
    Daniel Vertner et al. vs. Benjamin G. Humphreys.
    While it is the law with reference to personal estate, that if a marriage take place in another state, between a man domiciled in this, and a woman in another state, with the intention that this state shall be their domicil after the marriage, and that intention is carried into effect, the rights to the personal property are governed by the laws of this state; yet in regard to. immovable property the rule is different, there the law of its locality gives the rule.
    Where a settlement by a husband upon his wife was attacked as a voluntary one, and the wife asserted that as a consideration for the conveyance to her, she had united with her husband in the conveyance of a valuable tract of land in the state of Louisiana; and it appeared in proof, that this land had been purchased by the husband after his marriage, with his own funds, and that his wife had contributed in no way to its acquisition : it was held, that according to the laws of Louisiana she had no right in it; and therefore her uniting in the conveyance of it formed no consideration for the settlement upon the wife.
    The decision in Henry v. Fullerton, 13 S. & M. 634, with reference to the question, how far voluntary conveyances are valid as to subsequent creditors, cited and confirmed; and the further principle established, that if the party making the voluntary conveyance be insolvent at the time of making it, it is void even as to subsequent creditors.
    So also a very large indebtedness at the time of such conveyance, compared with the resources and property of the party, is frimu, facie evidence of a fraudulent intent in the making the conveyance; and it appearing that the party making such a conveyance in this case was, if not insolvent, heavily loaded with debt at the time, and there being nothing to rebut the legal presumption arising from that fact, the conveyance was held fraudulent and void as to a subsequent creditor.
    O.v appeal from the vice-chancellor’s court at Natchez; Hon. James M. Smiley, vice-chancellor.
    Benjamin G. Humphreys filed his bill to foreclose a mortgage given by John D. Yertner to John Murdock, dated March 1st, 1838, to secure the payment of a note dated January 10, 1838, for $6000, due twelve months after date, on which complainant was surety for Yertner. The bill alleges, that complainant has taken up the note as surety, and thereby become entitled to the benefit of the security given to Murdock.
    It is also alleged, that George, Mahala, and their two children, and Ned, five of the negroes embraced in the mortgage, were sold on executions in favor of one Robertson, and purchased by Daniel Yertner, for Jane Yertner, the widow of John D. Yertner, and that they are in his or her possession. And that John, Maria, and Gustus, three others, are in possession of Spencer as trustee, under a deed of trust made by John D. Yertner in favor of the Mississippi Union Rank. A discovery is prayed as to where Wallace is, and by what tenure holden.
    Mrs. Vertner, in her answer, resists a foreclosure as far as regards the negroes George, Mahala, and their children, of whom Wallace is one, Ned, and Gustus, and sets up, first, a deed executed by John D. Vertner, dated January 20, 1834, acknowledged and filed for record March 4, 1834, whereby said John D. Vertner conveyed the negroes, George, Mahala, and Ned, and four other negroes; and a note of $12,000 executed by Cobb &> Walker to P. Hoopes and others, as trustees in succession, to hold for the separate use of Mrs. Verner for her life, and for her children after her death.
    The answer alleges, that this deed was made in consideration of Mrs. Vertner’s relinquishment of dower in a valuable plantation in Louisiana. It is also alleged, that John D. Vertner collected or transferred the promissory note described in the deed, and used the money, and that he sold or transferred all the negroes therein named, except George, Mahala, and their children, (now four in number,) and Ned; and that on the 29th of April, 1836, being still unembarrassed and free from debt, the said John D. Vertner, for the purpose of making up to her the property he had thus used or disposed of, executed another deed to Martin and others, conveying to them, upon similar trusts for the benefit of Mrs. Vertner, the same negroes, George, Mahala, two children, and Ned, and also several other negroes, including “Augustus, about sixteen years old,” being the same negro called “Gustus” in the deed of trust to Murdock, and now in possession H. N. Spencer. This deed also names Wallace, and describes him as being one of the children of Mahala. Both these deeds profess to be made in consideration of love and affection, &c., and also for “divers other good causes and considerations,” &c.
    The answer states, that the trustees suffered the property to be wasted 'by John D. Vertner, and that George, Mahala, Wallace", and their other children, and Ned and Augustus, are now the only ones left; that the purchase by Daniel Vertner at sheriff’s sale, was on his own suggestion merely, to carry out his son’s intentions, and that he made her a deed of gift of the negroes which is filed.
    The sheriff’s return on the execution, shows the sale to D. Vert-ner of George, Mahala, and their four children, and Ned and Chloe. This bill of sale names the children, to wit, Wallace, Sarah, Warner, and Jack. The bill alleges that D. Vertner bought them for Mrs. Vertner. Mrs. Vertner, in her answer to the discovery prayed for as to Wallace, says he is one of the children of George and Mahala, and is in her possession, and claimed by her under the deeds of trust. The ages of the children, as recited in Exhibit No. 1, show that Wallace and Sarah were the two children of George and Mahala mentioned in the second deed.
    The answer prays that defendant be confirmed in her title and possession of the negroes in her possession, and that Spencer be decreed to deliver Augustus to her.
    A supplemental bill, filed by complainant, seeks to set aside the deeds of trust, on the ground that John D. Vertner was in debt at the time they were made; that they were made to defraud creditors; that they are voluntary deeds to his wife, with whom he could not contract; that they were never acknowledged or delivered; and that the trustees never took possession of the property, and Vertner continued to use and manage the property as his own.
    The execution of the deed of trust by J. D: Vertner and wife to the Union Bank, is also relied on as showing that they did not attach any validity to the deeds.
    The answer of Mrs. Vertner to the supplemental bill, denies that the deeds were made to defraud creditors; alleges that they were duly proved or acknowledged and delivered, and sets up the consideration upon which they were made as in her answer to the original bill. She alleges that the proceeds of the sale of the plantation in Louisiana paid all the debts of her husband at the time, and that the negroes named in Exhibit No. 2, were reserved out of the sale for the purpose of being settled upon her in consideration of her relinquishment of dower. She states that the note of $12,000 mentioned in the deed was never delivered to the trustees, but in lieu thereof a note of $7560, of Nutt and others, was placed in the hands of her father, P. A. Yandorn,. which afterwards came to the hands of her husband among the papers of her father, and was used by him in his own business. She states that the negroes were left in the joint possession of herself and husband, (as the deed provides,) and denies that she or any of the trustees consented to the sale of any of them, or knew of it.
    She states that Ned has died since her first answer was filed; she denies that the deed of trust to the Union Bank was ever perfected by the signature of the other parties, or was ever delivered; she denies that she ever read it, or knew that said negroes were included in it.
    The answer of P. Hoopes, the trustee, to the supplemental bill, and his deposition taken on behalf of the defendant, by consent, states in substance, that Yertner being considerably in debt, contracted to sell the Walnut Bayou property, being the property in Louisiana, on credits for a sum sufficient to pay his debts. That Mrs. Yertner refused to sign the deed, but finally consented to . do so, on condition that the note of $12,000 and five or six of the negroes should be retained and set apart for her use, and that the first deed was executed in pursuance of that agreement. That he (Hoopes) being Yertner’s indorser, received the proceeds of the sale, and paid the debts. That he was familiar with Yertner’s affairs, and believes all his debts were thus paid. That the note of $12,000 never was appropriated to the trust, but the note of $7560 was placed in the hands of Judge Yandorn for Mrs. Yertner, and was subsequently discounted by the Grand Gulf Bank for the benefit of John D. Yertner. In his answer, he states that Judge Yandorn died shortly after the transaction, and that all his papers came to the hands of John D. Yertner, as agent of his executor, and that he transferred the note to the Grand Gulf Bank in his own business. The deposition further states, that the'negroes were left in the hands of J. D. Yertner, and if any of them were sold or traded off, it was without the knowledge or consent of Mr. Hoopes; and that the deed was not made to defraud creditors, or for any other fraudulent purpose.
    
      The defendant also files as proof, a statement, admitted to be in the handwriting of Judge Vandorn, dated 23d May, 1834, acknowledging the deposit of the note of $7560, in his hands, for Mrs. Vertner, and reciting that said note, and five or six of the negroes, was to be secured to her in consideration of her relinquishment of her dower. This memorandum purports to have been made to show to whom the note belonged, in the event of Judge Vandorn’s death.
    Various depositions are taken by complainant to prove John D. Vertner’s insolvency, at the time the trust deeds were entered into. The substance of them is stated in the opinion.
    The following legal opinion by Messrs. Stacy and Sparrow, attorneys at law of Louisiana, was in evidence.
    “In 1834, John D. Vertner, in good faith and for a valuable consideration, sold a tract of land situate in the state of Louisiana, which he had purchased during his marriage. He was married in the state of Mississippi, and both at the time he. acquired said tract of land and when he sold it, he and his wife were citizens and residents of that state. At the date of the sale made by him he had not paid for the land, and was in embarrassed, perhaps in insolvent, circumstances. Mrs. Vertner refused to join him in the sale, unless he would secure to her a certain amount of property, which was done by his transferring to her a note for $12,000 and a number of slaves. She then signed the act of sale and relinquished her dower. In 1838, Vertner executed, to a bond fide creditor, a deed of trust upon the same slaves he had previously transferred to his wife, which were still in his possession. Vertner never received any property through his wife, or that had belonged to her separately. She now claims the slaves by virtue of the transfer to her, against the creditor holding under the deed of trust from Vertner, alleging her signing the act of sale, and thereby renouncing her dower as the consideration for her title.
    “ Upon this state of facts, we are asked to decide whether, by the laws of Louisiana, there was a sufficient and valid consideration for the transfer to her, and whether she can sustain it against the creditor of Vertner claiming under the deed of trust. In a court governed uniformly by the civil law as its rule of action upon subjects like the one in controversy, it would be equally as easy to answer the question in the negative as to ask it, but as the matrimonial rights and obligations in Louisiana in relation to property, are so different from those in other states governed by the common law, it may be well to give a brief synopsis of them.
    “ In Louisiana, the husband and wife may at the same time have in possession three species of property, each in some respects different from the other, and governed by different rules. 1. The separate property of the husband and of the wife, (paraphernal or extra dotal); 2. The separate property of the wife, (dotal); And 3. Acquests and gains.
    “ Property acquired in the state by persons married there, and property acquired there by persons after they have removed into the state, although married elsewhere, is community property or acquests and gains, unless it has been acquired by inheritance or donation to one of the spouses separately, in which case it will be separate property. Civil Code, Art. 2369, 2370, 2371. The power of the husband over the community property, or acquests and gains, is limited by two exceptions only. 1. He cannot make a donation of the immovables, nor of a quota of the movables, (to strangers.) 2. He cannot make fraudulent dispositions of it for the purpose of injuring his wife. He can sell or encumber it (in good faith) without the consent of his wife. Civil Code, Art. 2373. At the dissolution of the marriage, the wife may accept or renounce the community, under the obligation, if she accepts, of paying one half of the debts it owes. If she renounces, she is liable for none of its debts, and can claim none of the property composing it. If she accepts, she acquires no title to any portion of the property until her half of the debts shall have been paid. Civil Code, Art. 2378, 2379, 2380; Laioson v. Ripley, 17 La. R. 247. Subject to the above exceptions, the wife, during the marriage, has no vested rights in the community, and those cannot be exercised until it has been dissolved, and then upon it only as it exists at that time.
    “Dowry is property belonging to the wife at the date of the marriage, and constituted and settled as such in a written marriage contract; there can be no dowry unless it is so constituted and settled. Civil Code, Art. 2317, 2318. The husband has the administration and control of the dowry. The income and revenues of it are given to him to support the expenses of the marriage. He cannot sell or encumber the land and slaves settled as dowry, except in certain specified cases. Civil Code, Art. 2329, 2330.
    “Paraphernal property is that owned by the wife at the date of the marriage, but not settled or constituted as dowry, or such as she may acquire during marriage by gratuitous titles. Civil Code, Art. 2315, 2360. The wife has the right to administer her paraphernal property, separate and without the control of her husband, or she may permit him to administer it; she can sell it with his authorization. Civil Code, Art. 2361, 2362, 2367.
    “ The wife has a legal mortgage on all the property of her husband, (including the community property,) to secure to her the reimbursement of her dotal and paraphernal property, which may have been sold or otherwise disposed of by her husband, and the proceeds (or the property) converted to his own use. Civil Code, Art. 2367, 3287. And this mortgage takes effect from the date that he has received the money. Hannie v. Browder, 6 Martin, R. 14; Dreux v. Dreux'1 s Syndic, 3 lb. New S. 239; Degruy v. St. Pe's Creditors, 4 lb. 404; Robin et al. v. Castile, 7 La. R. 292. And this legal mortgage follows the property into the hands of third persons to whom the husband might sell it. Hence arises the necessity (whenever it exists) for the wife to become a party to acts of sale of the property made by the husband, not as a co-vendor or joint owner, for she has not a shadow of title to it, but for the purpose of renouncing in favor of the purchaser, her contingent rights of mortgage that she might otherwise' have upon it, and subsequently exercise, in consequence of her husband having squandered her separate property and being unable to satisfy her demands.
    “Previous to 1835, our laws did not permit married women to make such renunciations. In that year a statute was enacted authorizing it after that time, and validating past renunciations, unless they were attacked in a given delay. Gasquet et al. v. Dimitry, 9 La. R. 600. (See the act at the end of the decision.) The object then, in making the wife a party to acts of sale or mortgage executed by the husband, is that the property may pass to the vendee, or to the mortgagee, free from any liens or mortgages in her favor. Two things then must exist and concur in order to render it necessary that she should become a party. 1. She must have had separate, individual property, either dotal or paraphernal. 2. Her husband must have made use of that property, and converted it, or the proceeds, to his own use. Where a wife has never had any separate property, or if having it, it has not been converted by the husband to his own use, it is utterly useless and futile for her to join in any acts of sale or mortgage made by her husband, either of his separate or of the community property, as she has no title to either, but is wholly destitute of the jus disponendi. Now, from, the statement of facts given us, Mrs. Vertner never had any separate property, or if so, it was not received by her husband, and whether she signed the act as a co-vendor with her husband, or to renounce rights and mortgages which did not exist, her signature was a mere nullity, utterly unnecessary and entirely valueless both to her husband and to the purchaser. If so, it would follow that the transfer to, or settlement upon her, of the note and the slaves, was without any legal or valid consideration, of which we entertain not the slightest doubt.
    “In this state a wife has no right of dower in the estate of her husband; what she brings in marriage, whether dower or not, she is entitled to take at the dissolution of it; if the husband has made use of it, he is responsible, and the law has created certain mortgages (as we have seen) to insure its restoration. If she has brought nothing, she has nothing to claim; the sales of the community property made by the husband are good, and free from any claims she can set up. Whatever at the dissolution of the marriage remains to the community unsold, she can participate in by paying her share of the debts. If then Mrs. Vertner had no dowry or separate property of her own, which had been used by her husband, she had nothing to renounce and did renounce nothing. It is absurd for her to claim dower in the estate of her husband, in this state, from the fact alone of her having married him.
    “ Again, the tract of land sold by him, in which she joined, was not community property, but his own separate individual property ; the parties were not married in this state, neither did they reside here when it was purchased, consequently he could dispose of it as he saw fit.
    
      “ Whatever property Mrs. Vertner had at her marriage with him, (except lands,) by the marriage become vested in him instanter, unless there was a marriage settlement, and he had a perfect right to sell, or otherwise dispose of it without being accountable for it to the wife or her heirs. This we understand to be the doctrine of the common law, which it is believed prevailed in Mississippi at the time Vertner and his wife were married there, and our courts give eifeet to a change in the title to property operated by the laws .of other states. Penny v. Weston et al., 4 Rob. R. 167. If slaves had been owned in Mississippi by the wife, at the time of her marriage there with Vertner, they would, by the very fact of the marriage, have become vested in the husband, and had they afterwards removed to this state with said slaves, they would have been inherited here by the children of the marriage as heirs of the father, and not of the mother.
    “If Vertner had reserved, out of the state of Louisiana, and converted to his own use, property owned by his wife previous to the marriage; and where, by the laws of the place, the marriage did not vest the property in the husband; still she would have no mortgage or lien for its reimbursement upon her husband’s property situate in this state. Prats v. His Creditors, 2 Rob. R. 506.
    “ Hence we conclude, that the transfer by Vertner to his wife of the $12,000 note and the slaves, for the alleged consideration of her joining in the sale of the land made by Vertner, whether she joined in said sale for the purpose of renouncing her dower in her husband’s estate, or for any other purpose whatever, was null and void.
    “Because, if the property by him sold was community property, or acquests and gains, he had a right to sell, or otherwise dispose of it bona fide, without the cooperation or consent of his wife; that she had no right to, or ownership in, it.
    “ Because she had no mortgage or other lien or claim upon it, as her husband had never received or made use of any separate property of his wife, and which belonged to her individually.
    
      “ Because, if he had so received and used her separate property out of Louisiana, the parties residing out of it at the time, it would have created no mortgage or other lien on his property in that state.
    
      “ Because, by the laws of Mississippi, where they were married, Yertner, by the marriage, became instanter the owner of all the personal property of his wife, (if she had any). And lastly, because the land situate in Louisiana, sold by Yertner, was not community property, but his own individually.”
    The vice-chancellor decreed a foreclosure of the mortgage,1 and the defendants appealed.
    
      H. T. Ellett, for appellant.
    I. The deeds filed as Exhibits are valid as mere voluntary settlements. A voluntary deed is only voidable by antecedent, not by subsequent creditors, unless made with a fraudulent intent. Sexton v. Wheaton, 8 Wheat. 242; 5 Cond. R. 419; Hinde v. Longworth, 11 Wheat. 199; 6 Cond. R. 275. In this case the deed No. 2 was made Jan. 20, 1834, and No. 3 was made April, 29, 1836. The note to Murdock is dated Jan. 10, 1838.
    But every voluntary deed is not void even as to antecedent creditors; as in case the grantor is in prosperous circumstances, and the gift reasonable. 1 Stew. (Ala.) R. 67; 12 Johns. 536; 11 Mass. 421; 8 Wheat. 242; 11 lb. 199; 1 Conn. R. 525; 2 Kent, 441; 5 Yes. 384; 1 Story, Eq. Jur. 354-360; 12 Yes. 150, 155; 8 Cowen, 406; 4 Wend. 300; 4 Yerm. R. 389; 4 Mason, C. C. R. 443.
    
      
      2. But these deeds were made upon good consideration. A release of dower by a wife, is a good consideration for a subsequent conveyance of property for her benefit. Bullard v. Briggs, 7 Pick. 533; 1 Rand. 219; 2 Brockenb. 311; 2 Kent, Comm. (3d ed.) 173, 174, 175 ; 10 Peters, 594: Fonbl. Eq. 256, and note.
    Where a consideration is stated in a deed, and “ also for other considerations,” parol proof may be given of those other considerations. 1 Phil. Ex. 549; 1 Ves. 127; 1 Johns. Ch. R. 3S1; 7 lb. 341.
    And where a deed purports to be made in consideration of love and affection, if it is assailed as fraudulent, parol evidence, that the grantor was indebted to the grantee at the time, is admissible to repel the charge of fraud, though it would be incompetent to vary the terms of the deed. Hindis Lessee v. Longworlh, 11 Wheat. 199; 6 Cond. R. 275 ; 7 Pick. 533; 2 Sugd on Vend. 159, and note, 356.
    It will be argued that, by the law of Louisiana, Mrs. Vertner had no dower interest in the property acquired by her husband in that state, and therefore her release of dower was no consideration for the settlement.
    Admitting, for argument sake, that she had no such interest in fact, still the conclusion does not follow, that there was no consideration for the settlement, for the execution of the deed by Mrs. Vertner was itself a good consideration, though she had no certain interest in the property.
    This point Mr. Ellett argued at length, and also the question by what law Mrs. Vertner’s rights to the land in Louisiana were to be determined, and what those rights were.
    
      Thrasher and Sillers, for appellee,
    In an elaborate argument, reviewed the various points arising upon the pleadings and proof in support of the opinion of the vice-chancellor, and cited many authorities.
   Mr. Justice Clayton

delivered the opinion of the court.

This bill was filed by the appellee to foreclose a mortgage executed by John. D. Vertner, deceased, to secure a note to John Murdock, bearing date 10th January, 1838, payable twelve months thereafter. The mortgage bears date 1 st March, 1838. The complainant was the surety of Vertner, and having been compelled to take up the note, he now seeks a foreclosure of the mortgage.

Jane Vertner is the widow of John D. Vertner, and she resists the foreclosure sought by the complainant, by virtue of several conveyances, either directly or indirectly from John D. Vertner. The first of these is a deed of settlement, made to certain trustees of part of the negroes in controversy, for her benefit, on the 20th of January, 1834. The second is another deed of settlement of other slaves also in controversy, likewise for her benefit, bearing date 29th April, 1S36. The other is a bill of sale or deed of gift, of a part of the same slaves, made to her by Daniel Vertner, the father of her husband, bearing date 4th December, 1841. These slaves had been sold under executions against John D. Vertner, and purchased by Daniel Vertner, by virtue of judgments rendered in May, 1838, subsequent to the mortgage of complainant.

These several conveyances are alleged by the complainant to be voluntary and void on account of fraud, and on this question the decision must turn. The deed from Daniel Vertner may be thrown out of view, because it is younger than the mortgage.

Before proceeding to consider the question of fraud, there is another point which deserves notice. It is insisted by Mrs. Vertner, that she joined in the conveyance of a large tract of land in Louisiana, at the request of her husband, and that the settlement was made upon her in consideration of that conveyance. The marriage took place in 1830, and the parties continued to reside in this state, up to the time of the conveyance, with the exception of a short interval.

It has been decided at the present term of this court, that where a marriage takes place in another state, between a man domiciled in this state, and a woman in another state, and it is the intention of the parties at the time, that this state shall be their domicil after the marriage, if this intention is carried into effect, the rights of the parties to personal property are governed by the laws of this state. Land's Administrator v. Land, ante, 99. But in regard to immovable property, the rule is different; there the law of the place where it is situated, the lex loci rei sites, gives the rule. Story, Confl. Laws, 160. This point then depends for its solution upon the laws of Louisiana, and according to those laws, in our opinion, Mrs. Vertner, under the circumstances, had no interest in the land in that state. It had been bought by the husband, after the marriage, with his own funds, or upon his own credit; she had contributed in no way to its acquisition, and had no right to it. We do not see, therefore, that the deed can be considered otherwise than as voluntary and without consideration.

The question to be decided, therefore,' is, whether they are void as to the complainant, who is a subsequent creditor. The law on this subject was thus stated in Henry v. Fullerton, 13 S. & M. 634: “ Voluntary conveyances are not necessarily void as to subsequent creditors; the presumption of fraud arising from indebtedness, or fraud in law, may be repelled by circumstances tending to show the absence of actual fraud. But if a subsequent creditor can show fraud in fact, by showing that the conveyance was made to avoid future debts about to be contracted, or to defraud existing creditors, the conveyance is void, not only as to present but as to subsequent creditors.” This language is very general, and it is quite difficult to extract an entirely definite rule from the cases. It seems to be beyond doubt, however, that if the party be insolvent at the time of making a voluntary conveyance, it is void even as to subsequent creditors. Lush v. Wilkinson, 5 Ves. 387; 1 Story, Eq. 352. It is also the law, that a very large indebtedness at the time, as compared with the resources and property of the party, is prima facie evidence of a fraudulent intent. The rule is thus stated in Holloway v. Millard, 1 Mad. R. 417: “A voluntary conveyance is prima, facie evidence, where the party is loaded with debt at the time, of an intent to defeat and defraud his creditors.” In that case the complainants were subsequent creditors.

In the present case, there is much reason to believe that John D. Vertner was insolvent, both in 1834 and 1836. The witness, Hoopes, who was familiar with his pecuniary affairs, thought it very doubtful whether he was solvent at either period. Other witnesses, perhaps not so well acquainted with his situation, state their belief of his insolvency. All the testimony abundantly proves, that he was loaded with debt at both of those points of time. The presumption arising from this fact, is not rebutted by any proof of an opposite character. We do not see, therefore, how these conveyances in favor of Mrs. Vertner, however strong their claims upon our sympathy, can be supported consistently with the authorities.

This view of the facts renders a consideration of any of the other points unnecessary.

Decree is affirmed.  