
    Thomas Wilson, William Hays and Wife v. Hezekiah Cheshire.
    The bill in this case stated that the complainant, Mary, on the 20th of November 1821, while a feme sole, made and executed to complainant, Thomas Wilson, a ■. i /. ,, n ~ deed of trust in the following words, to wit: “ State South Carolina, Laurens district. Know all men by these presents, that I, Mary Wilson, of the state district aforesaid, for and in consideration of the natural love and affection which I have to my brother, Thomas Wilson, as well as the confidence I repose in him,, have granted, bargained and sold, and by these presents do grant, bargain and sell, for the sum of one dollar to me in hand paid, as well as for the considerations after named, all the property hereinafter named, being the same left me by my father’s will, viz. one tract of land containing one hundred acres, being the same on which my father died, lying on the waters of Little river, adjoining Hezehiah Cheshire, William Wright and Wash
      
      ington Williams: also one other tract of eighty-three acres, being called the Mountain tract, part of the estate of Thomas Wadsworth, deceased, adjoining the aforesaid tract, and leased by my father from the trustees of the Wadsworthville Poor School for the term of seventy-five years; one negro girl named Harriet, and her two children named Eliza and Washington; one road wag-gon, two beds, the steads and furniture: to have and to hold the said property to the said Thomas Wilson, his heirs, executors, assigns and administrators, during the remainder of my natural life, the profits and rents of said property, still to be by him applied to my individual use and to no other, except by my consent, in case I should at any time think proper to change my situation in life; by which change of situation I do not intend to withdraw any power given by this deed, but to continue the same as a check against the waste or improper use which might be made by myself or my husband or children; the property always to be at his disposal when any thing like waste or impropriety occurs. It being always understood, and the true meaning and intent of this trust deed is, that the profits and use shall remain in me and my husband as long as and no longer than proper use is made of the same.”
    
      What uses are ^hichnot™3
    Atwhatpe’-the de-object toahe
    
      1826.
    
      Columbia.
    
    The bill also stated that subsequent to the execution of the deed, the complainants, William Hays and Mary, intermarried; that they had ever since retained the possession of the real and personal property thereby conveyed. That previous to the intermarriage, Hezekiah Cheshire had recovered a judgment against the said William, for a trespass in killing one of his oxen: that some time since the intermarriage, the said Hezekiah, although explicitly informed of the execution of the deed of trust and its contents, caused his execution to be levied on the tracts of land conveyed by the deed of trust, and caused all the interest of William Hays 
      therein to be sold by the sheriff of Laurens, and became the purchaser. That since the sale he had commenced his action of trespass, to try titles, against William Hays for the recovery of the said lands; and that as Hays could not in that case set up an outstanding title as a defence, the said Hezekiah would recover the same, and eject complainants from the possession, unless prevented by this Court.
    The bill prayed that the defendant, Hezekiah Cheshire, might be perpetually enjoined from proceeding in his action at law.
    The defendant’s answer admitted all the facts set forth in the bill, and stated that after the intermarriage he took a note from William Hays and wife for the amount of his judgment against William Hays, on which he sued and recovered judgment; and that under this last judgment the land was sold, and he became the purchaser.
    The case was heard upon the bill and answer, and the defendant’s admission, made in Court, that he had full and explicit notice of the execution of the deed of trust and its contents, shortly after its execution, and long before the land was sold under his execution.
    Thompson, Chancellor.
    This bill is brought to restrain the defendant, Hezekiah Cheshire, from proceeding at law in an action of trespass, to try; titles, against William Hays, as stated in the bill. It is only necessary, in forming an opinion in this case, to refer to the deed of trust, in order to ascertain the interest which William Hays had in the property; and whether it was of such a nature as to be liable to the operation of a fieri facias. By the trust deed, the legal estate is absolutely vested in Thomas Wilson, and nothing reserved to the use of the cestui que trust except the rents and profits. Hays, by his intermarriage, could acquire no other or greater right in the property than his wife was entitled to before marriage: to wit — the assets and pro» fits, which were invisible and intangible, and consequently not the subject of a levy. Two grounds have been repec[ on by the counsel for the defendant. The first is that, by the statute of uses, the use being in William Hays, the legal estate also is. If this were the law deeds of trust would be nullities, and the object of them altogether defeated; for they would be placed upon precisely the same footing that any other legal conveyance is. It was evidently the intention of Mary Wilson, in executing the deed, to protect the property from her own dilapidations, as well as those of any husband she might afterwards have, which intention is obviously expressed in the deed.
    The second exception is equally untenable with the first: to wit, that Mary Hays joined her husband, William Hays, in the execution of the note on which the judgment at law was founded. It is clear law, and it has repeatedly been decided, that a feme, cestui que trust can do no act which will affect the trust estate; and some decisions have gone so far as to say, not even with the consent of the trustee himself.
    The Courtis therefore of opinion, that the whole of the proceedings, so far as they relate to the trust property, are illegal and should be set aside; and it is ordered and decreed that a perpetual injunction do issue to restrain the defendant from further proceeding at law in his action of trespass to try titles as aforesaid. The defendant to pay the costs of suit.
    
      Irby, for the defendant,
    appealed, and stated for cause, First, That the deed of trust was void, in as much as Mary Hays, who conveyed the property, reserved tq herself the use and profits of the same. By the statute of uses, which is in force in this state, conveyances of lands, reserving the use to the grantor, were void.
    
      
      Second. That by operation of the statute of uses, the legal estate was in the cestui que use, and not in the trustee. For wherever a party had the power to dispose of the profits, he had the use, which is. vested by the statute of uses in possession. Then an execution copld attach on the property.
    
      Third. That independent of the statute of uses the legal estate was in Mary Hays, and not in Thomas Wilson the trustee.
    In Ramsay and others v. Marsh, 2 M’Cord’s Rep. 252. The Court decided that personal property was in the trustee. And the statute of uses did not operate on it. 1 Madd. Cha. 360.
    The cestui que trust may devise, and would forfeit, and subject his interest to an extent. But the use here was in the wife, by the deed. Could the cestui que use dispute the title of a purchaser under an execution against him ?
    
      Fourth. That the Court of Equity has no jurisdiction of the case.
    
      O’JYeall, contra.
    The deed was to her separate use. The rule of equity is that where there is any control given to the trustee, the use is not executed. 1 Madd. Cha. 357. 7 Ves. 201. 322. 12 Ves. 238. There are cases where the intention was not to execute the trust, and they were held therefore not executed, 1 Eden’s Cha. Rep. 195, 207, as was stated in Ramsay v. Marsh, where the trustee was empowered to receive and pay over. He cited Ewing v. Smith, 3 Desaus. Rep. 417.
    The wife could do no act to charge her estate. She was restrained by the words of the deed from injuring the property.
    As to the jurisdiction, it was sold as his property; they could not set up an outstanding title,.
    
      Jan. 1826.
    Nott, J. Could not the trustee have defended at law 1
    
    
      O’JYeall. That would not oust the jurisdiction of Equity. He cited 2 Cox’s Ca. 208. Weymouth v. Boyer, 1 Ves. 417. Bateman v. Willoe, 1 Scho. & Lefr. 205. 1 Madd. Cha. 359. The Equity jurisdiction was peculiar and exclusive.
    
      Irby, in reply,
    referred to the statute against fraudulent deeds of gifts of goods and chattels, reserving use. Pub. Laws, 42. 13 Eliz. ch. 5. It was not an executory, but an executed, trust. 1 Madd. Cha. 445. The property was liable, because the trust was executed. The Court will not say the judgment at law was void. He thought a feme covert could make her separate property liable. She had consented by giving her note and submitting to the judgment.
   Cuma, per

Colcock, J.

In support of the first ground taken in this case, the defendant’s counsel rely on the statute 3 Hen. VIL c. 4, declaring “ all deeds of gift made to defraud creditors void.” Pub. Laws, 42. It is a sufficient answer to this, that this very deed has been declared to be a good deed to convey the personal goods and chattels for, the purposes therein intended, in the case in, 2 M’Cord’s Reports, 252. But as it was suggested that this statute was not then brought to the view of the Court; and the circumstances of this case are different from those of the case referred to, I will briefly inquire if there be any thing in this case which can make that act applicable.

The chapter is in the following words, “Item, that where oftentimes deeds of gift of goods and chattels have been made to the intent to defraud their creditors of their duties, and that the person or persons that maketh the said deed of gift, goeth to sanctuary or other places privileged, and occupieth and liveth with the said goods and chattels, their creditors being unpaid: It is enacted, that all deeds of gift of goods and chattels, made or to be made, of trusts to the use of that per-77 1 son or persons, that made the same deed of gift be void, and of none effect.” Now it is clear from the language of the statute that it was intended to protect the rights ... . _ 1 , ot creditors; and in the case before us there are no ditors of the person making the deed, either prior or subsequent to its execution. The defendant cannot considered as a creditor. The note of a feme covert is a mere nullity. It does not bind her. Rut if it did, the defendant took it with a full knowledge of the tence of the deed of trust and its provisions. How then can it be said that he has sustained, or could by any possibility sustain any injury in consequence of this deed “? His taking the note was amere speculation. He on the same footing which he did before the coverture ° the cestui que trust. He has the note of the husband for his debt. The statute then has no application. The statute of 13 Eliz. chap. 5, was also relied on; but is still more foreign to the case, for it relates to sub- , sequent purchasers.

The statute 3Hen.vii.c! deeds'ofgift5 of goods made-m trust to the-ontyhí”favoúr creditors.

a person nCte‘of a^feme had exe-cutcd such a deed, given durin§ f 3ub' verture with pecially as he had notice of fore he con-"

The statute o'f uses does not execute a uPon a chattel interest, nor where the trustee not only holds the estate, but has some act to do; as to receive and pay over the rents and profits or to convey, &c.

The second ground cannot be maintained. For though m cases of absolute trusts the statute of uses does execute the use in the cestui que trust, and make him the complete owner of the lands or tenements, both in law and equity: yet it was very early decided by the cotemporaneous expositors of the statute, that a use could not be raised upon a use; that the word seised could only apply to a freehold interest, and therefore the use of a chattel interest could not be executed ; and lastly, that where the trust was executory, that is where the trustee was required to act and not merely to hold the estate, that there also the use could not be executed. Mr Maddock, in his first volume, 448 and 449, after stating the first position above mentioned, that a use could not be raised upon a use, which has no application to the case before us, goes on to observe, “ the Judges also held that as the statute mentioned only such persons as were seised to the use of others, it did not extend to copy-holds or to terms of years or other chattel interest, whereof the tenure is not seised but only possessed. and therefore if a term of one thousand years was limited to A. to the use of (or in trust for) B., the statute did not execute this use, but left it as at common law. They further held that where lands are limited to trustees to receive and pay over the rents and profits, the use is not executed, but the lands remain in them to answer those purposes. Where therefore there is a conveyance to trustees in trust to convey or to sell, or to pay the profits to a feme covert, and as it seems in all cases where any control or discretion is given to the trustees in the application of the profits of the estate, as to pay annuities, or to make repairs, or to provide for the maintenance of the cestui que trust, the legal- estate remains in the trustees, unexecuted by the statutewhich doctrine has never been controverted, and is supported by innumerable cases there referred to: so that the freehold in this case remains in the trustees.

The third ground is, that, independent of the statute of uses, the legal estate, by which is meant the fee, is in Mary Hays, and not in Thomas Wilson.

In the first place there are no facts disclosed in the case which enable the court to determine the point. I think it is presumable from the language of the deed that the fee never was in her. She speaks of the property as having been left to her by her father by will; and she only disposes of her life estate. He probably left her but a life estate. But if the whole estate was in her, the defendant could not come at the remainder until the determination of the life estate; and it will be time enough for him then to make the attempt. In which attempt his success would depend alone on his establishing a right to recover against her on the note made during coverture.

The Court where a no disability makehisde0 fence at law.

a married TcTwhich0 tends to the destruction of

I come now to the last ground, the want of jurisdiction in the Court, and which is now for the first time made in the case.

Trusts are the creatures of the Courts of Equity. It is their province to guard the rights of all who are interested in a trust deed. Here a separate estate has been created for the use of the complainant Mary Hays. Her husband has prevailed on her to do an act which is in itself unlawful, and calculated to injure, or at all events to affect, the property which has been secured to her. The defendant availing himself of her signature to the note has obtained a judgment against her, and sold the land secured by the deed of trust. She could know nothing of these proceedings. The trustee, from any thing that appears, was also ignorant of them. And the defendant threatens to make further attempts to proceed. He has thus gotten an unconscientious advantage over the cestui que trust, and she calls on the Court to restrain him from availing himself of it. The Court of Equity will never interfere where a party, who was free to act and to'protect his rights, has neglected to make a defence at law. such was not the case here. Had this cestui que trust been at liberty to defend herself, she could have done it completely: for in the case of Ewing v. Smith, 3 Desaus. Rep. 417, it was determined that a married woman can do no act which tends to the destruction of her trust estate.

her trust estate ; and where she gave ;i note with her husband upon which a judgment was obtained, and her trust estate sold, the Court of Equity will enjoin the proceedings at law, andrelievethe trust estate.

In a case in which the Court obviously had no jurisdiction, the objection to the jurisdiction can never be made too late; but where it is doubtful, and the defendant instead of demurring has answered in chief, it is too late on the final hearing to object to the jurisdiction.

In Bateman v. Willoe, 1 Scho. & Lefr. Rep. 261, the Lord Chancellor says, “ where a party has possessed himself improperly of something by means of which he has an unconscientious advantage at law, equity will either put it out of the way, or restrain him from using it.” These reasons are probably sufficient to shew that the Court had jurisdiction. But as Chancellor Kent in the case of Underhill v. Van Cortland, 2 Johns. Cha. Rep. 369, very properly remarks, “ at any rate, by answering in chief instead of demurring, the defendants have submitted to the cognizance of the Court, and they, came too late at the hearing on the merits to raise this objection. It would be an abuse of justice if the defendant was permitted to protract litigation to this extent, and with the expense that has attended this suit; and then at the final hearing interpose with this preliminary objection.” Such he remarks, “ appeared to be the opinion of a majority of the Court of Errors in the case of Ludlow v. Simond, 2 Caines’s Cases in Error, 40. 56..”

In a case in which there was obviously no ground of jurisdiction, the Court might be induced to interpose even at the last moment; but they will not be astute to discover such an objection at the very moment when all the rights of the parties are about to be finally determined on and put at rest for ever.

Decree affirmed. 
      
       There is no such case at that page, unless the Court alludes to Ramsay v. Marsh.
      
     