#### The Bank of Alexandria v. Patton and Others.

February, 1843,

Richmond.

Corporations—Expiration of Charter Pending Appeal —Previous Assignment of Rights.*—A bill in equity • by corporation being dismissed at the bearing, and an appeal taken from the decree, pending the appeal the charter of the corporation expires. A motion is made to the appellate court, upon the authority of Rider v. The Union Factory, 7 Leigh 154. that the appeal be entered as abated for that cause. In opposition to the motion it is suggested, that during the existence of the corporation, it made an assignment of its rights in the subject in controversy. Held, the appellate court may enquire whether the fact of assignment exists, as a guide for its action on the motion to abate, and upon being satisfied of the fact, may permit the case to proceed, without noticing on the record t the dissolution of the corporation.

«infants—Answer by Guardian ad Litem—Evidence, t—No rule is better settled, than that an answer of an infant by guardian ad litem cannot be read against him at all, for any purpose. Per Baldwin, J.

Voluntary Conveyances — Subsequent Creditor.]:—In March 1807, a voluntary conveyance was made, *329settling- real and personal estate for the benefit of a wife and children. It was attested by highly respectable and intelligent witnesses, and immediately placed upon record. Eighteen years after-wards, a bill was *filed to*impeach this conveyance, by a creditor whose debt originated some years after the conveyance was made, and who, it appeared. had notice of the conveyance when not more than a fourth of the debt had been contracted. The bill alleged, that at the time of the conveyance the grantor was very much involved, and largely indebted to many persons. But in the opinion of the court it was proved that he was then, and for several years afterwards, able to meet all his engagements ; the owner of property to a considerable amount ; in good credit and extensive business ; having the command of large sums of money, and not indebted except to a single individual, the debt to whom was not large, considering the grantor’s estate. Esui (in accordance with the principles laid down by Baldwin, J.. in Hutchison and others v. Kelly, ante, p. 183), that the bill of the creditor in this case cannot be sustained.

Same—Same -Statute of Ellz.—Notice of Prior Settlement.—The policy of the statute of 27 Eli'/,, ch. 4, and of so much of the Virginian statute to prevent frauds and perjuries as relates to purchasers, investigated by Baldwin, J. And the principle laid down by him and concurred in by the court, that a voluntary settlement, without actual fraud, made by the grantor upon his wife and children, is not to be deemed conclusively fraudulent and void as to a subsequent purchaser from him for valuable consideration, when such purchaser has full notice of the pripr settlement.

On the 21st of March 1807, a deed was made between Robert Patton junior of the county of Fairfax of the one part, and James Sanderson and William Stewart junior of the town of Alexandria of the other part, whereby Patton, for a nominal consideration, (to wit, ten dollars) conveyed unto Sanderson and Stewart a tract of land in Fairfax county containing 128 acres, sixteen slaves, a chariot and harness, seven horses, all the cows, sheep and farming utensils belonging to him, the liquors of every kind in his cellar, and all his household furniture and kitchen utensils. *On the same day another deed was made, between Sanderson and Stewart of the one part, and Ann Clifton Patton, wife of Robert Patton junior, of the other part, whereby Sanderson and Stewart, for a like nominal consideration, conveyed the same property unto the said Ann Clifton Patton during her life, and after her death to the several children of the said Ann Clifton Patton by the said Robert Patton junior her husband.

The first mentioned deed was attested by George Youngs, R. J. Taylor, EJdmund J. Gee and William Moss; the other was attested by the three first named witnesses. They were both proved in the court of Fair-fax county, the first by Taylor on the 21st of April 1807, by Moss on the 18th of May 1807, and by Youngs on the 21st of September 1807; the other by Taylor on the 21st of April 1807, and by Youngs and Gee on the 21st of September 1807. On the day last mentioned, both were admitted to record

A deed bearing date the 10th of April 1811, purporting to be from Patton and wife to William Herbert junior, and to convey the same property, was executed by Patton and signed by his wife, and also attested by four witnesses; but she was never privily examined in respect thereto, and it was never recorded. This deed, after describing the property, states expressly that it is the same that was “conveyed by James Sanders on and William Stewart jr. to the said Ann Clifton wife of the said Robert Patton jr. by deed bearing date the 21st of March 1807 and duly recorded in the county court of Fairfax.” A reconveyance of the property from Herbert to Patton himself, bearing date the 7th of May 1811, was admitted to record in the court of Fairfax county the 15th of July 1811, upon Herbert’s acknowledgment. The reconveyance, after describing the property, stated in terms that it was the same conveyed by Patton and wife to Herbert.

*On the 27th of April 1811, a deed was made between Robert Patton junior and Ann Clifton his wife, of the one part, the president, directors and company of the bank of Alexandria, of the second part, and William Herbert jr. of the third part, whereby, —after reciting that Patton did, by deed bearing date the 29th of March 1811, convey unto Herbert 2000 dollars worth of stock in the Farmers bank of Alexandria, together with other property, for the purpose of securing the payment of any sum or sums of money which the president and directors of the bank of Alexandria might have or should thereafter agree to loan him, and after reciting it to be the wish of Patton to convey the premises therein after mentioned in lieu of the said stock and as an additional security for the president and directors of the said bank,— it was witnessed that Patton and wife conveyed to Herbert the same tract of 128 acres of land, being the tract on which Patton then lived, called Spring bank, and also two other tracts of land, one of them conveyed to Patton by Hepburn in April 1809, and the other conveyed to him by Scott and others in June 1810, upon trust and with power to Herbert to sell the said premises, if Patton should at any time thereafter, when required by the president and directors of the bank of Alexandria, fail to pay them whatever sum or sums of money he might owe them by note or otherwise, with any discount or interest that might have become due thereon. This deed was attested by R. J. Taylor, N. J. Herbert and Thomas Swann, all three of whom were likewise witnesses to the reconveyance of the 7th of May 1811. There was a commission to examine mrs. Patton privily and take her acknowledgment of the deed of the 27th April 1811. And on the 18th of November 1811, the deed being proved in the court of Fairfax county as to Patton *330and Herbert by three witnesses, was admitted to record.

*On the 29th of September 1824, a deed was made between Robert Patton junior and Ann Clifton his wife, of the first part, William' Herbert of the second part, Colin Auld and Robert J. Taylor of the third part, and the president, directors and company of the bank of Alexandria, of the fourth part, wherein it was recited that Patton stood indebted to the president, directors and company of the bank of Alexandria in the sum of 8920 dollars 62 cents, with interest on 8864 dollars 74 cents from the first of April 1823, and on the residue from the date of the deed (September the 29th 1824), being the amount of sundry loans of money and discounts theretofore made by the bank for his use and accommodation, for the security of which, in part, the said Patton had theretofore conveyed in trust to the said Herbert a part of the lands therein after described. It was farther recited, that the bank had agreed to forbear and give further day of payment for the said debt to the said Patton for the term of 3 years; and if, at or before the expiration of the said term, Patton or his representatives should pay to the' bank or its assigns one full third part of the said debt with interest thereon, then the bank or its assigns would allow the further term of two years, making five years from the date; and if, at the end of the said five years, Patton or his representatives should pay one half of the balance, the bank would allow the further term of two years, or seven years from the date, for the payment of the residue: and that Patton, on his part, agreed to give farther and more effectual security for the payment of the said debt to the bank. Whereupon it was witnessed that Patton and wife and Herbert (for such interest as he had therein) conveyed to Auld and Taylor the three tracts of land mentioned in the deed of the 27th of April 1811, and also another tract of land, in trust to permit Patton and wife and their representatives to retain possession and to receive the rents and profits thereof ^without account, according to their respective interests therein at the time of the execution of this deed, until default should be made in any one of the payments; and if there should be a failure to make payment of the debt and interest in the manner before mentioned, in trust that Auld and Taylor should sell the premises (or so much thereof as might be necessary to satisfy the whole amount of the debt and interest remaining unpaid, with all reasonable costs of sale) in the manner set forth in the deed. No sale was to be made of the Spring bank tract of land until the other two tracts should have been first sold and the proceeds thereof ascertained to be insufficient. And the deed was in trust that if Patton should pay off the whole amount of the debt, charges of insurance, and interest; or if the same should be raised, with expenses of sale, from the sale of the other tracts; or | if the same should in part be so raised, and the said Ann Clifton Patton, or any one of her children, or any one on his or their behalf, should pay to the bank the balance which should be due, then the parties of the third part should thenceforth hold the said tract of land called Spring bank to the sole and separate use of the said Ann Clifton for her life, free from the power and control of her husband, and after her death to the use of such child or children of the said Robert and Ann, then born or thereafter to be born, and for such interests and estates, as the said Ann, by any instrument of writing under her hand, attested by two or more credible witnesses, or by her last will and testament or letter of appointment attested as aforesaid, notwithstanding her coverture, might direct and appoint; and in default of such appointment, to the use of the right heirs of the said Ann according to the statutes regulating descents. The deed made provision for keeping the buildings on the Spring bank tract insured; declared that the sums advanced by the bank for premiums of insurance should *be considered secured by the deed, with interest from the times of such advancements; and provided that if the same, with interest, should not be refunded to the bank within 60 days from the advancement, all claim to further credit should cease, and the trust be executed on the request of the bank. Two justices of the peace of Fairfax county took the acknowledgment of Patton, and also the privy examination and acknowledgment of his wife; and the deed with their certificates was admitted to record in the office of Fairfax county court on the 25th of October 1824.

On the 22d of March 1825, the president, directors and company of the bank of Alexandria commenced a suit in the superior court of chancery formerly holden for the Fredericksburg district.

Their bill, which was filed at June rules 1825, set forth the deeds herein before mentioned ; described Patton as being, at the time of executing the deeds of March 1807, “very much involved, and indebted to many persons to a considerable amount;” and mentioned the deed of the 27th of April 1811 as being “in trust to secure a debt of 2000 dollars to the bank of Alexandria, and to secure any further loans that the bank might make to Robert Patton junior.” It avers that the debt of 8864 dollars 74 cents, secured by the deed of the 29th of September 1824, is still due to the bank with interest &c. and states that the plaintiffs are advised that the tract of land called Spring bank, and the other lands conveyed by that deed, are liable for the said debt, but their claim to have the tract called Spring bank subjected to the payment of their debt is resisted, upon the ground that it had been previously conveyed by Sanderson and Stewart, by the deed of the 21st of March 1807, to Ann Clifton Patton for life, and after her death to her children, one of whom only was in esse at the date *331of the deed, to wit, Eleanor Patton, *who afterwards intermarried with George Mason. The complainants contend that the deed from Patton to Sanderson and Stewart, being a voluntary deed without consideration, and made with the sole view to a settlement upon the wife and family of the said Patton, and that too at a time when he was largely indebted to many persons, must, as to the complainants, be considered fraudulent, null and void; that the deed from Sanderson and Stewart to mrs. Patton and her children is null and void, because no such settlement as was contemplated by the parties could be made without the interposition of a trustee, and as a settlement after marriage, without any contract precedent to the marriage, it cannot be supported against any creditor, either prior or subsequent; that at all events, whatever might be its effects as to the subsequent creditors, it is void in law as to any purchaser, either prior or subsequent; and that as to the complainants, who claim both as creditors and purchasers, both deeds are fraudulent and utterly null and void. Robert Patton and Ann C. his wife, Mary S. Patton, Robert Patton, George Patton, Rosalie W. Patton, Sophia Patton, Elisha C. Patton, Benjamin R. Patton, and George Mason and Eleanor his wife, formerly Eleanor Patton, are made defendants. The bill prays, that Robert Patton may answer and say whether the deed from himsel £ to Sanderson and Stewart was hot voluntary and without consideration, and with a view to have the property settled upon his wife and children, and whether, at the date of the said deed, he was not largely indebted to many persons? that the said deed, and the deed from Sanderson and Stewart to mrs. Patton and her children, may, as to the complainants, who are both creditors and purchasers, be decreed to be null and void, and that the land called Spring bank may be made or left subject to the just and legal Hens and incumbrances, which the complainants have upon it.

*At May rules 1826, the defendants Robert Patton and Ann C. his wife filed their answer. In this they admit that the facts stated in the bill, so far as they relate to the deeds for the tract of land called Spring bank, are true, and that the deed from Patton to Sanderson and Stewart was voluntary, and without other consideration than what appears on the face of it, except as follows—

They state that Patton, in 1804, contracted an engagement for marriage with Ann C. Reeder (now Ann C. Patton), and being about to embark for Europe, made a will which he left with his brother James Patton, since deceased, wherein he devised the Spring bank land, which he had recently purchased, to the said Ann C. Reeder, together with 5000 dollars, and sundry slaves and household furniture; and not having received the conveyance of the said land, he desired his said brother to cause it to be made to the said Ann C. Reeder, which however he failed to do. That after his return from Europe, to wit, in 1805, he was married, and the conveyance of Spring bank was subsequently made to himself. That while in England, he became acquainted with the house of Thomas Pinkerton, then a contractor with the british government for the supply of flour, bread, peas and beans in the british West India islands, and entered into an engagement with the said Pinkerton to forward such supplies monthly from the United States to the West Indies, to meet the contract of the said Pinkerton : in the profits of which engagement, he gave his brother James Patton a large share. That soon afterwards Pinkerton failed, and he (Robert Patton) again visited England, and made a similar arrangement with the firm of Ingles, Ellico & Co. which latter business was conducted by himself alone, and was continued until 1809, when that house also failed, leaving him to take up bills of exchange to a large amount, as he had done to a considerable extent in the failure of Pinkerton. The said defendant ^Robert Patton states, that during the greater portion of the period occupied by these transactions, he believed his circumstances to be good and prosperous, and it was during that period that the deeds of March 1807 were made; but he admits that when those deeds were made, he did owe sundry debts, some of them of considerable amount, and among them a debt to John Baird of Georgetown, D. C. amounting to 678 pounds 11 shillings and 9 pence sterling, with interest from the 31st of December 1806. He states that he is under the impression that a part of the sum obtained from the complainants was paid to Laird, in part of his debt; and adds, “It is with grief and mortification this defendant must own that to this moment he remains indebted to the said John Laird a part of that debt.”

At June rules 1826 an answer was filed for the other defendants (except Mason and wife) by guardian ad litem. The guardian states in the answer, that he has no doubt the claim of the complainants for 8864 dollars 75 cents with interest, on account of moneys advanced and loaned by them, is a just and fair claim; and that he has understood that the said Robert Patton junior, at the time the deed to Sanderson and Stewart was executed, was indebted to John Ivaird in a considerable sum of money, and perhaps to other persons also. Both the deeds of March 1807. he says, “appear to be very vaguely and inartificially drawn, and to have a very precarious effect.” Whether the interest vested in the children is such a one as a court of chancery will hold valid against creditors and purchasers, he is not advised; but he states his belief that the said Robert Patton has it in his power to substitute property of equal value for that sought by the complainants to be subjected to the payment of their claim.

At October rules 1826, Mason and wife filed their answer. They state, that per*332sonally they know nothing of the facts: that they have always been informed and ^believe that the deed to Sander-son and Stewart was a fair and bona fide deed, and not intended to defeat or injure any creditors whatever: that thejr do not know whether Robert Patton junior was indebted at the time, but they have been informed and believe that his debts at that time were not considerable, and have all been long since paid. They admit that Eleanor Ann was the only child then in esse.

All the answers were signed and sworn to; that, of Patton and wife by each of them; that for the infant defendants by Nathaniel S. Wise, who was then their guardian ad litem; and that of Mason and wife by each of them.

On the 24th of April 1827, the suit abated as to the defendant Robert Patton by his death. Whereupon, for reasons appearing to the court, the order appointing Wise guardian ad litem was set aside, and Ann C. Patton was appointed in his stead: and on the motion of the defendants Ann C. Patton and Eleanor Ann Mason, respectively, by counsel, leave was given to the said Ann C. Patton to answer de novo for herself and the infant defendants, and to the defendant Eleanor Mason to file a separate answer.

At March rules 1828, answers were filed. The answer of Ann C. Patton for herself, and of the infant defendants by her as their guardian states, that the conveyance to Sanderson and Stewart was made in accordance with a long cherished wish on the part of Robert Patton junior to provide for his wife and children a security against the vicissitudes of fortune, by setting apart for them a small portion of his property: and it mentioned the will made by Robert Patton junior on the eve of embarking for Europe, and the instructions given by him to his brother in relation to the conveyance of the Spring bank tract of land, in like manner as they are mentioned in the former answer. It was his intention, she said, at the time of making the will, that she *should complete the improvements at Spring bank, and reside there; and that property, and the improvements then making, were understood among their families and friends to be settled upon her. The answer further states, that at the time of the deeds of March 1807, Patton was not at all involved ; that he was in the possession of much real property besides the Spring bank estate, and that he had the command of much monej-, ground rents &c. solely his own; that he was at that time engaged in prosperous mercantile enterprise, and concerned in shares of many vessels, besides having other considerable resources. The respondents aver that it was a conviction honestly entertained by him, that he could make provision for his wife and children, to the extent of the property comprised in the said deeds, without the slightest injustice or hazard of loss to his then creditors. They admit that he was at that time indebted for some shop and mechanics’ ac•counts contracted after the commencement of the year 1807, which were paid (as was usual then and for many years after) when presented at the close of the 3Tear, and that he also owed a debt to John Eaird, part of which, amounting with interest to about 1200 dollars, still remains unpaid. Every debt which he owed at that time, with the exception of that to Eaird, they aver has been paid. Why that was not paid they cannot state, but presume it was because Eaird did not want the money. It could not be, they say, from the incompetency of the said Robert Patton jr. to discharge the same, if Eaird had required and pressed it. They mention that in the spring of 1826, Humphrey Peake as agent for the bank, by persuasiofi, and by threatening an immediate sale of the other lots at the then reduced prices of land, importuned and at length induced the said Robert Patton junior to answer, or to allow him to draw an answer, to the complainants’ bill, and to state that he owed sundry debts besides the debt to Eaird, which statement *they say was without foundation, except as just mentioned in relation to the shop and mechanics’ accounts. They deny that any part of the money received from the bank was ever applied to pay Eaird; that debt having, as they allege, been reduced from other sources. They state that the transactions of the said Robert Patton junior with the bank did- not commence until January 1809, and that he did not receive any accommodation on his own paper for a considerable time after; and the credit given him was upon his own responsibility, without contemplating any claim or charge upon the Spring bank estate. The deeds of March 1807 were never intended to be kept secret; the attorney of the bank was one of ’•he subscribing witnesses to the same, and they were well known to the friends and acquaintances of the said Robert Patton junior in the town of Alexandria (where he carried on his business) some of whom were directors of the bank. And the respondents insist that both law and justice condemn such a claim as is made here by a subsequent creditor or purchaser, especially when the credit is given and the purchase made with a full knowledge of the voluntary conveyance, as they are informed was the case.

The answer of Eleanor Ann Mason states, that she was an infant at the time the deeds of March 1807 were made by her father; but she declares her belief that they were bona fide and upon just and good consideration, and were not made, as alleged in the bill, to defraud his creditors, or any other persons. She avers that her father was then possessed of a large real and personal estate; that if he were at all indebted, it was to a very small amount compared with the actual value of his estate; and that all the debts he then owed, she has been informed and believes, have been since paid. She calls for proof of the *333allegation that he was at that time very much involved and indebted. She charges that the debts claimed to be due to the complainants *were contracted long after the execution of those deeds, and that at the time they were contracted the complainants had full knowledge of the existence of the said deeds, and of the interests and estates created by the same.

The deposition of John Laird was taken the 12th of March 1828. It is very brief, consisting of two questions by the plaintiffs, and his answers. Being asked, first, whether he was acquainted with the business and affairs of the late Robert Patton? he answers, “Not at all.” And then this question being propounded to him, “Was he not largely indebted to you about the year 1807, at and before that period?” his answer is, “He owed me in 1806, and several years afterwards, 678 pounds 11 shillings and 9 pence sterling money.”

At October rules 1828, the death of the defendant Ann C. Patton was suggested on the record.

Depositions were taken on behalf of the surviving defendants in March 1829.

The deposition of Peter R. Beverley was in these terms: 1 ‘ Prom the year 1809 to 1812, I was intimate with the late Robert Patton junior, and often looked over his books, and from my knowledge of his circumstances then, believe he was worth, after the paypient of his debts (which were then trifling), from 60 to 70 thousand dollars. Prom 1812 to 1816, his circumstances were good and his credit unshaken; his debts inconsiderable. In 1816 and 1817, I had extensive transactions with the said Robert Patton junior, and we jointly loaded two vessels to St. Domingo. His credit was then good, but his fortune much reduced by the failure of Pinkerton and losses on shipments and transactions. Prom 1817 to 1820, I knew him to be punctual in heavy transactions.”

Janies Sanderson, in answer to the first question propounded to him, deposed, that during the period therein mentioned, to wit, from September 1805 to April 1807, *he was intimately acquainted with Robert Patton junior; that his circumstances -were good, and generally considered so; that he was in possession of much real property, besides ground rents, was concerned in shares of several vessels, and had command of a considerable sum in cash. In answer to a second question, he deposed, that from the year 1807 until many years after, the said Patton was in good credit. In 1816, deponent sold him bills on England, upon a credit, for upwards of 8000 dollars, upon the sole notes and responsibility of him the said R. Patton junior; and they were duly paid. The third question was, Whether the said Patton owed any debts previous to the year 1807, and to what amount? To this he answered, that previous to the year 1807 he understood the said Patton owed a debt - to John Laird, which he understood was about 2000 dollars. To another question, he made this answer: “In the spring of the year before mr. Patton died, I was consulted by him, stating he had been importuned by the bank of Alexandria, the plaintiffs, to make an answer to a bill (that they had dictated) that he was indebted to persons in a considerable amount previous to March 1807, and upon such an answer they would give them longer indulgence. I told him, if he did make such an answer, and I was ever called upon in a court of justice, I should *most certainly*contradict him; that I knew his circumstances at the time, and well recollected our conversation when he executed a deed to one Stewart and myself for the estate of Spring bank, and that he only owed the debt due to mr. Laird, as before stated. He was in expectation, by getting indulgence, to be enabled to pajr off the debt due to the bank of Alexandria from some other resources. I never understood, until after his death, that he had made the answer required by the said bank of Alexandria.”

Richard Veitch, in answer to the first question propounded to him, deposed, that during the period therein 'mentioned, to wit, from September 1805 to April 1807, he had many transactions in business with the said Robert Patton junior; that he was in possession of a large property, real and personal; that his circumstances and credit were by the deponent considered very good, and he believes were generally so considered. In answer to the second question asked him, he deposed, that from the year 1807 until many years after, the said Patton was in good credit, and in the year 1815 deponent took his notes for a considerable amount, payable at different periods, wThich were regularly paid. In answer to the third question he said, he had no knowledge of the said Patton’s owing any debts previous to the year 1807.

On the 16th of April 1830, John Stanard, marshal of the court, was appointed guardian of the infant defendants in the place of the said Ann C. Patton, who had died.

In September 1830 and August 1831, depositions were taken on behalf of the plaintiffs, and some documents, exhibited therewith. But it is unnecessary to state in detail the evidence so introduced by the plaintiffs. It was, “for the most part, of a loose, indirect and unsatisfactory description.” And though it “tended somewhat to shew that the grantor (Robert Patton junior), from the nature of his engagements and connexions in business, had reason to apprehend a disastrous turn in his affairs,” yet it was deemed by the court of appeals, as well as the court of chancery, “too vague and inconclusive to justify the imputation of fraud.”

Under the judicial act of April 16, 1831, (Sess. Acts 1830-31, p. 73, ch. 11, | 97,) the cause was transferred to the circuit court of Spotsylvania.

On the 8th of September 1831, it came on before that court to be heard upon its merits, and the court, on consideration *334thereof, decreed that the bill of the plaintiffs be dismissed, and that they pay to the defendants their costs.

From this decree an appeal was allowed.

*Pending this appeal, the charter of the bank of Alexandria expired. By an act of congress of the 25th of February 1835, the charter was extended, continued and limited to the fourth day of March 1839. Sess. Acts 1835-6, p. 16. And by an act of the Sth of July 1838, the charter was further extended to the 4th of March 1841. Sess. Acts 1837-8, p. 97.

In February 1842, the counsel for the appellees, alleging that the corporation had become extinct, moved for an order directing the abatement of the appeal. This motion was argued before a full court, by Patton and Harrison in its support, and by C. and G. N. Johnson against it.

Patton for the appellees.

“Nothing can be more obvious,” (as is remarked by judge Tucker in Rider v. The Union Factory, 7 Leigh 155,) “than the impossibility of proceeding with a suit, however well brought, where there are no parties before the court, or where one of them is no more, and has not and cannot have any person to represent him. If this be the case where the charter of a corporation has expired or been dissolved, it must follow that the appeal, and the suit itself, must abate.” It is as undeniable here that there is no person capable of representing the bank of Alexandria, as it was in that case that there was no person capable of representing the Union factory. And the rule is applicable in this case, which was laid down in that, that where the charter of a corporation expires during the pendency of an appeal, the appeal must abate, whether the corporation be appellant or appellee.

G. N. Johnson for the appellants.

Under the authority of the stockholders of the bank, the debt to the bank which is the subject of this suit, and other debts due to it, were assigned to trustees before the 4th of March 1841, and the deed containing that assignment is ready to be shewn to the court. While therefore it *may be, that but for this assignment the court would direct the appeal to abate, because of there being no person in existence having right to claim, yet there would be an obvious impropriety in directing such abatement here. It was never doubted, in the case of the bank of the United States, that the transfer made by it before the expiration of its charter, prevented its rights from being extinguished. The- only question is as to the remedy. Now the general rule in equity is, that where a right in litigation is assigned, the assignee is entitled to continue the suit. 2 Madd. Ch. Pr. 519. And there is no reason why the rule should be different in an appellate court. In ordinary cases, where the assignor dies, and has a representative, there is no necessity to notice the assignment. In this case, one of two modes should be adopted; either the fact of the expiration of the charter should not be noticed, or there should be some process or rule on behalf of the assignees. Otherwise an acknowledged right will be defeated. For if the appeal abates, there can be, no remedy in a court of original jurisdiction, the decree of the court below being against the corporation. That decree may be clearly erroneous, but unless the error be corrected in the appellate court, no relief can be given the assignees elsewhere. Nor is there necessity for legislation. This court has plenary power over its process and proofs, without any farther legislative act. Its power to award all reviving and other process is recognized by the act in 1 R. C. 1819, p. 194, ch. 64, g 17, without any limitation as to the nature of the process. It may be for every requisite purpose. Id. p. 192, g 11. And by the act of 1831 it was provided that all process consequent upon appeals should be regulated by the laws and usages then in force and in practice. Sess. Acts 1830-31, p. 53, ch. 11, g 31; Supp. to Rev. Code p. 149. The judges may direct the form of writs in such manner as they shall deem advisable. 1 R. C. *1819, p. 195, ch. 64, g 23. And the process should be moulded and regulated to effect justice. There is analogous legislation. No suit in equity now abates by the death or marriage of the plaintiff, but it may, on motion without notice, be conducted in the name of the heir, devisee, executor or administrator of the deceased plaintiff, or the husband of the feme plaintiff. Sess. Acts 1825-6, p. IS, ch. 15, g 2; Supp. to Rev. Code p. 130. No suit at law or in equity in the name of a curator or committee of an estate will abate by the grant of letters testamentary, or of administration, on that estate. Sess. Acts 1839, p. 42, ch. 66, g 1. In Paradise’s adm’rs v. Cole &c., 6 Munf. 218, a suit at law against a committee was revived against the administrators of the insane person’s estate. How shall the court of appeals effect the object in this case? A scire facias is frequently at law in the nature of an action, Winter &c. v. Kretchman, 2 T. R. 45, and in equity is analogous to a supplemental bill or bill of revivor. It may state the fact of marriage, death, devise, descent or bankruptcy, involving issues of law or fact. And though it is not usual, yet there is no reason why an assignee may not have a scire facias, even in an appellate court. Bankruptcy is a case of assignment by operation of law. 1 Bac. Abr. title Bankrupt, letter F. And in a case of bankruptcy, a scire facias is frequently requisite. The rule is, that a scire facias lies where a new person is to be benefited or charged. 2 Tidd’s Pract. 1166. There may in this case be no necessity for a scire facias; but if so, a refusal to abate the appeal is proper. There is no valid objection to establishing the fact of assignment by evidence out of the record. The court may examine such evidence and pass upon it, on the principle recognized in Brskine v. Henry &c., 6 Leigh 384, 5, and Hite’s heirs v. Wilson &c., 2 Hen. & Munf. 268. And when it finds the fact of the assignment *335established, it may suffer the appeal to '^continue in the name of the corporation. There is no necessity, in any case, to revive in this court: where there is no revival here, any further proceedings which are requisite may be had in the court below, after the decision here. In England, if the plaintiff in error die after errors assigned, it does not abate the writ; and in no case does the writ abate there by death of the defendant in error, whether the death happen before or after the errors assigned. 2 Tidd’s Pract. 1219, 20 ; 2 Archb. Pract. 1204. According to our practice, the assignment of errors is in the petition for the appeal. If in England, where an appellant becomes bankrupt, and is thus divested of his interest in the subject and his capacity to sue for it, the proceedings may nevertheless be conducted in the appellate court in his name, there can be no valid objection, where a corporation is appellant and the charter expires pending the appeal, to permitting the proceedings to be continued in the corporate name. The decision in Buckner & wife v. Blair, 2 Munf. 336, is a strong one against the necessity of any revival in the court of appeals; for the provision in 1 R. C. 1819, p. 498, ch. 128, *l*38, that if a party die between verdict and judgment, the judgment shall be entered as if both parties were living, is obviously’ intended for the court below, and cannot dispense with a revival in the appellate court, if such revival would have been necessary in case the death had occurred after judgment. Where, too, a party dies after his cause is argued in this court, there is no revival here.

C. Johnson on the same side.

In the case of Rider v. The Onion Factory, there was no right to reverse the decree, because it could have been of no consequence to reverse it. But here it is suggested that there has been an assignment, and the assignees assert their right to have the correctness of the decree against the validity of the claim enquired into. Can it be possible that the right derived from the corporation while it was ^existing, is extinguished because the charter has expired? And if the right be not extinguished, what is the remedy proposed for it by the counsel on the other side? There must be some peculiar defect, if in such a case there be no remedy at all. [Stanard, J. Suppose the decree of the court below had been in favour of the bank, instead of against it, and an abatement were entered here?] That shews conclusively the unsoundness of the position taken on the other side; for in such a case, the appeal being abated, the decree would remain in force, and might be carried into execution upon a bill by the assignee. When the fact of assignment is urged against the motion to abate, the court may receive and decide upon all evidence adduced in regard to the fact. This is a jurisdiction which arises out of its very existence, and which it must have for the preservation and protection of its powers. When, however, the fact of assignment is ascertained, there is no necessity for a revival in the court of appeals: no law requires it; the law is only permissive. From the terms of the act in 1 R. C. 1819, p. 497, ch. 128, *\*38, it is manifest that it does not apply to the appellate court; and if it did apply, the act provides that the suit shall not abate. Our statutes not requiring a revival, the argument from the english practice is conclusive. There, after a plaintiff in error becomes bankrupt, the assignees still go on with the writ of error in the bankrupt’s name. Kretchman v. Beyer, 1 T. R. 463. And this appeal may proceed equally well in the name of the corporation. If there were any difficulty upon a supersedeas to a judgment at law, there can be none upon an appeal from a decree in equity.

Harrison in reply.

A perfect stranger to the record claims to come here and take advantage of new matter, only available by an original bill. This court has no right to create a new remedy, not given by the common *law or by statute. Any proceeding in the court below by a new party, introducing new matter, would necessarily be by an original bill. On what principle is it that the assignees claim to come here, and be relieved from the necessity of proceeding as they would have to do below? How can they be heard here ore tenus and by evidence, when they could not be heard in that way below? It is true, this court has a right to enquire into matters necessary for the continuance of its jurisdiction. But it can only decide between living parties; its orders and judgments are void in case of death. The cases cited on the other side do not involve the question of right. Here the court is called upon to exercise a new original jurisdiction, and determine upon the validity of a new right claimed to have arisen since the decree of the court below. Suppose the appellant were a natural person, and were dead without a representative; would the court take notice of one claiming to be his assignee? In Tolson v. Elwes, 1 Leigh 436, it was held that a motion against a sheriff for money made under execution, by the party entitled to it, could not be sustained, because he was no party to the record. If the subject recovered were real estate, and the party recovering had died without heirs, could the court take jurisdiction for the appellant? At common law, in cases of abatement, it was necessary there should be a new original, or new action. And now, in personal actions or suits, if there be no personal representative, the case must abate. The judgment of this court would be a nullity, after the extinction of the corporation : it j could not be revived by any process, nor ¡ entered in the court below; if the decree be Í reversed, the court below must treat the l reversal as a nullity. The scire facias ( suggested would be an original bill in the | nature of a supplemental bill. There is no instance of a scire facias for a stranger, except in bankruptcy. In bankruptcy, the assignees have a right *to use the name of the bankrupt. But if *336the bankrupt dies before judgment, the revival must be in the name of his personal representative.

*

Corporations—Expiration Pending Appeal—Assignment of Rights during Existence—Effect.—The principal case is cited in May v. State Bank of North Carolina, 2 Rob. 99, 40 Am. Dec. 735, for the proposition that in the case of a corporation whose existence may have terminated pending appeal or writ of error, and to which there is no legal succession nor can be a legal representative, but whose rights, at least in equity, may have passed to others by assignment for value during its existence, the appellate proceedings are continued to judgment or decree in the appellate court, irrespective of the fact that the corporate existence has expired.

Same—Same—Similar to Death of individual.—The principal case is cited in May v. State Bank of N. Car., 2 Rob. 73, 74, to the point that the extinction of a corporation b3 efflux of time cannot be distinguished, as regards disability, from that of an individual by death. See, in accord, Rider v. Union Factory, 7 Leigh 154, in which case Ttjokeb, P., delivering the opinion of the court, places them both upon the same footing.

See monographic *note*on "Corporations (Private)” appended to Slaughter v. Com., 13 Gratt. 767.

Principal Case Distinguished.—In Booth v. Dotson, 93 Va. 237, 24 S. E. Rep. 935, it was said : “ The fact, which is also agreed between the parties here, that George A. Booth the day before his death assigned his judgment sued on in this action to his son E. L. Booth, is relied on to bring the case under the ruling in the case of *Bank of Alexandria v. Patton*(1 *Rob).*499); but it will be readily observed that the appeal in that case was properly pending in this court, having been awarded to and against living parties, which differentiates the case widely from the case here.” See *foot-note*tó Reid v. Strider, 7 Gratt. 76.

Practice—Death of Either Party—Revival,—In Reid v. Strider, 7 Gratt. 85, it is said ; “Though there is no abatement of appellate causes in this court, whether of law or equity, and our statutes for revival of actions or suits have no application to them ; yet a practice prevails here, probably borrowed in substance from that of the English House of Lords, in equity, requiring in case of the death of either party a revival of the appeal or writ of error by consent or by *scire facias. Bank of Alexandria ¶. Patton,*1 *Pol). P.*499.”

Upon this general subject, the principal case is further cited and distinguished in May v. State Bank of North Carolina, 2 Rob. 84, 87, 93, 65, 100; Bradley v. Ewart, 18 W. Va. 506.

■Infants—Answer by Guardian ad Litem—Evidence.— The principal case is cited in Daingerfield v. Smith, 83 Va. 91, 1 S. E. Bep. 599. See monographic *note*on “infants” appended to Caperton v. Gregory, 11 Gratt. 505.

:;:Voluntary Conveyances—Existing and Subsequent Creditors—Rights of—Opposing Views.—See *foot-notes to*Hunters v. Waite, 3 Gratt. 26, Hutchison v. Kelly, 1 Rob. 123, and Johnston v. Zane, 11 Gratt. 552.

The principal case is cited in Lewis v. Overby, 31 Gratt. 618; Johnston v. Zane, 11 Gratt. 559; Hunters v. Waite, 3 Gratt, 45, 50, 65, 67; Lockhard v. Beckley, 10 W. Va. 99, 100, 103; Hunter v. Hunter, 10 *W.*Va. 344.

See generally, monographic" *note*on "Fraudulent and Voluntary Conveyances" appended to Cochran v. Paris, 11 Gratt. 348.

Same—Same—Same,—The principal case is cited in Johnston v. Zane, 11 Gratt, 566, to the point that subsequent creditors will be let In upon a fund fraudulently alienated wherever the conveyance has been or might be successfully assailed upon the ground of actual fraud by prior creditors.

*Soo foot-note*to Hutchison v. Kelly, 1 Rob. 123.

Same—Effect of Paying Prior Debts,—In Greer v. O’Brien, 36 W. Va. 289, 15 S. E. Rep. 78, the court said: “The very fact of the payment of prior debts, as was remarked in the case of *Bank n.*Patton, 1 *Bob.*536, repels the presumption of fraud as to prior creditors, because it shows that the grantor was not insolvent, and, secondly, that he intended no fraud against creditors whom he has thus faithfully paid.”

Imputing Fraud as Matter of Law Repudiated.— For the proposition that the doctrine of imputing fraud as matter of law has been repudiated, the principal case is cited in Cribbins v. Markwood, 13 Gratt. 508. The principal case is cited in Sutherlin v. March, 75 Va. 236.

*Son foot-note*to Hutchison v. Kelly, 1 Rob. 123.

STANARD, J.

The appellees, alleging that the appellants as a corporation have become extinct pending this appeal, by the expiration of the term of their incorporation, have moved for an order directing the abatement of the appeal. In opposition to this it is suggested, that during the corporate existence of the appellants, they made an assignment of their rights in the subject involved in this case; and on behalf of the assignees it is insisted that the appeal should not be abated, but should be heard and decided in the names of the parties to the appeal, or that if the expiration of the charter of the appellants preclude the hearing of the case, and to that hearing a revivor in the name of some existing person, legal or natural, be necessary, process of revivor should issue in the name of the assignees. The appellees, without conceding the fact of the assignment, contend that the case cannot proceed but in the names of existing parties, and must be abated unless it can be revived in such names; and that it cannot be revived in the names of assignees claiming to be such by act in pais; that of such fact this- court cannot take judicial cognizance, as it is matter for supplemental bill in the nature of an original bill. Without ascertaining the fact of the assignment (for it would be useless to enquire into that fact if the appellees be right) the questions arising on the motion have been discussed, and the opinion of the court sought on the matters of law and practice they involve, leaving the fact for further investigation, should the opinion of the court on the matters of law and practice render such investigation necessary.

The questions, then, for solution on this motion are, 1. Is it indispensably necessary to the hearing and decision *of an appeal, that it should be revived in the name of existing parties, legal or natural? 2. If not, can the court enquire into a fact in pais, to shew that such appeal ought to proceed to hearing and decision without such revivor; and is the fact of assignment to parties who cannot revive, sufficient to shew that the appeal ought to be so proceeded in? 3. If such revivor be necessary, may the parties claiming as assignees be allowed to revive?

Proceedings in error have never been subjected to the rules that govern the proceedings in the original suit, in respect to abatements and revivors.

Until the statute of 1805 was passed, an original suit was abated by the death of either party before interlocutor}' judgment, and could not be continued by or against the representative; and prior to the statute of 1792, the case had been the same even where the death occurred after interlocutory judgment. (See -1 Rev. Code of 1819, p. 497, ch. 128, (j 38, and 1 Rev. Code of 1814, p. 153, [110,] ch. 76, *\*20.) But appeals and writs of error did not abate by the death of either party. The other party, or the representative of the deceased, might in such case revive the appeal or writ of error, by scire facias. And the general rule of practice in this court required such revivor preliminary to the hearing and decision of the case. But even this general rule of practice did not require such revivor at the time of the judgment or decree of this court, if the death had occurred subsequent to the argument. And if an appeal was taken from a judgment in favour of a party dead at the time of the judgment, no process from this court was required to-make the representative of the decedent a party by name to the appeal.

I have no doubt that the practice of this court was settled in analogy to proceedings in error in England, with modifications however of that practice, which considerations of convenience suggested. According *to the practice in England, the proceedings in error abated if the plaintiff ip error died before the assignment of errors. If the plaintiff’s death occurred after the assignment of errors, then the defendant was bound to join issue on the assignment, and proceed to have the judgment affirmed, if not erroneous; and this without a scire facias against the representatives of the plaintiff in error. But the death of the defendant in error did not abate the writ, whether it happened before or after assignment of errors. If before, then the plaintiff in error might make the executors or administrators parties by scire facias ad audiendum errores, and thereby compel a joinder in error. But if the defendant died after the assignment of errors, the case proceeded until judgment of the court of error, as if the defendant were living. 1 Arch. Prac. 216, and cases there cited.

According to our practice, some of the predicaments provided for by the english practice did not occur; for by it, in all cases now, as in all cases before the organization of the courts under the new constitution where the supersedeas, writ of error or appeal was allowed on application to the court of appeals or a judge thereof, the errors are assigned at the time of the allowance of the supersedeas, writ of error or appeal: and had our practice been framed in strict conformity to the english practice, no scire facias would have been necessary on account of the death of either party after the case got into this court. Our practice however, as before stated, has required a scire facias against or in favour of the executor or administrator, on the death of either the plaintiff or defendant in error. But this must necessarily be confined to (those cases in which it is practicable to sue out such scire facias, and admitted of exceptions even where it was practicable, as in the case of death between the hearing and judgment. We then ascertain that the objection to proceeding in error unless there ':;'be existing parties, legal or natural, at the time of hearing and judgment, is not insuperable.

*337The extinction of one of the parties without any legal representative or succession, would, if standing alone, forbid further proceedings, because all such proceedings must, from the very fact of such extinction, be wholly abortive. And were this case so situated, the case of Eider v. The Union Factory, 7 Leigh 1S4, is a distinct and precise authority in favour of the motion. But here a suggestion is made, that the rights involved in this case passed by assignment to living persons before the legal extinction of the party on the record, and that if this case be proceeded in, and those rights be sustained by the judgment of the court, such judgment will not be abortive, but may be enforced by and for the assignees: and the question is, can this court take notice of the fact of assignment, as a consideration to influence the exercise of its discretion to proceed, though the assignees are not or cannot be made parties by scire facias?

If such an assignment has been made, I do not doubt that the right, legal or equitable, which passes to the assignees by it, is in no degree impaired by the subsequent dissolution of the corporation that made the assignment. As such a right may be in the assignees by virtue of the assignment, the power of this court to make a provisional enquiry whether the fact of assignment exists, as a guide for its action on the question propounded by the motion, is inherent in the very nature of the power that the motion proposes to call into action; if that fact being ascertained should influence the exercise of the discretion to which the motion is addressed, provided such right would be jeoparded by one course, and no right on either side be compromised by the other.

Suppose this appeal should be abated; then the error (if any) in the decree of the court below is not open *to the correction of this court, and the counsel on neither side has suggested a mode by'which it can be corrected, or the judgment of the ajipellate court be had on it. I should very reluctantly sanction the united propositions, that the case cannot proceed here without revivor, that it cannot be revived and must be abated, and that the error, (if any) in the decree cannot be corrected by any proceedings that the party whose rights are or may be affected by it, may institute. Look to the consequences of the maintenance of these propositions. They leave the decree of the court below in full vigour, however erroneous it may be, and deny the application of the correcting hand of this court, or any other, to the error. Suppose the decree had been for a large sum of money in favour of the then existing but now dissolved corporation, and that after the decree, and before or after the allowance of the appeal, the corporation still existing had assigned the decree. The dissolution of the corporation pending the appeal would furnish the same inexorable necessity for the abatement of the appeal as now exists. Such abatement would leave the decree in force, and the appellants liable to be charged with it by the assignees, in like manner as though no appeal had been allowed: the decree might be enforced at the instance of the assignees, and the parties charged by it might have no means of correcting the error, however gross. Such a consequence infers the unsoundness of the argument or pretension that leads to it. Without saying that there is no other remedy to protect the rights that may arise out of the suggested assignment, against the effect of the error (if there be *one) in the*decree, the *most*compendious means of giving that protection is to permit the case to proceed without notice of the dissolution of the corporation appellant, if that be within the power of the court: and I am satisfied that that power exists. * *The other judges concurred. Whereupon (the fact of the assignment by the bank not being now further controverted) the cause came on to be heard upon its merits, before the president and judges Brooke, Allen and Baldwin,† and was elaborately argued by C. and *G. N.*Johnson for the appellants, and Patton and Harrison for the appellees.

*338BALDWIN, J. The appellants seek to set aside the voluntary settlement made by Robert Patton upon his wife and children; and claim the right to do so in the *character of subsequent creditors, and also in that of subsequent purchasers. Let us first examine their pretensions as creditors.

In the case of Hutchison and others v. Kelly, ante, p. 123, I had occasion to examine the principles upon which, under the statute against fraudulent alienations, conveyances are treated as fraudulent and void in regard to creditors; and to express the opinion, that the statute of 13 Flizabeth, ch. 5, from which so much of ours as relates to that subject is substantially taken, looks mainly to the intent with which the act is done, and if that be fraudulent avoids it, not only as against creditors who are actually, but also against those who might be disturbed, hindered, delayed or defrauded ; thus treating creditors as a class of persons entitled to the protection of the law, and embracing not only those existing at the time, but moreover subsequent creditors: that where there are no existing creditors, the fraudulent intent, if conceived, must of course be prospective, with a view to future indebtedness'; but that where directed against existing creditors, it operates also in relation to those subsequently arising, a fraudulent intent as to one or more creditors being fraudulent as to all: that upon the question of fraudulent intent, the courts have of necessity resorted to a legal presumption arising out of the general nature of the case, and to marks or badges of fraud furnished by the particular circumstances: that the legal presumption is founded upon a comparison of the consideration for the conveyance, with that which constitutes the just claims of creditors; and though voluntary conveyances are not mentioned in the statute, their true character and effect are necessarily involved in its application: and that the legal presumption of an alleged fraudulent intent arises where the conveyance is voluntary, though meritorious, if the grantor be indebted at the time, but is only prima facie, and may be repelled or confirmed *by the particular circumstances of the case; but is rendered conclusive, if the debts be unsecured, by a degree of indebtedness amounting to or approaching insolvency. For the reasoning and authorities that were relied on to sustain these propositions, I must refer to the reported case; and I recur to them now with the view of ascertaining how far they are applicable to the case before us.

In the present case, it will be seen from an inspection of the bill, that it does not charge a fraudulent intent against the plaintiffs or any other subsequent creditors of the grantor; nor even a fraudulent intent in point of fact against his creditors existing at the time of the settlement: but, merely averring that the settlement was voluntary, and made when the grantor was greatly indebted, relies upon the supposed inevitable conclusion, that in point of law I it is fraudulent and void against the plaintiffs and all his other creditors, whether prior or subsequent to the conveyance. The bill, moreover, does not even allege that the plaintiffs have in fact been disturbed, delayed or hindered in the recovery of their demand ; and all the circumstances of the case shew that no such impediment has been occasioned by the settlement in question. On the contrary, the delay has been altogether voluntary on the part of the plaintiffs, and occasioned by the course of conduct which they have thought proper to pursue in relation to the subject. The bill, in stating the original debt to the plaintiffs, goes no further back than the 27th of April 1811, the date of the deed of trust executed by Patton and wife to W. Herbert, to secure any sum or sums of money then, or which thereafter might be, due from Patton to the president and directors of the bank: which deed conveys the Spring bank tract of land, embraced in the settlement in question, and also two other tracts of land, one of them conveyed to Patton by Hepburn in April 1809, and the other conveyed to *him by Scott.and others in June 1810. It appears from the recital of this trust deed, that the bank had already been secured on the same account, by Patton’s conveyance in trust to the same W. Herbert, about a month previously, of 2000 dollars worth of stock in the Farmers bank of Alexandria, and other property; in lieu of which he was permitted to substitute the security last furnished.

I think there can be no doubt, that at the time of the making of this trust deed of the 27th of April 1811, the plaintiffs had notice of the deed from Patton to Sanderson and Stewart, and the deed from them to mrs. Patton and her children, the former of the 20th and the latter of the 21st of March 1807; which two deeds constitute the voluntary settlement now impeached. The property, real and personal, which was the subject of that settlement had, at the date of the trust deed, been conveyed to the trustee W. Herbert, by an absolute deed of the 10th of April 1811, executed by Patton and wife, but not perfected by the privy examination of the latter, which deed expressly refers to the deed from Sanderson and Stewart. In all probabilit3r, the deed of the 10th of April was intended to divest the right acquired by mrs. Patton under the settlement, in order that it might be reconveyed by Herbert to Patton, and by him conveyed in trust for the bank; for we find that such a reconveyance was made by Herbert, but by some mistake is posterior in date to the trust deed. However this may be, it is manifest that Herbert; the trustee, had notice of the settlement: and without relying upon the legal inference from that fact, of notice to the bank, the fact itself, taken in connexion with the due recordation of the deeds of settlement, and the attestation of them by several eminent professional gentlemen of the town of Alexandria, one of whom is also a witness to the trust deed, renders it extremely improbable that the *339plaintiffs were ignorant of the existence *of those deeds; ¡ nd every doubt upon the subject must be removed by the silence of the plaintiffs, who make no pretence of such ignorance in their bill, though it would have been a material circumstance, if the voluntary settlement had been concealed from them, and they induced to trust the grantor upon the faith of property embraced therein.

The bill gives no information of the intermediate dealings between the plaintiffs and Patton, from the date of the trust deed of the 27th of April 1811, until the procurement of that of the 29th of September 1824, executed by Patton and wife to Colin Auld and Robert J. Taylor as trustees, conveying the same properly, to secure the amount therein stated to be due from Patton to the bank, of 8920 dollars 60 cents principal, with some interest. After this delay of the plaintiffs in the prosecution of their original demand, of between 13 and 14 years, a further, and, I would think, unusual forbearance for a bank towards its debtor was stipulated by the terms of the last deed; which gave indulgence for the whole debt for three years, with the privilege of extending it, in part, to seven, by paying up one third at the expiration of the three years, and one half of the remainder at the expiration of five. This new indulgence, thus made the subject of contract, though granted without any additional security, was not, it seems, without a new consideration intended to enure to the benefit of the plaintiffs. There is abundant reason to believe it was connected with an arrangement, by which the debtor was to act in concert with the bank, for the purpose of getting rid of any future adverse claim on the part of the grantees in the settlement in question. It will be seen from the provisions of the last incumbrance, that it was not contemplated the settlement should be wholly avoided, but only postponed to the lien of the bank, and subject to that lien, rendered more effectual to the grantees; for it was *stipulated, that Patton and his wife, and their representatives, should retain possession and receive the rents and profits of the property conveyed, without account, “according to their respective interests therein at the time of the execution of this deed;” and also that no sale should be made of the Spring bank tract of land (the one embraced in the deeds of settlement) until the other two tracts should have been first sold, and the proceeds thereof ascertained to be insufficient; and moreover that if Patton or his executors &c. should, at any time before sale made, pay off the whole amount of the debt &c. or if the same should be raised from the sale of the other tracts, or in part so raised, and mrs. Patton or any of her children, or any one in their behalf, should pay the balance which should be due to the bank, then that the trustees should thenceforth hold the Spring bank tract to the sole and separate use of mrs. Patton for her life, free from the power and control of ner | husband, and after her death to the use of the children of herself and her husband, with a power of appointment on her part of their respective interests.

This suit was instituted on the 22d of March 1825, about six months after the execution of the last trust deed, and two years and six months before the expira tion of ' the stipulated forbearance. The bill contains no specific prayer, for the sale of the property by a decree of the court. Though it states that “the just claim of the plaintiffs to have the tract of land called Spring bank subjected to the payment of their debt, is resisted on the ground that it had been previously conveyed” by the deeds of settlement, it does not state by whom such resistance is made, or that any obstacle is thereby presented to the enforcement of the trust by the trustees. If it were proper to infer such an obstacle from that loose statement, as existing in regard to the Spring bank tract, none such could have existed in relation to the other two tracts, and no reason is assigned *for not subjecting them to sale in the first instance, nor is it alleged that those two tracts were not of sufficient value to produce the amount due, or that Patton had refused or was unable to make payment, or that any legal measures had been resorted to for the purpose of coer.cing it. And the only specific prayers in the bill (besides those merely formal) are, that Patton may say in his answer, “whether the deed of the 21st of March 1807, from himself to James Sanderson and William Stewart, was not entered into without consideration, and with a view to have the property therein mentioned settled upon his wife and children; and whether at the date of that deed he was not largely indebted to many persons: and that the said deed, and the deed of the same date from the said Sanderson and Stewart to mrs. Ann Clifton Patton and her children, may be decreed, as against your complainants, who are both creditors and purchasers, fraudulent and null and void; and that the land called Spring bank may be made or left subject to the just and legal lien and incumbrance, which the bank of Alexandria or your complainants have upon it.”

Thus it will be seen that the object of the suit was not to coerce t ayment of the debt, but to render the incumbrance therefor paramount to the title of the grantees in the settlement. This was not in conflict with the individual interest of the grantor; and on the other hand he could not, either at the date of the incumbrance or in the progress of the.cause, resist the wishes of the bank on this subject, without forfeiting all claim to further forbearance, though he might hope that an extended indulgence might enable him to relieve himself from his difficulties, without ultimate injustice to his family. We see from the bill, drawn with a studied avoidance of offensive imputations, that the plaintiffs sought to obtain from him an admission which they thought would subserve their purpose; *340and his *answer shews that they were not disappointed. He does admit in his answer (filed for himself and wife) that at the date of the voluntary settlement, “he did owe sundry debts, some of them of considerable amount;” an admission too broad, as will be'*’ presently seen, for the facts of the case, and against the making of which he was warned by the witness Sanderson, who swears that he was well acquainted with his circumstances at that period, and that he told him, that if called upon as a witness, he- would have to contradict him. An answer was moreover procured from a guardian ad litem for the infant grantees, who had been appointed on the motion of the plaintiffs, which is of an extraordinary character; for the drift of it is to impugn rather than sustain the rights of those defendants.

This state of the case was quite unfavourable to the grantees, and no active defence was made on their part until the death of Patton, when a new aspect was given to the cause. The guardian ad litem was removed by an order of the court, and mrs. Patton, then sui juris, appointed in his stead; and she was permitted to answer de novo, as well for herself as the infant defendants: and mrs. Mason, the only adult amongst the childrein, and who had formerly answered with her husband, by leave of the court filed her separate answer. And the parties, for the first time, proceeded to the examination of evidence.

The foregoing views have not been presented for the purpose of shewing that if the plaintiffs have made out their case upon the merits, by establishing the settlement of 1807 to be fraudulent and void against the creditors of the grantor, relief should be denied them because of a defective structure of their bill, or of the course of conduct they' have pursued, either before or since the institution of this suit. My, purpose has not been to go into the consideration of any such questions; but merely to deduce, from the facts I have stated, the two following propositions :

> *1. The plaintiffs not having charged in their bill that the settlement was made with a fraudulent intent in point of fact, they must prove the averments relied on by them as warranting the conclusion that the transaction was fraudulent and void by intendment of law; and instead of relying upon a prima facie presumption from mere indebtedness, to throw the bur-then of proof on the opposite party, ought to establish such an extent of indebtedness and inadequacy of resources, as will serve to shew that the grantor, at the time of the settlement, was in a condition amounting to or approaching insolvency.

> 2. The plaintiffs having notice of the voluntary settlement, and instead of resorting to legal proceedings for the purpose of placing themselves in an attitude to complain of being delayed, hindered or defrauded thereby, (Colman v. Croker, 1 Ves. jun. 160,) having, by taking their first incumbrance, assumed the settlement to be fraudulent; and instead of proceeding to enforce that incumbrance, as they were authorized by its terms to do, within a reasonable time, so as to give those claiming under the settlement an opportunity to assert and prove its validity, having continued to indulge and deal with the grantor for a number of years ; and having thereafter taken a second incumbrance on the same property, by which they bound themselves to extend still further forbearance; and having, by a combination with the grantor, enlisted him against the interests of his own family, whose disabilities required his protection; these circumstances furnish a strong presumption against the pretensions of the plaintiffs, which ought to be overcome by unobjectionable and plenary proofs on their-part.

If these propositions be correct, the merits oí the plaintiffs’ cause, in their character of creditors, will require but a brief consideration’. Bet us first dispose of the admissions in the pleadings on the part of the defendants. *If the admissions in the answer of Patton be evidence against his grantees, as to which, in such a case as this, I express no opinion, still I can give no weight to them, for reasons already suggested. As to the separate answer of mrs. Mason and the previous joint answer of herself and husband, they put the most material allegations of the bill in issue. But there is an admission in the answer of mrs. Patton, filed for herself and as guardian ad litem for the infant defendants, which seems to require a cursory notice. After denying that her husband was involved in debt at the time of the settlement, and alleging on the contrary that he was in unembarrassed and prosperous circumstances, and able to meet all his engagements, she admits that he owed at that time a debt to John Baird of Georgetown, on which a balance still remained due, including interest, of about 1200 dollars. This admission she does not profess to make on her own personal knowledge, and we need not enquire how far it was correct; for though it might conclude her in her lifetime, and her representatives after her death( it could not affect the other grantees, as they do not claim under her; and it cannot be used against them as having been, made by their guardian ad litem, for no rule is better settled than that an answer of an infant by guardian cannot be- read against him at all, for any purpose. 2 Madd. Ch. Pract. 278; Mitf. Plead. 314, 315; 1 Stark. Ev. Pt. II. p. 278.

Bet us now briefly advert to the evidence which has been examined in relation to the degree of the grantor’s indebtedness, and the extent of his resources. And it is remarkable that the testimony establishes only a single debt as due from him at the date of the settlement, to wit, a debt of .£678. 11. sterling money, to the above mentioned John Baird. It was material for the plaintiffs to prove, if they could, not only that this debt was subsisting at the date of the voluntary settlement, but that it has *341ever since continued; *for*their right to impeach *the settlement depended, *under*the circumstances of the case, upon the question whether it was fraudulent and void against creditors then existing. Now, if it was fraudulent and void against such creditors, though it follows that it would also be liable to be so treated by subsequent creditors, and that the mere fact of the debtor afterwards paying off the demands of the former would not render the transaction valid as to the latter, yet it would be a circumstance entitled to weight upon the question of fraud. That the debt to Baird remained unpaid, if such was the fact, the plaintiffs had not only the complete power to prove, but it lay directly in their way to prove it; for they examined Baird as a witness in their behalf; and he deposed that Patton owed him about the year 1806, and several years afterwards," the debt above mentioned. But there they suffered the examination to rest; and the reasonable inference from his deposition surely is, that the debt was in some way discharged, some years after 1806; the more especially when we couple with his evidence the presumption arising from the great lapse of time, and his failure to assert a demand. It is not easy to account for the language of his deposition, and his quiescence, but by the supposition that the debt has been either paid or secured to him. Such may not be the fact, but it is the legitimate deduction from the evidence, which cannot be repelled by the admissions above noticed.

But if it were even granted that the debt to Baird still remains unsatisfied, the evidence is far from establishing that Patton was at the time of the settlement insolvent or greatly embarrassed in his circumstances. On the contrary, I think it is proved that he was then, and for several years after-wards, able to meet all his engagements ; the owner of property to a considerable amount; in good credit and extensive business ; having the command of large sums of money; and unindebted except to mr. Baird, who would seem to have *been a most indulgent and even careless creditor. The plaintiffs have introduced a good deal of evidence, for the most part of a loose, indirect, and unsatisfactory description, tending somewhat to shew that the grantor, from the nature of his engagements and connexions in business, had reason to apprehend a disastrous turn in his affairs; from which it has been argued that the purpose of the settlement was to make some provision for his family and himself against the misfortunes which afterwards fell upon him. But this evidence is too vague and inconclusive to justify the imputation of fraud, the more especially upon a bill which charges no fraudulent intent in point of fact. And though there are circumstances in the matter, the manner and the details of the settlement, calculated to attract the vigilance of suspicion, and which have been laid hold of and handled by the appellants’ counsel with ¡great address and ability, they will be found upon examination to be more imposing than substantial. It is manifest that there was no secret trust in favour of the grantor, nor even an immediate benefit secured to the grantees; and no disguise as to the nature and effect of the conveyances. The deed to Sanderson and Stewart was avowedly without consideration, and merely to avoid the formal difficulty of a direct conveyance from the husband to the wife; and their conveyance to her, being without the intervention of a trustee, of course subjected the property, during the marriage, to the marital rights, dominion and control of the husband, and, to the extent of her estate in the subject, to the legal process of his creditors. His continuance in possession was not inconsistent but perfectly compatible with the title; and the use and enjoyment of the property, even of those portions of it which would necessarily be consumed in the use, (subordinate however to the remedies of his creditors) was a legitimate incident of his limited ^interest. In this respect the case of Parker v. Proctor, 9 Mass. Rep, 393, was far stronger than this; for there the continuance in possession of the grantor, he being the father and natural guardian of the infant grantee, was not considered indicative of fraud, though otherwise inconsistent with the terms of the deed. The circumstance, therefore, that the deed was to the wife and children, instead of a trustee for them, is not a mark of fraud, but the reverse; since if a fraud was contemplated, it must have been in securing the property to the grantor’s family after his death, against his creditors, without intermediate advantage to himself; a design which, though not impossible, must be admitted to be of but rare occurrence. A circumstance, moreover, not without its weight in estimating the fairness of the transaction, is the due and prompt recordation of the deeds, (Sexton v. Wheaton, 8 Wheat. 251), besides the attestation of them by highly intelligent and respectable witnesses ; thereby precluding the idea of intended concealment.

The foregoing views of the question have led me to the conclusion, that the pretensions of the plaintiffs in their character of creditors cannot be sustained. It remains for me to notice their pretensions in the character of purchasers.

The plaintiffs, as incumbrancers, can stand upon no higher ground than absolute purchasers who have paid a full consideration and received a direct conveyance of the property. There is no charge in the bill that they were induced to become incumbrancers by the fraud of Patton, or that they had not notice, at the time, of the settlement he had made upon his wife arid children. The naked question is therefore presented to this court, for the *Srst*time, whether a voluntary conveyance of that kind is fraudulent and void in regard to a subsequent purchaser for valuable consideration, who had notice thereof at the time of his purchase.

*Our statute against fraudulent *342alienations is contained in the 2d section of the ‘ ‘act to prevent frauds and perjuries,” 1 R. C. p. 372, ch. 101, and is a condensation into one joint enactment, of the most important provisions as well of the statute 27 Eliz. ch. 4, in regard to purchasers, as of the statute 13 Eliz. ch. 5, in regard to creditors. In the construction however of our statute, it must be considered distributive!;/; there being material points of distinction arising out of the difference between the two subjects, to wit, frauds against creditors and frauds against purchasers. Eraudulent conveyances in‘ relation to purchasers must in the nature of things be exclusively prospective, as they cannot be directed against existing interests, but only against those thereafter to arise. The indebtedness of the grantor at the time of the conveyance is, as we have seen, a material circumstance in reference to even subsequent creditors. But I regard it as wholly immaterial in reference to subsequent purchasers. There is, it is true, a dictum of lord Mansfield to the contrary in Doe v. Routledge, Cowp. 713; and in Holcroft’s case, Dyer 294, in note, (cited in Atherley on Marriage Settlements, p. 199, note 1), the circumstance of the grantor’s freedom from indebtedness is relied on; and so that idea is expressed in Style 446, (cited in 9 East 63,) and is adopted by baron Gilbert in his law of Evidence, p. 307. But a moment’s reflection will serve to shew that the grantor’s indebtedness can only be material in regard to creditors ; for a fraudulent purpose against them can have no connexion with, or tendency to promote, a fraudulent purpose against a subsequent purchaser. Besides, the reason why a voluntary conveyance is ever re-' garded as fraudulent against creditors, is, that it withdraws the grantor’s property from their preeminent demands; wherea.s the grantor owes no duty to a purchaser till the relation between them is about to arise; and then his only duty is to abstain *from selling to him what he had previously conveyed away to another. It is the violation of this duty which constitutes the fraud against a subsequent purchaser; and not' the mere intent with which the voluntary conveyance is made; for though that is a prominent matter in the statute, it is obviously idle unless it be accomplished, as there must be a purchaser to be defrauded, as well as an intent to defraud; which concurrence amounts to actual fraud.

Thus, according to my reading of the statute, the purchaser’must be actually defrauded ; and how that can be where he has notice of the prior voluntary conveyance, is altogether beyond my conception. Quod non decipitur qui scit se decipi, is a maxim of law, as well as of common sense; and the disregard of it by the expounders of the law can result in nothing but unqualified mischief. What protection can it afford to a purchaser with notice, to avoid the previous conveyance, except against the consequences of his own officious intermed- | dling? Was that the mischief intended to ■ be provided . for? Most assuredly not. The spirit of the statute is to set aside con- ! veyances by which subsequent purchasers are deceived, and would otherwise be injured ; and such is the fair import of its language. It was enough to make void the accomplishment of a fraudulent design on the part of the vendor, directed against the purchaser, and to sacrifice to that object the rights of the-voluntary grantee, however innocent of all participation in the covinous purpose. In this result the statute goes beyond the common law, which recognized a conveyance to an innocent grantee, if made for a good consideration, such as natural affection, as paramount to the claim of a subsequent purchaser for a valuable consideration, though without notice. But it goes no further. It could never have been contemplated to sacrifice the innocent grantee, without necessity, to protect a purchaser who could only be injured *by his own folly or his own injustice. As to a purchaser without notice, the deceitful act of concealing the previous voluntary conveyance may -well be referred back to an original fraudulent design on the part of the vendor when he made the conveyance: but when there is no effectual concealment, there is. no room for such relation; and if the conveyance be held void, it must be upon the idea that the statute was directed not only against all fraudulent, but against all voluntary conveyances, however fair and meritorious, and was intended to enable the grantor to revoke his grant at pleasure, by means of a combination with a subsequent purchaser. If such had been the intent of the legislature, why was it not directly expressed, instead of leaving so important and comprehensive a provision to a vague and circuitous implication? And why should the courts strain the words of the enactment, upon the imagination of a policy not only absurd but mischievous? It is easy to perceive that the effect of such a construction is to defeat the just expectations of innocent grantees, and of their families and creditors, and to destroy their vested rights and lawful enjoyment, whenever the grantor, from passion or caprice, or the undue influence or improper practices of others, may be induced to recall the provision or advancements he has made, not only upon a meritorious consideration, but in obedience to a sacred duty. I am1 not prepared for such a result, unless driven to it by an irresistible pressure of authority.

The precise proposition, be it observed, which we are called upon to decide is, that a voluntary settlement of real estate, made, without actual fraud, by the grantor upon his wife and children, is by operation of the statute to be deemed conclusively fraudulent and void, against a subsequent purchaser from him for a valuable consideration, with full notice of the prior conveyance. The negative of this proposition, as remarked *by lord *343Ellenborough in Doe v. Manning, 9 East 63, where he reviews the cases, is expressed in some of those nearest to the statute of 27 Elizabeth, but the affirmative has been held by numerous decisions, and must now be regarded as the settled doctrine of the english courts; though a construction condemned by lord Mansfield in Doe v. Routledge, Cowp. 705, and opposed to the opinions of lord Hale, lord Rolle, chief baron Gilbert and chief justice Eyre, as observed by Spencer, J., in Verplank v. Sterry, 12 Johns. 555, and which is disapproved, though submitted to, by lord Ellen-borough, lord Thurlow, and sir James Mansfield, (Doe v. Manning, above cited; Evelyn v. Templar, 2 Bro. C. C. 149, and Doe v. Martyr, 4 Bos. & Pul. N. R. 335,) and controverted by several respectable writers; 1 Eonbl. Eq. 280, n. ; Atherley on Marriage Settlements, p. 196, 197, 198. An examination of the cases will serve to shew, that while the weight of authority decidedly sustains the affirmative construction, it strongly impugns its correctness; for in most if not all the latter cases, the judges yield merely to what they consider the current of adjudication, and though without a struggle, yet not without evident disapprobation or regret. The ruling motive with them is entitled to commendation: they are unwilling to disturb an established error, lest by so doing they should disturb the titles to estates. I think we may safely refuse to adopt it, for the like reason. In Virginia, so far as my information extends, there is no reason to apprehend that any estates are held by so frail a tenure as the expectation of the adoption of an unreasonable and unjust principle, which has never yet received the sanction of our judicial tribunals, nor the approbation of the legal profession. The structure of our society and the habits of our people have led to the surrender and distribution bjT parents, while living, of portions of their estates amongst their children; and when these are perfected by conveyances *duly registered, the grantees become known to the world as both ostensible and real owners of the property, enjoying all the rights and incidents of ownership. This state of things would be most mischievously affected, both retroactively and prospectively, by the establishment of the doctrine in question : whereas in England the evil has been greatly mitigated by the practice of marriage settlements, in our country as yet almost unknown. It is difficult to believe that our legislature, when they were engaged in 1785, shortly after the consummation of our independence, in condensing and abridging the english statute, thought they were adopting a construction of it not then established by the english courts; the more especially when we find that by the omission of the preamble, and part of the enacting clause, they have stricken from the advocates of the affirmative proposition their most plausible argument, by which the latter have made the proviso to mean directly the contrary of what it expresses. The proviso of the statute 27 Elizabeth, and of our statute, excepts out of the operation of the act conveyances made “for a good consideration and bona fide,” while the preamble of the english statute speaks of purchases for money or other good consideration, and the enacting part declares that fraudulent conveyances shall be void against purchasers for money or other good consideration. And from this it has been argued (see Atherley on Marriage Settlements 190, 191), that by the words “good consideration” in the proviso must be understood valuable consideration. I need not consider the weight of this argument, which makes the proviso a mere nullity. It is enough for our purpose, that it has no foundation to rest upon in our statute.

The decisions of the english courts since our separation from the mother country, though entitled to great respect, are not obligatory here. The cases prior to that period are certainly not in harmony; and Spencer, J., *states, in Verplank v. Sterry, 12 Johns. 555, (though in opposition to the idea of chancellor Kent, as reported in the case from the court below under the name of Sterry v. Arden, 1 Johns. Ch. R. 270,) that the preponderance in weight and number is decidedly adverse to the doctrine which now prevails in the courts of Westminster hall. However that may be, in Cathcart &c. v. Robinson, 5 Peters 264, chief justice Marshall, delivering the opinion of the court, says: “There is some contrariety and some ambiguity in the old cases on the subject; but this court conceives that the modern decisions establishing the absolute conclusiveness of a subsequent sale to fix fraud on a family settlement made without valuable consideration—fraud not to be repelled by any circumstances whatever—go beyond the construction which prevailed at the american revolution, and ought not to be followed. The universally received doctrine of that day unquestionably went as far as this: A subsequent sale without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement the burthen of proving that it was made bona fide. This principle, therefore, according to the uniform course of this court, must be adopted in construing the statute of 27 Elizabeth as it applies to this case.” Let this last proposition be conceded, though I express no opinion how far a purchaser might be affected by a culpable negligence in not searching the registry, especially when coupled with open possession on the part of the grantee; still it can avail the appellants nothing in the present case. Apply the presumption to the appellees here; and if my views are correct, it is completely repelled by the fact of actual notice on the part of the appellants when they took their incumbrances.

For the reasons above stated, I am of opinion that the appellants have not *344sustained their pretensions, ^whether in the character of creditors, or in the character of purchasers; and, therefore, that there is no error in the decree of the circuit court dismissing their bill.

AELEN, J., andCABEEE, P., concurred.

BROOKE, J., was absent at the time of the decision: but the president stated that he was authorized by him to say, tlfat if present he would also have concurred.

Decree affirmed.

†

JUDGE Stanard had been counsel for the appellees, and was unwilling to sit in the case when it-merits were to be considered. -Note in Original Edition.