
    *William & Mary College v. Powell & als.
    April Term, 1855,
    Richmond.
    (Absent Allen, P.)
    i. Postnuptial Settlements — Consideration — Competency of Witnesses. — A postnuptial settlement is made by a husband upon his wife. The wife afterwards dies; and then a bill is filed by a creditor of the husband, against her children, to set aside the settlement as fraudulent as to the creditor. The husband is not a competent, witness to prove the consideration upon which the settlement was made.
    2. Same — Same—Dower Relinquished— Evidence—Re° citáis in Deeds. — Such a settlement is made, which recites that the consideration in part is the agreement by the wife to unite in a conveyance of land, a part of which is her own derived from her father, and in another part of which she has a right of dower, for the purpose of paying a debt of her husband; and she does afterwards unite in the conveyance. The deeds themselves are proofs of the consideration, and the settlement will be sustained to the extent of the value oC the interests she conveys.
    3. Deeds of Trust — Equitable Lien — Case at Bar. — A husband conveys a tract of land, one part of which is his own and the other part is his wife’s maiden land, in trust to secure a debt. Afterwards the husband and wife unite in a conveyance of the land to a third person, upon the consideration of five hundred dollars, and that the grantee will pay the debt to secure which the land had been conveyed in trust by the husband. The creditor has an equitable lien npon the land nnder this last deed, which is good against parties claiming under the grantee. And if the five hundred dollars has not been paid, it will be postponed to the creditor’s lien.
    4. Same — Sale by Trustee — No Memorandum of Pur= chase — Effect.  — A trustee sells land and bids it in for the creditor, but no conveyance or memorandum in writing of the purchase is made, nor is possession taken, but the possession remains in the former owner, under an agreement, as it is said, with the trustee, who is the agent of the creditor, that the said owner shall take it at the bid. The purchase is not valid, and the creditor will not be charged with the land at the price at which it was bid in.
    5. Principal and Surety-Reversion of the Relationship —Case at Bar. — There is a principal and a surety in a bond; and the principal conveys land to the surety in consideration that the surety will pay the debt. This does not convert the surety into the principal and the principal into the surety in respect to the creditor; so that the original principal may be released by the dealing of the creditor with the original surety.
    ^Thomas J. Powell being- indebted to William and Mary college, he executed his bond, bearing date the 25th day of April 1836, with George N. Powell as his surety, to the college, for one thousand five hundred dollars, payable on demand: And on the same day he executed a deed by which he conveyed to Hdmund Christian, who was the bursar of the college, a tract of land in the county of King William, described as containing three hundred and ninety acres, in trust to secure the payment of said debt. One moiety of this land in quantity, and that part of it on which was the dwelling-house, was the property of Powell’s wife, of which he was tenant bjT’ the curtesy; the other moiety Powell had purchased of one of the heirs of Mrs. Powell’s father. Her moiety was much 'the most valuable.
    
      By deed bearing date the 1st of April 1841, Thomas J. Powell and Mary E. his wife, in consideration .of the sum of five hundred dollars in cash, and for the further consideration that George N. Powell should pay Christian, agent of William and Mary college, the debt aforesaid of one thousand five hundred dollars, with its accruing interest, conveyed to said George N. Powell the said tract of land, described as containing three hundred and three acres.
    In 1841 George N. Powell had become personally indebted to thé college; and on the 27th of September of that year, he executed to the college his bond for six hundred and forty-eight dollars and ninety-one cents; payable one-sixth thereof annually, with interest payable annually, from the date of the bond.
    In 1846 Christian, the agent 'of the college, instituted actions on both the above mentioned bonds in the Circuit court of King William county. The process in the first case was not served upon Thomas J. Powell, who had then removed from the county,' but it was served on George N. Powell; and judgments were recovered against him.
    *Whilst these actions were pending, George N. Powell, by deed bearing date the 6th day of April 1846, conveyed to Prances W. Scott the tract of land which had been conveyed to him by Thomas J. Powell and wife, and describing' it as that land, and also other lands, slaves, and indeed all his property, in trust to secure numerous creditors named in the deed. These creditors were divided into three classes. The first embraced a number of persons, to whom he stated he owed small debts, and a debt of five hundred dollars stated to be due to James H. Powell. The, second class embraced debts stated to be due to his children, amounting to upwards of four thousand dollars. And the third class embraced the two debts due to William and Mary college. Scott, the- trustee, was about to proceed to sell the trust property,' when the college obtained an injunction to the sale, from the judge of the Circuit court of King William county: The bill was sworn to by .Christian, the bursar of the college. It set out the debts aforesaid due from the Powells to thé college, and stated that judgments had beéri recovered upon them, and that the same were still due. It stated the conveyance by Thomas J. Powell in trust ' to secure the debt he owed; and the subsequent deed- by Thomas J. Powell and wife to-George N. Powell, and also the deed of the latter to Scott; and charged that the two last were fraudulent and void as to the college. And the prayer of the bill was for an injunction, and for a receiver. That the said trust deed might be declared void,.and the property applied to the plaintiffs’ debts, and for general relief.
    George N. Powell, in his answer, did not question that the debt of one thousand five hundred dbllars was due, but he denied that the'deed from Thomas J. Powell and wife to him was fraudulent;' and insisted that his deed to Scott did not deprive the college ' of their lien under the deed of trust from Thomas J. *Powell to secure his debt to the college, but that that land was primarily l-iable to that debt. He also denied that the deed to Scott was fraudulent, or that the debts stated to be due to his children were simulated.
    In November, 1847 a decree was made in this cause by consent, by which the property was directed to be sold; and it was provided, :hat should the plaintiffs become the purchasers of the land conveyed by Thomas J. Powell to Edmund Christian, to secure the debt of one thousand five hundred dollars, the commissioner was to take a written memorandum of the sale signed by the plaintiffs or their agent, without further security, and return the same with his report. Under this decree this land was sold, and was purchased by Christian for the college at seven hundred and two dollars, and the sale was reported to the court: And it does not appear in this record what further has been done in that cause.
    By deed bearing date the first day of January 1839, Thomas J. Powell conveyed to James Bosher a tract of between eighteen and nineteen acres of land lying in the county of Henrico near the city of Richmond, four slaves and some household furniture, in trust for the separate use of his wife Mary E- Powell during her life, with a general power of appointment; and if she should make no appointment, to her heirs. And Mrs. Powell was authorized to direct a saie and reinvestment of any part of the trust property. This deed recited that Mary E. Powell was the owner of the tract of three hundred and three acres of land in King William, before mentioned, and had theretofore agreed that it might be sold by her husband, and that she would join in the conveyance thereof, on.the condition of a settlement to her separate use of property equivalent therefor; and that with an understanding that the land mentioned in this deed should be thus settled, she did theretofore by the said James Bosher as her next *friend, out of her ' own private funds or pin money, pay the sum 'of six hundred dollars ’to William A. Carter, in part for the purchase of the same. And upon these considerations, as well as of natural love and affection, the settlement was made. This deed was executed ' by Thomas J. Powell, Bosher the trustee, and Mrs.» Powell. At the time of the execution of this deed Thomas J. Powell was in embarrassed circumstances, and became insolvent.
    The land conveyed in the deed of January 1839 was sold by the direction of Mrs. Powell, and the proceeds were invested in a lot in the city of Richmond. Mrs. Powell died-prior to 1805, leaving ten children, and without having exercised her power'of appointment: And in November 1850 Bosher the trustee conveyed the trust property to her' children. ■ He afterwards purchased three of the interests of the children in the property.
    
      In 1851 the parties interested in this property instituted a suit in the County court of Henrico for the purpose of having' it sold and divided; and a decree was made appointing Herbert A. Claiborne a commissioner to sell and distribute the proceeds. The sale was made, and the net proceeds of the slaves amounted to one thousand eight hundred and ninety-eight dollars and thirty-five cents. The lot sold for one thousand dollars.
    Before the proceeds of the sale aforesaid were paid over to the parties, William and Mary College filed a bill in the Circuit court of Henrico against Thomas J. Powell, Bosher and the children of Mary Powell, in which they state the indebtedness of Thomas J. Powell to the college, and- the deed of trust given to secure it, the conveyance by George JST. Powell to Scott, and their suit in the Circuit court of King William, the consent decree and their purchase of the King William land; the insolvency of Thomas J. *Powell, and his deed of the 1st of Januarj' 1839 to Bosher, the subsequent sale of the land in Henrico, and reinvestment of the proceeds, the death of Mrs. Powell, and the proceedings in the County court of Henrico, as hereinbefore detailed. They charge that the settlement upon Mrs. Powell is fraudulent and void as to the creditors of Thomas J. Powell; and insist that the said property in the hands of the voluntary donees, is liable to satisfy their debts. And they pray that the deed of the 1st of January 1839, and the subsequent deeds made by the defendants conveying that property, may be declared null and void as to the plaintiffs; and that the said property, or its proceeds in the hands of the commissioner Claiborne, may be subjected to satisfy the debt due to them from Thomas J. Powell.
    Bosher answered the bill, and after admitting the facts as to the settlement, as before stated, alleged that after the trust had terminated, and the trust subject had been conveyed to the children of Mrs. Powell, he had purchased the interest of one of the children, which he- had after-wards conveyed to Alexander Houchins, who had married a daughter of Mrs. Powell; and that he had afterwards purchased the interests of two other of the children, for which he had received a conveyance. That he had never heard it questioned, until the filing of the plaintiffs’ bill, that the settlement was for valuable consideration; and he was still satisfied that there was no reasonable ground for the attempt then made to subject the trust subject.
    The children of Mrs. Powell also answered. They insist that the settlement of January 1st, 1839, was for valuable consideration. They state that after the conveyance of the King William land by Thomas J. Powell and wife to George N. Powell, that land was put up for sale by Edmund Christian, as the bursar of the college, when the sum of one thousand seven hundred ’‘'dollars was bid for it by a highly respectable -gentleman; -and that thereafter, Christian bid it in at the price of one thousand seven hundred and five dollars.
    And they insist that the debt of one thousand five hundred dollars should be credited for this sum.
    In February 1853 the cause came on to be heard, when the court directed one of its commissioners to ascertain and report the nature and extent of the consideration paid and surrendered by Mary 1). Powell for the settlement made upon her by the deed of the 1st day of January 1839 from Thomas J. Powell to James Bosher.
    The defendants introduced before the commissioner Thomas J. Powell as a witness, and he was objected to as incompetent by the plaintiffs, on the ground that he was the husband of Mary E- Powell as well as grantor in the deed. He stated that previous to the execution of that deed, there was an agreement between himself and his wife. That having purchased the tract of eighteen acres of land convejmd in the deed for one thousand six hundred dollars, and finding he could not pay for it by six hundred dollars, and still owing the college a debt, Mrs. Powell told him that she had about six hundred dollars, which she had made from the sale of turkeys, and work, and other savings, which she had been la3r-ing up for several years, and that if he would make her a right to this tract of land, she would pay the six hundred dollars, and convey her interest in the land she had inherited from her father, and in some other lands he had bought' adjoining the same, for the express benefit of the college. And he stated that the deed afterwards executed ■bjT himself and his wife to George N. Powell was intended to carry out this agreement. The witness valued the four slaves conveyed in the deed at from five hundred to six hundred dollars; he stated that slaves -then sold very low, and that both the men were confirmed invalids ; *and that one of them had been valued when received at fifty dollars, and was since dead. Of the other two one was a woman, and the other her infant. The furniture he valued at about one hundred and ninety dollars/ He also stated that Christian informed him that he had purchased the King William land for the college at one thousand seven hundred and five dollars, and that he had let it off to George N. Powell; and that witness told him that he had done wrong, and that witness considered himself exonerated, as he had done that. This sale took place in 1841 or 1842.
    The only witness, beside Powell, who spoke of the purchase of the land by Edmund Christian, was Warner Edwards. He says that Major Christian offered for sale at public auction, at King William courthouse, a tract of land formerly owned by Thomas J. Powell, proclaimed by the crier to be -the property of George N. Powell. That witness was authorized by Dr. Lemuel Edwards to bid as high as seventeen hundred dollars for him, for the tract of land, which he did, and he was overbid by Major Edmund Christian five dollars; and the land was knocked out to him. That it was the land on which Thomas J. Powell lived at the time he removed from King- William. That he considered Dr. Edwards able to pay for the land at the price bid for it: And that the sale was in 1841. The witness knew nothing- about the land, and only knew that the crier stated it was the land of George NT. Powell.
    The commissioner made his report, in which he set out the principles on which he had estimated the value of Mrs. Powell’s dower interest in the land of her husband, and also in her maiden land of which her husband was tenant by the curtesy. Mrs. Powell being forty-seven years old and her husband forty-nine; and his land in which she had a dower interest being valued at six hundred dollars, he estimated her *dower interest at one hundred and sixty-four dollars and seventy-three cents; and her land being valued at fifteen hundred dollars, he valued her interest in it at four hundred and twenty-three dollars and twenty-six cents: the two interests making five hundred and ninety-seven dollars and ninety-nine cents. And if she was to be allowed for the six hundred dollars paid out of her savings, the value of her interest in the trust property would be eleven hundred and ninety-seven dollars and ninety-nine cents. The property conveyed in trust for her, the commissioner estimated at two thousand, one hundred and eighty-seven dollars and nineteen cents, making the sum received by Mrs. Powell more than was surrendered and paid by her, nine hundred and eighty-nine dollars and twenty cents. The commissioner made two statements of the debt due by Thomas J. Powell to the college, in one of which he credited the amount for which the King William land sold under the decree in the suit pending in that county, seven hundred and two dollars; and in the other he credited the sum of seventeen hundred and five dollars, for which sum it was insisted by the defendants, Christian had purchased the land for the college.
    The plaintiffs excepted to the report: first, to any allowance whatever in the way of consideration paid by Mrs. Powell for the deed of settlement of the first of January 1839; and second, to the credit of seventeen hundred and five dollars, allowed in the second statement of the debt due to the college. And the defendants excepted, so far as the calculation of the wife’s interest in real estate is founded upon Wigglesworth’s tables.
    The cause came on to be finally heard on the 26th of March 1853, when the court held, that the deed of January 1st, 1839, from Thomas J. Powell to Bosher, having been made when Powell was indebted to the *plaintiffs, was, as to them, null and void, except to the extent of the interests surrendered by Mrs. Powell in relinquishing .her right of dower in the lands óf her husband, and her right to her own land. And the court further held that the deed of the first of April 1841 from Thomas J. Powell and wife to George N. Powell was not fraudulent and void, inasmuch as the deed fully recognizes the plaintiffs’ debt, and increases the security for its payment, by making the whole land liable therefor. The court further held that the debt due to the plaintiffs from Thomas J. Powell, should be, credited by the sum of seventeen hundred and five dollars, as of the 19th of October 1841, the date of the sale, when the land was bid in by Christian for the plaintiffs. And the court confirming the commissioner’s report, so far as it was consistent with these views, and overruling all exceptions in conflict therewith, decreed that Herbert A. Claiborne, the commissioner who had sold the settled property, out of the funds in his hands, should pay to the plaintiffs the sum of four hundred and eighty-eight dollars and sixty-five cents, with legal interest on two hundred and ninety dollars, part thereof, from the 19th of October 1841, and their costs. Erom this decree the college applied to this court for an appeal, which was allowed.
    Daniel, for the appellants.
    Griswold & Claiborne, for the appellees.
    
      
       Husband and Wife — Witnesses—Competency.—See the principal case cited in Warwick v. Warwick, 31 Gratt. 77; Fink v. Denny, 75 Va. 669; Smith v. Bradford, 76 Va. 765; Marks v. Spencer, 81 Va. 753; DeFarges v. Ryland, 87 Va. 404, 12 S. E. Rep. 805; Swann v. Housman, 90 Va. 818, 20 S. E. Rep. 830; Oliver v. Hayes, 1 Va. Dec. 188. See also, footnote to Warwick v. Warwick, 31 Gratt. 70. See, further on this subject, monographic note on “Husband and Wife.”
    
    
      
       Postnuptial Settlements — Consideration — Relin= quishment of Dower Rights. — it seems well settled that the relinquishment of the wife’s tight of dower constitutes a valuable consideration to support a postnuptial settlement, as against the creditors of the husband, to the extent of the value of the dower; nor will the fact that such settlement was fraudulently made affect this. See the principal case cited as authority for this proposition in Burwell v. Lumsden, 24 Gratt. 443, 446, and. foot-note, where there is a collection of cases in point; Davis v. Davis, 25 Gratt. 588; Gatewood v. Gatewood, 75 Va. 413; Strayer v. Long, 86 Va. 559, 10 S. E. Rep. 574; Ficklin v. Rixey, 89 Va. 834, 17 S. E. Rep. 325; Flynn v. Jackson, 93 Va. 347, 25 S. E. Rep. 1.
      And in Glascock v. Brandon, 35 W. Va. 91, 12 S. E. Rep. 1104, the court makes use of the following language: “Blanton v. Taylor, Gilmer, 209, was decided in November, 1820. ‘ It decides that‘provision in lieu of dower will not be disturbed as fraudulent, as far as it is only equivalent to dower.’ It was preceded by Quarles v. Lacy, 4 Munf. 251, and by Gosden v. Tucker’s Heirs, 6 Munf. 1; the latter holding that a parol agreement between h’usband and wife that, in consideration of her joining him in a conveyance of a parcel of her lands, he would purchase certain other lands, etc., for her, is good and enforceable in equity against his heirs. Blanton v. Taylor was followed by Harvey v. Alexander, 1 Rand. (Va.) 219 (1822), which decides that, ‘where a deed is made in consideration of natural love and affection, and the further consideration of one dollar, parol proof may be admitted of other valuable considerations. ’ ‘A wife parting with her dower right in real property forms a sufficient consideration for a subsequent deed conveying other property for her benefit.’ In Taylor v. Moore, 2 Rand. (Va.) 563 (1824), the question was fully considered and discussed. The court holds that ‘if a married woman relinquishes her dower in lands under a promise thg.t other property shall be settled on her as a compensation, such settlement will be good, although made after the relinquishment,’ — here five years after the verbal agreement; ‘but, if the value of the property settled exceeds the value of the dower relinquished, the deed should be set aside as to the excess and supported as to the residue.’ In the case of William & Mary College v. Powell, 12 Gratt. 372-385 (1855), the cases are discussed, and the doctrine reaffirmed. Therefore we may conclude that the rule of law with us is that a postnuptial settlement by the husband in favor of the wife, or wife and children made in pursuance of a fair and definite contract, by parol or otherwise, and for a valuable consideration, such as the relinquishment of dower actually made by the wife, will be held good against his general creditors. ‘And although it may have been made under such circumstances that it must be pronounced fraudulent and void as to the creditors of the husband, yet, if the wife has relinquished her interest in property on the faith of such settlement, it will be held good to the extent of a just compensation for the interest which she may have parted with; and this, though the settlement may have been made subsequent to the relinquishment.’ Lee, J., in William & Mary College v. Powell, 12 Gratt. 385."
      
      See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348; monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
      Same — Same—Same—Presumption.—If the deed in which the wife relinquishes her dower right in the land thereby conveyed contains a recital of an agreement of her husband to settle other property to her use in consideration of such relinquishment, then the deed of settlement subsequently made will be presumed to be in the fulfillment of that agreement. A like presumption will arise if the deeds are contemporaneous or about the same time, so as to constitute one transaction, or if the relinquishment and settlement are by the same instrument, or if the deed of settlement is first made purporting on its face to be in consideration of her relinquishment in the other deed, and such deed of relinguishment follows the settlement. But where the relinquishment of the wife’s interest has been first made by deed containing no recital of an agreement to make a settlement in consideration thereof, and a subseguent settlement, made two years afterwards, as in this case, is sought to be set up, there must be distinct proof of the previous agreement. Fink v. Denny, 75 Va. 669, citing Blow v. Maynard, supra; Price v. Thrash, 30 Gratt. 515 (which cites the principal case); Campbell v. Bowles, Id. 652. See, in accord, the principal case also cited in Beecher v. Wilson, 84 Va. 818, 6 S. E. Rep. 209; Keagy v. Trout, 85 Va. 401, 7 S. E. Rep. 329; Strayer v. Long, 86 Va. 561, 10 S. E. Rep. 574, the latter case citing also Taylor v. Moore, 2 Rand. 563; Lee v. Bank, 9 Leigh 200; Harrison v. Carroll, 11 Leigh 484; Burwell v. Lumsden, 24 Gratt. 446; Davis v. Davis, 25 Gratt. 590.
      The burden of proof is on the wife to prove the previous agreement. See the principal case cited in Perry v. Ruby, 81 Va. 323; Campbell v. Bowles, 30 Gratt. 663 (citing also Blow v. Maynard, 2 Leigh 29; Price v. Thrash, 30 Gratt. 515).
    
    
      
       Same — Same—Evidence of — Recitals ih Deed.--Recitals in a postnuptial settlement as to the consideration, though admissible as against the grantor and persons claiming under him, are not evidence against a creditor of the grantor by whom the fairness and validity of the deed is assailed. The principal case was cited as authority for this proposition in Price v. Thrash, 30 Gratt. 523; Brockenbrough v. Brockenbrough, 31 Gratt. 597 (citing also Blow v. Maynard, 2 Leigh 29); Perry v. Ruby, 81 Va. 325; Flynn v. Jackson, 93 Va. 346, 25 S. E. Rep. 1.
      See generally, monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      Same — Presumption of Fraud. — in Yates v. Law, 86 Va. 119, 9 S. E. Rep. 508, it is said: “In a long line of cases, beginning with Blow v. Maynard, 2 Leigh 29, this court has decided, with respect to postnuptial settlements, that although such a settlement will be supported where it appears to have been made in execution of a fair contract, founded upon a valuable consideration, yet, from the relative situation of the parties and the convenient cover which such settlements afford a debtor to protect his property and impose upon the world, they are always watched with jealousy. Every such settlement, therefore, where the settler is indebted, is, as against his existing creditors, presumed to be voluntary and fraudulent, and will be so declared, unless those claiming under it can show the contrary; and this must be done, if at all, by legal and disinterested evidence, their own answers not being evidence in their favor, where no discovery, by way of evidence, is sought of them. William & Mary College v. Powell, 12 Gratt. 372; Price v. Thrash, 30 Id. 515; Fink, Brother & Co. v. Denny, 75 Va. 663; Hatcher v. Crews, 78 Id. 465; Perry v. Ruby, 81 Id. 317; Witz v. Osburn, 83 Id. 227, 2 S. E. Rep. 33; Rixey v. Deitrick, 85 Va. 42, 6 S. E. Rep. 615.” See, in accord, Keagy v. Trout, 85 Va. 401, 7 S. E. Rep. 329. See also, principal case cited in Lewis v. Mason, 84 Va. 738, 10 S. E. Rep. 529. See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348. For further information on this subject, see monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
    
      
       Equitable Mortgages. — See principal case cited in Atkinson v. Miller, 34 W. Va. 121, 11 S. E. Rep. 1008.
    
    
      
       Sale of Realty — Statute of Frauds. — Where a sale of realty is made by a trustee, and no memorandum is made in writing by the trustee, such sale is void under the statute of frauds. Ralphsnyder v. Shaw, 45 W. Va. 687, 31 S. E. Rep. 956.
    
   .EEE, J.

The settlement of Thomas J. Powell upon his wife of the 1st of January 1839, having been made when he was heavily indebted to the appellants, and as it would seem, insolvent, being of his whole estate except perhaps his interest in the King William land, which was already incumbered beyond its value by the deed of trust of 1836, and being upon a com sideration *not at all adequate in value to the property settled, must be held fraudulent and void as to creditors, except so far as it may be sustained for the purpose of rendering to the estate of Mrs. Powell a just equivalent for any interests which she may have surrendered on faith of it. We are therefore to enquire what were the interests, if any, so surrendered, and whether to the extent of those interests the settlement can be held good. And on making this enquiry we are at once met by the objection to the testimony of Thomas J. Powell.

Now it is a pervading principle of the law of evidence, that a husband or wife cannot be a witness in a cause, civil or criminal, in which the other is a party; not for that other, because the law considers them as one person, and their interests as identical; nor against that other, on grounds of public policy, because of the mutual confidence subsisting between them, and for fear of sowing distrust and dissensions and of giving occasion to perjury. Co. Litt. 6 b; Stark. Ev. part iv, p. 706; Barker v. Dixon, Cas. Temp. Hardwick 264; Bentley v. Cooke, 3 Doug. R. 422; Robin v. King, 2 Leigh 141, per Carr, J.; Stein v. Borman, 13 Peters’ R. 209; Fitch v. Hill, 11 Mass. 286.

The’rule prevails in equitjr as well as at law. Sedwick v. Watkins, 1 Ves. jr. R. 49; Vowles v. Young, 13 Ves. R. 140; City Bank v. Bangs, 4 Paige’s R. 285. And if an estate be settled upon a wife for her sole and separate use, exempt from the debts or control of the husband, the legal identity of interests is regarded as still subsisting, and the husband will not be admitted to testify touching such separate estate, though there may be other parties in respect of whom he would be a competent witness. Windham v. Chetwynd, 1 Burr. R. 424; Davis v. Dinwoody, 4 T. R. 678; Langley v. Fisher, 5 Beav. R. 443; Snyder v. Snyder, 6 Binn. R. 483. So a husband is not a competent ^witness to prove the execution of a deed conveying propertj' for the benefit of his wife, for the purpose of' registration. Johnston v. Slater, 11 Gratt. 321. Nor is it material that the relation of husband and wife no longer exists when the party is offered as a witness, for the incompetency still remains though the marriage have been dissolved .by death or a divorce a vinculo matrimonii. Aveson v. Bord Kinnaird, 6 East’s R. 188; Coffin v. Jones, 13 Pick. R. 441; Stein v. Borman, 13 Peters’ R. 209; Ratcliff v. Wales, 1 Hill’s R. 63; McGuire v. Malony, 1 B. Monr. R. 224.

This case falls clearly within the rule ascertained by the cases cited. Thomas J. Powell is offered as a witness in support of the settlement made by him upon his wife. By his testimony it is sought to make out the consideration in favor of those now claiming under the wife. For this purpose he was clearly incompetent, nor was his competency restored (as we have seen) by the death of his wife. That he was not himself personally interested because he was bound for the college debt in any event, or that his interest was the same either ■way, does not vary the case. The authorities cited show that his incompetency does not rest upon the narrow ground of a personal and direct interest in himself but upon other and different principles. Indeed the incompetency has been maintained even in cases in which the husband’s interest was the other way. Thus in an action by the trustee for a wife against the sheriff for taking goods which were her separate property, under an execution against the husband, the husband was held to be an incompetent witness for the plaintiff (the wife being regarded as the real plaintiff), although he had an interest on the other side, in having his debt satisfied by the levy of the execution. Davis v. Dinwoody, 4 T. R. 678; see also Bland v. Ansley, 5 Bos. & Pul. 331.

The cases of Kevan v. Branch, 1 Gratt. 274, and Patteson v. Ford, 2 Gratt. 18 (cited by the counsel), do not touch the question here. They merely affirm the competency of the grantor as a witness for the grantees in an action by them as relators upon an indemnifying bond taken' when the property was levied upon under an execution against the grantor, in favor of other creditors of the common debtor. They decide that the party’s being such grantor does not of itself disqualify him as a witness; but do not reach the case vrhere the grantee is the wife of the grantor, and the parties interested are claiming under her.

Rejecting then the testimony of Thomas J. Powell, there is no evidence supporting or explaining the item of six hundred dollars claimed as part of the consideration of the settlement. It is true it is recited in the deed that this was part of Mrs. Ppwell’s private funds or “pin money” paid towards the purchase of the property settled. But the recitals in a post nuptial settlement as to the consideration, though admissible as against a person claiming under the settler, are not evidence against a creditor by whom the fairness and validity of the deed is assailed. Nor are declarations of the wife at the time of executing a deed, or at other times, that it was executed in consideration of a promise of the husband to'1 make a settlement upon her, or because he had made such a settlement, sufficient evidence of a contract to support such a settlement, if made, even to the extent of a reasonable compensation for a right of dower relinquished by her. Blow v. Maynard, 2 Leigh 29; Lewis v. Caperton, 8 Gratt. 148. I think it clear therefore that the claim to this six hundred dollars as part of the interest to the extent of which the estate of Mrs. Powell can under any circumstances be indemnified, cannot be maintained. Indeed if we look at the testimony of Thomas J. Powell, it would appear that this six hundred dollars was in fact his money, though called Mrs. Powell’s, and that *her alleged right was not such as under the circumstances surrounding the parties and the transaction at the time of executing the settlement, can sanction its withdrawal from the fund subject to the debts of Powell, and its appropriation to the benefit of his wife.

But although the claim to this six hundred dollars must be abandoned, I am of opinion that the settlement of the 1st of Januar3r 1839 may and should be sustained to the extent of securing to the estate of Mrs. Powell a just and reasonable compensation for the interests in the real property belonging to her, which were surrendered by the deed of the 1st of April 1841. That a post nuptial settlement in favor of a wife, made in pursuance of a fair contract for valuable consideration, will be held good, is a doctrine supported by abundant authority: And although it may have been made under such circumstances that it must be pronounced fraudulent and void as to the creditors of the husband, yet if the wife have relinquished her interest in property on faith of such settlement, it will be held good to the extent of a just compensation for the interest which she may have parted with; and this though the settlement may have been máde subsequent to the relinquishment. 1 Eq. Cas. Ab. 19; Ward v. Shallet, 2 Ves. R. 16; Prec. in Chy. 113; Cottle v. Fripp, 2 Vern. R. 220; Clerk v. Nettleship, 2 Levinz R. 148; Chapman v. Emery, Cowp. R. 278; Lady Arundell v. Phipps, 10 Ves. R. 139; Jones v. Marsh, Cas. Temp. Talbott 63; Quarles v. Lacy, 4 Munf. 251; Blanton v. Taylor, Gilm. 209; Taylor v. Moore, 2 Rand. 563; Wickes v. Clarke, 8 Paige’s R. 161; Fonbl. Eq. B. 1, ch. iv, § 12 and n. In Harrison v. Carroll, 11 Leigh 476, Judge Stanard says., “It is not questioned by me that the dower interest of the wife may constitute a valuable consideration that will support a post nuptial settlement, and that such settlement, *made in consideration of the surrender of such- dower interest, may be supported against the claims of creditors.” And in Blow v. Maynard, 2 Leigh 29, Judge Carr says, that “if the parting with these contingent interests (such as a jointure, dower, &c.) by the wife will support such settlements, it follows a fortiori, that her parting with her own estate, or making a charge upon it for her husband’s benefit, will support them.-”

It is no valid objection to the settlement that there was no previous agreement in writing between Powell and his wife, nor (the testimony of Thomas J. Powell being rejected) any - competent proof of even a parol agreement between them before the settlement. The agreement - here must be regarded as contemporaneous with the settlement itself. The settlement upon its face purports to be in consideration of her surrendering her interest in the King William land; and her conveyance of her estate in that land is made after the settlement was executed and admitted to record. The-settlement was executed by Mrs. Powell and by Bosher the trustee, as well- as by Thomas J. Powell. It is a very different case from that in which the relinquishment of the wife’s interest has been -first made, and a subsequent settlement sought to be set up. In the latter case distinct proof of a previous agreement may properly ■ be called for. Here when the conveyance of the King William land was. made, it will be fairly and legitimately intended that it was made in reference- to and on faith of the previous settlement made upon the wife professedly in consideration of such conveyance. What need of any specific, independent proof to this point? Res ipsa loquitur. And it would be most unjust to disappoint the wife wholly of the settlement on faith of which she must be supposed to have made her relinquishment, and yet hold her to the latter as valid and obligatory. See Anon. Prec. in Chy. 101.

*It would be a sufficient answer to the charge of fraud on the part of Powell and wife in executing the -deed of settlement, to say, that if there were fraud and she participated in it, still it will not be imputed to her by reason of her cover-ture. Blanton v. Taylor, Gilm. 209; Taylor v. Moore, 2 Rand. 563, 580. But in -truth there is no just room to -attribute any fraudulent purpose on the part of. Mrs. Powell or any complicity in, or knowledge of any such purpose (if such there was) on the part of Thomas J. Powell. The settlement was made avowed^ in consideration of her agreeing to conve3r the whole of the King William land, and such conveyance would of course pass both her own maiden land and her dower right in that of her husband. She subsequently in good faith carries out the agreement by conveying the same to George N. Powell; and the deed recites that a part of the consideration on which it was ■ made was the agreement of George Powell to pay the college debt.

The interest of Thomas Powell in the land was already bound for the debt by the deed of trust of the 20th of April 1836; and George Powell’s agreement to pay it, and his acceptance of the deed for the land with that stipulation on its face, would undoubtedly create an implied equitable lien upon the part which had belonged to Mrs. Powell, which could not be defeated or impaired by the deed of trust executed on the 6th of April 1846. Eor that deed in fact refers to the deed from Thomas J. Powell and wife to George Powell, and describes the King William land (though stated to contain 309 acres) as the same land conveyed b3r that deed: And thus gives full notice of the charge for the college debt. So that in effect by the transaction the se-cura of the college 'debt is increased and improved instead of being diminished or impaired. That the deed recites the payment of five hundred dollars to the grantors as part of the consideration *will not affect the character of the transaction; for whether that were a nominal sum merely, or if a real sum, whether it had been paid or were yet to be paid, the right of the college will not be varied. The whole land remained bound for the whole college debt, for the payment of which George Powell was also bound personally, as security for Thomas Powell; and if the five hundred dollars was yet to be paid to Thomas Powell, he would of course be postponed to the college, and could only come in after its debt had been satisfied.

Nor is there any thing in the circumstance that the deed of settlement describes the King William land as the property of Mrs. Powell, to justify any serious imputation against the transaction. It is true the whole of the tract was not her individual property, but a part of it, one hundred and fifty acres, and much the more valuable portion, being that on which the mansion-house stood, and which would seem to have been in a fine state of improvement, was her maiden land derived from her father; and it might very well happen that the whole might have been called her property b3’- a mistake of the scrivener. Thomas J. Powell had already conveyed his interest in the whole by the deed of 1836, and Mrs. Powell’s deed whenever properly made, would have precisely the -same effect in passing her interest in the whole, whether described as wholly belonging to her, or partly to her and partly to Thomas J. Powell. It can scarcely be supposed that this erroneous description was made will-fullj" and with a premeditated purpose of fraud by enhancing the supposed value of the subject which was to be relinquished in consideration of the settlement. The parties must have known that the facts were too readily ascertainable to render a resort to so flimsy an expedient at all safe or expedient; and I think, looking to all the circumstances, that it will be *fairer to attribute the erroneous recital to carelessness or mistake rather than to any fraudulent contrivance or design.

To the extent therefore of a just compensation to the estate of Mrs. Powell for her maiden land surrendered by the subsequent conveyance, and for her contingent dower interest in the land of her husband (to be estimated as of the date of the transaction), I think the settlement of 1839 may and must be held good. And of this the creditors of Thomas Powell can have no just cause to complain. They are not injured because they get precisely what they would have been entitled to if there had been no settlement, and no relinquishment by Mrs. Powell of her own land, and of her interest in that of her husband. In the latter case her own estate and her dower right would have remained to her, and the just value of these and no more is what she is now to receive under the settlement.

Another and an important question relates to the credit of one thousand seven hundred and five dollars allowed by the decree upon the debt of Thomas and George Powell, as of the 19th of October 1841.

The claim to this credit is sought to be maintained upon two grounds: first, that the appellants should be treated as the purchasers of the King William land at the sale alleged to have been made by Christian in October 1841, and at which it is claimed the property was purchased for them by Christian, at the price of one thousand seven hundred and five dollars, tobe applied as a credit upon their debt; secondly, that Thomas Powell should be regarded as a mere surety for the debt, and that Christian so conducted himself towards George Powell, the real principal as now supposed, as to discharge the surety from the debt either in the whole or at least to the extent of the one thousand seven hundred and five dollars.

*As to the first ground, the objection at once occurs that its effect is to enforce a contract for the sale and purchase of land without any note or memorandum in writing, signed by the party, or any agent for him, in direct contravention of the statute of frauds. It is not pretended that any conveyance was made or any written memorandum of the sale signed by any body. The whole matter rests in parol and upon the testimony of a single witness, that of Thomas J. Powell upon this point being of course inadmissible. Nor is there the slightest proof of any such part performance by delivery of possession or otherwise, as would induce the Court of chancery upon its principles, to take the case out of the operation of the statute. Nor could the wisdom and sound policy of the statute be perhaps better vindicated than in this case. The claim here must be sustained, if at all, upon the testimony of Edwards who speaks of a transaction, that took place upwards of eleven years previously, and of what was said by the different parties at the time. All the information he had at the time was evidently from his own showing, extremely meagre and imperfect, and the subject has been still further obscured by the mists of years since elapsed. The account which he gives is in some respects contradictory, in others, confused and unintelligible, and in all, unsatisfactory; and to receive such evidence to charge a party with the responsibilities of a contract would be fraught with all the mischiefs which it was the very design of the statute to remedy.

The other ground upon which it is sought to sustain this credit is equally untenable. There is nothing to support the pretension of Thomas Powell, that the relations in which he and his surety George Powell stood with respect to the college debt, were changed with the consent of Christian, and that George Powell became the principal debtor while he remained *bound as security merely. On the contrary, in the King William bill filed in 1847 and sworn to by Christian, he treats the debt as one in which Thomas Powell is principal and George Powell the surety, and he assails the deed of trust- to Scott in 1846 as fraudulent, and claims that the. land is then still liable, primarily, to the college debt. In the answer of George Powell, it is not pretended that Christian had assented to any arrangement changing the relations of the parties, or that any thing had been done to exonerate the land' or discharge either Thomas Powell or himself from the debt or any part of it. Nor does he pretend that any such sale had ever taken place as that now alleged to found. the claim to the credit of one thousand seven hundred and five dollars. On the contrary, he impliedly admits that the whole original debt is still owing by both the parties, and he expressly claims that the King William land is still primarily liable to the payment of the whole debt. All this is equally and utterly at war with the pretension now made of a purchase by Christian at a sale made by himself as trustee in 1841, on account of this debt, and with the notion, now brought forward for the first time, that Thomas Powell had been in some way exonerated from the debt. In truth, Christian seems to have done nothing except to give these parties the most liberal and continued indulgence; and if the land was suffered to go to waste while in the possession of George Powell, it was the fault of Thomas Powell and not of Christian. It was Thomas Powell who trusted George Powell: he conveyed the land to him absolutely and placed him in possession. If the property suffered whilst in his possession, Thomas. Powell cannot complain; and if he were as he now alleges merely the security of George Powell, he had the right by a proper proceeding to have had the land sold at any time for his- indemnity. Stephenson v. Tavenners, 9 Gratt. 398.

*1 am of opinion that the appellants . may .very well claim to charge the King William land primarily with the payment of their debt in preference to any of the other creditors secured by the deed of trust of the 6th of April 1846, without in any manner impairing their right to hold Thomas Powell personally responsible for any balance that may remain unsatisfied, and that nothing is shown in the cause to exonerate him or any property which would have been otherwise liable to the appellants’ demand.

And while I am of opinion that this credit of one thousand seven hundred and five dollars mtist be rejected, I .think it would be premature at this time to undertake to pronounce what credit should be given on account of the King William land. The land was sold, it seems, under a consent decree in the King William suit, and was purchased in on account of the college debt at the sum of seventeen hundred and two dollars. This sale appears to -have been made on the 25th of January 1848, but it no where appears that' it has ever been confirmed; and by the terms of the decree the proceeds were, to await the event of the suit. So far as this record discloses, that suit is still pending, and non constat but that this sale maybe disaffirmed and a new sale directed. Nor can we anticipate With certainty that the King William court will direct the application of the proceeds of the sale to’the college debt, although we may think, judging from the record before us, that such application will be right and proper. But neither the trustee nor the creditors named in the deed of trust of 1846, are parties in this cause; and they are the parties to be prejudiced by this application of the proceeds of this land, and whose interest it is to contest it; and for obvious reasons it would be improper to direct that the college debt should be credited by the amount of these proceeds except by a decree which would be binding upon the ^Creditors named -in that deed. The subject of this credit then should await the action of the King William court, unless the appellants shall sooner consent that it may be given.

The defense set up in the answer of Bosher, of a purchase by him of the shares of some of the - heirs of Mrs. Powell, for valuable consideration without notice of any vice or defect in the settlement of 1839, does not appear to have been passed upon by the Circuit court, nor has it been adverted to in the argument here: and as in the view I take of the case, the cause must go back to -the Circuit court, it is not necessary to express any opinion in regard to it at this time. It may be made the subject of proof if the parties shall be so advised, and of further consideration in the Circuit court.

I am of opinion to affirm so much of the decree as declares the deed of settlement of the 1st of January 1839 void as to the appellants, except to the extent of the just value of the interests surrendered by Mary B. Powell, in conveying her maiden land and relinquishing her right of dower in the lands of her husband; and also so much of the same as declares the deed from Thomas J. Powell and wife to George N. Powell of the 1st of April 1841, to be not fraudulent nor void; but in all other respects to reverse the same, with costs to thfe appellants; and to remand the cause • to the Circuit court, with directions further to proceed in the same according to the principles hereinbe-fore declared.

The other judges concurred in the opinion of Bee, J.

Decree reversed.  