
    *Triplett & als. v. Romine’s Adm’r & als.
    September Term, 1880,
    Staunton.
    1. Wife’s Separate Estáte—Ante-Nuptial Transfer to Stepchildren in Fraud of Creditors—V alidity.—M, a widow, having property settled upon her by her former husband, purchases land, and borrows from R, money to pay for it in part. Being about to marry again she enters into a marriage contract with her intended husband T, by which she conveys all her property real and personal to a trustee, in trust for the separate use of herself and T, .and the children of T by a former marriage; the money she borrowed to pay for the land still being due and unpaid. Held: The land is liable to pay the debt due to R as against the children.
    2. Same—Same—Creditor’s Bill—Parties.— R files his bill against T and his wife M, to subject the land to the payment of his debt. They answer, an account is ordered and taken fixing the amount of R’s debt, to some items of which T excepts. After the death of M and eight years after the suit was brought, the children of T file their petition in the cause setting out their claim under the deed, and asking to be made parties in the cause. R’s administrator answers the petition, and the court decrees against them. Held: They should have been made parties; but as their case was fully stated and investigated upon their petition and the answer of R’s administrator, and after the delay they would not be allowed to disturb the report of the commissioner, the appellate court will not reverse the decree; they may be made parties, if they desire it, when the cause goes back.
    This was a suit in equity in the circuit court of Warren county brought in February, 1866, by Addison Romine in his lifetime, and on his death revived in the name of his administrator William H. Brown, against William H. Triplett and Mahala his wife and another, to subject certain real estate and other property the ^separate property of Mahala Triplett, to satisfy debts due from said Mahala to the plaintiff.
    It appears that Mrs. Triplett, before her marriage, was Ihe owner of property in her own right, settled upon her for her separate use by a former husband, and that she purchased two small tracts of land, for which she executed her bonds for the purchase money, and that the plaintiff Romine, who was her brother, lent her several sums of money to enable her to pay for the land. And by his bill he sought to subject this land as her separate estate to the payment of his debt. And in July, 1866, he had a lis pendens of the suit recorded in the clerk’s office of the county court of Warren.
    At the March term, 1866, Triplett and wife answered the bill. The facts as to the purchase of the land, as stated in the bill, is not denied, and a part of plaintiffs’ debt is admitted, and some credits are claimed. And in conclusion they say the plaintiffs’ bill is radically defective in substance and form, and that he is not entitled to any decree. And at this term there was an order for an account of plaintiffs’ claim, but it was not taken.
    At the March term. 1868, of the court the death of Mahala Triplett was suggested, and her estate was committed to the sheriff of Warren county. And at the March term, 1872, there was another order for an account of plaintiffs’ claim against Mrs. Trip-lett’s estate. And on the 7th of December, 1872, the commissioner returned his report fixing the amount due the plaintiff of principal and interest up to January. 1873, at $2.644.50.. To this report the defendant Triplett filed exceptions, to a few items of charge and the-failure to allow some credits.
    At the February term, 1874, Elizabeth' Triplett and others applied for leave to file their petition in the *cause, which was opposed by the administrator of Romine; but the objection was overruled, and the petition was allowed to be filed.
    In their petition they state that Mahala Ashby and William H. Triplett were married in May, 1865, in the county of Warren; That in contemplation of said marriage, and in consideration thereof, they on the 16th of May, 1865, entered into a marriage contract, by which the said Mahala Ashby conveyed (among other things) two tracts of land to a trustee forthesoleuseandseparatebene-fit and use of the said Mahala and William H. Triplett and his children by a former wife^ namely — setting out the names of the petitioners. And they filed ihe deed with their petition. They state that on the 27th •of May, 1865, the said deed was proved as to Mahala Ashby, by the subscribing witnesses thereto, before the then clerk of the county court of Warren, in the clerk’s office thereof, and was at the same time acknowledged by the said William II. Triplett, and was left in the possession of, the clerk to be recorded, but the clerk through some inadvertence omitted to endorse upon the deed that it had been proved as to Mahala Ashby by the subscribing witnesses; and his term of office expired without his having made any su'-h endorsement. It was again proved by the witnesses and admitted to record on the 26th of March, 1867. They claim that being jointly with their father the owners of the real estate by virtue’ of said deed sought to be subjected by the plaintiff to the payment ■of his claims, they do not admit its liability to said debt, or if it be liable to it or any part of it, still petitioners are deeply interested therein, and ought to be parties to the suit; and this they pray may be done; that Brown the administrator may be summoned to answer their petition; ancl that they may have all proper relief.
    *The administrator Brown, was ordered to be summoned to answer the petition, and filed his answer. He refers to the time this suit had been pending, the answer of Triplett and wife, which makes no allusion to the deed, and no mention of it had been made until the filing of the petition. He admits the subscribing witnesses to the deed were at the clerk’s office and made the oath mentioned in the clerk’s certificate of that date.
    He further says that the right of the petitioners even as stated by themselves, is not supported by any valuable consideration. They are volunteers according to their own showing; and no conveyance which Mrs. Ashby might have made in their favor can relieve her property from liability for a debt contracted by her with A. Romine long before said writing was executed, and which is yet owing and unpaid. And he insisted that the deed was not duly recorded until after Romine had brought his suit and docketed his lis pendens. He objects to being delayed in order to make the petitioners parties, and hopes that the matter brought forward in the petition will be determined thereon.
    The cause came on to be heard on the 17th of October, 1878, when the court held that the marriage contract between Mehala Ashby and William H. Triplett,. was not admitted to record until the institution of this suit, and the record of the lis pendens, and that it was therefore void as to the debts due Romine from said Mahala Ashby. And correcting the account stated by the commissioner in some small particulars, decreed that Romine should recover the sum of $2,704.42 with interest on $1,007.71, part thereof from October 1. 1878, till paid, and costs. And if it was not paid before the 1st of March, 1879, commissioners named were directed to sell the land, &c. And thereupon Elizabeth Triplett and the other petitioner applied to *a judge of this court for an appeal and supersedeas; which was awarded.
    Giles Cook and J. Y. Menifee, for the appellants.
    R. Parker and McCormick, for the appel-lees.
    
      
       Ante-Nuptial Contracts — Marriage as Consideration.—See 2 Min. Inst. (4th l$d.) 684, 685, 686, 697.
    
    
      
       Efjnitafele Jurisdiction and Relief— Specific Performance.—In Halsey v. Peters' Ex’or, 79 Va. 60, the court said: "In Goring v. Nash, 3 Atkyns R. 186, Lord Hardwiclce is reported as saying: ‘The strict measure which governs the courts in a question between persons who come to carry specific articles into execution, and purchasers, is not the rule of this court, for between families, the court have considered whether it would be attended with hardships or not, or whether a superior or inferior equity arises on the part of a person who comes for a specific performance.’ And this is the ground Lord Cowper went upon in the case of Finch v. Lord Winchelsea, 1 P. Wms. 277. See Triplett v. Romine, 33 Gratt. 657; 2 Min. Inst. (3d Ed.) 684.”
    
   BURKS, J.,

delivered the opinion of the court.

It is essential to the success of the appellants in this cause, that they shall show themselves to be purchasers for value of the land in controversy, or of some estate, or interest in it. They do not pretend that they ever paid or contracted to pay any money or other thing of value for it. It was the separate property of Mrs. Mahala Ashby, and she, in contemplation of marriage with the appellee William H. Triplett, settled it to the use of herself and her intended husband and his children by a former marriage. The appellant Granville Triplett and the female appellants are these children, and their claim is, that the marriage, contemplated having taken place is a sufficient consideration to support the settlement to their use against a creditor of Mrs. Ashby, whose debt existed at and before the date of the settlement and though not a specific lien was then chargeable in equity upon the property settled.

That marriage is a consideration deemed valuable in law is an elementary principle, and. in ante-nuptial settlements untainted with fraud, that this consideration is sufficient to sustain against existing creditors of the settler, limitations of estates to the husband and wife and issue of the marriage, is well settled. “In marriage contracts,” says Lord Cottenham in Hill v. Gomme, 5 Myl. & Cr. 254, “the children of the marriage are not only objects of, but quasi parties to it”; *and it has been held by this court, that the consideration extends to children born out of wedlock, who are legitimated by the subsequent marriage of the parents and recognition. Herring & als. v. Wickham & wife & als., 29 Gratt. 628; Coutts & als. v. Greenhow, 2 Munf. 363.

Whether the consideration extends to estates limited to collateral relatives is a question upon which there have been and still seem, to be much diversity of opinion and conflict in the decisions. Adjudged cases both ways are numerous. We do not propose to review them. Many of them are referred to in the elementary works which we have examined and the principles deduced by the authors are there given. See 2 Lomax Dig. 335, 336 (side pages); Fry on Specific Performance §§ 108, 109, 110, 111; Kerr on Fraud and Mistake 204, 232; Sugden V. & P. (8th Amer. ed.) ch. 22, § 1, 463 (top), 716 (bottom), note 1; Schonler’s Dom. Rel. 264; Bump, on Fraud. Convey. (2d ed.) , 292, 293; and cases cited by these authors.

In reference to the cases generally, it is to be observed that while some of them are adjudications upon the relative rights and interests of creditors and purchasers on the one side and parties claiming under settlements on the other, yet by far the greater number seem to be cases of suits for the specific performance of articles among claimants under the articles, in which the rights of creditors were not drawn in question.

Speaking of the last-named class more particularly, Mr. Justice Nelson, in Neves v. Scott & als., 9 How. (U. S. R.) 209, after adverting to. the absence of uniformity and consistency in the decisions, says, “The result of all the cases, I think, will show, that if, from the circumstances under which the marriage articles were entered into by the parties, or as collected from the *face of the instrument itself, it appears to have been intended that the collateral relatives, in a given event, should take the estate, and a proper limitation to that effect is contained in them, a court of equity will enforce the trust for their benefit. They will not be regarded as volunteers outside of the deed, but as coming fairly within the influence of the consideration upon which it is founded; the'consideration will extend through all the limitations for the benefit of the remotest persons provided for consistent with the law.”

Without meaning to express any opinion as to the rule ithus laid down when applied to suits among family relations for .the specific execution of marriage articles, yet, if admitted to be correct, there is a distinction to be taken, we think, when the rights of creditors are involved. This distinction was noticed and remarked upon by Lord Hard-wicke in the leading case of Goring v. Nash & als., 3 Atkyns 136, 188, (side pages). “The strict measure,” says the lord chancellor, “which governs the court in a question between persons who come to carry articles into execution and purchasers, is not the rule of this court; for, between families, the court have considered, whether it would be attended with hardships or not, or whether a superior or inferior equity arises on the part of the person who comes for a specific performance, and this was the ground Lord Cowper went upon in the case of Pinch versus Cord Win-chelsea, 1 P. Wms. 377. Lord Harcourt had decreed the agreement between the Countess of Winchelsea, and the late Earl; and Lord Harcourt's decree was affirmed in the House of Lords. The Earl of Winchelsea, after the agreement, confessed a judgment for 'just debts. When Lord Cowper had the seals a second time, another bill was brought by judgment creditors, to be satisfied out of the estate. He decreed for the judgment creditors; for, though it was *a sufficient agreement to bind the several branches of the family, yet not adequate to bind creditors. 1 mention this to show that the distinction has been already taken, and that it is one consideration how far the court will support agreements of this kind against relations in a family, and against purchasers and creditors.” See Reeves v. Reeves, 9 Mad. R. 133, 133, (side pages); Johnson v. Legard, 1 Turner & Russell 381, 293; Pulvertoft v. Pulvertoft, 18 Ves. R. 84, 89; Davemport v. Bishop, 19 English Ch. Rep. (1 Phillips) 697, 704; Osgood v. Strode, 2 Peere Williams 245, 255; Staplehill and wife v. Bully, Finch’s Precedents 234; Ball v. Burnford, Id. 113; 3 Spence’s Eq. 290-293.

The decision of Vice-Chancellor Malins made in 1867 in Smith v. Cherrill, L. R. 4 Eq. 389, would seem to be sound and satisfactory. A lady (Prances Anne Smith) being indebted to the plaintiff at the time of marriage, settled all her real and personal property (with the exception of jewels and furniture exceeding in value the amount of her debt), upon failure of issue of the marriage, in favor of certain collateral relatives, including a niece whom she had adopted as her daughter. The lady survived her husband, and died without issue, leaving no assets. The question was, whether the settlement was valid as against creditors of the settler under 13 Eliz., ch 5. Held, that the settlement, so far as it was made in favor of collaterals, was voluntary, and should be set aside to the extent of the plaintiff’s debt.

In delivering judgment, the vice-chancellor said — “I have always understood, and still understand, the law as it was settled.by the case of Johnson v. Legard, 6 M. & S. 60, and by the same case as decided by Lord Eldon (1 Turner & Russell, 281). and by many other cases, to be this; that when a marriage settlement goes beyond the immediate objects of the marriage,*and (as in this case) there are provisions for collateral relatives from whom no valuable consideration moves, then quoad those objects, the settlement has nothing to do with the marriage, but is to be considered as a settlement purely for the purpose of providing for those relatives. If, therefore, this settlement had been executed, only containing a provision for the collateral relatives of Frances Anne Smith, that would have been strictly voluntary, and being without consideration, absolutely void as against creditors whom it defeated and delayed. * * * * This settlement, so far as the ultimate limitations go, is not for value, but purely voluntary.”

The result of the decisions of this court thus far, is, that the consideration of marriage (merely) operates under the settlement, free from fraud, to confer on the husband and wife and issue of the marriage, and on children base born but legitimated by subsequent marriage of the parents and recognition, rights in the property limited to them paramount to those of existing creditors of the settler although embarrassed with debt. This would seem to be going quite far enough, and the manifest injustice done to creditors by the established rules drew from Judge Staples in Herring & als. v. Wickham & als., supra, the remark, that “the whole subject needs the attention of the legislative department.” We are now asked to go further and hold, that the consideration extends to persons who are not even collateral' relatives but total strangers in blood to the settler, and that such persons are purchasers for value with rights paramount to those of pre-existing creditors. We are not at all disposed to take a single step further in that direction. The mischief and gross injustice which would result from extending the rule,, as we are asked to do, is strikingly exemplified by the case in judgment.

*A married woman, the owner of a* separate personal estate over which' she had full power, having contracted for the purchase of land to be settled to her separate use, to enable her to complete the purchase, applied to her brother for aid. He advanced to her at different times, at her request, on the credit of her separate property, several sums of money of considerable amounts, for which he took her bonds, the money borrowed to be used and applied in the navment of the purchase money for the land, and the money advanced was so applied. He generously indulged her for many years — until the death of her husband and for years afterwards. She at length contracted a second marriage, and, in contemplation of such marriage and for no other consideration, conveyed the whole of her estate, including the land aforesaid, to the use of herself and her intended husband and the children of the latter by a former marriage, without making any provisions whatever for the payment of the debts due to her brother or any other debts, if any others she owed. The bill in this case was filed by the brother, twelve months after the second marriage, to recover the debts due him out of the settled estate. And even after bringing his bill, he seemed not disposed to press his claim. For, although an account of his debts was ordered in the early stages ol the suit, the order was not executed until sometime after his sister’s death.

Now, under these circumstances, who has the better right in respect to the land in question — the children of the husband by a former marriage who paid nothing for it, oi the indulgent brother whose debt unpaid was for money lent to his sister to pay for the land and which confessedly was used by her for that purpose? We do not hesitatq to say, that these children must be considered and treated as volunteers, at least as respects *the creditor Romine, and that their interest, whatever it be, under the deed of settlement, which is a very obscure and ambiguous instrument, is subordinate to the superior right of the creditor to resort to the land for the payment of his debt. Code of 1873, ch. 114, § 3.

This conclusion upon the view taken, makes is unnecessary to consider the doctrine of lis pendens on which the decree of the learned judge' in the court below seems to have been founded. If the decree is right, as we think it is, in subjecting the land to the complainant’s debt, it is not material here what reasons the judge below gave for it.

One question remains' — whether the circuit court erred in not making the appellants, on their petition, parties to the suit. We think they ought to have been made parties. In any view of the case, they had an interest in the subject-matter in controversy. Although the deed may have been void as to the creditor (Romine) either, as the judge below thought, because it was not recorded until after the commencement of the suit and the docketing of the lis pendens, or, as this court thinks, without regard to the lis pendens, because the appellants are not purchasers for value but volunteers, still the deed is good between the parties, and the appellants have an interest in the property conveyed after the creditor' complaining has been satisfied. But it is manifest from the record, that the appellants have not been prejudiced by not being made parties in a formal manner. They set up their claim in their petition, and Romine’s administrator filed his answer to it, and upon this petition, answer, and the depositions taken, their pretensions were fully presented, investigated, and passed upon. Moreover, they never filed their, petition until after the lapse of eight years from the institution of the suit, and more than a year after the *commissioner had, as ordered, taken and reported the account of Romine’s debt. The matters involved in that account seem to have been thoroughly sifted and investigated. The parties then defendants — Triplett (the surviving husband), Mrs. Triplett’s administrator and her heirs — were represented by counsel, the.same counsel, it would seem, who subsequently represented the appellants on their petition. Under these circumstances, it cannot be doubted that the report of the commissioner, with the exceptions thereto by the defendants, presented the case fairly and fully to the court for decision; and even if the petitioners had been formally made parties, they would not have been allowed, if they had asked for it, after such long delay and laches on their part, to have the commissioner’s report recommitted. - Besides,^ in their petition they do not appear to question Romine’s debt, make no allusion or objection to the statement of it as presented by the commissioner’s report, but the chief object seems to have been to present for decision the question of the liability of the estate for the debt as against their claim under the deed of settlement.

The fact is, the petition was never rejected by the court, but the cause was heard upon it, together with the other papers referred to in the decree, and when the cause goes back they may yet be fully and formally made parties, if they desire it, though the step would seem to be of little practical importance if Romine’s debt exceeds in amount the value of the whole land in controversy, as the commissioner’s report indicates.

Upon the whole case, the court is of opinion that there is no error, to the prejudice of the appellants, in the decree appealed from, and that it should be affirmed.

Decree affirmed.  