
    M. Jacobs and James Slowman ads. Wm E. Perryclear.
    Heard before Chancellor Desatjsstjee, Coosawhatchie, January Term, 1885.
    The bill states that previous to the marriage of James Slowman, with Sarah Oswald, a deed of settlement was executed, by which a certain claim, which she had as one of the legatees of George Stevens, was conveyed to complainant, as trustee, for certain uses therein set forth. That the deed of settlement was recorded in the office of the register of mesne conveyance, in Beaufort distiict, but omitted to be recorded, from ignorance of the law, in the office of the Secretary of State. That no portion of the legacy came into the hands of the complainant : but he was informed recently by the solicitor employed to recover the legacy from the estate of Stevens, that by a decree of this court a certain sum of money was due complainant, as trustee of Mrs. Slowman. The solicitor also informed him, that he had accepted an .order of James Slowman, in favor of Myer Jacobs, made alter the marriage, and that he must retain that amount in his hands, and that other creditors of James Slowman, would seek to make the legacy to Mrs. Slowman, when reduced to possession, liable tor the dents of said Slowman The complainant states, that as the legacy has never been in the pos■session of said Slnwumu, it may be considered as impounded in this court, being in tne lianas of the solicitor, who recovered the same for Mrs. Sion man, lrom the .-state ot Stevens; and that the assignment of the husband, ought not to prevail against the equity of the wife, more especially as the husband had previously ixeeuted the deed, by which the rigid to the legacy was conveyed to complainant, as trustee for Mrs. Slowman. That complainant has refused to acknowledge the right of the said Myer Jacobs, to be paid out of the fund now in the hands of complainant's solicitor in the suit under which the leg toy was recovered. That as the marriage deed was recorded in ti.e office of the district, in which all the parties resided, and had been drawn up by the gentleman at the bar, then and now the attorney, solicitor, and age„t of the satd Myer Jacobs, as well as of the said Sarah Slowman, this ought to be considered as notice of the existence ot the deed of settlement. The bill, therefore, prays that the claim of Myet Jacobs, may be declared invalid, and that James Slowman, may be ordered to make a sufficient settlement of his wife’s property.
    The answir ot James Slowman, admits the execution of the marriage settlement, and that he subsequently drew the order on lhe solicitor, who had recovered the legacy for Mrs. Slowman, in favor of Myer Jacobs, as before stated. That he did not mean thereby, to defraud his wife and children, or to deteat their rights under the deeo, but that having been informed that the deed was void, for want of being tuliy recorded according to law, he thought himself at liuerty to draw the order he did, on the fund in favor of one ©f his creditors. That he is willing to do justice to bis creditors-as far as in his power, and also to his family, as the court may order and direct.
    
      The answer of Myer Jacobs, insists upon his rights under the order drawn by James Slowman, on the solicitor, who recovered the legacy in question, which was accepted by him. The answer denies any notice of the deed of settlement, and insists that the' same not being' duly recorded, is void as to creditors.
    The facts appear to be, as stated in the pleadings, and upon them; the question arises, whether the order of the husband, in favor of Myer Jacobs, to pay a debt of his own, on the solicitor who had recovered the legacy to Mrs. Slowman, and held the fund in his hands, and which order the solicitor has ac«epted, is such an assignment of the wife’s equity, as will transfer to the said creditor,a right to be paid out of the fund,- to- the prejudice of the wife and children. Tire uses and trusts expressed in the marriage settle, ment, were, that the trustee should permit the said Sarah Oswald,- and her assigns, to receive and take the rents, wages, profits, and emoluments, and increase of the said legacy, to her sole and separate' use and benefit, during her natural life,free from the control, debts, or engagements of her intended husband, James Slowman, and her receipt to be a sufficient discharge to said trustee : and upon her’ death in the life time of the said James Slowman, then the trustee' should assign and transfer the said legacy or bequest, and the proceeds from it, to and among the children of the said Sarah Slow-man.
    The question as above stated, is. whether under the circumstances of the case, the order drawn by James Slowman, the husband of said Sarah, the legatee, on the solicitor who recovered the legacy from (he estate of Stevens, is such an assignment of his inte--reals in the legacy bequeathed to his wife, as vested an interest in the assignee, to the prejudice of the rights of the wife and children, under 1 he deed of marriage settlement.? This order was an informal mode of assigning any interests, which the husband might have in the legacy, but as there is no particular mode prescribed by law, for transferring such an interest, J am of opinion that it may be considered well enough to carry whatever interests the husband bad in the legacy, to the extent oí' the order. The question then arises, what interest had the husband in the said legacy ? If there liad been no marriage settlement, the husband would have had such an interest therein, as to have been able to assign the same, and if the assignee could have obtained the interest assigned, without coming to (his court for its aid in procuring the fund, he would be able to hold it. But if he were obliged to come to this court for its aid, that would not be furnished without a proper provision for the wife out of <he fund. In this case, however, there was a marriage settlement, duly executed before the marriage, by which tha husband had joined in conveying to a trustee, this legacy then un-recovered, to tiie sole and separate use of the wife, free from his control or debts, and after her dealh to her lawful children. By that instrument the husband pasted with all the rights and interests which he might have acquired by the marriage, and of course the right of transferring or assigning, any in the legacy in question to his creditors. It is, however, argued, that the marriage settlement, not having been recoided according to the provisions of the statute, the same is void, and that the creditors of the husband have a right to avail themselves of that defect, and obtain payment of the debts due to them out of the fund. There is no doubt, that the non-recording the instrument according to law, avoided the same as to creditors, and they are at liberty to enforce their legal processes as far as the same could be used. But a power to enforce their legal remedies would not enable them to touch a legacy, or money, in the hands of an attorney or solicitor ; an execution could not be levied on it. Then it can be reached only by application to this court, on the equitable rights of the parties. Now if we examine these, it appears that the husband had parted with all the interests he might acquire to the legacy in question, by executing a marriage settlement to a trustee for the benefit of his wife and children. Thai instrument was void as to creditors for want of due recording. But it was valid as between the parties. The husband was bound by it, and however his creditors might lay hold of the fund, if they could get at it by legal processes, the husband could do no act to affect it. He was not at liberty to assign it to his creditors or any body else, and they could not, by the order of the husband, who had parted with all his rights to the trustee, acquire any power over this equity. If the solicitor, who had been employed to recover the legacy for the trustee of Mrs. Slowman, had not accepted the order of the husband, to be paid out of the fund in his hands, the creditor, Mr. Myer Jacobs, must have come here to obtain the effect of his order, and his equity would have been resisted by the equity of the wife, which existed independent of the 'settlement. But the acceptance of the order by the solicitor, has in some degree changed the situation of the parties, and obliged the trustee to come here for protection. The question, arises, was the solicitor at liberty to do so ? For the purpose of recovering the legacy, he was the agent of the trustee for the benefit of the cestui que use, and when recovered, he had no authority over the fund. It was at the disposal of the trustee, and should have been paid over to him who was the real employer. He had no authority to change the situation of the parties by any act of his, or his own position, as the solicitor of the trust estate, for that of a stake holder. It was for the court to decide what effects flowed from the non-recording the marriage settlement. The act of acceptance by the solicitor, was, therefore, a nullity, done no doubt with good intentions, and to promote, as he thought, the purposes of justice. ■ But he transcended his powers, tor it is understood, he had no authority from the trustee, to accept orders or make payments to the husband’s creditors, out of the trust fund ju question. This acceptance then, being put out of the way, the complainant is entitled to a decree, directing that the fund be paid over to the trustee. Should the creditor, however, be disposed to persevere in his claim, he may still, perhaps, file his bill, and Seek- his .redress against the trustee and the trust fund.
    
      it is ordered, that the trust fund recovered on the legacy, be paid over to the trustee.
    HENRY W. DESAUSSÜRE.
    
      Grounds of Appeal.
    
    3. Because Slowman’s order on his solicitor, in favor of Jacobs, for four hundred and eighty-five dollars, was a legal and valid assignment of so much of his wile’s legacy, and being for valuable consideration, gave the assignee a claim paramount to the rights of the trustee under the recorded deed of marriage settlement.
    2. Because the assignee is a bona fide and fair creditor, as well as a purchaser for valuable, consideration, without notice, and is by the principles of equity, as well as by the positive enactments of the legislature, entitled to payment from the property covered by the marriage settlements.
    S. Because, if the defendant, Jacobs, can procure redress, as the chancellor intimates in his decree, “ by filing a bill against the trustee, and the trust fund,” the decree in this case, should have been in his tavor, inasmuch, as all the parties to be affected by such a decree, as well as the fund itself, were in court.
    4. Because there is nothing in the shewing of the complainant, to give jurisdiction of his case to a Court of Equity, as against the defendant, Mr. Jacobs.
    5. Because the decree is in other respects, Contrary to the principles of equity, as is settled by decided cases, and contrary to the uncontradicted facts in the defendant’s (Mr. Jacobs’) answer, and Ought to be reversed.
    TREVILLE, Appellant’s Solicitor.
    
   Chancellor Hakpbr

delivered the opinion of the court.

The right of the wife to a settlement out of her separate property, which is subject to the jurisdiction of this court, is too well settled to be questioned. As is said by Chancellor Kent, in Kensey vs. Udall, 6 Johnson’s Ch. Rep. 464, “ the wife’s equity at. taches upon her personal property, when it is subject to the jurisdiction of this court, and is the object of the suit, into whatsoever hands it may have come, or in whatever manner it may have been transferred. The same rale applies, whether the application be by the husband, or his representatives or assignees, to obtain possession of the property, or whether it be by the wife or her trustee, or by any other person partaking of that character, praying for a provision out of that property.” An assignee, even for a valuable consideration, stands in the same situation with the husband, and is subject to the same equity, when he comes to seek for the wife’s property. Creditors of the husband, have no interest whatever, in the wife’s expectancy, not yet reduced into'possession, and if they think proper to credit him on the faith of it, it is at their peril.The case of Elibank vs. Montolieu, 5 Ves. 737, is one in which the bill of the wife was sustained against the husband and the ad« ministrator of an estate, of which she was entitled to a distributive share, and who was also a creditor of the husband, and claimed to retain the fund for the satisfaction of his debt. But the court, not questioning but that he might retain as against.any right of the hus« band, held that he was in no better situation than the husband, and decreed a settlement. J. Carr vs. Taylor, 10 Ves. 574, a bill was sustained by the wife against an administrator and the assignees of a bankrupt husband. If the husband obtains actual possession of the property it is out of the reach of the court, but while it is within the control of the court, it will enforce the right pf the wife.

But what the husband may be compelled to do by the court, h© may certainly do of his own accord. He may make a settlement of his wife’s expectancy upon her, and creditors cannot impeach, it. The court in directing settlement, generally, orders a reference to ascertain the proper settlement; But if the husband should as. sent, it would, as of course, order a settlement of the whole pro. perty, and creditors could not be heard to object to it. He may assign his wife’s legacy in the hands of the executor to a trustee for the wife’s separate use ; and certainly, 1 suppose such a trustee might maintain a bill against the executor, for the benefit of the wife. But inequity an assignment may be made on sufficient consideration, by parol merely. There can be no doubt, but that the equity of the wife is a sufficient consideration ; and I do not sea how such an assignment of the wife’s legacy could be questioned. Notwith. standing the decision of the courl, in the case of Price vs. -, where a written settlement was actually executed, I do not perceive how any question could arise as to the necessity of recording such a parol assignment. If the executor should pay over to such a trustee, it would still be the wife’s chose in action ; which neither the husband or creditors could touch without the aid of this court, or some court of concurrent jurisdiction, and still subject to .the wife’s equity, if they should attempt to reach it. And no prejudice could arise to creditors, by misleading them to credit the husband, on the appearance of property in his possession, if the trustee retained the money or any other property in his own possession, and paid over the rents and profits to the wife. If he should permit chattels to go into the hands of the husband, this might, perhaps, be construed a surrender of the trust, and the marital rights to attach Upon theiB; §0 as to reader them liable to creditors.

In this case, are we to regard the defendant, Siowman, as having assigned the legacy to the complainant. If the solicitor received the money merely as the agent of Siowman, then I think it is the same thing as if Siowman himself had recovered it, and he must be regarded as having reduced it into possession. But if in consequence of an understanding between Siowman, his wife and the complainant, he was directed to receive it and pay it over to complainant, for the separate use of the wife, this was in effect an assignment to complainant, and the solicitor’s receipt of the money was complainant’s receipt. To the complainant alone, was the solicitor responsible for it, and Slowman’s subsequent assignment of a part of the same fund to the defendant, Jacobs, was a mere nullity. And this entirely independent of any effect to be given to the mar-ria.-.e settlement. The husband has never had possession of the mo ley, and whether in the hands of the solicitor or the complainant, is still the wife’s chose in action-

The chancellor states that the solicitor received the money as the agent of complainant. But it is supposed in argument, that this may have been a mistaken impression. But all the circumstances of the case, indicate that he did not act merely as the agent of the husband. He was the solicitor of the wife, in the suit for recovering the legacy before the marriage, and when after the marriage the husband became a party to the suit, he continued the solicitor of husband and wife. As soon as he received the money, be advised the complainant of it, and as it was agreed at the hearing, paid over to him the principle part of the fund. How is it possible to account for this, but by such an understanding as I have supposed. The deed itself, however void it may be as a marriage settlement, and though we give it no greater effect than if it had been a mere verbal agreement in consideration of marriage, yet furnishes plenary evidence of the understanding and agreement of the parties, to assign the legacy to complainant. It shews that the solicitor received it for the complainant, and that he is the proper person to maintain the suit for it. It is possible that the money might have been recovered of the solicitor by a different proceeding. But the complainant is entitled to have the rights of his ces-tui que trust, declared as against the husband and his assignee Jacobs. He comes here properly to give effect to the assignment.

The chancellor’s decree is, therefore, affirmed.

WILLIAM HARPER.

De Treville, for motion.

.A. M. Smith, contra.

Filed 15th February, 1837.

We concur,

HENRY W. DESAUSSURE,

Chancellor J. Johnston, dubitante.

DAVID JOHNSON.  