#### Bowling & Boucher *vs*Winslow’s Adm’r.

*Sept.*16.

Error to the Mason Ciroijit Court.

*Husband and wife. Fraicds.*

Case stated.

Chief Justice Ewing

delivered the opinion of the Court.

Nancy H. Waters died in 1836, leaving, among other things, several slaves.. The children of James Jones, dec’d., and Pamela Bowling and Elizabeth Boucher, were her heirs, and as such, entitled to the distribution of her estate, each one third. Benjamin S. Flieatt administered on her estate, and taking possession of the slaves, hired them out until the latter part of the year 1839, when the children of Jones filed their bill for a sale of the slaves and a small tract of land, with a view to a division, and a settlement of the estate. Mrs. Boucher and Bowling and their husbands, filed their answers, consenting to a sale, and though they did not specifically set up that Mrs. Boucher’s undivided interest had been previously sold to Mrs. Bowling; under her name signed to the answer, are the following'words: “interest sold.” A decree was rendered for a sale of the slaves and land, and a Commissioner appointed'to make sale, who sold the slaves for upwards of $2700, upon a credit, and took the bonds of the purchasers, and made report to Court. But after the sale, but before the report was made, Thos. Winslow filed his bill, setting up a demand against George Boucher, the husband of Mrs.[Boucher, as his surety, praying that the share of Mrs. Boucher might be subjected to its payment. Mrs. Bowling answered, alledging that she had purchased the interest of Mrs. Boucher, shortly after the death of Mrs. Waters, and exhibited a bill of sale, bearing date in December, 1836, signed by Mrs. Boucher and her husband, George Boucher, as evidence thereof. Mrs. Boucher, by leave of the Court, filed an amended answer in the suit of Jones’ heirs for a division, alledging, that she and her husband sold her interest in the slaves, to Mrs. Bowling, for $675, and re*30'ceived the pay, and disclaiming all title, and praying that her share of the slaves might be alotted to Mrs. Bowling. ^os. Winslow, by an amendment to his bill, charged that the sale was fraudulent, and prayed that the interest of Mrs: Boucher in the slaves, or their proceeds, might be subjected to the payment of his debt against George Boucher, her husband. After the case was argued the first time, but before it was decided, Mrs. Boucher offered her answer,.in which she repeats that she and her husband had sold her interest in the slaves fairly, and without an intention to hinder and delay creditors, but with a view to raise money to live on, her husband being insolvent, and they both being old and poor, and unable to provide the means of support. She charges that the whole of her share of the slaves or their proceeds, are not more than sufficient for her support, and in case the sale is not.sustained, she prays that her estate may not be taken to pay her unfortunate husband’s debts, but that the whole j may be set apart for her maintenance. The Circuit Court rejected the answer, but permitted it to be filed among the papers, and copied into the record for this Court, and the cause being re-argued, the Circuit Court sustained the bill, and decreed that the proceeds of the sale be paid over to the complainant’s administrator, (he having died) ; and Mrs. Bowling and Boucher have brought the case to this Court.

Wliere the husband has never reduced to Ms possession,property (slaves) which has descended to the wife, during the coverture,so that they would be subjeetto execution forhis debts, the Chancellor will not subject them, regardless of the wife’s paramount equity to a maintenance.

If the slaves, or their proceeds, were subject to the complainant’s debt, the fraud in the sale charged, is very inconclusively and unsatisfactoi'ily made out.

But it is clear, that the husband of Mrs. Boucher never had the possession of the slaves, or any of them, in his own right, or in the right of his wife. The *legal title*and entire control of them all, were in and had continued with the administrator of Mrs. Nancy H. Waters, from his appointmentmp to the .sale for'distribution.. He had hired two of them to the husband of Mrs. Boucher for one year, and he had held the possession of them on hire only under the administrator, and was accountable to him for their hire. They were therefore, at no time subject to the complainant’s or any other creditors execution *at law,*for Boucher’s debts. Neither could they have *31been reached in a (Court of Equity, or subjected in that tribunal, to the payment of his debts, regardless of the wife’s prior and permanent equity to a maintenance out of them, as her inheritance. And considering the entire insolvency of the husband, and his inability to maintain her, and the abject poverty of both, it would, we think, require the whole of her interest in the slaves to support her.

Where slaves have not been reduced to possession by the husband during coverture, it is not a fraud upon creditors, for the wife to sell them for the ' purpose of her maintenance andsupport.

It is not fraudulent to convey that which cannot be made subject in any legal tribunal to the payment of debts.

A constructive reduction to possession by the husband, of property descended to the wife, (as a sale thereof,) though it have the effect to free it from the wife’s *legal*right of survivorship, does not bar herequitable right to a maintenance where the interposition of the Chancelloris necessary to give the actual possession, and the subject brought under his control.—

—Neither will the Chancellor give to the husband the property descended to the wife, to the prejudice of the wife's right to a suitable maintenance.

The wife’s equity to the whole interest, was therefore prior and superior to the claims of any general creditor. As they could not be reached or subjected to the payment of his debts, in either tribunal, they could be guilty of no fraud against creditors, in selling or conveying them away, nor could such conveyance be deemed a hindrance, de- , lay or obstruction to creditors.

Fraud against creditors consists in conveying or assigning to others in secret trust or otherwise, in bad faith, property or estate that is subject to *the*payment of their debts, and not in conveying that which is not subject, nor could be reached or made liable in any legal tribunal.

It is true that it has been determined that the sale or assignment, by the husband, of the property of the wife, not reduced to possession, is the exercise of dominion over the estate which operates as a constructive reduction to possession, which in legal effect, is tantamunt to actual possession. Yet it was determined by this Court, in the case of *Thomas, &c.*vs *Kennedy,*(4 *B. Monroe,*237,) that such constructive reduction to possession, had the effect only to free the estate assigned from the wife’s *legal*tight of survivorship, and not from her equity to have a provision out of it for her comfortable maintenance and support, whenever resort to a Court of Equity was necessary to obtain the actual possession, or the subject was brought under the control of such Court.

Cases are numerous where the assignee of the specific thing thus conditioned, has been compelled to yield to the wife’s paramount equity in that tribunal. Indeed, the authorities are abundant, that the assignee equally with the husband, is compelled to yield this equity, and neither can obtain the aid of a Court of Equity upon other terms. If an assignee of the specific estate thus condi*32tioned, cannot overreach the wife’s equity, much less can a general creditor of the husband do so.

Though property descended to the wife be placed in secret trust by the husband to provide a maintenance for the wife, a creditor cannot reach it if the wife, from the inabilty .of the husband, stand in need of such maintenance. It is but doing what wasaparamount duty, and what the Chancellor would have done.

*Hard*for plaintiffs: *Payne fy Waller for*defendant.

Moreover, the áct by which the slaves are claimed as subject to the complainant’s demand, is the act by which the title passed to the assignee. If the assignment was valid, the title is gone from the creditor; if invalid or held in secret trust, the presumption is, that it is held in trust for the wife, whose inheritance it was, and if so held, it is placed in that precise condition which a Court of Equity would have placed it, had it been brought under *its*control, and if so, that has been done which should have been done, and a Court of Equity will not undo it. In the absence of all proof establishing the fact, the presumption cannot be indulged, that an assignment which, as charged, was dictated by a desire and intention to place the property out of the reach of the creditors of the husband, and joined in by the wife, would pass it in secret trust for Ais use alone, and the more especially as he was insolvent, and could not hold either a legal or equitable interest that might not be made liable to the payment of his debts. But if held fraudulently or in secret trust for either or both, a Court of Equity will not divest the title, or overlook the prior and superior equity of the wife, in affording relief to the creditors of the husband. And as the whole of the wife’s interest in the slaves, or their proceeds, was not more, as we think, than sufficient for the reasonable support of the wife, the complainant’s bill should have been dismissed.

It is the opinion of the Court, therefore, that the decree of the Circuit Court be reversed, and the cause remanded, that the complainant’s bill as to the slaves, or their proceeds, be dismissed, with costs.