josiah Allen, and all and singular any other species of property belonging to the estate of the said Josiah Allen to which she may be entitled, with the increase of slaves, stock, &c.” This description was held to be insufficient. She was in possession of the whole of the property under the bequest, and had been for eight years. The negroes could have been enumerated or named and set forth in the instrument, or in a schedule annexed. Judge Johnson, who had delivered the opinion in Sighctm $ Mfe ads. Heriot, pronounced the judgment, also, in this case, and says: “ Certainly this description does not correspond with the particularity intended by the Act, nor is there any schedule connected with it, containing a more certain description.” But, if the deed had described the plantation by metes and bounds, sixty negroes, (by name) together with the stock of cattle, hogs, &c., on, and belonging to said plantation, the description would hardly have been held defective, or that the whole settlement was void, because the stock of cattle were not more particularly described or enumerated.

In the case before us, the articles are prospective. The house was to be paid for and furnished, and the covenantor stipulates to settle the house, “ together with each and every parcel of kitchen and household furniture, plate, linen, and so forth, wherewith the same shall, and ought to be, completely and suitably furnished.” This was all the description which could be then given, and it was all that was necessary. If the wife’s property bad been large, and bad been included and fully described in the settlement, and the husband bad covenanted that, within thirty days after the solemnization of the marriage, he would lay out two thousand pounds in the purchase of a house, completely furnished, could it be contended that this settlement was void for want of specifications, and that the rights of the husband attached not only to the property afterwards purchased and duly settled, but also to the property of the wife which was also included in it ? Such construction would render the statute an instrument of fraud and spoliation instead of a protection to the unwary. This Court is of opinion that the description in the articles is sufficient, and that the subsequent deed of July, 1843, was sustained by a valuable consideration. This virtually decides the defendants’ ground of appeal. In compliance with his previous undertaking, the husband executed the settlement, to which a schedule is annexed, describing the furniture with great particularity, and also, “ closets containing glass, china and silver plate.” Assuming that these fall within the character of articles covenanted to be procured and settled, the trustee is a purchaser for valuable consideration, and stands on the purchase. The description is sufficiently definite for any such or the like purpose. A legacy of that character would pass all the glass, china and silver plate found in the closets, and such is the effect of the deed.

The plaintiff’s sixth and seventh grounds of appeal relate to certain negroes purchased since the date of the settlement. The bills of sale were taken in the name of the trustee. On this subject the Chancellor remarks: “There is not a particle of evidence adduced on the part of the plaintiff, impugning the bonafides of these bills of sale. They must be presumed to be fair, corroborated as they are by the defendants’ answer.— The plaintiff contends that these negroes should be subject to his claim, because the bills of sale were not recorded.” The Chancellor then proceeds to show, (very satisfactorily in the judgment of this Court,) that recording is not necessary in order to give validity to such deed. It is here insisted that the deeds are void there being no record that the property had been substituted for property included in the settlement agreeably to the requirements of law. This Court expresses no opinion as to the sufficiency or insufficiency of the evidence, showing that the property purchased was in substitution of that included in the settlement, as no such question is presented by the ground of appeal. But assuming that the property was purchased with trust funds, and that “ the deeds,” as the Chancellor concludes, were fair,” we concur with him that recording was unnecessary. And so, in regard to the slave September. If purchased with trust funds, (as the Chancellor concludes and the plaintiff does not hear question), the subsequent possession was in accordance with the trusts declared.

The observations made in relation to the first and second grounds of appeal substantially dispose of the third. The trustee is regarded as a purchaser for valuable consideration. If the circumstances disclose actual fraud in the parties this consideration would not protect the settlement. But fraud is a matter of evidence and we are satisfied with the views presented by the Chancellor upon this subject.

The fourth ground of appeal insists that the interest of T. Heyward Thayer, under the settlement, ought to have been defined and declared subject to the satisfaction of his debts.— By the terms of the settlement the trustee is to permit the husband and wife, during their joint lives, to hold, use, occupy and enjoy the premises with the furniture, &c., and also the negro slaves, to and for the joint maintenance and support of the said T. Heyward Thayer and Catharine B., or, as \the case may be, to and for the purpose aforesaid, quarter yearly to take, collect and receive the rents, issues, hire and profits of the said messuage, furniture and negro slaves, and during the joint lives of the said T. Heyward Thayer and Catharine B. Thayer, to pay over and apply the same unto such purposes, or unto such person or persons only as the said T. Heyward Thayer and Catharine B. Thayer, by any writing or writings signed jointly with their hands, shall direct or appoint, (but not so as to deprive themselves of the benefit thereof by any sale, mortgage, charge or otherwise in the way of anticipation,) and, in default of such direction and appointment, to pay the same into their proper hands for the joint use of the said T. Heyward Thayer and Catharine B. Thayer, and without being in anywise subject to the separate control, debts, contracts or engagements of the said T. Heyward Thayer.”

It is to be remarked that this is not a settlement to the sole and separate use of the wife; but to the joint use of husband and wife. To say that the husband has no interest, or no more interest than if the settlement had been to her sole and separate use would be to disregard the language of the deed and the plain meaning of the terms used by the parties. It is said the interest is declared not to be subject to the separate control, debts, &c., of the husband. But it is impossible to give a man property and take from it the incidents of property. This was ruled by Lord Eldon, in Brandon vs. Robinson, 18 Ves. 429, tad has been repeatedly recognized in our own Courts. Whatever interest the husband has, whether legal or equitable, must be subject, as an incident of property, to the payment of his debts. The only inquiry has been in what forum these rights of the creditors should be enforced. In the case of Ford vs. Caldwell, 3 Hill, 248, the settlement was to the joint use of husband and wife, not subject to the debts, contracts or engagements of the husband or his wife. The law Court of Appeals held, nevertheless, that the husband had the power of alienation for the term of his life as the trust was said to be executed. Acting perhaps, on this authority, the sheriff, in Rice vs. Burnett and Ioor vs. Hodges, levied upon slaves in possession of the husband under a settlement. It was determined by the Court of Errors (overruling Ford vs. Caldwell,) that the legal estate was in the trustee, and the interest of the husband could only be reached in this Court where the claims of the creditors could be met by the equities of the wife, and their respective rights be properly adjusted. Jones vs. Fort, 1 Rich. Eq. 50, recognizes the authority of these cases as deciding that “ although the legal title was in a third person as trustee, creditors may come into this Court, after exhausting their remedy at law, to make the husband’s interest in it liable to their demands.”

The general principle was elaborately discussed and approved in Heath vs. Bishop, 4 Rich. Eq. 46. In that case the circuit Chancellor sustained the claim of the creditors, although with some hesitation, and his decree was affirmed by the Court of Appeals. In announcing the judgment of the Court, the Chancellor (who also heard this case) expressed the opinion, that the interest of the creditor must be several. This was not a point in issue in the cause. No party had any interest in the estate in common with the debtor, whose interest was subjected to the .payment of his debts, and therefore no such question arose or was adjudicated. So, in Brown vs. Postell, 4 Rich. Eq. 71, the bill was filed to subject a trust estate to the payment of debts, on the ground that, being contracted for necessaries supplied for the use of the family, they were a charge as well upon the corpus as the income of the estate; and so it was at first held upon the construction given to a very obscure and informal deed. The case was subsequently heard by Chancellor Wardlaw, who dismissed the bill on the ground that there was no proof that the debts were contracted for the preservation of the trust estate, and the execution of the trusts. In the argument before the Court of Appeals, it was, for the first time, suggested, that the plaintiff might be allowed his demand out of the individual shares of certain of the ben.eficiaries. No such ground of appeal had been taken; and, in affirming the judgment of the Circuit Court, which dismissed the bill, Chancellor Dargan, in his brief observations upon this point, says, that the bill was not framed with that aspect; and that that was not the case which the plaintiff had called on the defendants to answer, or the Court to adjudge, and that this presented an insurmountable impediment. This was quite enough to vindicate the judgment of the Court. He adds, however, as another difficulty, that there was no present right of enjoyment in severalty in the beneficiaries. It cannot be necessary to repeat what has been so often declared, that the Court is responsible only for the judgment rendered, and not for the variety of reasons which may be offered as leading to that conclusion. In neither of these cases was the question as to the joint or several interests of the beneficiaries involved in the pleadings, or necessary for the adjudication of the Court.

It is very true, as urged at the bar, that the enforcement of these rights of creditors may interfere with the scheme of the settlement, and sometimes be attended with embarrassment and difficulty. But the same may be, said of a will where the manifest and declared purpose of the testator is to secure to his son the enjoyment of property, without subjecting it to the consequences of his misfortunes or profligacy. He places it in the hands of trustees to hold for his use, but not subject to his debts. The effort is fruitless. The interest of the son must have the necessary incidents of property, and may be instantly appropriated to the payment of his debts. So, too, difficulties may arise in adjusting the relative equities of the wife and of the creditors. The Court must deal with such difficulties as they present themselves, and according to the means at their disposal. In the recent case of Lazarus vs. Fuller, (Charleston, 1855,) all these difficulties were strongly urged upon the consideration of the Court. The uses declared w'ere (among others) upon the death of the husband or wife, leaving issue, to appropriate the profits of the trust estate (consisting of land and slaves) to the support of the survivor and the maintenance and education of such issue. The Court ordered the trustee to take the estate into his possession, and, after providing for the maintenance and education of the children, to apply the surplus to the payment of the husband’s creditors.

If the estate consisted of money invested in public securities, no practical difficulty would arise. But to permit a husband who, by the terms of his own settlement, is entitled to the joint possession and enjoyment of the proceeds of a plantation and slaves, or of the dividends of stock, to protect the whole fund from the claims of his creditors, because of the difficulty of defining and reaching such interest, would be a reproach upon the administration of justice, to which it is not, and should not be, justly obnoxious. The Court is of opinion, that a moiety of the annual rents, issues and profits of the estate included in the marriage settlement, as well as the contingent interest of T. Heyward Thayer, is subject to the payment and satisfaction .of his debts. It was said that the house in Broad street had been sold under foreclosure of a pre-existing mortgage. It is ordered and decreed, that it be referred to one of the Masters of this Court to report the present condition of the property included in the settlement, and also a scheme for carrying this decree into effect — parties having leave to apply to the Circuit Court for such further orders as may be necessary.

The decree of the Circuit Court is reformed according to the principles herein declared.

JohNSTON and Waedlaw, CC., concurred.

Decree reformed. 
      
      
         Sp. Eq. 579, 593.
     