#### *Fones v. Rice & als.

January Term, 1853,

Richmond.

i Fraudulent Conveyances — Case at Bar* — A deed, conveying land void as to creditors, though in lieu of slaves given by parol by the grantor to the grantees, they never having taken and retained possession of the slaves: And this especially when the grantor was largely indebted at the time of the gift of the slaves.

3. Same — Same—in such case the grantees being females and having married, the deed will be void as to the husbands unless they show that the marriages took place before the creditors recovered their judgments.

3. Same — Setting Aside Deed — Case at Bar - - The grantor having, when taken on a *ea. sa.*in another case, conveyed this land and two other tracts, to the sheriff on taking the oath of insolvency, and it not appearing whether that debt had been satisfied without selling the lands so conveyed, and enquiry should be directed on that point before setting aside the deed; and if the said two tracts are not necessary to pay that debt, they should be first applied to satisfy the plaintiff in this suit.

This was a suit in chancery in the Circuit court of Buckingham county, by George Fones, against John C. Patterson and others, to set aside a conveyance of land made by Patterson to his two daughters. In November 1841, Fones and Nelson A. Patterson became the sureties of John C. Patterson in a forthcoming bond, which was forfeited, and upon which an execution was sued out and levied on the properly of Fones, when he paid it off. It appears that the original judgment was recovered against John C. Patterson in April 1841.

In February 1840, John C. Patterson executed a deed by which he conveyed to his daughters Mary F. and Cicily M. Patterson, 100 acres of land. The deed is expressed to be on the consideration of one dollar and natural love and affection. Of these grantees, Mary F. afterwards married Thomas B. Rice and Cicily M. married Richard Fowry; but it does not appear at what time these marriages took place. At the *time of the execution of this deed, Patterson was greatly embarrassed in his circumstances, if not insolvent.

There was an effort to prove that the deed was on a valuable consideration, and there is proof that in 1837 or 1838, Patterson made a formal parol gift of six young negroes to *262his daughters, who were then living with him; but it certainly does not appear that the negroes were removed from the place, or that the daughters either took or retained possession of them. When Patterson was about to acknowledge the deed in the clerk’s office, he stated to the same witness that he was obliged to sell property to pay his debts, and he had agreed with his daughters to give them the land for the negroes he had given them.

It appeared that in June 1842, Patterson was taken on a ca. sa., when he took the benefit of the act for the relief of insolvent debtors, and executed a deed by which he' conveyed to the sheriff the tract of land he had conveyed to his daughters, and two other small tracts of twenty and fifteen acres. The sheriff who was a party to the suit, stated in his answer that the execution upon which this surrender was made, had been in part paid off.

When this cause came on to be heard, the court below dismissed the bill as to Rice and wife, and Eowry and wife, and gave the plaintiff a decree against John C. Patterson for the sum of 257 dollars 6 cents, with interest from the 9th of October 1845 till paid; and if the money was not paid by John C. Patterson within thirty days, then there was a decree against the other surety Nelson A. Patterson, for one-half that sum. Pones applied for and obtained an appeal to this court from that decree.

Darneale, for the appellant.

Stanard and Bouldin, for the appellees. .

*

The principal case is cited and approved in Herring v. Wickham. 29 Gratt. 637, and *note.*See also, monographic *note*on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.

*DANIEL, J.,

delivered the opinion of the court.

The court is of the opinion that the deed in the bill mentioned of the 8th of Pebruary 1840, between the appellees John C. Patterson and his two daughters Mary E. and Cicily M., was fraudulent and void as to creditors. The deed purports to be made “in consideration of the sum of one dollar, but more especially by virtue of the love and affection that he (the grantor) has for his said two daughters;” and was executed at a time when according to the proofs in the cause the grantor was greatly embarrassed and indebted, most probably to the extent of the value of his whole estate. And the effort to found the deed on a valid exchange of slaves for land has wholly failed; the evidence tending to prove a parol gift by the said John C. Patterson to his said two daughters, in 1837 or 1838, of certain slaves, which, in the joint answers of Rice and wife, Eowry and wife and Nelson A. Patterson, it is averred were exchanged for the land conveyed by the deed aforesaid, falling short of proving any such possession of the slaves by the said daughters as would confer on them a valid title thereto; and it also appearing that at the date of said alleged gift the said John C. Patterson was so indebted as to render any gift L-y him of his property, however complete in form, void as to his creditors.

The court is also of opinion that the intermarriages between the appellees Mary E. and Thomas R. Rice, and Cicily M. and Richard Eowry, since the execution of the deed aforesaid, do not, under the circumstances in this case, stand in the way of the appellant’s right to subject the land in said deed embraced, to the satisfaction of his demand. Por whatever might have been the effect of such intermarriages on the rights of the parties, if they had been relied on and shown to have occurred before the date of the. judgment, to the lien of which the appellant seeks to subject said land, they could have presented no impediment to the assertion *of such lien, if they occurred after the date of the judgment. And it was incumbent on the said appellees, if they intended to rely on such matter, to have set it forth in their answers, and to have shown that said intermarriages were prior in date to the said judgment. Por these reasons the court is also further of opinion that the decree of the Circuit court of the 18th September 1846 is erroneous and ought to be reversed: And the same is accordingly reversed with costs. And the court would now proceed to render a decree, subjecting the land conveyed by the deed aforesaid of the 8th of February 1840 to the satisfaction of the appellant’s debt. But as it appears from the deed made by John C. Patterson to the sheriff on taking the oath of an insolvent debtor at the suit of Smith, (filed as an exhibit by Reuben B. Patterson, with his answer,) that the said deed embraces not only the tract of 100 acres conveyed by the deed of the 8th February 1840, but also one other tract of 20 acres, and one other of 15 acres; and as the court is of opinion that though the deed of the 8th February 1840 is void as to creditors it was good as between the parties thereto, and that it would be proper to subject the two last mentioned tracts of land in the first instance, before resorting to the tract of 100 acres conveyed by said last mentioned deed; and as the said Reuben B. Patterson in his answer admits that the execution of Smith has been in part satisfied, but does not state to what extent, and it does not appear what is the amount now sue upon said execution; and the court is of the opinion that before a sale of the land is made it is proper that such amount should be ascertained; and is further of opinion that the cause is not in a proper situation for a final decree, and that it ought to be remanded for further proceedings; the cause is accordingly so remanded. And it is adjudged, &c., that the appellant recover-his costs, &c.