#### *Thomas v. Gaines & als.

February, 1845,

Richmond.

(Absent Cabell, P., and Stanard,* J.) -

i. Deed of Marriage Settlement†—Recordation.—A deed of marriage settlement made before the marriage, conveying tbe property of the wife, and in which the intended husband joined, is fraudulent and void as to subsequent purchasers from the husband, without notice, unless duly recorded.

*1392. Overruled Cases.—The case of *Pierce*v. *Turner,*5 Cranch 162, and the opinions of Judges Cabr, Co alter and Brooke, in *Land*v. *Jeffries,*5 Rand. 211, overruled.

Frances Taylor, being possessed of a small tract of land in the county of King & Queen, three slaves, Phoebe, and her children, Rachel, and Jerry, and some other personal property, and being about to marry Richard Gaines, on the 10th day of December 1777, executed a deed, in which said Gaines joined, by which she conveyed said land, slaves, and other personal property, to Henry Mickleborough, in trust for herself until the marriage, and then, in trust for the use of the said Richard Gaines and the said Frances, and the survivor of them, for his or her life, and after the death of the survivor, to the use of the child or children of the said Frances, equally to be divided ; and in case she should leave no child living at her death, then to the use of Fanny and Mary Mickleborough, daughters of Henry Mickleborough, and their heirs forever. This deed was attested by three witnesses, and was admitted to record in the county court of King & Queen, upon the testimony of two of them. The marriage took place, and the slaves went into the possession of Gaines, who removed with them to the county of Halifax; and in 1778, he sold the negro Phoebe and her child Eve born after the marriage, to a certain John Martin, and put him in possession of them.

*Mrs. Gaines died in the y'ear 1805, leaving three children, Thomas, Elizabeth, and Frances, and Richard Gaines died in 1819, leaving his three children surviving him.

In the mean time, the woman Eve had had ten children, nine of whom were then in the possession of Martin, and one named Rachel, had been given by Martin to Thomas Eawson, who married his granddaughter, and who on his dying, had bequeathed her to his widow; and she afterwards marrying Jacob Thomas, the woman Rachel had come into his possession, and then had two children.

In 1822, the children of Frances Gaines filed their bill in the county' court of Halifax, against Martin, Thomas, and Carter Mickleborough as the administrator of Henry Mickleborough the trustee in the marriage settlement, setting out the above facts, giving the names of the slaves in the possession of the defendants, Martin, and Thomas respectively, and asking that said defendants might be compelled to deliver up the said slaves to the plaintiffs, and account for their hire since the death of Richard Gaines.

Martin filed his answer, in which he admitted the purchase of the slaves Phoebe and Eve from Gaines, and the possession of Eve and her children as charged in the bill, but very positively denied any notice of the deed of marriage settlement under which the plaintiffs claimed title to the slaves, either before or at the time of the purchase; he insisted that the act of assembly avoided all marriage settlements not properly recorded, as against creditors, and subsequent purchasers; and that this deed had not been recorded according to law ; and he set up the statute of limitations in bar of the plaintiffs’ claim.

Thomas also filed his answer, in which he said he knew nothing of the facts stated in the bill, and called for proof. He admitted the possession of the slaves *Rachel and her children, but did not admit that Rachel was a child of Eve ; and he referred to the answer of Martin, and adopted it as his own.

Martin and Carter Mickleborough having died during the pendency of the cause, the plaintiffs filed a supplemental bill against Thomas as the executor of Martin, in which they state that since filing their original bill, they had made diligent search for the original deed of marriage settlement, in the office of the county court of King & Queen, and elsewhere, and had not been able to find it, and they believed it had been destroyed when the house of a certain James Calfee had been burned, with whom it had been deposited for safe keeping. This bill was accompanied by the affidavit of John B. Gaines the agent of the plaintiffs, in which he stated that search had been made for the'deed without, success-; .and that he believed it was destroyed in the manner stated in the bill.

Thomas, asexecutor of Martin, answered the supplemental bill, not admitting the loss of the deed, and putting the plaintiffs upon the proof of the fact.

Many witnesses were examined in the cause, in relation to the destruction and contents of the deed; and especially upon the question, whether or not Martin had notice of its existence and provisions. The plaintiffs proved the probable destruction of the deed in the manner stated in their supplemental bill; and they also proved its contents; but this court was of opinion that they failed to prove that Martin had notice of its provisions.

The cause came on to be heard in the county court at the February' term 1834, when that court made a decree in favour of the plaintiffs, for the slaves mentioned in the bill; and referred the case to a commissioner, to take an account of their hires and profits since the death of Richard Gaines. From this decree, Thomas obtained an appeal to the superior court of law and chancery *for the county' of Halifax, from whence the cause was removed to the superior court of law *140and chancery for the county of Pittsylvania, where the decree of the county court was affirmed; and then he applied for and obtained an appeal to this court.

Robinson and G. N. Johnson, for the appellant.

The slaves in controversy in this cause, were the property of Mrs. Gaines before her marriage; and if no deed, or no valid deed was made by her before her marriage, they became the property of her husband, and subject to his disposal: and the whole question is, whether’ she has secured them by a valid deed, against the marital rights of the husband. '

Our proposition is, that the deed under which the plaintiffs claim, has not been legally recorded; and is, therefore, fraudulent and void as to Martin, a subsequent purchaser for valuable consideration without notice. It will not be maintained by the counsel on the other side, that the deed was duly recorded. It is a deed of trust, and conveys lands. The act of 1748, 5 Stat. at large § 1, p. 409, (which is the act governing this deed,) provides, that deeds shall be acknowledged in court, or proved by three witnesses. The 4th section refers to deeds of trust and marriage settlements, and provides that they .shall be proved or acknowledged in the mode prescribed in the first section. This deed was admitted to record on the evidence of two witnesses, and we submit that it is, therefore, invalid as a recorded deed. Moore v. The Auditor, 3 H. & M. 232; Hodgson v. Butts, 3 Cranch 140.

If, then, this deed is valid as against a subsequent purchaser for valuable consideration without notice, from the husband, it must be on the ground that a deed of marriage settlement is valid against such a purchaser, without being recorded. The act of 1734, 4 Stat. at large 398, is the first that mentions marriage settlements. *That act shews that it, was the intention to protect every creditor and subsequent purchaser; and that it was not to be confined to the creditors of, and purchasers from .the wife. The act of 1748, 5 Stat. at large *§*4, p. 409, is similar in its provisions. This act was in force when the deed under which the plaintiffs below claim, was executed. Under this' act, the degd, as between the parties and their heirs, is valid; but between them and creditors and subsequent purchasers, it is void.

If this deed is valid, though unrecorded, as against creditors, and subsequent purchasers, all the objects, and the policy of the law is defeated. A person about to purchase, goes to the records, and finds no deed; he then purchases, and thirty years afterwards, he is sued for these slaves by parties claiming under an unrecorded deed. The spirit of the English decisions upon their registry acts, will be seen in Sugd. on Vend. 691, part 2, ch. 16, § 5, and in Scrafton v. Quincey, 2 Ves. sen. 413: and the principles acted on by the master of the rolls, are applicable to this case.

In 1799, the case of Anderson v. Anderson, 2 Call 198, was decided in this court. The facts of that case were, that the husband entered into an agreement that the slaves of the wife should be hers, if there were no children of the marriage, and she survived him; and the court held, that the contract not being recorded, it was void as to his creditors. In the case of Pierce v. Turner, 5 Cranch 162, the supreme court of the United States decided that the creditors referred to in the statute, were the creditors of the grantor; and the question now is, which of these authorities will the court follow? We refer the court to the argument of Mr. Bee, in Pierce v. Turner. The argument on the other side, that the creditors of the husband cannot claim more' than he can, is true in some respects: but only so far as it is true in respect to ordinary deeds of trust. Creditors cannot claim against the deed; but they may '"claim what would have been the propert3T of the debtor, if the. deed had not been made. And so in respect to the husband, thejT may claim what would have been his, if the deed had not been made. The case of Pierce v. Turner, was decided only by a majority of the judges, and it is doubtful whether the chief justice concurred in the decision. In that case, judge Washington, who delivered the opinion of the court, says, it may be advisable to change the law so as to embrace the case. He says too, that the words of the law are broad enough to embrace it; and yet whilst he thus expresses himself both as To the words, and the policy of the law, he comes to the conclusion that marriage settlements - do not come within the operation of the statute.

The counsel on the other side will rely upon the case of Band v. Jeffries, 5 Rand.-211. The deed in that case was an absolute deed, and one which the statute did not require to be recorded. It is true, that judges Carr and Coalter approved the decision in the case of Pierce v. Turner; but judge Cabell expressly waived the question, thinking it not necessary that the deed should be. recorded' for any purpose. Judge Brooke considered it unnecessary to discuss the question; and judge Green delivered a-strong opinion against the decision in Pierce v. Turner.

The case of Band v. Jeffries, .is, therefore, not in the way of a decision of the question by this court; and we rest upon Anderson v. Anderson, the reasons of the judges who have dissented from the decision in Pierce v. Turner, and the acknowledged mischiefs of the construction given to the statute in that case.

But whatever maj' be the opinion of the court on this question, Martin having purchased the slaves from Gaines more than five years after the marriage, he is protected, by the statute of frauds. 1 Rev. Code, ch. 101, § 2, p. 373. By that act, the absolute property is considered with the possession, unless the chattel is limited *'by will or deed duly recorded; and there is no dispute as to the creditors and purchasers who are protected by that act: all *141admit that they are the creditors and purchasers of the person who has been in possession of the property for five years. The late decisions under this statute are Pate v. Baker, 8 Leigh 80; Lightfoot v. Strother, 4 Leigh 451; London v. Turner, 11 Leigh 403. . ’

Bouldin, Lyons and Leigh, for the appellees.

It is admitted for the appellees, that by the act of 1748 three witnesses are necessary for the admission of a deed to record, and that this deed has been recorded upon proof by two. If, therefore, the act requires deeds of marriage settlement by the wife, to be recorded, in order to their validity against creditors and subsequent purchasers of the husband, then this deed is void.

This is a deed executed before marriage by the wife, conveying her - property. In Pierce v. Turner, 5 Cranch 162, it was settled that in such a case the wife is the grantor; and that her creditors alone are protected by the statute. In Land v. Jeffries, 5 Rand. 511, three judges decided that Pierce v. Turner correctly, expounded the statute. This decision was made in 1827. It has been acquiesced in by the courts, and the bar, ever since; and the legislature, with a full knowledge of the decision, and the practice under it, has permitted it from that day to this, to stand as the just exponent of the statute. We submit, therefore, that this court should not now consider it an open question : but if a remedy is needed, it should be provided by the legislature. If Land v. Jeffries is now reversed by a majority of this court, then the question will be again open; and how long a time it will take finally to conclude it, none can foresee.

Taking the question to be settled, we will not enter into the discussion of the true construction of the statute, ^'farther than to remark that the general words of the act would embrace all creditors and purchasers of all persons. The counsel on the other side are, therefore, obliged to limit the meaning of the words; and the question is, where shall that limit be fixed? They say the statute shall be limited to the creditors of the grantor, and of such persons -as would become entitled to the property, if a valid deed is not made: we say" to the creditors of the grantor only.

The creditors of the husband, certainly, have no right to the property of the wife before marriage. She could do with it as she pleased: could give it away to a third person, even by an unrecorded deed, or by" parol. If then this can be done, upon what principle is it, that a deed made when the wife has absolute control over the property, made too, with the assent of the husband,1 shall not bar the marital rights of the husband ; and prevent their attaching to the ■property? Or on what principle is it, that the act is to divest the right of the donee, vested in him when the wife had absolute control over the property, and the creditors of the husband had no .claim whatever upon it?

, As to the case of’ Anderson v. Anderson, 2 Call 198, the agreement in that case was a mere executory agreement, which does not appear to have been under seal, by which the husband agrees, that if he has no children, and the wife survives, she shall have the estate. In that case, the absolute title to the property vested in him on the marriage, only subject to be divested upon the wife’s surviving him; and when she brought the suit, the husband was alive, .and a party defendant. In that case too, the question was not made or considered by either court or bar.

But it is said that Gaines having been in possession more than five years before Martin’s purchase, the claim is .barred by the statute of frauds, 1 Rev. Code 373. The clause of the statute relied upon, was introduced *into the law, in 1785; and, therefore, .cannot apply to this case. But in Land v. Jeffries, all the judges held that the possession of the husband was the possession of the trustee; and that the property", which had been for more than five years in the husband’s possession was not liable to his creditors. In this case, the parties claiming are the remaindermen; and their rights not coming into possession until the death of the tenants for life, they" cannot be affected by the statute of frauds prior to that time.

*

He had been counsel in the cause.

†

Statute against Unrecorded Deeds—Creditors Protected by. In Snyder v. Martin, 17 W. Va. 287, it is said: “Formerly it was held that the ‘creditors,’ who are protected by the statute against unrecorded deeds, were the creditors of the grantors only. Pierce v. Turner, 5 Cranch 154; Land v. Jeffries, 5 Rand. 211; Prior v. Kinney, 6 Munf. 510. In the case of Land v. Jeffries; Judge Green, ‘in one of the ablest opinions ever delivered by that learned judge,’ as observed by Judge Allen in *Thomas v. Gaines, 1 Gratt.*347, dissented from the opinion of the court. Mr. Justice Johnson also dissented from the opinion of the court in Pierce v. Turner. In *Thomas v. Gaines, 1 Gratt.*347, the court overruled the *139former decisions and established the law in accordance with Judge Green's dissenting- opinion in Land v. Jeffries. But after the last decision was announced at the revisal of 1849, the question was settled by statute." Va. Code 1887, sec. 3472. See principal case cited upon this point in Harman v. Oberdorfer, 33 Gratt. 501; McCandlish v. Keen, 13 Gratt. 637; Dabney v. Kennedy, 7 Gratt. 324. See also, monographic *note*on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.

BALDWIN, J.,

delivered the opinion of the court.

The court is of opinion that the deed of marriage settlement in the proceedings mentioned, under which the appellees claim title to the slaves in controversy, was not duly admitted to record, under the provisions of the act of the general assembly, which must govern this case, passed in the year 1748, (5 Hen. Stat. at large, *§*1, 4, p. 408, 409, 410;) the same having been admitted to record upon proof thereof in court by two witnesses only; whereas the said statute required proof by three witnesses at the least. By the express declaration of the 4th section of said act, all such deeds are rendered vpid as to all creditors and subsequent purchasers, (meaning subsequent purchasers without notice,) unless acknowledged or proved, and recorded according to the directions of that act. The statute clearly embraces all deeds of marriage settlement, w'hether executed after or in contemplation of the marriage; and whether the property thereby settled, be the property of the wife, or of the husband. Its policy was to protect creditors and purchasers who might otherwise be injured by secret deeds .of marriage settlement; and its comprehensive terms, “all.creditors and subsequent purchasers,” as well as its spirit, embrace all persons who would hav.e valid claims, in either character, to or against the property, if such deed had never been made. *In cases like the present, where the deed of marriage settlement was executed in contemplation of the marriage, and conveyed slaves or other, personal property belonging to the *142wife, the effect of the deed, if valid, would have been to intercept the marital rights of the husband; and settle the property according to the uses declared by the deed. But the deed in question, though good between the parties, is under the provisions of the statute, a mere nullity so far as the creditors of the husband, or subsequent purchasers from him without notice, are concerned; and, so far, therefore, as concerns them, could not have the effect of intercepting the marital rights of the husband. The consequence is, in the present case, that the husband, Richard Gaines, acquired by his intermarriage with Frances Taj'lor, the possession of the slaves embraced in the said deed of marriage settlement; and the absolute title thereto; so far as to enable him to confer the same upon a subsequent purchaser from him for a valuable consideration, and without notice of said deed. And it appears to the court, that John Martin now deceased, originally a defendant in this cause, did subsequently to said intermarriage, purchase from the said Gaines, for a valuable consideration by him the said Martin paid to said Gaines, some of the stock of slaves embraced in the said deed of marriage settlement, without notice, at the time of said purchase and payment of said consideration, of the deed aforesaid. The court is, therefore, of opinion that the appellees, claiming as they do under the said deed of marriage settlement, have shewn no title, as against the said Martin and those claiming under him, to the slaves in controversy; and that the said decree of the said circuit court, affirming the said decree of the said county court, is erroneous. Wherefore it is decreed and ordered that the said decree of said circuit court be reversed and annulled with costs the appellant: and this court proceeding to render such decree as the said circuit *court ought to have rendered, it is further decreed and ordered that the said decree of said county court be reversed and annulled, with costs to appellant; and that the bill of the appellees be dismissed with costs.

ALLEN, J.

The interesting question involved in this case, arose, and was decided in Pierce v. Turner, 5 Cranch 162, by a majority of the supreme court. It was also discussed by some of the judges of this court, in Land v. Jeffries, 5 Rand. 211. It was unnecessary, however, to decide it, the case being determined on another ground; and therefore judge Cabell, in his opinion printed in the appendix of the 5th volume of Randolph, did not consider the question. Judges Carr and Coalter concurred with the supreme court in their construction of the act of 1748. Judge Brooke, deciding the cause on other grounds, expressed a general approval of Pierce v. Turner. Judge Green, in one of the ablest opinions ever delivered by that, learned judge, controverted the correctness of that decision ; and judge Cabell, as he announced from the bench during the argument of this case, then concurred with judge Green. We have then the decision of this court in Anderson v. Anderson, 2 Call 198, determining the question in one way, and the obiter opinions of some of the judges in Land v. Jeffries, giving to the statute a different construction. If the question had arisen in Land v. Jeffries, and a majority of the court had decided it in conformity with the decision in Pierce v. Turner, I should have felt myself bound by it. But mere opinions of judges upon questions not arising or adjudicated in the case before them, to whatever respect they may be justly entitled,' are not considered as binding authority in any case. Much less could they be so considered when, as upon this question, they conflict with a previous decision of this court. The question must be determined upon our own construction of the law. After the able *opinion of judge Green in Land v. Jeffries, where the argument is exhausted, every thing I could say would be a mere repetition of his reasoning. I shall, therefore, content myself with referring to that opinion, and expressing my concurrence in the opinion of the court in his case as prepared by judge Baldwin.

BROOKE, J.

I entirely concur in the opinion delivered by judge Baldwin for the court; and should not make a remark in the case, but to explain what I said of the case of Pierce v. Turner, 5 Cranch 162, in my opinion in the case of Land v. Jeffries, 5 Rand. 211. I was so satisfied that the case of Pierce v. Turner had no application to that case, that I did not think it necessary to examine it; and it being a case of the highest authority, I said I approved it: Nor do I think now, that the case of Pierce v. Turner could throw any light on the case of Land v. Jeffries. In that case, the supreme court took a different view from that taken in the opinion delivered by judge Baldwin; and employed itself in fixing the meaning of the words in the act of assembly, “and all creditors and purchasers”— and decided that they applied to the creditors of the grantor; and not to the creditors of the grantee.

It seems to have escaped the court, that the deed of marriage settlement not being recorded according to the provisions of the act of assembly, it was a nullity as regarded all persons except the husband and wife. That as to the creditors of the husband, not having actual notice, it was as if it had never been made; and did not intercept his marital rights to the personal property of the wife.

This court took another view of the case just decided; and came to a different conclusion from that of the supreme court. In this case, the deed not-.being recorded; as regarded the purchaser, without actual notice, of the slaves, there was neither .grantor nor grantee- there was *the husband in possession of the slaves of the wife, which he was entitled to by law.

*143CABELE, P., sat in this cause at the commencement of the argument, but became unwell whilst it was in progress, and therefore did not unite in making the decision ; but he was present when the opinion of the court was delivered, and stated that he had concurred in opinion on the point with judge Green in the case of Land v. Jeffries; and that he approved the opinion of the court delivered in this case.