#### *Dabney & Wife & als. v. Kennedy.

April Term, 1851,

Richmond.

(Absent Cabell, P., and Daniel,* J.)

I. Husband and Wife—Agreement in Contemplation of Marriage Unrecorded—Effect as to Creditors—Between Parties—Specific Execution.†—An agreement made in contemplation of marriage, though void against creditors because not recorded, is valid between the parties; and the wife and children for whose benefit it is made, may call for a specific execution of the agreement, if there is no existing creditor or purchaser whose rights will be affected by it, though the marital rights of the husband has attached by an actual reduction of the property into his actual possession,

a. Same—Same—Suit to Obtain Possession of Wife’s Property.—In a suit by husband and wife against the executor of her father, to obtain possession of her property, there is a decree directing the executor to deliver it to the husband and wife, to be held by them subject to the uses and stipulations of a marriage agreement'entered into by them before marriage, but unrecorded. Held:

i. Same—Same—Same—Decree—flarital Rights of Husband,—The decree did in effect set up and execute the marriage agreement; the marital rights of the husband were thereby intercepted; and the property taken and received in virtue of the said decree, was thereafter held by the husband and wife as trustees under said decree for the purposes of the agreement; and not by the husband in his character of husband alone.

2. Same—Same—Same—Same—Failure to Record — Effect.—That the validity of the decree is not impaired by the failure to record it in the county where the property was situated or the parties resided; and the rights acquired in virtue of the decree are good and valid against the subsequent creditors of the husband.

3. Same—Same—Suit against Administrator of Husband-Case at Bar.—After the death of the husband the wife and children file a bill against his administrator to recover the property covered by the decree which remained, and for satisfaction for that which had been wasted by the husband; and there is a decree in their favour. Held: Such recovery of the property undisposed of, and for the value of such as was wasted, is conclusive against the administrator and creditors of the husband.

*A marriage being about to occur between John H. Lee and Elizabeth Prosser, and she being entitled to a considerable estate, real and personal, by bequest from her father, the parties entered into articles under seal, bearing date the Sth day of December 182S, by which it was agreed between them, that all the estate, real and personál, to which the said Elizabeth was entitled should be secured to and settled upon her and her heirs. And Lee covenanted that all the said estate should remain in the possession of the said Elizabeth during the continuance of the intended marriage ; and the annual proceeds thereof only should be applied to the maintenance of the said Lee and the said Elizabeth and their issue. a And he further covenanted not to sell any part of the property except for the purpose of reinvestment or appropriation within the meaning of the articles. And it was further agreed that if Lee died in the lifetime of the said Elizabeth, leaving issue by her, any issue she might have by a subsequent marriage should share equally with his children in the property; and if there should be no issue of the marriage, and Mrs. Lee died in the lifetime of her husband, then the whole of the aforesaid estate, whether real or personal, should go to such persons as the said Elizabeth by her last will, or by any other instrument, properly attested, should appoint. This agreement was not admitted to record.

The marriage took place, and shortly thereafter, in January 1826, a bill was filed in the Chancery court at Richmond in the name of Lee and wife against Edmund W. Roo tes, the executor of John Prosser, the father of Mrs. Lee, in which, after stating the provisions of the will of the father, they say they have applied to the executor to pay to them the female plaintiff’s share of the property, but he declined to do it without the authority of the Court, because he doubted whether he could properly deliver to the complainants the property of the female complainant because of the articles of ^agreement aforesaid. The articles were exhibited with the bill; and the question was submitted to the Court whether they created any obstacle to the transfer by the executor of the property *137to the complainants. They say it was not designed by the articles to interfere with the right of Dee to have possession during the marriage, and during his life, of all and every part of the property of the complainant Elizabeth.

The executor answered the bill, expressing his anxiety to deliver over the property in his possession belonging to Mrs. Dee to whomsoever, the Court might appoint to receive the same, and give a legal discharge therefor. And when the cause came on to be finally heard on the 4th of February 1826, it was decreed that the plaintiffs should hold the real estate and slaves, and also the bank stocks and money transferred and paid to them by the executor, subject to the uses and stipulations of the marriage agreement.

John H. Dee died in July 1832, leaving Mrs. Dee and two children of the marriage surviving him; and John Tabb qualified as administrator upon his estate. In 1833 Mrs. Dee for herself, and as next friend of her two infant children, filed their bill in the Circuit court of Norfolk county against Tabb as the administrator of John H. Dee, in which she set out the execution of the marriage agreement and the suit against Rootes as executor of Prosser. She charged that Dee had with the proceeds of some of the trust property purchased certain slaves named, of which he died possessed; that he had sold too, fiftj'-four shares of bank stock for 5292 dollars; and held other moneys of the trust fund amounting together to 15,192 dollars. And she prayed that Tabb as the administrator of Dee might be restrained from setting up any title to the slaves purchased as aforesaid by Dee; and that they might be so disposed of as to satisfy all rights in them under the trust. And she asked that Dee’s estate might be held ^responsible for so much of the trust moneys as he had received and wasted.

Tabb answered the bill, admitting the facts stated in the bill, and submitting the case to the Court upon the law, for such a decree as should be consistent with his safety as administrator, and the rights of the parties.

The cause came on to be heard in June 1833, when the Court held that the marriage articles were valid in equity as between the parties thereto, and that the estate of John H. Dee was responsible for their violation by him; and the plaintiff being willing to take a decree against the estate of Dee in the hands of the administrator Tabb, without taking an administration account, the Court decreed that the administrator should convey to trustees named, the slaves mentioned in the bill, to be held by them as trustees for the purposes, objects and intents of the marriage articles; and that the administrator should, out of the assets of his intestate in his hands, pay to the same trustees the sum of 15,192 dollars, to be held or invested by them for the same objects, purposes and intents. Upon this decree Tabb transferred to the trustees the slaves mentioned therein ; and paid to Mrs. Dee 442 dollars 13 cents, in part of the 15,192 dollars, which he as administrator of Dee was decreed to pay to her. And there seems to have been no further or other assets remaining in his hands.

At the time of John H. Dee’s death Fdmund P. Kennedy was his surety as endorser on a negotiable note for 1800 dollars discounted at the Bank of Virginia at Norfolk, for the accommodation of Dee. On this note the bank instituted an action at law against Kennedy, and recovered a judgment against him in November 1832; and in June 1833, Kennedy being taken in execution took the benefit of the act for the relief of insolvent debtors. Upon this proceeding there seems to have been made the sum of 277 dollars 84 cents, credited 'x'the 16th of July; and it appears by a receipt of the president of the bank, bearing date the22d of May 1838, that Kennedy then paid the balance of the judgment, amounting to 2104 dollars 15 cents.

In October 1838, Kennedy instituted an action in the Circuit court of Norfolk borough against Tabb as the administrator of Dee, to recover the amount which he alleged he had paid as the surety of Dee; and Tabb having pleaded non assumpsit, and fully administered, on which pleas issues were made up, on the trial the jury found a verdict for the plaintiff on the first, and for the defendant on the second issue; and there was a judgment quando, for the plaintiff for 2381 dollars 99 cents, with interest on 277 dollars 84 cents, a part thereof, from the 16th of July 1833, until paid, and on 2104 dollars 15 cents, another part thereof, from the 22d of May 1838, until paid.

Mrs. Dee having intermarried with Chis-well Dabney of Dynchburg, Kennedy in October 1840, filed his bill in the Circuit court of the borough of Norfolk against Dabney and wife and her children, and the trustees, and Tabb as administrator of Dee, for the purpose of subjecting the slaves conveyed to the trustees, and the money paid to Mrs. Dee, under the decree of June 1833, in her suit against Tabb as the administrator of Dee, to the satisfaction of his judgment against the administrator. In his bill, after referring to the marriage articles and Mrs. Dee’s suit against Tabb as administrator of Dee, he charged that the marriage articles and all the proceedings in said suit were fraudulent and void as to him; and that the marriage articles never having been recorded, were fraudulent in law as to him as a creditor of Dee.

Dabney and wife in their answer, called for proof that Kennedy was the creditor of Dee. They insisted that the marriage articles were valid in equity though not ^recorded; and they further relied on the proceedings and decree in the case of Dee and wife against the executor of Prosser, as giving it validity. They utterly denied all fraud in procuring the decree of June 1833; and they pleaded the statute of limitations. Tabb also answered, denying all fraud if any was charged.

*138The facts hereinbefore stated all appear in the pleadings and proofs. And the cause came on to be heard in June 1842, when the Court held that the marriage articles were as to the complainant’s demand, fraudulent and void, at least so far as to entitle him to satisfaction out of the slaves mentioned in athe decree of June 1833; and decreed that unless Dabney should pay to the complainant the sum of 2381 dollars 99 cents, with its interest, and his costs at law and in this suit, within sixty days from the rising of the Court, then that he should deliver *up*the slaves aforesaid to the sergeant of the Court to be sold for the payment of said debt, interest and costs. And the sergeant was directed to sell the slaves on twenty days notice, at public auction, and out of the proceeds to pay the complainant. And liberty was reserved to the complainant to ask for a further decree against the defendants, if it should become necessary. From this decree the defendants, except the administrator Tabb, applied to this Court for an appeal, which was allowed.

Patton, for the appellants, insisted:

1st. That even if the marriage contract, by itself, was void against creditors of the husband because not recorded, yet it was affirmed by the decree of February 1826, in the case of Dee and wife against Prosser’s executor. That the decree established the marriage articles, and that the property went into the possession of Dee and wife by virtue of that decree, and in pursuance thereof, upon the trusts of the marriage articles; and was not in possession of Dee as the husband *of Mrs. Dee: And there was no statute which required the decree to be recorded.

2d. That although the statute required deeds of marriage settlements to be recorded, that statute did not apply to marriage articles; upon the principle affirmed in the case of Withers v. Carter, 4 Gratt. 407.

3d. That the marriage articles were at least valid as between Dee and his wife and children; and he having appropriated the trust property was their debtor. That the bill filed by them against Tabb the administrator of Dee, was the bill of creditors of Dee, and the decree was a decree in favour of creditors; and it was not competent for creditors of even higher dignity to recover from them what they had received under the decree of the Court, and which as creditors of Dee they were legally and justly entitled to demand and have from his estate.

T. Taylor, for. the appellee, insisted:

1st. That the suit brought by Dee and wife against Prosser’s executor, was not a suit to have the estate settled on Mrs. Dee, but to relieve the executor from any difficulty in delivering over the property of Mrs. Dee to her husband. That the bill shewed the plaintiff’s intention to hold under the articles and not under the decree; otherwise the Court would not have made the decree rendered in 1826, but would have appointed a trustee. That the decree could not, therefore, give validity to the marriage articles against creditors.

2d. That the decree of 1833 against Tabb the administrator of Dee did not affect the rights of the appellee; who was not even a creditor of Dee at that time. That the decree, as between the parties to it, was proper; but it did not affect the rights of creditors who were no parties to it. These creditors were entitled to pursue the assets in the hands of the wife and children or their trustees. Gillespie v. Alexander, 1 *Cond. Eng. Ch. R. 388; March v. Russell, 14 Id. 31; Neafie v. Neafie, 7 John. Ch. R. 1; M’Call v. Harrison, 1 Brock. R.'126; Boyd v. Stainback, 5 Munf. 305; 2 Wms. Ex’ors 893; Story’s Eq. PI. *I*793; 2 Spence’s Eq. p. 297.

*

Judge Daniel was related to one of the parties.

†

See principal case cited in Glazebrook v. Rag-land, 8 Gratt. 840. See also, monographic *note*on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt 159.

MONCURE, J-

I feel myself compelled to dissent from the opinion of a majority of the Court in this case. The marriage agreement made between John H. Dee and Elizabeth his wife, on the 5th day of December 1825, not having been recorded, was, according to the decision of this Court in the case of Thomas v. Gaines, 1 Gratt. 347, void as to his creditors. Does it derive any validity as against those creditors, from the decree of the Richmond Chancery court of the 4th of February 1826? Or does that decree, proprio vigore, make the claims of those who claim under the agreement, paramount to the claims of the said creditors? I think not. It is unnecessary to enquire in this case what would be the effect on the claims of the husband’s creditors, of a decree in an adversary suit, brought by the wife against her husband to enforce the exectuion of an ante-nuptial agreement between them. Nor whether a deed executed in pursuance of such a decree, or of a decree for a settlement, rendered in a suit in which the wife’s equity could properly be administered, would be good against the husband’s creditors, without being recorded. There would be much room for contending in such a case, that both the letter and the spirit of the statute required the recordation of the deed. On that question, however, I express no opinion. It is enough to say that this is not such a case. The. suit in which the decree of the 4th of February 1826 was rendered was not an adversary suit, as between husband and wife, if adversary as to any person. It was brought by husband and wife in about a month after their marriage, to recover of her father’s executor her portion of *his estate, real and personal. It was not brought to enforce the execution of the ante-nuptial agreement. There had been no refusal and was no unwillingness on the part of the husband to execute it. Suppose it had been executed by the execution of a deed conveying the property to a trustee for the purposes of the agreement. Would not the recordation of that deed have been necessary to give it effect against the husband’s creditors? The agreement was referred to in the bill because it was a binding agreement between *139the parties, and the husband was willing the property should be received and held subject to the uses therein declared. Whether the suit would have been brought if there had been no agreement does not positively appear. The nature of the wife’s property and the provisions of her father’s will might have rendered such suit necessary. It seems that the portions of the older children had been assigned and paid to them under the order of the Chancery court. However this may be, the executor did not refuse to assign and pay the wife’s portion to the husband in this case for the purpose of enforcing the execution of the agreement, or a settlement by him on her. The bill states that the executor doubted whether he could properly deliver to the complainant the share of the wife, because he had been informed of the ante-nuptial agreement. The agreement is then exhibited, and the complainants pray that the share of the wife may be assigned and paid to them. The executor probably doubted whether the husband could give him a valid discharge under the agreement, and in his answer stated that he was willing and anxious to surrender her portion of her father’s estate to whomsoever the Court might appoint to receive the same and give him a legal discharge. And the Court decreed that the plaintiffs hold the real estate and slaves allotted to them in right of the female plaintiff, subject to the use and stipulations of the 'x'marriage agreement. I think this decree was merely a recognition of the agreement, and cannot operate as notice to creditors and purchasers, or dispense with the necessity of recording the agreement according to the requisition of the statute. I cannot see how such a recognition can have any greater effect on the rights of creditors than a deed executed by the husband in pursuance of the agreement, which it will be admitted would not affect those rights without being recorded. It seems to me that it would be strange indeed if a decree for the plaintiff's in a suit brought to recover property on an agreement binding on the parties, but not as to creditors because not recorded, should have the effect of setting up the unrecorded agreement against the creditors. This would be against the policj' of the statutes of registration, the overruling influence of which is so great, that, as was decided bjr this Court in Newman v. Chapman, 2 Rand. 93, the pendency of a suit to set up an unrecorded deed which is required by law to be recorded, will not affect a subsequent purchaser for valuable consideration without actual notice.

The agreement then being void as to creditors, notwithstanding the decree of the 4th of February 1826, is it rendered valid as to them by the decree of June 1833? Or does that decree proprio vigore bind the creditors of Dee? I think not. The agreement and decree of 1826 being void as to the creditors of Dee at the time of his death, that event rendered it impossible to set up the agreement against those creditors. Their rights to the legal administration of Dee’s estate, of which the trust subject was part as to them, became then fixed, and could not be changed by the subsequent recordation of the deed or recovery of the subject by the wife. The agreement being valid inter partes, the trust subject did not devolve on the executor of Dee, or if it did, he held it as trustee in equity *for the benefit of the wife. He could not resist her suit against him for it, and therefore he was properly decreed to render it to her by the decree of 1833. But that decree declares the deed valid as between the parties thereto, and not as to creditors; and the Court which pronounced it did not intend “to intimate any opinion as to the effect of the marriage contract as to the creditors of Dee,” as appears by a copy of the opinion contained in the record. Supposing the agreement then to be void as to creditors, notwithstanding the decrees of 1826 and 1833, the wife held the property after its recovery by her as executrix de son tort as to her husband’s creditors, and those creditors had a right to subject it to the paj-ment of their claims after exhausting the assets in the hands of the legal executor. Chamberlayne v. Temple, 2 Rand. 384; Boyd v. Stainback, 5 Munf. 305; and Shields v. Anderson, 3 Deigh 729. Kennedy is a creditor of Dee, and he established his claim by judgment against the executor, which is at least prima facie evidence against the executrix de son tort. The assets in the hands of the rightful executor have been exhausted. The act of limitations interposes no bar in favour of the executrix de son tort, and I therefore think that the subject is liable for the payment of the appellee’s claim, and that the decree in his favour should be affirmed.

ADDEN, J., delivered the opinion of the Court.

The Court is of opinion, that the agreement entered into on the 5th December 1825 between John H. Dee and the appellant Elizabeth, in contemplation of marriage, was a valid agreement between the parties; that although for want of recordation the same would have been void as against the creditors of the said John H. Dee, it was nevertheless competent for the wife and children provided for in said agreement, to have called for the specific execution of said agreement; and if *there was no existing creditor or purchaser whose rights would have been affected thereby, there could have been no objection to such specific execution, even although the marital rights of the husband had attached by a reduction of the property into his actual possession. It would have been competent under such circumstances for the husband to have made a voluntary settlement, which, if duly recorded, would have been good against subsequent creditors ; and a decree for the specific execution of an agreement, made in consideration of marriage where there was no existing creditor or purchaser to be affected is equally free *140from objection. The Court is further of opinion, that in this case the wife and children occupy a more favourable position than in the case supposed of an agreement in respect to, or a voluntary settlement of, property upon which the marital rights of the husband had attached by a reduction of the property into possession. Inasmuch as it became necessary here to apply to the Court of chancery for its aid in reducing the property into possession, it would have been competent for such Court in a proper case to have required a settlement even in the absence of any marriage contract, as a condition upon which it would interpose. The Court is further of opinion, that by the bill exhibited in the late Superior court of chancery for the Richmond district by the said John H. Eee and Elizabeth his wife, against Edmund Rootes executor of John Prosser deceased, for a division and allotment and delivery to the plaintiffs of her portion of said Elizabeth in the estate of her father, the rights of said Elizabeth and her children under said marriage agreement were brought directly to the consideration of the Court; that by the issue made up by the bill, answer and proceedings in said cause, it was proper for the Court to determine and adjudicate upon the legal effect of said agreement. The Court is further of opinion, that when *by the interlocutory decree and by the final decree pronounced in said cause on the 4th of Eebruary 1826, the property of said Elizabeth was decreed to be delivered over to the said John H. Eee and Elizabeth his wife, to be held by them subject to the use.and stipulations of said marriage agreement, the decree in effect did set up and execute said marriage agreement; the marital rights of the husband were thereby intercepted ; and the property taken and received in virtue of said decree was thereafter held by said John H. Eee and wife as trustees under said decree for the purposes of said agreement; and not by the said John H. Eee in his character of husband alone. The Court is further of opinion, that the validity of said decree was not impaired by the failure to register the same in the county where the property was situate or found, or the parties resided ; and the rights acquired in virtue of said decree are good and valid as against the subsequent creditors of the said John H. Eee. The Court is therefore of opinion, it was not competent for the appellee, a subsequent creditor of the said John .H. Eee, to assail the validity of said marriage contract so as aforesaid established by the decree of the 4th of Eebruary 1826, because said contract and decree had not been duly recorded.

The Court is further of opinion, that when after the death of said John H. Eee, the widow and children filed their bill against the personal representative of said John H. Eee and obtained a decree for the recovery of such of the property as remained undisposed of, and for the value of such as had been wasted by said Eee, they asserted a claim to such undisposed of property by a title paramount to the title of the personal representative; and their title being valid under and in virtue of the decree of the 4th of Eebruary 1826 aforesaid, such recovery of the property undisposed of, and for the value of such as was wasted, is conclusive against said administrator of John H. Eee *and the creditors of said Lee, who became such after the decree of the 4th of Eebruary 1826; there being no allegation that said decree against the administrator of John H. Eee was collusive. The Court is therefore of opinion said decree is erroneous; ieversed with costs: And this Court proceeding, &c. Bill dismissed with costs.