
    Scott and Wife and Claiborne v. Gibbon and Company, and Batte.
    Jan. 29, 1816.
    1. Antenuptial Settlement — Effect on Creditors. —A deed of marriage settlement executed before, and recorded after the marriage, but within the time reauired by law, is conclusive against the creditors of the husband, for debts contracted by him before the marriage. And this, although such deed was recorded upon the acknowledgment of the parties, without any privy examination of the wife.
    2. Chancery Practice — Bill—Allegations Undenied in Answer — Effect.—If plaintiffs in equity charge in their bill that a deed of marriage settlement under which they claim was executed before the marriage, though recorded afterwards; it being, also, expressed in the recital of the deed, that the same is made in contemplation of a marriage “shortly intended to be solemnized,” &c; and that allegation be not denied or noticed in the answer; it must be considered as admitted to be true, without farther proof.
    The appellants exhibited their bill to the chancellor of the Richmond district, setting forth that Scott (who was very much involved in debt) and his wife, before their marriage, entered into a marriage contract, by deed duly executed and recorded, whereby the property of the intended wife only was conveyed to Claiborne, in trust, that, from and after the solemnization of the marriage, he should permit the husband and wife during their joint lives to take and enjoy all the interest and profits of the property so conveyed : and that, after the marriage was solemnized, and the deed was recorded, Gibbon and Co. and Batte sued out executions on judgments they had respectively obtained against the husband before the coverture, and had those executions levied on the property of the wife so vested in Claiborne by the deed and for the purpose above mentioned. The prayer of the bill, therefore, was, that the defendants might be enjoined from proceeding with their executions against that property.
    It distinctly appeared that the judgments of the defendants against Scott were obtained some time before the marriage.
    The deed, exhibited with the bill, bears date April 13, 1809. The marriage took effect, (as the appellants allege) shortly afterwards. The deed was recorded, on the acknowledgment of the parties without the privy examination of the wife, after the marriage, viz. at Dinwiddie county court, November term, 1809. There was no witness to it. The recital of the deed is as follows — “Whereas a marriage is shortly intended to be had and solemnized by the permission of God, between the said William Scott and Mary Davis ; and whereas the said Mary is possessed of real and personal property *during her life, and also sime personal property in absolute fee -simple, the former of which was devised and bequeathed to her by the last will and testament of her deceased husband, and the latter has been acquired by her since her widowhood ; and whereas it hath been agreed that the said William and Mary should enjoy the interest and profits of the said estate jointly during their lives ; now &c ” Scott is party to the deed, in which it is expressed to have been made with his consent. The deed then conveys the said property by specific description, to the trustee Claiborne, his heirs, executors, &c., upon trust as therein declared, via. “In trust for the said Mary till the solemnization of the said intended marriage ; and from -and after the solemnization of the said intended marriage, then in trust that the said ■Claiborne, his executors, &c. shall and do permit the said William Scott and Mary his intended wife, during the joint lives of them the said William and Mary his intended wife, to have, receive, take and enjoy, all the interest and profits of the said property, hereby conveyed and assigned, to and for their own use and benefit; and from and after the decease of such of them, the said William and Mary, as shall first happen to die, then upon trust that the said Claiborne, his executors, &c. shall, and do assign, transfer and pay over, all the said property, to the said Marv in case she survives the said William ; and if the said Mary die before him the said William, to transfer, assign and pay over all such property, hereby conveyed to the said William, in which the said Mary has an absolute fee simple.”
    The chancellor denied the injunction, and assigned his reasons to the following effect: —“The question, whether a court of equity can interfere, in favour of a trustee, against the creditors of the cestui que trust ? was not, as the plaintiff’s counsel supposed, settled by the court of appeals in Mrs. Copland’s cause :  as two of the judges have informed me. The question was in that case, as it is in this, should a court of equity interpose, to prevent a creditor from availing himself *of the benefit of the law, upon the conditions imposed by the law itself, (namely, to indemnify the officer,) unless a case were presented, that would make the interference of the court of equity proper in any other case? In that case, it was held, that if the trustee was inattentive to his trust, the court might interfere, at the instance of cestui que - trust, as he has but the equitable, not the legal estate. But, in the case before me, the trustee is stated to hold himself bound to interpose; and the law furnishes him the means. Therefore, the court cannot yield its opinion to the counsel’s suggestions. Even if it had been settled, in the case referred to, that this court might interfere ; still, this case would depend on the validity of the deed ; for, unless it was recorded in the manner prescribed by law, Mrs. Scott parted with no right to the trustee. Tt is true it does not appear when the marriage was celebrated ; but the deed, which is dated in April, states that the marriage was shortly to take place ; and it is to be presumed, it did take place before the deed was recorded, in November following. It vras recorded on the acknowledgment of the parties (for there is not a witness to it.) But Mrs. Davis was then a married woman ; and (as the court is at present advised) had no powers to make an acknowledgment; at least, in that way. The property, then, of the wife, not having been conveyed in the manner prescribed by law, became the property of Scott her now husband : and I regard it as a well settled principle of the courts of equity, that their remedeal power does not extend to the supplying of any circumstance, for want of which the legislature hath declared the instrument to be void. So that, unless the plaintiffs can at least charge upon oath, that the marriage was after and not before the recording of the deed, the case should be left at law.”
    Upon this, application was made to a judge of this court, by whom the injunction was awarded.
    The defendants appeared and answered the bill. Their answers arc, in effect, no more than the reasons given by the chancellor for denying the injunction, cast in the form of an answer.
    *The cause coming on to be finally heard by consent, the chancellor pronounced (in substance) the following opinion and decree:
    “The court being of opinion that the deed in the bill mentioned, not being proved to have been executed and delivered, before the intermarriage of the plaintiffs Scott and wife (two of the parties thereto) all her personal rights, which were liable to her creditors at the time of her marriage, vested in him, and in like manner became liable to his creditors : For the acknowledgment of the deed aforesaid, by the parties thereto, after the marriage, should not have relation back to the supposed date of the deed, in order to give it validity from that time, against the rights of third persons ; and more especially in this case, since it no where appears to have been presented in court by the trustee, and acknowledged at his instance ; an act which the female plaintiff was, at that time, incompetent to perform. Unless, then, it could appear by the deed itself, or other proof, that the female plaintiff, before coverture, divested herself of any right to the property mentioned in the deed, it follows, that, upon the marriage, it vested in the husband. Therefore, the court doth decree, &c. that the injunction awarded, &c. be dissolved, and the bill dismissed, with costs, &c.”
    From which decree, the plaintiffs appealed to this court.
    Beigh, for appellants,
    insisted — 1. That, supposing the marriage contract unim-peached, the bill presented a proper case for relief in equity ; which, he said, had been decided by this court in Mrs. Copland’s case. 2. That, as to the deed not being duly recorded because the wifd was not privily examined as to her acknowledgment thereof ; the deed had been equally good as against the husband’s creditors, had it been recorded on his acknowledgment alone. 3. That the fact of the deed being executed before the marriage, being distinctly alleged in the bill, and not denied or even noticed, in the answers was not in issue ; and the court ought not to have presumed a fraud against one party, not only without proof by the other, but even without a pretension, that such fraud existed.
    Call, contra,
    maintained the grounds of the chancellor’s decree ; and also contended, that the effect of the deed of trust, *was, to vest in the husband and wife a joint use, during their joint lives, and the profits of the property thereby conveyed ; which, in respect of the personal estate, was the same thing, as if the property itself had been vested in the husband and wife during their joint lives: that, therefore, the life estate of the wife in the profits of the personal estate, and of course, in the personal estate itself, vested in the husband, as soon as the marriage took effect: that consequently during the joint lives of the husband and wife at least, the personal subject was liable to the debts of the husband, whether contracted before or after coverture : and that, in all events, the husband’s possibility, in case he survived his wife, was liable to his creditors.
    Leigh, in reply,
    said that Mr. Call’s construction would defeat the plain intent of the deed ; which was, that the husband and wife should both be permitted to enjoy the benefit of the property during their joint lives ; but the wife could not enjoy her part of such benefit, if the property was taken to satisfy the debts of the husband contracted before the coverture. He denied, that the use of the profits of the personal subject, was such an use as was executed into possession : the personal nature of the subject, and the terms of the deed, both excluded that proposition ; to which point he cited Harg. co. I/itt. 290, b. Note 1. Sect. 1.
    
      
       Marriage Settlement — Rights of Creditors of Beneficiary. — Where a woman, about to marry a man much involved in debt, settles her own property with his consent, in trust that the husband and wife should enjoy the interest and profits of the said estate jointly during their lives, gives no claim to his creditors, as it would defeat the avowed object of the settlement. As so deciding, the principal case is cited in Land v. Jeffries, 5 Rand. 266.
      In Roane v. Archer, 4 Leigh 550, 568. real and personal estate was settled by deed "to the use and benefit of husband and wife during their joint livés, and if the husband should survive the wife, then to his use during his life, and after his death to their children.” It was held, on the authority of the principal case, that the joint interest of the husband and wife, during their joint lives was not subject to the husband’s debts. In this case, it was held that the husband’s contingent interest, in case be survived his wife, was subject to his debts.
      To the same effect, see the principal case cited in Nickell v. Handly, 10 Gratt. 341; Johnston v. Zane, 11 Gratt. 570; Nixon v. Rose, 12 Gratt. 429; Armstrong v. Pitts, 13 Gratt. 243; French v. Waterman, 79 Va. 625; Coatney v. Hopkins, 14 W. Va. 358; and distinguished in Lewis v. Adams, 6 Leigh 335.
      See further, foot-note to Perkins v. Dickinson, 3 Gratt. 335; monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
       Chancery Practice — BUI—Allegations Undenied by Answer — Effect.—in Cropper v. Burtons, 5 Leigh 432, Judge Carr said: "With respect to the general position, that all the allegations of a bill, not expressly denied by the answers, must be taken as admitted, I consider it incorrect and mischievous. When Scott v. Gibbon, 5 Munf. 86, was referred to in the argument, it struck me, that the court had, in some case, since I was a member, had the subject before it; and'I find, that in Coleman v. Lyne, 4 Rand. 454, the general proposition was disapproved, and the reasons and authorities given. It was added, that ‘one or two cases were cited from our reports as countenancing the idea of the counsel; but they will be found to be cases (as in Page v. Winston, 2 Munf. 298), in which the allegation in the bill was. that some fact did not exist, or that something was not done (negatives, which could not be proved), or cases where the documents and circumstances in the cause, proved prima facie, that the fact alleged and not denied, was true, as in Scott v. Gibbon.” And in Miller v. Argyle, 5 Leigh 467, it is said; "Shall we take the matter charged, and which has not been denied to be true, according to the doctrine supposed to be laid, down in Scott v. Gibbon, 5 Munf. 86? This would be against the settled doctrine, that though upon a motion to dissolve, the matters not denied must be taken as true, yet on the final hearing, they must be proved or the plaintiff will fail. Young v. Grundy, 6 Cranch 51. In Coleman v. Lyne, 4 Rand. 454, it is said, that the plaintiff must except to the answer, and if sustained and a further answer ordered, and the defendant refuses to answer, the bill may be taken pro con-fesso; Jopling v. Stuart, 4 Ves. 619. And this is doubtless the true course, where the plaintiff being without proof, finds it necessary to appeal to the defendant’s conscience. But if a material allegation which is not denied, can be proved by the plaintiff, I am not aware of any case in which it has been held, that he must compel the defendant to make up an issue upon that point, before he shall be permitted to take his depositions, or to file his documentary evidence, in proof of it.”
      See decision of principal case also discussed in McPherrin v. King, 1 Rand. 186; and cited in Robinson v. Cathcart, 20 Fed. Cas. 990; foot-note to Maupin v. Whiting, 1 Call 224, containing an extract from Robinson v. Cathcart, 20 Fed. Cas. 990.
      See further, on this subject, foot-note to Cropper v. Burtons, 5 Leigh 426; monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
    
      
       See Wilson and Trent v. Butler and others, 3 Munf. 559 — 565.-—which was the case here alluded to: — but in that case, the trustees did not appear Inattentive to their trust; and they, together with the cestuys uue trust, were complainants, and obtained relief in equity. — Note in Original .Edition.
    
   February 21st, 1816.

JUDGE} ROA.NB

pronounced the court’s opinion as follows :—

The court is of opinion that the deed of settlement in the proceedings mentioned, having been made in contemplation of a marriage between a feme sole and her intended husband, aman very much indebted, and whose creditors, but for such a settlement, might, after the marriage, have swept away the property of the wife to pay the pre-existing debts of the husband, and left her in absolute indigence, — is founded upon a sufficient consideration, and ought not to be avoided in favour of the appellees, creditors of the husband anterior to the marriage. — The court is also of opinion, that, upon the true construction of that deed, which declares that William Scott and Mary Davis, two of the parties thereto, should enjoy the interest and profits of the property settled, jointly during their *lives : —that the settlement was made with the consent of William Scott the intended husband ; — -that the trustee therein named do permit the said William and Mary during their joint lives to take and enjoy the said interest and profits, for their own use and benefit; — the idea of a property in the said William in and to the settled subject, during the coverture, is clearly reprobated. A contrary construction would not only defeat the avowed object of the settlement, by sweeping awayithe property as aforesaid, but is in utter hostility with that part of the deed aforesaid, which vests the property in the said William in the event of his surviving his wife ; —in which case the trustee is directed to transfer, assign and pay over the property settled, to William ; terms which, by contrast clearly import the contrary idea, in relation to the same, during the coverture.

As it is conceded in this cause, that the deed in the proceedings mentioned was executed prior to the marriage of the parties, and the same having been recorded, on the acknowledgment of the husband and his wife, within the legal term, — (without deciding what effect that acknowledgment and recording may have as to the wife or her creditors,) the court is further of opinion that the said execution and acknowledgment is conclusive as to the appellees the former creditors of the appellant William, there having been no instant of time during which the settled property was liable to satisfy their claims, aud the same not having been contracted in contemplation thereof.

On these grounds, the court is of opinion to reverse the decree, and perpetuate the injunction ; — but without prejudice to any proceedings which the appellees may, at any time, be advised to institute for the purpose of charging the contingent interest of the appellant William arising under the deed aforesaid.

Decree reversed.

JUDGE} COALTE}R

delivered the following separate opinion. This appears to me to present a proper case for the interposition of a court of equity, not only from the nature of a portion of the property, (viz. slaves,) which was about to be sold, and on which ground this court has, in several cases, determined that such interposition was proper, but on the ground of difficulty *as to the extent of the debtor’s interest, and how such interest can be reached by the creditor.

The object of the deed of trust, referred to in the bill, was either to preserve the use of this property to the husband and wife, during coverture, for their joint maintainance, and the profits, as they arose, to be applied in that way, clear and free from the creditors of, or purchasers from, the husband, or, what would be nearly the same thing, to the separate and exclusive use of the wife during the coverture, and consequently clear of his creditors, or purchasers under him, with remainder to the survivor ; or the object was to secure it to husband and wife, in the usual way, during coverture, and then to the survivor ; in which case the great object of the deed would be to secure the remainder to the survivor, leaving the husband the control during coverture. But, even in this latter case, the interest of the debtor, in that portion of the property which was to return to the estate of the first husband, would be different from that which had been acquired, and was held, by the wife in her own right: —as to the first, his interest would be for his own life, provided his wife should so long live, and, as to the latter, his interest would be during life, with remainder over in case he survived his wife : — or the deed may possibly admit of the construction that he, as joint tenant with her, was to take one half of the profits during life, if his wife so long lived, with remainder over in the property-held in her own right, if he survived her.

If either of the first constructions should prevail, as the property would, by the deed itself, be free from the husband’s creditors, then, on the principles of Mrs. Copland’s case, the injunction ought to have been made perpetual; unless, indeed, the want of the proof stated in the decree was a proper ground for dismissing the bill. As to that ground, I consider the answer as impliedly admitting that the contract was entered into before marriage ; because, in the answer to the bill, which alleges that fact, and refers to the deed, which bears date before the marriage, the parties defend themselves on one ground only, to wit, its not being duly recorded. At all events, such a waiver of that point of defence ought not to be permitted to entrap the party on the final hearing, but the court, if farther proof of that fact was considered material, ought to have instituted *an inquiry on that point, especially as the bill was sworn to, which would be equal to the affidavit of the party that such was the fact, and against which a hasty presumption of fraud ought not to have been entertained, when the answer does not even call for farther proof.

The recording of the deed was good as to the husband and those claiming under him, on his acknowledgment; and probably it was good, also, as to the wife, without privy examination ; (but as to this I give no positive opinion ;) for, though she is a grantor therein, it was a deed for her benefit, being intended to protect her estate from the marital rights of the intended husband, and in fact she took an estate thereby : — the deed would have been valid if the intended marriage had not taken place ; but, on that event, it intercepted the husband’s marital rights, and in fact operated as a deed from him for her benefit, in the same manner as if he had articled to convey and settle this property in this way, after marriage, and had made such settlement. But, again, when it was executed, she was free from that control which the law means to guard against, and if she had been privily examined, the inquiry would be, did she execute it freely ? And was she still willing to be bound thereby ? But, as the case declares her free at the time the deed was executed, why make the first inquiry ? And, as she passed nothing when the acknowledgment was made, but was then confirming an estate in herself, why make the second ?

If, however, neither of the two first mentioned constructions of the deed should prevail, and the result should be that the husband has, under one or the other of the latter constructions, an interest in this property, from which his creditors ought not to be excluded, I think the difficulty, as to the amount of that interest, and how the creditors are to obtain it, is such, that justice to either party was not likely to ensue from a sheriff’s sale. These difficulties, to say nothing of the question whether the possession did or did not follow the use in this case, were well calculated to embarrass purchasers, and to occasion a great sacrifice in the sale. In this point of view, I think the preventive justice of a court of equity was properly applied to.

I am by no means satisfied that either of the two first mentioned constructions can be put on this deed : — I can find *no case where the husband, or his creditors are excluded, except by express words of exclusion, or words from which that intention can fairly be drawn : — in this case, I can find no words which will justify me in drawing this inference ; — on the contrary,this deed is drawn, I believe, in the usual way, where the great object is to secure the property, in remainder, either to the survivor, or to the issue of the marriage, leaving the marital rights of the husband, during coverture, untouched. There is no statement in the deed that the. intended husband was in debt, and that the object was to secure the property against his creditors, or to provide a comfortable maintainance for the wife, who, in this respect, seems willing to share the fate of her intended husband during their joint lives, and is only desirous of securing her property to herself in case she should survive. Had it even been for her livelihood, this might perhaps have done. But if there is no foundation for a contrary construction, the case must be left to the operation of the law by which a married woman, unless there be some agreement to the contrary, gains no property in personal goods separate from the husband, as being against the rules of law and common right, in consequence of the unity of person which exists between them. Nor is this a case of articles, which the court might construe liberally, perhaps even as it respected the rights of creditors, but is a deed of settlement, which must be construed, as all other instruments of that kind, according to the plain meaning of the parties as supposed to be fully expressed therein ; only resorting to extraneous matter in case of doubt and ambiguity. A woman about to marry, if she knows her intended husband is in debt, or if she doubts his prudent management, may guard her property against his marital rights during coverture, but the deed must manifest this intention : — every marriage contract has not this operation, which I fear will be the result of a construction that this has.

If then the husband took an estate in this property, either in whole or part, or a right to receive the whole or part of the profits, as they should arise during his life, which interest he could control, and could apply to the payment of his debts, or otherwise, and which his wife or trustee could not prevent, it would seem to me to follow that his creditors, whether prior or subsequent, ought to have the benefit of such his property ; *and had they filed a bill to have this interest ascertained, and either sold, or the profits applied to discharge his debts, I think they ought to have been relieved in some way or other; and farther that, if his contingent remainder, in the proper goods of the wife, was too remote an interest to be sold, that a lien should be preserved to them thereon, with liberty to resort to the court for a sale thereof, in case he should survive his wife, so as to prevent any alienation thereof in the mean time. But can any decree be pronounced in this case, giving such remedy to the defendants in the cause, against the plaintiffs, as they would have been entitled to as plaintiffs ? Or can we do more than perpetuate the injunction as to the proceedings on the execution, without prejudice to any suit that the appellees may be advised to bring ?

I incliné to think this latter is all that can be done. 
      
       8 Atk. 399.
     
      
       2 Eq. cases abr. 149 — 151.
     
      
       1 Font). 203.
     