SPECIAL COURT OF APPEALS.

*Present*— Judges *Cabell, Coalter, White, Brockenbrough, Smith, Allen, and Richard. É. Parker.*

#### Harvey, Surviving Partner, &c. v. Alexander, &c.

December, 1822.

Deeds — Consideration—Proof of.* — '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 consideration's.

Same — Fraud—Witnesses—Trustee.—A mere naked trustee is a competent witness in a controversy in which a creditor seeks to set aside the deed, on the ground of fraud.

Same — Consideration — Relinquishment of Dower Rights.† — A wife parting with her dower right in real property, forms, a sufficient consideration for a subsequent deed conveying other property for her benefit. *

Same — Same—Personal Property Acquired after narria ge. — A1 though personal property, acquired by marriage, cannot be considered a valuable consideration, to support a subsequent deed for the benefit of the wife; yet it is a meritorious consideration, and the deed will be supported or set aside, according to circumstances.

Same — Recordation—Validity of.‡ — A deed not lodged to be recorded until eight months after its date, and not proved by the witnesses on whose testimony it was recorded, to have been sealed and delivered within eight months before it was recorded, is not good as a recorded deed.

This was an appeal from the chancery-court of Fredericksburg.

Samuel Harvey, surviving partner of Harvey and Armistead, filed his bill against William Thornton Alexander, *and Lucy his wife, John Taliaferro, John S. Taliaferro, son of the said John, and James G. Taliaferro. The bill states that on the 3d of April, 1810, the plaintiff recovered, in Spottsylvania county court, a judgment against the defendant Alexander for $800, with interest from the 25th of April, 1802: that an execution was taken out, but not put into the hands of any sheriff, because the said Alexander had, before that time, taken the-oath of an insolvent debtor; and the said judgment still remains unsatisfied, except $63.75 cents, which had been paid: that Alexander took the oath of insolvency, before the judgment was rendered, but long after the money had become due: that the insolvency of the said Alexander was pretended and fraudulent; he having, before that time, voluntarily and fraudulently conveyed a considerable portion of his property: that the deed (hereafter mentioned,) to John Taliaferro, is voluntary and fraudulent as to creditors, so far as it conveys-the reversion of the property to John S. Taliaferro, the son of the said Jolm Taliaferro: that the deed from the said Alexander to John Taliaferro, in trust for, his-wife Lucy Alexander, is also voluntary, fraudulent, and void as to the creditors of the said Alexander: that the deed from the said Alexander, and Lucy his wife, to-James G. Taliaferro, being made without consideration, after the said Alexander had taken the oath of insolvency, with full notice to the said James G. Taliaferro, is also fraudulent and void: that if the deeds-are not voluntary and fraudulent as to creditors, yet, the deed from Alexander toTaliaferro, in trust for his wife Lucy, is void as to the creditors ‘of the said Alexander, as the same has not been recorded in the manner prescribed by law, and the plaintiff had no notice of the existence of the said deed: The complainant therefore prays, that the said deeds, or one or more of them, may be set aside, and the property therein conveyed, be subjected to pay the claim of the complainant, with interest; *87and concludes with a prayer for general relief.

*Lucy Alexander answered, that at the time of her intermarriage with the defendant Alexander, she was entitled, in her own right, to a very valuable tract of land in the county of Essex, containing about 950 acres, and to another in the county of Westmoreland, containing 600 acres; that she was also1 entitled to sixty or eighty slaves, and to a valuable stock of all descriptions, &c.; that some time after her marriage vith the said Alexander, he proposed to sell, and did sell the lands aforesaid; that before the respon4ent would consent to join in the conveyance of her said lands, the said Alexander engaged to settle on her, lands of equal v-alue, and to place them in the same situation as to. title; that to carry this engagement, in part, into effect, the said Alexander did, on the 10th day of October, 1802, execute the deed mentioned in the bill of that date; that by this deed, the property therein specified, was conveyed to the respondent, and at her request and desire, the reversion, after the death of the said Alexander, of the tract of land called Hayes, was conveyed by the said deed to John S. Taliaferro, the nephew of the respondent, and son of the defendant, John Taliaferro; who, thereupon, as an additional consideration to the said Alexander for the conveyance made to John S. Taliaferro, did execute a deed to the said Alexander, for the tract of land called Oakland, and paid other considerations to the said Alexander; that the deed bearing date the 16th day of December, 1804, was executed upon the following considerations: 1. To satisfy a considerable excess in the value of the lands and other property belonging to the respondent in her own right, beyond the lands, &c. conveyed to her by the deed of the 10th of October, 1802. 2. An agreement, oti the part of the respondent, to relinquish her right of dower in a very valuable real estate held by the said Alexander, in the town of Alexandria. 3. A release, on the part of the respondent, of all her'claim on the said Alexander, for her future support and maintenance; that these various considerations, independently of !|!the consideration paid by the said John Taliaferro, on account of the reversion of the Hayes land, were more than an equivalent to the said Alexander, for all the property conveyed by him to the respondent and the said John S. Taliaferro, by the two deeds mentioned in the bill; that, as it was notorious that the said Alexander was wealthy, independently of the property conveyed by the said two deeds, nothing can be more erroneous than the suggestion, that the said two deeds were executed voluntarily and fraudulently by the said Alexander; that the respondent has regularly received, up to the present day, from the said John Taliaferro, the annuity conveyed to her by the deed of the 16th of December, 1804: that she sold and conveyed to James G. Taliaferro 3001. of the said annuity and the other property conveyed to her by the two deeds aforesaid, and delivered the same into his possession, long before the institution of this suit: that Alexander and John Taliaferro joined the respondent in the conveyance of her right to the said property; and accordingly a deed was executed by them to the said James G. Taliaferro: that as to the suggestion that the deed of December, 1804, has not been recorded according to law, the respondent has been informed that the said deed was duly recorded within eight months from the execution and delivery thereof: that she has also been informed, that the said deed has, in a second instance, been recorded in a manner to render it valid: that even if the said deed has not been recorded precisely at the period required by law., such omission cannot destroy her claim to the property thereby conveyed to her, as she is a creditor entitled to the highest consideration of a court of equity.

The answer of John Taliaferro, confirms all the material statements in the answer of Lucy Alexander; particularly as to the value of her separate estate, which she had consented to sell, in consequence of an agreement with the said Alexander, that he would, when thereto required, settle other lands on her, of at least equal value to those which *she had parted with: that at the date of the deed of 1802, the said Alexander was wealthy, and not indebted beyond the current accounts usual to men of his large income: that the said Alexander, wishing to free himself from the perplexing attentions incident to the management of his estate, to which he found himself unequal, proposed to the respondent that he should take a lease of all the lands in the county of King George, together with a portion of the slaves, stocks, &c., at the price of 5001. per annum, for the life of the said Alexander: that Lucy Alexander, seeing that she had no reasonable prospect of children, determined to convey to her nephew, John S. Taliaferro, the son of the respondent, all the interest intended for her, in the tract of land called Hayes: that in consideration of this provision for the respondent’s son, he determined to accept the lease of all the said Alexander’s lands in King George, including the Hayes land, and to> give 6001. instead of 5001. per annum; which latter sum the said Alexander had at first proposed to lease the said lands for: that in addition to this, the respondent conveyed his mansion tract containing at least 300 acres with a comfortable dwelling house &c. to the said Alexander for his own life and the life of the said Lucy, and in remainder to such issue as the said Lucy might by possibility leave; which conveyance is dated the 10th day of October, 1802; that the respondent also paid $5000 to the said Alexander, by granting to him an acquittance in writing of a debt due from the said Alexander to the respondent: that since the 1st day of January, 1803, he has paid the said 6001. per annum with punctuality: that the said Spring Hill tract of land, leased by the said Alexander to this respondent, never did vest the said Alexander in fee simple, but was, in pursuance of the bond of the 14th day of *88August, 1800, conveyed by James G. Taliaferro and wife to this respondent, in trust for the said Lucy; as will appear, by their deed of the 9th of April, 1803. Upon the whole, the real property conveyed to the said Lucy by the several deeds spa-ken of above, was not *equal _ in quantity or value, to her lands which had been sold' by her husband; and the personal property secured to her by the deed of the 10th of October, 1803, was not beyond a third part in value of the personal property, which she had held in her own right: that the deed of the 16th day of December, 1804, was executed and delivered by the said Alexander to the respondent, not on the day of its date, but on some day in the very last of April or early in May, 1805: that the said deed was prepared and dated at one time, and executed and delivered at another: that it was made on the following considerations; 1. To make satisfaction for the residue of the real and personal estate of the said Lucy, sold by the said Alexander, and not provided for by former arrangements; 2. An agreement by the said Lucy to relinquish her right of dower in a very valuable real estate then held by the said Alexander in and near the town of Alexandria; 3. An agreement on the part of the said Lucy to release the said Alexander from all claims on him for her future maintenance: that all these considerations have been faithfully complied with on the part of the' said Lucy, and they would have been fully recited in the said deed-, but the respondent who wrote the deed, did not consider such a course necessary to its legal validity; that the said Alexander, at that time, was worth 60 or 80,000 dollars, clear of all debts: that the arrangement was a beneficial one to the creditors themselves, whether present or future; for, by' the consent of the said Lucy to relinquish her right of dower, it enabled her husband to convert into money, 60 or 80,000 dollars worth of real property, which he otherwise-could not have sold on any terms: that the deed dated on the 16th day of December, 1804, was not executed on that day, and was recorded within eight months from the time of the execution and delivery thereof by the said Alexander to the respondent.

The answer of John S. Taliaferro, refers to that of John Taliaferro, for information on the several points in issue between the parties.

*James G. Taliaferro, says in his answer, that he became the purchaser of the property mentioned in the bill, for a fair and valuable consideration, and the deed was executed to him by Alexander and wife, and John Taliaferro; that the said Alexander and Taliaferro-, were mere nominal parties, without interest in the premises; that the said deed was executed in pursuance of an agreement which had for some time been made with him by the said Lucy, whereby she had, for several valuable considerations, paid to her by the respondent, engaged to convey to him all her right to the whole of the real and personal estate, which had been conveyed by the said Alexander, to the said John Taliaferro, for the benefit of the said Lucy; that the principal considerations for the said deed, were, 1st. about eight thousand dollars paid to the said Lucy, through the said John Taliaferro; and 2dly. an agreement by the respondent to maintain the said Lucy, at his own expense, during the life of the said Alexander; that the said Alexander parted with no interest in the premises by the said deed, nor does the respondent claim any thing from him in virtue of the said conveyance; that the respondent knowing that the two deeds of trust mentioned in the bill, were both executed bona fide, and upon full and fair consideration, the respondent had no hesitation in paying to the- said Lucy, the considerations mentioned above, besides other considerations which he has paid to her: that he had no notice of the plaintiff’s claim, at the time he bought the said property, which has been now at least ten years in his possession; and therefore he conceives that his title cannot be shaken by the claim of the plaintiff, or of any other person.

The following documents were made exhibits in the cause:

1. A deed from Alexander, to John Taliaferro, dated the 10th day of October, 1802, for the benefit of Lucy his wife, by which the said Alexander conveys to the said Taliaferro, in trust for his wife Lucy, sundry tracts and *parcels of land, together with sundry slaves, upon condition that the said Taliaferro shall pay to the said Alexander, $2,000 per annum, during his life, and after his death, the said Taliaferro shall convey the tract of land called Hayes, to John S. Taliaferro in fee simple, and all the remainder of the property to Lucy Alexander; and in case the said Lucy shall die before her husband, then the said Taliaferro shall convey the same to such persons, as would have been entitled thereto, if the said Lucy had never been married. This deed was made “for and in consideration of the natural love and affection which he bears to his wife Lucy Alexander, and to his nephew John Seymour Taliaferro, son of said John Taliaferro junr. and the further consideration of one dollar to1 him in hand, paid by the said John Taliaferro, junr.”

2. A deed between the same parties, dated the 16th day of December, 1804, by which Alexander conveys to Taliaferro the 6001. payable to him the said Alexander by the said Taliaferro, for the annual rent of his estate, granted by the deed last mentioned, together with the land which was Hansford’s, and certain slaves and other personal estate, in trust" that the said Taliaferro shall annually pay over to Lucy Alexander during her life, the said 6001. and the annual profits of the ■ other estate conveyed to him, to her only use;- and in case the said Alexander should survive his wife, then the same to- be paid to him during his life; and finally the said property shall be conveyed, after the death of the said Alexander and wife, to such persons as she may by her last will direct, and in default thereof, to such persons as would have been entitled thereto, had she never *89intermarried with the said Alexander. This deed is made lor and in consideration of “love and affection which he bears to his wife Lucy Alexander, and for the further consideration of five pounds to him in hand paid, &c.”

3. A deed from John Taliaferro, junr. and Lucy his wife, to the said Alexander, dated the ,10th day of October, *1802, whereby he conveys “for divers considerations, and for one dollar to him, the said John, in hand paid,” all that tract of land, which the said John had from Alexander Hansford, amounting to 300 acres or thereabouts, for the term of the natural life of the said Alexander, and the life of his wife, remainder in fee, to the children of the said Lucy Alexander, if she should leave any.

4. A deed dated the 9th day of April, 1803, between James Taliaferro and wife, John Taliaferro, junr. and Alexander and Lucy his wife. This deed recites that Alexander having purchased of James Taliaferro, a tract of land called the Spring Hill tract; and having sold another tract of land called Fox Hall, the property of Lucy Alexander, in wdiich conveyance the said Lucy had joined, in consideration that the said Alexander would convey to the said Lucy, the said Spring Hill tract, as a compensation for the said Fox Hall tract, in which she had relinquished her title: In consideration of the premises, James G. Taliaferro and wife, convey the greater part of the Spring pfill tract, to John Taliaferro, junr. in trust for the said Alexander, to receive the profits during the joint lives of himself and his wife, and if he should survive her, having had a child born alive, then he is to enjoy the profits of the said estate, during his natural life; and afterwards the said John Taliaferro shall convey the said estate, to the heirs and assigns of the said Lucy, in fee simple.

5. Sundry conveyances from Alexander to various persons, to which his wife Lucy had relinquished her right of dower.

Depositions were taken to establish the allegations in the answers of the defendants; and particularly the deposition of John Taliaferro, junr. the defendant in this cause, taken by virtue of a special commission. This deposition contains a more full derail of all the circumstances stated in the answer of the said John Taliaferro. In this deposition, he states that the said Alexander, after *parting with the property conveyed by the deed of 1804, was worth $60,000 or $80,000. To this deposition, the plaintiff excepted on the ground of interest in the witness.

The chancellor dismissed the bill of the complainant, upon a hearing; from which decree, the plaintiff appealed to this court.

Stanard, for the appellant,

contended, that the two deeds of trust to John Taliaferro, were void against creditors on two grounds; 1st. In point of law, and 2dly. Because they are proved, in point of fact, to have been entirely voluntary.

1. The deeds are void against creditors, on legal principles, because the consideration expressed in both of them, is nothing more than the “love and affection which the said Alexander bears to his wife Lucy;” a consideration, which cannot be sustained against a bona fide creditor. This objection can only be evaded, by proving some valuable consideration, not expressed on the face of the deeds. But such proof cannot legally be admitted. It may be laid down as a correct rule, that a deed purporting on its face, to be made for natural love and affection, cannot be averred and proved to be for a valuable consideration. In Clarkson v. Hanway,(a) and in Peacock v. Monk,(b) it is expressly decided that a different consideration from that expressed in the deed, cannot be averred. The same 'principle was decided in Maigley v. Planer, (c) The only cases in which a consideration can be averred, that is not expressed on the face of the deed, are_ those in which either no1 consideration is expressed; or general words are used, such as “and for other considerations;” or where the new consideration is congruous with the consideration expressed by the deed. The cases already cited, support the two first exceptions; and the last is exemplified in the case of Eppes v. Randolph(d), where parol evidence was *received under the terms “for the better advancement in life of D. R." This consideration was deemed congruous with the evidence, that the deed was made in consideration of marriage, ana therefore such evidence was admitted. But no such general terms are contained in the present deeds, and therefore no new consideration can be averred.

The next objection is, that the deed of 1804 was not recorded according to law, as more than eight months had elapsed between the day of its delivery, and its being admitted to record. The only mode in which this conclusion can be evaded, is to contend that the deed was in fact delivered on a subsequent day, to that which it bears on its face; and for this purpose, parol evidence must be resorted to. It cannot be denied that a deed may be dated on one day, and delivered on another. But, this fact can only be made to appear by the record itself. When no particular day of delivery is mentioned in the deed, or in the entry of-its being admitted to record, the date of the deed must be taken to be that of its delivery; and no averment can be admitted, that it was delivered on a different day. Otherwise, the date of the deed, would be entirely nugatory, or calculated to mislead. To admit parol evidence to prove a different day of delivery, would be to contradict a_ record. The policy of the law, was, to give notice on record, to the whole world of the existence of a conveyance, and of its due execution, in respect to all the steps necessary to be taken, to render it valid against creditors and subsequent purchasers. But, if a purchaser or creditor should be driven to make inquiries in pays, as to the validity of a deed, the main object of the law would be defeated. The evidence so adduced, must *90necessarily be weaker, than that afforded by the record. But, if such evidence can be received, it can only proceed from the attesting witnesses. AH other evidence must necessarily be inferior in- force and effect, to that of the subscribing witnesses.

*2. But, if parol evidence may be admitted, still the evidence adduced in this case is both incompetent and unworthy of credit. The only witness who proves that the deed was delivered on a different day from that on which it is dated, is John Taliaferro. But he is clearly interested. He was bound to pay a rent of 6001. per annum to Alexander and his wife. As soon as he had notice that the deed was charged with fraud (and he had notice from the filing of the bill,) all payments made by him were made in his own wrong, and he would be liable to a decree to that amount, in this suit. He is therefore deeply interested in sustaining the deed.

[The remarks of the counsel to prove that the evidence is unworthy of credit, being a mere comment upon testimony, involving no question of law, are omitted as not coming within the scope of this report.]

Wickham, for the appellee.

1. As to the question whether parol evidence can be admitted, to prove a consideration not expressed on the face of the deed? Whatever may be the rule in a court of law, a court of chancery will inquire into the real consideration. This is proved by the case of Quarles and Lacy(e); and Sugden (f) supports the position. The cases -cited by Mr. Stanard do not sustain his doctrine. Eppes v. Randolph (g) is in my favor, because the terms “advancement in life” apply only to a gift to a child and not to a marriage portion. The proof, therefore, of a marriage portion was not comprehended in the consideration expressed; and yet the court admitted such evidence. Moreover, the court lay no stress upon that circumstance, but say in general terms, as to David Randolph, that “being at liberty to1 aver and prove the real consideration, he has satisfactorily proved the deeds to have been in consequence of a marriage between, &c. He is to be considered *as a purchaser for a valuable consideration.” Stronger words could not be used to- shew that, in equity, a party may aver and prove the real consideration. The case in 7 Johnson(h) was a case at law; but even there the court intimate an opinion, that a court of equity would afford redress. The bill in this case charges a gross actual fraud. This puts the real consideration directly in issue. The bill does not charge a fraud upon Lucy Alexander and John Taliaferro. While this precludes the appellant from proving fraud as to them, it opens the question of consideration as to the remaining parties.

2. The deed of 1804 is not void, because it was not recorded within eight months from its date; but parol evidence may be admitted to prove its execution on a different day. The difference between our act of assembly and the statute of Henry 8th, on the subject of recording deeds, is remarkable. The latter speaks of enrolment from the date; the former speaks of recording within eight months from the time of “sealing and delivering.” This difference in the two statutes, plainly indicates the will of the legislature, that the date of a deed should not be regarded as-conclusive evidence of the time of its execution. Even in England, Lord Qoke(i) tells us, that where there is no date, the ■deed shall have effect from its execution. The act does not require that, for the purpose of recording, the time of delivery should appear upon record, but only says that the deed must be admitted to record, within eight months from the time of its execution; leaving the parties at liberty to prove a delivery by parol evidence. Some of the objects of this deed do not require recording at all. So far as it releases the rent to John Taliaferro, it does not come within the provisions of the act. A debt in money may be released without the solemnity of recording. If, for example, a deed contains among other things, the release of a bond, the release will be effectual, although the deed should never be recorded. If the release had been on a separate piece of *paper, it would have discharged the releasee. The statute relates only to- legal rights which subsist after the deed; not to debts which are extinguished by the release.

Taliaferro is not an incompetent witness. He could never be rendered liable to the appellants for the rents which accrued after the filing of the bill, and which he had duly paid under his contract. A bill merely suggesting fraud could not be a sufficient notice to him, to justify his withholding the rents from the person entitled to them, by a solemn deed. It was not his duty to decide on the conflicting evidence and to weigh the points of law, on which the question of fraud depended. If the appellant had wished to prevent John Taliaferro from paying over the rents, he might have applied to the chancellor for an injunction to restrain him. In that case there would at least be a judicial decision, that the allegation of fraud was supported by prima facie evidence; and he would be saved from the embarrassing necessity of deciding for himself, on a complicated question of law and fact. The charge of fraud -might be unfounded and frivolous. Would it be said that, in such a case, Taliaferro could justly keep back the rents from those who were entitled to them by deed? And, if his duty in this respect is to depend upon the strength or weakness of the evidence, is it just to make him the judge, at his own risque, of questions only suited to a judicial tribunal? On the other hand, how easy would it have been for the plaintiff to have added to his bill, a prayer for an injunction? As he has not done this, he has no right to claim a benefit from his omission.

*91Stanard, replied.

*

Deeds — Consideration—Proof of. — When the operation or effect of a deed is not attempted to be impeached, the consideration named in the deed, is treated, like the date, as formal merely, and a different sum may be shown to have been paid or agreed to be paid. Godfrey v. Beardsley, 10 Fed. Cas. 521, citing principal case.

See the principal case also cited in Bruce v. Slemp, 82 Va. 353.

†

 Postnuptial Settlements — Consideration — Relinquishment of Dower Rights. — It is a settled doctrine, repeatedly recognized by the courts, that a post-nuptial settlement in favor of a wife, upon a valuable consideration, is good in equity, though void at common law; and th'e relinquishment of the wife’s right of dower is a good consideration for such a settlement as against creditors of the husband to the extent of the value of the dower. Ficklin v. Rixey, 89 Va. 834, 17 S. E. Rep. 325, citing principal case as authority. And, in Glascock v. Brandon, 35 W. Va. 90, 12 S. E. Rep. 1104, it is said; “Blanton v. Taylor, Gilm. 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 husband 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 that 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 sucb settlement, it may 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.” To the same effect, the principal case is cited in Davis v. Davis, 25 Gratt. 590; Strayer v. Long, 86 Va. 561, 10 S. E. Rep. 574.

‡

Deeds — Delivery—Presumption.—If a deed bas a. date, the law intends it to have been delivered at that date, and this, notwithstanding a subsequent acknowledgment, but this presumption will yield to evidence»to the contrary. Hardy v. Norfolk Manufacturing Co., 80 Va. 421. citing principal case. To the same effect, the principal case is cited in Harman v. Oberdorfer. 33 Gratt. 502; *foot-note*to Rodgers v. McCluer, 4 Gratt. 81; Furguson v. Bond, 39 W. Va. 564, 20 S. E. Rep. 591.

The principal case is also cited in Slater v. Moore. 86 Va. 32, 9 S. E. Rep. 419.

(a)

 2 P. Will. 203.

(b)

 1 Ves. senr. 128.

(c)

 7 Johnson’s Rep. 341.

(d)

2 Call 125.

(e)

 4 Mun. 251.

(f)

 p. 438.

(g)

fe) 2 Gall, 125.

(h)

W p. 341.

(i)

 2 Inst. 674.

JUDGE CABELL

December 6th. — de_ livered the opinion of the court.

The appellant, a judgment creditor of William T. Alexander, for a debt contracted in April, 1802, preferred *his bill, seeking to set aside, as voluntary and fraudulent, two deeds executed by the said William T. Alexander; one of them bearing date the 10th day of October, 1802, the other bearing date the 16th of December, 1804. He farther contends that if the deeds be not fraudulent, the last of them is void as to creditors, not having been recorded within the time required by law. The appellees deny the fraud, and aver that both deeds were executed for valuable and meritorious consideration: And as to the deed of 1804, they aver that although it was not recorded within eight months from its date, it was recorded within eight months from the sealing and delivery thereof. The chancellor dismissed the bill of the appellant, who appealed to this court.

The deeds will be separately examined.

First. As to the deed of 10th October, 1802. The considerations expressed in the deed are “natural love and affection,” and “one dollar.”

The counsel for the appellant, considering this deed as voluntary on the face of it, contended that proof of valuable considertion was inadmissible, as being inconsistent with the deed. But the court is of opinion, that the question whether evidence inconsistent with the deed can be admitted, does not arise in this cause. This is not the case of a deed purporting to be for good consideration only. It is, in express terms, for valuable as well as for good consideration. It is true that the valuable consideration expressed, is only one dollar: But, one dollar, viewed as a consideration, is as much a valuable consideration, as a million of dollars. The real question is, whether a deed, purporting to be for “love and affection,” and for “one dollar,” and assailed as being fraudulent as to creditors, can be supported by evidence shewing that in addition to the one dollar expressed, full value was received by the grantor. This question may be simplified by supposing the deed to have been between the same parties, and for the same purposes; and that the only consideration *expressed in the deed was the sum of one dollar paid by the grantee. It could hardly be doubted, that the evidence would be admissible in that case. Indeed, the principle of the objection made by the counsel for the appellant, that the evidence would be inconsistent with the deed, does not apply to such a case. It is believed to have been the practice, at an early period, both in England and in this country, for deeds not to express the actual sum, but a nominal one only: and yet the court has not seen a single case in which it has been held incompetent to the party claiming under the deed, to aver and prove the sum really given. The King v. The Inhabitants of Scammonden,(j) is an authority in point, shewing that such evidence is admissible. In that case, the consideration expressed was 281.; whereas the sum really given was 301., which it became necessary to prove. Lord Kenyon said it was clear that the party might prove other considerations than those expressed in the deed. The case of Eppes v. Randolph,(k) and Quarles v. Lacy,(l) have a strong bearing on this point. In the latter case, there was no consideration expressed as moving from the wife, and only the consideration of one dollar from the trustee. (See the original record.) There can be no reason for not extending the same rule to a deed which, in addition to a valuable, states also a good, consideration. On a view of the authorities, this court is clearly of opinion that such evidence is admissible; and more especially where, as in the present case, the persons beneficially interested in the conveyance, are a feme covert, and an infant, to whom, in consequence of the incapacities under which they labour, greater indulgence is extended for any defects in points of form. And, in estimating the amount of the consideration, we are to take into the estimate every valuable consideration received by the grantor. It is not necessary that they should move from the person claiming under the deed. From whatever source proceeding, they operate as *legal considerations for the conveyance, and enure to his benefit. On this principie we are to estimate the considerations moving from John Taliaferro, jun. the trustee. ■

But it is objected, that the said John Taliaferro, a witness relied on by the appellees, for the purpose of establishing the consideration, is incompetent on the score of interest. If this objection be intended to apply to him as a necessary party to the cause, in his character of trustee, it is clearly ■ unsustainable. There can be no question that a naked trustee is a competent witness. It may also be remarked, as a general principle, that courts, at present, receive objections to witnesses with great caution as they relate to their competency; and that they incline to refer them to their credibility. It is alledged, however, that the objections in this case are too strong to be overcome; for, that he has a direct interest in the cause, because of the rent of 6001. per annum, which, by the deed aforesaid, he became bound to pay; that the bill gave him notice that the deed was charged with fraud; that all payments made by him, since the bill, were made in his own' wrong, and that he is liable to a decree therefor in this suit: That the rent, in case the deed shall be set aside, ought to be subjected to the claims of creditors, the court does not deem necessary to affirm or deny. But, if Taliaferro shall have actually paid the rents, either to Alexander or to his assignees, the court is of opinion, that the said Taliaferro ought not, under the circumstances of this case, to be made liable therefor. The institution of the suit, or the filing the bill impeaching the deed of fraud, but containing no prayer that he should not pay the rent over, was not of *92itself sufficient to- justify him in withholding the rent from those to whom he had contracted to pay it. All the parties interested in the rent were before the court; and if the appellant wished to injoin the rent in the hands of Taliaferro, the court of chancery was always open to him to apply for an order to that effect. For aught that appears to this court, the appellant might have ’^preferred that the rent should be in other hands than those of John Taliaferro. His failure to obtain from the chancellor, such an order as has been mentioned, especially when his bill was silent on the subject, left John Taliaferro at liberty to pay the rent to those who, under the deed, were entitled to receive it. And this remark applies with equal force to that portion of the rent to which James G. Taliaferro became entitled, and which he released in consequence of a surrender to him of a portion of the property on which the rent was reserved. It is not charged in this bill, nor established by proof, that there was any fraud practised by Taliaferro in obtaining the lease, nor that the rent was inadequate. The reverse, as to the rent, is positively proved. In fine, the court does not perceive the weight of any of the objections to the competency of this witness.

John Taliaferro, being thus decided to be a competent witness, is he credible? This is a question which the court is not disposed to argue. We doubt not that the counsel for the appellant, in the freedom and severity of his remarks on this topic, was urged by a sense of duty to his client, and actuated by a strong conviction that he was supported by the record. The view, however, which we have taken of the circumstances touching this point, is very different from that which presented itself to the appellant’s counsel. We have examined the record patiently and minutely, and we have not seen that John Taliaferro has done any thing that considering the relation in which he stood to the parties, he ought not to have done. We perceive nothing that is calculated to cast a shade on his character; nothing to impeach his conduct as a man, or his credit as a witness.

The court is of opinión, that the testimony in the cause shows that Alexander received valuable consideration, full and adequate, for all the property conveyed by the deed of the 10th of October, 1802; and that that deed, therefore, stands discharged from every imputation of fraud. *Secondly. As to1 the deed bearing date the 16th December, 1804. The considerations expressed are “natural love and affection,” and “five pounds.” What has been said, therefore, with respect to the deed of 1802, as to the propriety of admitting proof of farther consideration than that expressed, applies with equal force to the deed of 1804. The. considerations proved, are the release of Mrs. Alexander’s right to all future support from her husband; the relinquishment of her right of dower in all her husband’s real estate; and the excess of the value of the property, which Mrs. Alexander once held, but which was sold by Alexander, over the value of the_ property previously settled on her; a portion of .this property, however, being personal, had, by the marriage becomei Alexander’s, subject to his disposal and liable to his debts; it ought, therefore, to be excluded in estimating the amount of the valuable consideration of the deed of 1804. And even when excluded, the court is by no means certain that the valuable consideration was not full and adequate. Admit, however, that they were not full and adequate, it will not necessarily follow that the deed was mala fide, and fraudulent as to creditors: although the personal property brought by Mrs. Alexander to her husband and sold by him, can form no part of the valuable consideration of a deed settling other property on her, yet it may and ought to be taken into view as a meritorious consideration of such deed; and the deed will be supported or set aside according to circumstances. What are the circumstances of this case? It appears that Alexander at the time of his marriage, was possessed of a magnificent estate. His wife brought him another, not much inferior. It appears that he was extravagant and prodigal in the extreme.^ To supply the demands of this prodigality, a sale of property became necessary. The personal property acquired by his marriage, he had a right to sell; and he did sell much of it. He prevailed on her, moreover, to consent to his selling the whole of her real estate, and she conveyed *it accordingly; stipulating, however, that he should settle other lands upon her of equal value. He promised moreover to make a similar settlement of other property, equal in value to the personal property which he had got by her and which he had sold. These promises were partly performed by the deed of 1802, heretofore examined.- In the latter part of the year 1804, he had become so intemperate in his habits, that his wife could no longer live with him; and she resolved on a final separation from him. This resolution received the concurrence of Alexander himself. In contemplation of this event, Mrs. Alexander agreed, as before stated, to- relinquish all claim on him for future support, and to relinquish her claim of dower in his real estate; in consideration whereof, and of former ■promises made by him in relation to her personal property sold by him as aforesaid, Alexander agreed to convey, and did convey for her benefit, the property embraced by the deed of 1804; which property in addition to that conveyed by the deed of 1802, is proved to be of less value than the property, real and personal, which had been held by Mrs. Alexander in her own right, and which had been sold by her husband. There is no proof in the cause that at that time, or even as late as the last of April, or first of May, 1805, Alexander was much involved in debt. It is not pretended that at that time, he was otherwise than solvent. There is on the contrary positive proof that at that time, viz: in April or May, 1805, he was not materially indebted; and that exclusive of the property conveyed *93by the said deed, and exclusive of as much more as would be sufficient to pay all his debts, he was worth a large estate. It is also proved by John S. Welford, that after the first of May, 1805, he made a deed of gift to McFarlane and wife of ground rent in the town of Alexandria, amounting to about 1501. for ever. The said John S. Welford, who had long acted as the general agent of Alexander, and who declares himself well acquainted, in consequence of that agency, with his situation, expressly ^proves him to have been solvent as late as the month of February, 1806, when his agency terminated; and moreover declares his belief, that if the claim of the appellant had been presented to him at any time during his agency, (which agency was general and notorious in Fredericksburg and in Alexandria and their vicinities,) satisfactory arrangements would have been made for its discharge. It is proved also, that Mrs. Alexander did not permit Alexander to incur any farther expense for her support, and that she relinquished, whenever required, her claim of dower to his real estate. Under all these circumstances, this court is not satisfied, as at present advised, that the said deed ought to be set aside as fraudulent, even as to a prior creditor cf the said Alexander; and even, although a part of the consideration of that deed may not have been valuable, but meritorious only. But on this point the court gives no opinion.

But it is alledged, that the said deed has not been recorded within the time required by law, and that therefore, although not fraudulent, it is void as to creditors. The deed is an exhibit in the cause. It bears date the 16th December, 1804, and it appears by the certificate of the clerk that it was not proved till the 5th day of September, 1805. It does not appear, that the witnesses proved this deed otherwise than in the usuál form; it does not appear, that they proved it otherwise, than as a deed sealed and delivered on the day on which it bears date. Looking no farther than to the certificate of the clerk, we should be bound to say that it was not proved and recorded within the time required by law. But it is averred by the appellees, that the deed, although dated on the 16th day of December, 1804, was not, in fact, sealed and delivered till April or May, 1805; and they have taken depositions to prove the fact. It is contended, however, for the appellant, that whatever may have been the time of the sealing and delivery, yet if the deed bears date more than eight months before the time of proving it, and the *record does not shew that the witnesses proving the deed, proved that it was sealed and delivered within eight months before the time when it is fully proved and lodged to be recorded, it has no validity as a recorded deed, against a creditor. This is a question of great importance, and the court has found it one of some difficulty. Its solution depends on the sound construction of an act of Assembly prescribing a general regulation, juris positivi, merely. In such cases, the court has nothing to do with the hardship of the case, nor even with the principles of abstract justice. It is a great hardship, to the individual, that a fair purchaser of lands, for valuable consideration, shall lose the benefit of his purchase, because of unavoidable accidents preventing the attendance of his witnesses to prove his deed within the required time. Yet the case has frequently happened; and should the party complain of hardship, he would receive for answer, ita lex scripta est. The object of the legislature was to prescribe a general regulation, and to establish a criterion by which we may know, with greater certainty, who are the real owners of lands and tenements. For that purpose, the act of Assembly under which this deed was recorded, directs, that all conveyances of such property shall be by writing, sealed and delivered; and declares, that such conveyance shall not be good against a subsequent purchaser without notice, nor against any creditor, unless acknowledged or proved according to law, and recorded within eight months from the sealing and delivery thereof. And as to all deeds of trust and mortgages whatsoever, they are declared to be void as to all creditors, and subsequent purchasers, unless they shall be acknowledged or proved, and recorded as aforesaid. A deed, it .is admitted, takes effect from its delivery, and not from its date. The policy of the law, therefore, (the giving information as to the situation of the title to lands,) would seem to require, that the time of delivery shall appear on the record. For, how, otherwise, can creditors, or others, know who are the real owners of *land. If a deed has a date, the law intends it to have been delivered at the date, (m) When, therefore, a deed having a date, is proved by witnesses who say nothing as to the time of delivery, and is thereupon recorded, it stands recorded as a deed proved to have been delivered at its date; and if that date be more than eight months before it is lodged to be recorded, the deed, although spread upon the record, is shewn by the record itself not to have been recorded according to law; and is, therefore, not good as a recorded deed. It has been held in England, that although a stranger is not concluded by an enrolment, but may aver that the deed was delivered at a day different from that which the enrolment purports, yet that the parties are concluded, and shall not be permitted to aver that a deed was delivered at a day since the date; for, by the same reason it might be averred that it was never delivered.(n) It is not necessary to decide that principle in this cause, and the court accordingly does not decide it. We mean to go no farther than to decide, that a deed not lodged to be recorded until eight months after its date, and not px'oved by the witnesses, on whose testimony it was recorded, to have been sealed and delivered within eight months before it was recorded, is not good as a recorded deed. *94On this ground we are of opinion, that the ■deed in the record mentioned, bearing date the 16th Dec. 1804, is void as to' the appellant. The decree of the chancellor, is therefore reversed so far as it dismissed the bill as to that deed, and is affirmed as to the residue; and the cause is remanded, &c.

The court is of opinion, that the deed of the 10th Oct. 1802, was executed, bona fide, for full, adequate qnd valuable consideration, and stands discharged from every imputation of fraud. The court is farther Of opinion, **that the deed of the 16th of Dec. 1804, was executed bona fide, for considerations valuable and meritorious, without any intention to defraud creditors; but the court is of opinion, that the said deed, not having been recorded within the time required by law, is void as to the appellant, a creditor of the grantor Wm. T. Alexander. So much of the decree, therefore, as is in conflict with this opinion, is reversed with costs, and the residue thereof is affirmed; and the cause is remanded for farther proceedings to' be *:*had therein, according to the principles now declared.

(j)

 3 Term Reports, 474.

(k)

2 Gall, 125.

(l)

1) 4 Mm. 251.

(m)

 2 Inst. *tfli.*

(n)

 Comyns’ Dig:. 2 vol. P. 66. 6?, referring- to Savel’s Be. 91; 1 Leo. 183; 2 Leo. 122, and Ow. 138.