
    John Teasdale, jun. ads. George Reaborne, Trustee for Mrs. Opry.
    Columbia,
    1804.
    A voluntary settlement made for the use of a man’s wifeaftermar-riage, is not to be deemed fraudulent because it is voluntary, unless made to defeat purchasers or to defraud creditors.
    Yet if there are grounds to apprehend fraud, court •will grant a new trial to have those doubts cleared up.
    TROVER for sundry negroes, tried in Sumpter district. Verdict for plaintiff. Motion for new trial.
    This was a case tried before Mr. Justice Grimke, under whose direction the jury gave a verdict for the plaintiff. The case, as appeared from the report of the presiding Judge, was substantially as follows:
    One Hugh Opry, being about to marry Miss Reaborne', the daughter of George Reaborne, on the 2d May, 1799, made a deed of trust of sundry negroes therein named, to the said George Reaborne, for the use of his daughter, his intended wife and her children, in case of death or accident ; which deed was duly recorded the 4th May, two days after its date. The marriage soon after took effect, and the parties lived together for some time after in mutual love and affection. Unfortunately, however, in process of time, they- quarrelled and separated; when Opry, the husband, took upon him' to sell the negroes in question, which he had settled on his wife before marriage, to John Teasdale the elder, father of the present defendant, for 600 dollars.
    The bill of sale was dated 14th May, 1S0Q ; part of the consideration money, 396 dollars, were paid down, and the rest, as was alleged, was to be paid when it suited Teasdale's convenience.
    After this sale, Teasdale took the negroes into possession, and kept them till November, 1802, when they were seized by virtue of an execution, by the sheriff of Sumpter district, and sold at sheriff’s sale, as the property of old Teasdale. At which sale the son, John Teas-dale- the younger, became the purchaser, at and for the sum of 416 dollars. After this sale, the younger Teasdale sold to the plaintiff Reaborne, one of those negroes, a boy, named Bob; but he very soon afterwards returned him back, alleging that he did not know of the deed of trust for the use of his daughter, Mrs. Opry ; (not being present at the time of the execution of it, or when it was delivered into the office to be recorded ;) but upon being informed there was such a deed, and finding it duly recorded, he thought it his duty to recover the negroes back for the use of his daughter. Upon which he made a regular demand of them, but defendant refusing to deliver them, he commenced this action, and had a verdict, under the direction of the Judge, in his favour.
    This, therefore, was a motion for a new trial, on the ground that this deed for the use of the wife, was fraudulent against purchasers for bona fide consideration, and also against creditors.
    
      Falconer., in support of this motion,
    contended, that this deed of trust was fraudulent against purchasers, as well as against creditors; and the more so, as both Mrs. Opry and her father were present at the sheriff’s sale, and saw the negroes sold to young Teasdale, without interposing their claim, or forbidding the sale ; which, it was urged, was a waiver of her right, and an acquiescence in the sale to John Teasdale, the father of the defendant, as well as in the' right and claim of the plaintiff in the action, at whose suit the negroes were seized and sold.
    It was further contended, and not denied, that Mrs. Opry herself had said that the deed of trust was a sham, and that if Teasdale the defendant would give her a trifle, she would give up the deed ; and that she actually did receive part of the payments from old Teasdale, after the bill of sale was made.
    It was further stated by the counsel in favour of this motion, that Opry himself was in debt at the time he made the deed of settlement, and therefore that it was void as against creditors, as well as against bjna fide purcha-.ers. It was therefore argued, that the court ought to grant a new trial, that all these matters might be more fully investigated.
    In further support of this motion, defendant’s counsel relied on the following authorities. Roberts on Fraudulent Sales, 66. 395. 403. Also, Esp. N. P. 205. 3 Bac, 313.' Cowp. 2Ü8.
    
      Blanding and Richardson, in reply,
    argued, that voluntary conveyances were not void because they are voluntary j but to make them so, they must be made with intent to deceive bona jide purchasers, or to cheat creditors j that no such intention had been proved or made to appear in the present case. Mr. Opry not only had it in his power to make a comfortable provision for his intended wife, but actually did make one 5 and it was praiseworthy and ho-nourable in him to do so. And the present was one of the many instances which shews the wisdom and propriety of such a measure. When this deed of trust was made, Opry was free from embarrassments; but, like a prudent man, foresaw that it might not always be the case, and therefore made the best provision in his power for the support of his wife and family, while there was nothing to impeach or call it in question.
    Unfortunately, however, not long after the marriage an ryihappy difference took place between them, and in a fit of disgust and resentment, he made a kind of bargain with old 7 easdale, and gave him a bill of sale for the very negroes he had settled on his wife; and from the very nature of the transaction, it had the appearance of iniquity stamped upon the very face of it, and as if it had been done with a view to counteract his former benevolent intentions towards the woman he had loved; but the leading facts in this case were too strong to be gotten overby vague surmises and conjectures. In the first place, there was no proof that there was any dishonest intention in the parties when the trust deed was executed ; it was fair and honourable in its commencement, nnd made for the most valuable consideration known in law, that of marriage. Besides, it is a well established maxim that fraud is never to be presumed; it must be actually proved. Mrs. Holman’s case is strong in point: there a deed was made, in order to reconcile man 1 7 and wife after a separation, and it was held good even • t iiii i rr* • against creditors, as the husband had more than sufficient to pay all his debts at the time of making the deed, exclusive of the property then settled on his wife. And the proviso in the act made to prevent fraudulent conveyances, expressly excepts out of the provisions of the act itself, all deeds made upon or for good consideration, and bona fide, any thing in the said act to the contrary notwithstanding. This deed therefore, they contended, was unquestionably out of the statute against fraudulent conveyances.
    voTi^pMTfi, (l&fofsedit.) See also Fox and Lemngs? worth’s case* ante, p. 5»x
    
      Pnh 69-
    They further urged, that whatever might be said in fa-vour of purchasers for good and valuable consideration in other cases, very little could be urged in favour of this sale; because it appears, from the perusal of the bill of sale from Opry to old Teasdale, that six valuahle negroes, worth at least 1,600 or 1,700 dollars, were sold for the small sum of 600 dollars, and only 396 dollars of that sum paid down; the rest to be paid as it suited the 'convenience of old Teasdale. This, they contended, at the first blush., carried suspicion of fraud on the very front of the transaction, and spoke a language too plain to be misunderstood, that there must have been some secret understanding between Opry and Teasdale. The time too when it was made was worthy of notice, as it was after Opry and his wife had quarrelled, and when he was publishing her all over the district, for incontinence, and unfaithfulness towards him.
    That the sheriff’s sale was another feature in this case, which made it still more suspicious. The execution was not against Opry^ but old Teasdale; and his son was the purchaser of the negroes, at 416 dollars. The inadequacy of price, and the relationship between the defendant and ^ie purchaser, father and son, has very much the appear» anee of contrivance, to defeat, if possible, the operation of the trust deed in favour of Mrs. Opry.
    
    But admitting the demand for which these negroes were sold was a just one, and that Reabome the trustee, and Mrs. Opry herself, were present at the sale, and did not forbid the sheriff from proceeding, nothing injurious to her just right ought to be inferred from this circumstance, because it does not appear that Reabome, the trustee, knew of the trust deed at that time ; on the contrary, it is very evident he did not, from his purchasing one of the negroes sold, a boy, from young Teasdale, afterwards; and his return-, ing him again as soon as he discovered that such a deed had been made and recorded. And as to the loose random declarations of a woman in distress, not conusant of her legal rights, they were too light and trivial to be regarded. At any rate, she could do no act to defeat the trust deed, without the assent of her trustee, and the consent of Opry himself, who made it.
    That as to Opry’s being in debt at the time the deed was made, no demand or debt had been made to appear against him existing at that time, but 3/. sterling; and from his tax return, he had two negroes reserved to himself, and at his own absolute disposal, besides the negroes included in the deed of trust made in favour of Mrs. Opry ; consequently, that pretext failed the defendant.
   The Judges were all clear on one point, that wherever a voluntary conveyance is made for the use of a man’s wife, or intended wife and family, it was not void, because it was voluntary. In order to make it so, it must be made with a view to defeat bona fide purchasers, or to defraud creditors. Mrs. Holman!s case was full to this point; also, Cowp. 708. As to creditors, they appear to be out of the question in the present case, as Opry only owed 3/. sterling when the settlement was made, and had two negroes besides those named in the instrument.

The only point in this case which can affect a bonajide purchaser, if defendant can be called one, is, that Keaborne the trustee, and Mrs. Opry were both present at the sheriff’s sale, and did not forbid it; and her saying the deed of trust was a sham deed, and her receiving money from Teasdale, in part satisfaction of her claim.’ These circumstances, they thought, created some suspicions on the subject, and were sufficient to justify the court in sending the case back to a jury, to have these matters more fully investigated.

Bay and Trezevant, contra, thought there were no legal grounds to impeach this verdict.

Rule for new trial made absolute.

N. B. This case was tried a second time, when the jury found again in favour of the plaintiff.  