#### Hughes v. Pledge and Others.* Same v. Shippard.

October, 1829.

Marriage Settlement — Mortgage of Slaves Conveyed in Settlement — Statute.—Deed of marriage settlement of slaves then in Hanover, where deed was made and duly recorded: husband, entitled to and holding possession under settlement, removes with the slaves to Richmond, and there mortgages them for debt of his own, contrary to terms of the settlement, within 12 months after his removal of them: the trustee of the subject under the settlement, fails to have it recorded in Richmond, within 12 months after removal of the slaves; but within the twelve months, he flies a bill in chancery against the husband and mortgagee, asserting his legal title to the slaves and the trusts of the settlement: Held, the mortgagee is a purchaser with notice of settlement within 12 months after removal of slaves to Richmond, and as to him, the failure of the trustee in the deed of marriage settlement, to have it recorded in Richmond, does not make the settlement void, under statute 1 Rev. Code, ch. 99, § 11, p. 364.

Same — To Husband and Wife during Life — Condition That Shall Not Be Liable to Husband’s Debts — Case at Bar. — Marriage settlement of slaves to use of husband and wife during their joint lives; remainder to wife, if she survive; remainder to whomsoever the wife shall appoint, if she die before husband; remainder, in default of such appointment, to husband for life, and after, to offspring of the marriage; to the intent, that the property shall not be subject to disposal, debts, contracts or engagements of husband: Held, during wife’s life, the property cannot be disposed of by husband, or applied to satisfaction of his debts.

By deed of marriage settlement, between Erancis Pledge and Christian Hughes, made before the marriage, and bearing date the 18th July 1820, Christian Hughes, the intended wife, conveyed to William H. Hughes, five slaves, her own *property, in trust, that he should permit the said Erancis an'd Christian, after the marriage should be solemnized, to take and enjoy all the profits and use of the property, during their joint lives; and from and after the death of the said Francis, if he should die first, then upon trust, that the said William should assign the whole property to the said Christian ; and if the said Christian should die before the said Erancis, then in trust for such person or persons, as she should, by will or otherwise, direct and appoint; to the intent, that the subject should not be at the disposal, or subject to the control, debts, forfeitures or engagements, of the said Francis, the intended husband; and, in default of such appointment by the wife, at her death, then in trust for the said Francis, during his life, and after his death, for their offspring. The marriage took place. The deed was duly recorded in the county court of Hanover, on the 27th July 1820, the property being at the time in that county. Pledge the husband, within two months after, removed, and brought the slaves with him, to the city of Richmond; but the deed of marriage settlement, was not recorded, either in the hustings court of Richmond or in the county court of Henrico. And by indenture, dated the 22d January 1821, and duly recorded the same day in the hustings court, Pledge, the husband, conveyed them to Riddle, in trust, to secure a debt he owed to Shippard.

Riddle being about to sell these slaves, under this deed of trust, to satisfy the debt due to Shippard, and having actually advertised them for sale, Hughes, the trustee in the marriage settlement, exhibited his bill in the superiour court of chancery of Richmond, against Pledge the husband, and the trustee Riddle, setting forth the marriage settlement, and the other facts above stated, and praying, that Riddle, the trustee for Shippard, should be enjoined from selling or otherwise interfering with the property. This bill was filed, and an injunction awarded according to the prayer of it, June 12th, 1821. And on the 22d Februry 1822, an amended bill was filed, making Shippard a party defendant.

*Shippard, in his answer, insisted, 1st, that, though the deed of marriage settlement was duly recorded in the county court of Hanover, in which county the property was at the time, yet Pledge, the husband, having the possession of it, removed, and brought it with him, to Richmond, within less than two months afterwards, and the deed was never recorded there; and, therefore, was void as to him, a purchaser for valuable consideration without notice, according to the provisions of the statute, 1 Rev. Code, ch. 99, g 11, p. 364. And, *1592ndly, that, at least, the interest which Pledge had, or had a right to dispose of, in the property, under the marriage settlement itself, was subject to Shippard’s claim, and ought to be applied toward the satisfaction of it; namely, the use of the property during the joint lives of the husband and wife, and the contingent interest limited to the husband after the wife’s death without making any appointment.

Pending this suit, Shippard on his part exhibited a bill, complaining, that Hughes and Pledge had evinced a design to remove the subject beyond the jurisdiction of the court, and praying an injunction to restrain them from doing so; which was allowed.

The two causes came on together for a final hearing, in June 1826. The chancellor held, that the case stated in Hughes’s bill was not proper for relief in equity, because if he had right, he had a complete remedy at law; founding this opinion against the jurisdiction of the court, upon his understanding of the authority of the case of Bowyer v. Creigh, 3 Rand. 25. And, therefore, he dismissed that bill with costs. As to Shippard’s suit, he held, that the deed of marriage settlement, not having been recorded in Richmond or Henrico, whither the slaves had been brought soon after the marriage, and where they had ever since remained, was void as against Shippard; and, therefore, he perpetuated the injunction he had granted to Shippard, and decreed a sale of the slaves to satisfj' the debt for which they were mortgaged to him.

Hughes appealed to this court.

*Scott, for the appellant,

upon the question of jurisdiction, raised in the first suit, cited Allen v. Freeland, 3 Rand. 170, Randolph v. Randolph, 6 Rand. 194, Harrison v. Sims, Id. 506, directly in point to sustain the jurisdiction.

As to the omission to have the marriage settlement recorded in Richmond or Henrico, after the subject had been brought there, he said, 1st, That this deed was a conveyance by the wife of her own property only; and whether it had been recorded at all or not, it'was good against the creditors of, or purchasers from, the husband, as he was not the grantor. Pierce v. Turner, 5 Cranch 154; Land v. Jeffries, 5 Rand. 211. 2ndly, That, supposing this the case of a deed respecting the title of personal chattels, which by law ought to be recorded, yet the statute only provided, that in case the person claiming title under the deed, should permit the person in possession of the subject, to remove with it to another county, and should not within 12 months after the removal, have the deed recorded there also, the deed should be void, so long as it should not be so recorded, as to all purchasers without notice and all creditors. Now, Shippard had full notice of this marriage settlement, within the twelve months allowed for recording it in Richmond or Henrico; for the bill of Hughes, the trustee, was exhibited, and the injunction to restrain Shippard’s trustee, Riddle, from selling the property, was awarded, within nine months after it was brought to Richmond.*

*Shippard, in his answer, insists, that Pledge, the husband was entitled to an interest in the subject, under the deed of marriage settlement; and that his interest in it, at least, ought to be held liable to his debts, and subject to his disposition. But, to allow any sale or disposition of his interest to interfere with or affect the trust for the joint use of the husband and wife, during their joint lives, would be to defeat the purposes, as well as the express intent, of the settlement. Scott and wife v. Gibbon & Co., 5 Munf. 86.

No counsel for the appellees.

*

The principal case is cited in Armstrong v. Pits, 13 Gratt. 243; Doswell v. Anderson, 1 Pat. & H. 194; *foot-note*to Mundy v. Vawter, 3 Gratt. 518. See monographic *note*on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.

*

There are two provisions affecting- this point, in the statute oi' conveyances; 1 Rev. Code, ch. 99. § 4. 11, p. 363, 364.

§ 4 provides, inter alia, that “all deeds of settlement upon marriage, wherein either lands, slaves, money or other personal thing, shall be settled or covenanted to be leit or paid, at the death of the party or otherwise — sh all be void, as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved, and lodged with the clerk to be recorded, according to the directions of the act.”

§ 11 provides, that “every deed respecting the title of personal chattels, which by law ought to be recorded, shall be recorded Iu the court of that county or corporation, in which such property shall remain; and if afterwards, the person claiming title under such deed, shall permit any other person in whose possession such property shall be, to remove with the same, or any part thereof, out of the county or corporation in which such deed shall be recorded, and shall not, within twelve months after such removal, cause the deed aforesaid to be certified to the court of that county or corporation, into which such other person shall have so removed, and to be delivered to the clerk to be their recorded, such deed, for so long as it shall not be recorded in such last mentioned county or corporation court, and for so much of the property aforesaid as shall have been so removed, shall be void in law, as to all purchasers thereof for valuable consideration without notice, and as to all creditors.

This last section seems intended to protect from the claim of the grantee in the deed, the creditor of, or subsequent purchasers without notice from, the person in whose possession the chattels may be, and who is permitted to remove with it into another county or corporation. — Note in Original Edition.

CABELL, J.,

delivered the opinion of the court. The question as to the inefficacy of the deed, depends on the construction of the 11th section of the statute of conveyances. That section allows to the person claiming title under the deed, the term of twelve months, to have the deed recorded in the court of that county or corporation, to which the property may be removed. If, therefore, the deed be recorded there, at any time within the twelve months, it will defeat any previous sale which may have been made of the property. And as the main object of recording such deeds, is to afford the means of obtaining information as to the title of the property, it would seem that, as to that object, actual notice of the deed would be as effectual as if it were recorded. *Accordingly, this section of the statute, so far as relates to purchasers, makes notice of the deed equivalent to recording it; for it vacates an unrecorded deed as to such purchasers only, as are purchasers without notice. In the cases before us, it is evident, that Shippard had notice of the deed within twelve months. On this ground alone — independently of any influence which the case of Band v. Jeffries may have on this; and admitting that the deed of 18th July 1820, in order to be effectual against the creditors of the husband, ought to have been duly recorded, (as it really was) in the county *160court of Hanover; and without considering or deciding, whether, if the husband and wife were justly entitled to the possession and use of the slaves in the deed mentioned, and removed and held possession of them in the county of Henrico and city of Richmond, the case can come within that clause of the law, which speaks of the person claiming title permitting “any other person in whose possession such property may be, to remove the same,” &c. or whether, if the wife, for her sole and separate use, was entitled to the possession of the slaves, and her husband had removed them, she could be considered as permitting their removal within the meaning and intention of the act — without considering any of these points, the court is of opinion to reverse the decrees in both cases; to perpetuate the injunction in the first case, and to dissolve the injunction and dismiss the bill in the second.