#### *Margaret Head & others*vs. *Wm. R. Halford & others.*

Whore a plaintiff in a judgment, confessed without consideration, takes a colorable bill of sale of the defendant’s property, on a secret trust to hold it for tho benefit of defendant’s wife and children, and afterwards carries the trust into effect by making a deed of the property to trusteos for the use of the wife and children — such deed is a post-nuptial settlement, and void, as against subsequent creditors, if not duly registered.

Where one makes a conveyance of property to trustees for the use of others, his declarations made before tho conveyance was executed, and while he held tho title, aro admissible, as against the *cestui que*trusts, to show that the transaction was fraudulent.

*Before*Dargan, Ch. *at.*Barnwell, February, 1852.

Dargan, Ch. The complainants (who are the wife and children of one Newport Head) charge in their bill, that on the 28th of January, 1833, Henry Hartzog (who was the brother-in-law of Newport Head’s wife,) executed and delivered to Samuel Reed, Jr., and David Hair, a certain deed, by which the said Hartzog conveyed to the said Reed and Hair, two negro slaves, Albert and Fanny, in trust, for the exclusive use of Margaret Head, (wife of Newport Head,) during her life, and after her death, to the use of such child or children, grandchild or grandchildren, as she might leave alive at the time of her death. This deed was proved 28th January, 1833, and recorded in the office *129of the Register of Mesne Conveyances for Barnwell District, on the 4th February, 1833. The complainants farther allege, that some time after the execution of the deed, the slave, Albert, was abducted from their possession by some person or persons to them unknown. That the increase of Fanny is as follows: Jesse, Rose, Lewis and Silvy. That the said Samuel Reed and David Hair, named as trustees, duly signed the deed, and accepted the trust. That immediately after the execution thereof, the negroes went into the possession of the complainant, Margaret Head, (wife of Newport Head,) who had a life estate in the said negroes. That the said Samuel Reed and David Hair are both dead, and that no other person has been appointed as trustee in their stead.

The complainants further charge,, that one John D. Baxley, having obtained a judgment, and issued an execution thereon, against the said Newport Head, has lately directed William R. Halford, the Sheriff of Barnwell District, to levy on the said slave, Jesse, and that the said William R. Halford has accordingly levied upon, and threatened to sell the said slave, under and by virtue of the aforesaid execution. They pray an injunction, subpcena, &c. Newport Head is a defendant, charged as a confederate of Baxley and Halford. The defendants, Baxley and Halford, in their joint answer, admit the levy upon the slave, Jesse, under the execution. They rest their defence principally upon the alleged fact, that if the deed of trust set forth in the complainants’ bill was ever executed, the negroes therein conveyed, were not the property of Henry Hartzog, but of the said Newport Head. That the said Newport Head being deeply indebted at the time, in fraud of his creditors settled the said negroes upon his wife and children, through the instrumentality of Henry Hartzog, who never had a title, and if he had, the title was given to him for this fraudulent'purpose, and that the said deed was, therefore, null and void. They further contend, that if they should fail to show that the said deed was fraudulent and void — the negroes being the property of Newport Head — the deed of Hartzog — executed for the *130same, with the concurrence of Newport Head, was nothing but a deed of post-nuptial settlement by Head, for his wife and children, and is void, for the want of registry in the proper office. The foregoing are the positions which the parties respectively occupy on the record. The negroes were, indisputably, at one time, the property of Newport Head. On the 1st October, 1832, Head executed and delivered to Hartzog, a bill of sale for the negroes, Albert, about four years of age, and Fanny, about fourteen years of age, and some other property of inconsiderable value. The consideration expressed is $700. The bill of sale also conveys, for the same consideration, a sorrel- mare, and household and kitchen furniture. On the same day, there was a receipt from Head to Hartzog for $187 43, being the balance in full for two negroes, Albert and Fanny, household and kitchen furniture, and the sorrel mare. Hartzog had a judgment and execution against Head in the Court of Common Pleas for Barnwell District.. Judgment was confessed on 6th February, 1832, for $524 63, with interest on $500, from 7th February, 1832;- ff. fa. for - this sum, together with costs, was entered 8th February, 1832; the cause of action was a note from Head to Hartzog, dated 1st February, 1832, for $500, with interest on $300, from 1st January, 1831, to 1st January, 1832, and interest on $500, until paid. On 1st October, 1832, (the date of the bill of sale for the negroes) Hartzog executed on Sheriff Harley’s execution book, a receipt *“*for the debt and interest in full of this case.” On the same day, he paid to Harley $6 50, as sheriff’s fees, and on the 18th May, 1833, he paid the clerk’s fees, $5 50. Whether it was done *bona fide*or *mala*fide, the amount due on the execution, was, doubtless, applied in part payment of the purchase money of the negroes, and after deducting the amount of the execution from the $700, is left to be paid otherwise, about the sum covered by the receipt of the same date, ($187 43.) There is some difference, though not much. There was a judgment of John T. Willis against Newport Head, for $280 43, with interest and costs, entered 12th November, 1839 — cause of action, a note for *131$98 45, due 21st January, 1837, and another note for $87, due 1st January, 1836. Both notes were from Head, to 1. T. Willis, and contracted several years after the deed of trust was executed. The judgment of the defendant, Baxley, against Head, is for $59 79, besides, subsequently accruing interest and costs. The execution was entered 8th of August, 1838. The cause of action was two notes of Head, one to P. P. Noling for $30 50, dated 1st January, 1838 — the other to Jackson and Baxley, for $27 10, dated 2d January, 1838. The style of the case is Jackson and Baxley vs. Newport Head. There was another execution spoken of by the witness, Mathews, as due to himself by Head. The cause of actiqn-4Y^s.after the date of the trust deed. The date and othe^q^'áftiqulTaff. were not furnished me. There does not appearYto ,have,^b^n any other execution ever entered in thq/¡Sheriff’s ag^jnst Head, besides those above described! ’ Th.e^e l^ás nfH.ex^ting debt proved against Head, but a noti^-fur- $56 50!whiph was sold by the witness, Richmond Watson, tq fjífe "defendant, Baxley, for $6 50. It is shown that Jam^s^T. Wihisf' (who married Head’s sister,) had notice of the trust' deed before Head’s debt to him was contracted. Head was considerably indebted to him. It came out in the evidence, that Head sold Albert to Willis, who ran off the negro. I suppose, that the proceeds of Albert were applied in part payment of Head’s indebtedness to him, and, that the judgment of Willis, against Head, was for the balance.

Oh the foregoing state of facts, the necessary inference would be, that Hartzog did *bona fide*purchase the negroes from Head, for a valuable consideration, and that he afterwards made a voluntary conveyance of the said negroes to Head’s wife and children. This is the import of the transaction between Hart-zog and Head, which I have above stated, and if this be the conclusion, the case is divested of all difficulty, and the rights of the complainants are unquestionable. There are, however, other facts to be considered, which are stated in the Commissioner’s report of the evidence. This evidence was taken sub*132ject to all legal objections. The defence which the defendants have attempted to establish is, that the negroes were not *purchased*by Hartzog. That the bill of sale and receipt acknowledging the payment of money, were pretensive — that the whole arrangement was intended to enable Head to settle his property on his wife and children, in fraud of his creditors. If this position has been sustained by the evidence, then the deed of trust was void in its inception. #

If a conveyance, whether voluntary, or for a valuable consideration, be executed with the actual intent to commit a fraud, it is void from the beginning and so continues. It is so vitiated by the fraud, that it is void not only against existing, but subsequent creditors. The payment of the debts which were intended to be defeated by other means, than the property corn veyed, cannot wash away the original taint. A title thus derived, can only become valid by becoming, as it were, a new title, under the operation of the statute of limitations. I am speaking of course, of the rights of third persons, and not of those of the parties to the fraud; between whom a fraudulent arrangement is binding. If a person, who is indebted, *bona fide*makes a voluntary conveyance of his property; and with no intent to commit a fraud, it is still a fraud by presumption of law, as against his existing creditors. *Reade*vs. Livingston, 3 John. Gh. 481. It is a fraud in iaw, because the rights of creditors are paramount to those claiming by gift, and no man has a right to bestow his estate gratuitously, to the disappointment of his existing creditors, even though such disappointment was not intended at the time.

The doctrine reduced to its simple essence is, that the estate of a debtor *quoad*his debts, is the property of his creditors in Equity, and is not his to give. If a voluntary conveyance be fraudulent, merely by presumption of law, on account of existing debts which remain unsatisfied, the payment of such existing debts purges the fraud, and makes the title valid. There is no actual fraud to fasten upon it an ineradicable defect. Where the defect had been removed, subsequent creditors cannot come *133in and claim to have the property made subject as assets to their claims.

There is but one combination of circumstances under which they would be let in. If the prior debts remain unpaid, and the Court vacates the voluntary conveyance on their application, and for their benefit, subsequent creditors will also be allowed to present their demands, and to participate in the distribution. They would even be allowed to take the initiative, though, upon this last point, there is much contradiction in the authorities.

Having premised thus much as to the principles of law that may be applicable to the case, I proceed to consider facts that have not yet been brought forward. Several witnesses were called by the defendants to prove declarations of Head.

They testified to conversations with him, in which he unequivocally pronounced the trust deed fraudulent. According to him, it was a scheme to defeat his creditors. If Head’s declarations were to be received as evidence, and full credit given to them, there could remain no doubt but that the deed of trust was contaminated by an actual fraud. But I rule out the whole of the testimony as to Head’s declarations as incompetent, *{Footman*vs. *Pendergrass.)*A husband cannot, even when he has no interest, be a witness for or against his wife. If he cannot be a witness, *a fortiori*his declarations are inadmissible. The other most material evidence taken in the case, which tends to invalidate the deed of trust as a fraudulent arrangement against Head’s creditors, is that of Dr. James W. Tarrant. His testimony, so far as it bears on this issue, consists of a statement of certain declarations made by Hartzog just before the execution of the trust deed, and while it was in contemplation. He said that Hartzog came to his house and asked him to draw a deed, making Samuel Eeed and David Hair trustees for Mrs. Head and her children. He told the witness that he had been a trustee (by a deed from Head,) for Head’s family. That he did not wish to hold the property any longer, and wished to convey it over to Eeed and Hair. The witness de-*134dined, and excused himself, by alleging his incompetency to draw such a deed, and advised him to go to a lawyer. Hartzog said, that what he was doing, was for the benefit of Head’s family. That he had had the property in his hands long enough ; that he wished to turn it over to Reed and Hair; and that this would “make a stronger link in the chain.” He said that Head did not owe him anything when he made the deed to him, and that it was merely done to secure the property to Head’s family. The witness repeats, that he understood Hart-zog to say, that Head had transferred the negroes to him, for the benefit of Head’s wife and children, and that Head owed him nothing at the time of the transfer. Hartzog said, that he was at liberty to do as he pleased with the negroes, for the benefit of Head’s family. So far, the evidence of the witness relates to the declarations of Hartzog.

The witness says further, that a short time after the date of this conversation, the deed of trust was proved before him as a Magistrate — that Head got the negroes from his father’s estate— that they were never in the possession of Hartzog, but have always been in the possession of Head and his family — that the deed embraced all the property that Head had in possession— that Hartzog was the brother-in-law of Mrs. Head — that he was a “ tight-fisted man ” — was not likely to have bought the ne-groes and made them over to his sister-in-law, without consideration. The witness further said, that Hartzog, Reed and Hair were all of them honest men — that Head became considerably indebted to James T. Willis, who had married his sister, and who was aware of the deed of trust at the time that the debt to him was contracted. That Head sold Albert to Willis, who ran him off on account of the deed, and that Hair and Reed never sued for Albert. He also proved that Hartzog is dead. That Head, seven or eight years since, brought suit for the negroes, which he afterwards dropped, and that he was “ very angry at the time with the whole concern,” alleging that they would not let him have any control over the property, and that he did not like it. The other statements of this witness relate *135to the declarations of Head, impeaching the fairness of the deed of trust, which have been already ruled out as inadmissible.

It will not fail to be observed, that the most material part of this witness’s testimony, bearing upon the issue of fraud, is a statement of the declarations of Hartzog, made at the time when he was about to divest himself of his title to the negroes, and when neither Hair nor Reed, the trustees, nor Head’s wife or children, were present. It seems strange that he should have made such declarations, which if they were true, would be so much opposed to his previous caution, and all that machinery of forms which he had employed to carry out his views. But the question occurs, are these declarations admissible to impeach the deed of trust that he executed *1*

The admissions of a party to the record, against himself, are generally considered competent evidence. Such admissions are received partly from necessity, because in many cases no other evidence exists, and partly on the principle that the cautious selfishness of man’s nature would generally be a sufficient safeguard against the admission of facts that have no existence. They emanate also from a person, who, from his interest in the subject matter, may be presumed to possess the most accurate information. Though the admissions of parties to the record are accepted by Courts as evidence, on what seems to be sound legal philosophy, yet they are very far from being, as is sometimes said, the highest and most satisfactory species of evidence. I am speaking here of parol admissions by- parties, affecting their rights or titles, in conversations *ante litem*motam, and when no controversy is anticipated.

It is seldom that such a conversation embraces a full statement of the case, and when it does, portions are liable to be forgotten by the witness, and thus the party making the admission loses oftentimes the benefit of important qualifications. To guard against this mischief, Courts of Equity, without repudiating in any degree the principles upon which the admissions of a party are received in evidence, have adopted rules for his security and protection, by which it is required that the confes-. *136sions or admissions of a party, when intended to be brought forward in evidence, must be mentioned in the pleadings. Daniel, (2 vol. p. 996,) says : “ It is a rule, if a letter or writing amounts to an admission or confession, it must be put in issue, in order that the party against whom it is to be read, may have an opportunity to meet it by explanations or evidence.”

“The rule,” he says, “is not confined to writings, but applies to every case where the admission or confession of a party is to be made use of against him. Thus it has been held, that evidence of a confession by a party, that he was guilty of a fraud, could not be read, because it was not distinctly put in issue. So, also, evidence of alleged conversations between a witness and a party to a suit, in which such party admitted that he had defrauded the other, was rejected, because such alleged conversations had not been noticed in the pleadings. ‘ No man,’ says Sir Anthony Hart, *‘*would be safe, if he could be affected by such evidence. Lord Talbot said, long ago, that if you were to oust a defendant for fraud alleged against him, and the fraud is proved by the acknowledgment of the defendant, that he had no right to the matter in litigation, the plaintiff must charge that on the record, to give him an opportunity to deny or explain and avoid it.’ ” (See Story’s Eq. PL § *265.)*

The admissions here sought to be read, are not the admissions of any party to the record, but they are the admissions of Hartzog, through whom the plaintiffs derived their title, and through whose *admissions*alone, their title stands affected with a suspicion of fraud.

Hartzog has paid the debt of nature, and no explanation can be given by him. It is true, that the authorities quoted, speak of the admissions of parties to a suit. It seems to me, that the principle is the same, and that it is even more dangerous to admit the parol declarations of a *deceased*grantor against the validity of a title he was about to execute, without making the truth of such declarations an issue in the pleadings. And this the defendants in their answer have not done. There are difficulties which present themselves from another point of view. *137The admissions of an owner against his own title, are sometimes, and under proper restrictions, competent testimony against his grantee, provided they were made when the grantor was the owner, and when he alone was interested. It is equally clear, that the admissions of the grantor, made after he had conveyed his estate, are not competent against the party to whom it was conveyed. The distinction lies upon the ground, that in the latter case, it is the admission of a party who has no interest in the subject matter. Can the title of the grantee be affected by an imputation of fraud or other defects cast upon it by the grant- or, when in pursuance of a precedent agreement he is. just about to execute his deed of conveyance, when these declarations are made, not to, or in the presence of the grantee, but to a stranger ? In an issue between the grantee and another party, would those admissions be competent evidence *1*For the purpose of illustration, suppose the case of a party who has sold his property, and pending the preparation of conveyances, he whispers to a third person, (not in the presence of the vendee,) that the title he is about to execute is .contaminated with fraud, or defective in some other particular. In an action betweén the vendee and another party, could the admissions of the vendor, made under these circumstances, be received as competent evidence ? It seems to me they must be rejected, as the admissions of a person who has virtually ceased to be interested. Again: according to Dr. Tarrant’s statement, Hartzog said that he was the trustee; that he had held the property long enough, and that he wished to convey it to other trustees, (Hair and Heed;) *then*it is the admission of a trustee against the rights of the beneficiaries of the trust: — is the proof of such admissions competent against the *cestui que trust ?*I think not The whole of this doctrine of the competency of admissions by parties, is founded upon the principle, that such admissions are made by the parties in interest, and against *their own*interest. The law presumes that admissions against one’s own interest are true, and no admissions are ever received as evidence except under these circumstances, and on this principle. But a trustee is not *138in reality a party in interest — his legal title is a barren estate— his admissions against the rights of the *cestui que trust*do not affect his interest. They take no money out of his pocket. He may admit away the rights of those for whom he holds, and it costs him nothing. Such admissions do not come within the principle upon which (foe competency of such evidence rests. The safeguard for their truth and reliableness is wanting. These views would apply if Hartzog was still the trustee and a party to the record.

But to make the case stronger, Hartzog is dead, and long before his death ceased to be the trustee, if he ever was. If he were alive, he might be examined as a witness. By his death before this trial, the defendants have the misfortune, not uncommon, of losing a witness, whose declarations cannot be received as evidence. But, suppose the whole statement of Hartzog to Dr. Tarrant to be admissible, and to be received as evidence, it would be difficult to say that the defendants had made out more than a suspicion of fraud. If these declarations of Hartzog be considered, the case made out by the evidence amounts to this: That Hartzog did not himself buy and give the property to Head’s wife and children, but that the property was conveyed by Head to him, in trust for his family. If this be true, the confession of judgment, when nothing was due; the bill of sale, purporting to be for full and valuable consideration ; the receipt for the purchase money, when no money was paid — all these circumstances were in a high degree suspicious. But Hartzog did not say to Tarrant, that a fraud against Head’s creditors was contemplated, nor did he explain why he thought his deed to Reed and Hair, “ would make a stronger link in the chain.”

They may have supposed that a voluntary deed from Head would not prevail against' his future creditors, and the finessing, if it existed, may have had reference to that state of things. It is an important fact that no debt of Head’s, cotemporary with the date of the deed of trust, and for several years afterwards, has been proved, nor is there any general *139proof of his pecuniary embarrassment or insolvency at that time.

One witness, (Jacob C. Kitching,) says, that in 1833 or 1834, Hartzog came to his mill and put up an advertisement, calling upon “all persons indebted to Head to make payment to him, and that all persons whom Head owed should render their demands to him for payment.” This does have the appearance of an arrangement to defeat creditors, and, as has been said, it has not been shown that there were any creditors at that time to be defeated. There is no proof of a solitary debt at the date of the deed, except the inference that may arise from the fact of this advertisement having been put up by Hartzog before the world. Therefore, admitting all of Tarrant’s evidence to be competent, I do not think that the defendants have made out a case which could authorize me to say, that the deed of trust was void for fraud. If Hartzog did, in fact, pay no consideration for the negroes, and they were conveyed by Head to him, to be held in trust, for the benefit of the wife and children of the latter, or to be conveyed by Hartzog to some other person, for the same purpose, this, I think, would make it a post-nuptial marriage settlement. As such, it would come under the provisions of the statute law, requiring marriage contracts and settlements to be recorded. It would be easy to evade the registry laws, if a man were permitted to convey his property to another, with the understanding that it should by him be conveyed to a third party, in trust for his wife and children, and say this is not a marriage settlement; thus accomplishing by indirection, what could not be directly done. Equity will look at the transaction as it is, will regard it in its true character, stripped of all the disguises with which it may be invested. And if the arrangement be intended as a provision out of the husband’s estate for his wife and children, made after marriage, it is a post-nuptial marriage settlement, whatever' may be the forms which the conveyance assumes. It would, therefore, be void against creditors, without notice express or implied. If the deed of trust in this case be a marriage settlement, it would be void against the debts of the defendant, *140Baxley, for he had no express notice, and no implication of notice could be raised against him from the registry of the deed in the office of the Register of Mesne Conveyances. But having ruled out the declarations of Head and Hartzog as incompetent, there are not sufficient grounds for deciding, that the transaction was different from what it purported to be — a gift from Hartzog. The decree must be for the complainants.

It is ordered and decreed, that the levy upon the negro Jesse be discharged, and that the defendants be perpetually enjoined from levying upon and selling any of the property conveyed in the said deed of Henry Hartzog to the said Reed and Hair, in trust for the complainants.

It is further ordered and decreed, that the defendants pay the costs of suit.

The defendants appealed on the grounds :

1. Because the decree rejects as inadmissible, the declarations of Hartzog, made prior to his alleged conveyance to Hair and Reed — whereas said declarations are admissible as evidence against the assignees of Hartzog, claiming under him, imme'diately or remotely.

2. Because said declarations abundantly establish that the transaction in question was a *'post-nuptial*marriagé settlement by Plead, and as such, it is void, for want of recording, against such of Head’s creditors as had no actual notice of it.

3. Because the decree is contrary to equity and the evidence.

*J T. Aldrich,*for appellants.

*Bellinger, Hutson,*contra.

The opinion of the Court was delivered by

Dunkin, Ch.

The Chancellor was of opinion, that if the bill of sale from Shériff Harley, to Henry Hartzog, (the brother-in-law of the complainant,) dated 1st October, 1832, was merely colorable, and that he held the slaves on a secret trust, for Newport Head’s wife and children, which was carried into effect by the deed of 28th January, 1833, to the trustees Reed and Hair, *141this must be regarded as a post-nuptial settlement, and would be void for want of proper registry. In this view, this Court unanimously concur, and it is unnecessary to add materially to the reasoning of the Chancellor on this subject. If the deed of January, 1833, was, *bona*fide, a settlement by Hartzog on the family of Head, it would not be sustained by the consideration of marriage, and would be, in no respect, a marriage settlement. But, if the property belonged to the husband, who confessed a voluntary judgment to a third person, and then had the property sold at Sheriff’s sale, to the plaintiff under such judgment, who, thereupon, settled the property on the family of the apparent debtor, this flimsy contrivance cannot defeat the beneficial provisions of the statute. It is void as to creditors, if not recorded in the proper offices, within the time prescribed by law.

The character of the transaction, was proved by evidence of the declarations of Henry Hartzog, (who is since dead) made while he held the Sheriff’s deed for the slaves, and before his transfer to Reed and Hair as trustees. • The Chancellor received the evidence as reported to him by the Commissioner, subject to objection, and it is set forth in the decree. If admissible, it establishes, very clearly, the declarations of Hartzog, that Head owed him nothing at the time of the purchase from the Sheriff, and that Head had transferred the negroes to him for the benefit of his (Head’s) wife- and children. Upon consideration, the Chancellor rejected the testimony and decreed for the complainants ; and the rejection of this evidence constitutes the defendants’ first ground of appeal.

There are several classes of cases, in which the admissions of third persons, not parties to the suit, are admissible in evidence. It is done, for instance, says Mr. Greenleaf, (Yol. 1, § 181,) *“*when the issue is, substantially, upon the mutual rights of such persons *at a particular time ;*in this case, it is the practice to let in such evidence in general as would be legally admissible in an action between the parties themselves.” Can there be any doubt that, in an action between the complainants and Henry Hartzog, or between these-'defendants and Henry Hartzog, *142his admissions as to the character of his title at that time, would be receivable in evidence? If, prior to the deed of January, 1833, the complainants had sought to enforce the trust, or the creditors of Head had attempted to set aside the Sheriff’s deed of October, 1832, would not the admissions of Henry Hartzog be evidence of the most direct and satisfactory character ?

The admissions of a person not a party are also admissible, in respect of his privity with a party. Id. § 189. The trustees under the deed of January, 1833, are privies in estate with Henry Hartzog, and any admissions by him qualifying his right, and made while he held the legal title, are receivable in evidence against his successors, in the same manner as they would have been against himself. See also § 190. The Chancellor remarks, that “Hartzog, if alive, might be examined as a witness. By his death, the defendants have the misfortune, not uncommon, of losing a witness whose declarations cannot be received in evidence.” It does not appear to us that the defendants would have been obliged to make a witness of Hart-zog if alive; or that they have lost anything by his death. His admissions, made in 1832, would be equally receivable in evidence, although he were now to testify that those declarations, thus made by him, were not true, or that he never made them. *“*These admissions by third persons ” says the elementary writer, already cited, § 191, “ as they derive their value and legal force from the relation of the party making them to the property in question, and are taken as parts of the *res gestoe,*may be *'proved by any competent witness*who heard them, without calling the party by whom they were made. The question is, whether he made the admission, and not merely, whether the fact is as he admitted it to be. Its truth, where the admission is not conclusive, (and it seldom is so,) may be controverted by other testimony; even by calling the party himself when competent; but it is not necessary to produce him; his declarations, when admissible at all, being admissible as original evidence, and not as hearsay.”

A majority of this Court is of opinion, that the admissions of *143Henry Hartzog, as proved, were properly receivable in evidence, and that, corroborated and confirmed as they are by his deed 'to the trustees, of January, 1833, it established this latter to be a post-nuptial settlement, within the provisions of the Acts of Assembly. Not having been duly recorded, it should have been declared void as to the rights of creditors. It is ordered and decreed, that the decree of the Circuit Court be reformed— that the injunction be dissolved, and that the bill be dismissed, but without costs.

JohNston, Dargan and Wardlaw, CC. concurred.

*Decree reversed.*«