#### *Martha Jackson, per pro. amie,*vs. *Jas. McAliley, and others.*

1. By a decretal order of the Court of Equity, made July 1835, in a case for partition, certain slaves were ordered to be vested in M. X, then the wife of W. J., “for her sole and separate use for life, and on her death to such child or children as she may leave living, share and share alike; and upon her dying without leaving such child or children, then the said negroes are to be vested absolutely in W. J.” Also ordered that said W. X, “do execute to the commissioner of this Court, proper trust deeds of the slaves assigned to the wife of M. X, on the terms and under the limitations set forth in the decree, and that the deeds be immediately and within the time required by the Act of the Legislature, recorded in the office of the Secretary of State, in Columbia, and in the office of the Register of Mesne Conveyances for Chester district.”

2. J. M. B. was guardian of his minor children, of whom complainant was one; and by an order of the Court of Equity, made at July Term 1831, he was ordered “to account before the Commissioner for his guardianship, and .to deliver over the estate of his children into the hands of the commissioner of this Court, unless he account fully before the commissioner, and give new security for the faithful discharge of his duty, &c.”

3. Under this order the commissioner hired out the slaves of the estate, including those embraced in the decretal order of 1835; and at the end of that year permitted W. X to take the negroes ordered to be vested in his wife, without executing the deed of trust directed.

4. A deed of trust was executed in 1841, and duly recorded.

5. Subsequent to his possession of the slaves the husband contracted a debt to the defendants, for which they obtained a judgment, and had their execution levied on the property.

6. It was held that the possession of the husband, under the delivery by the commissioner, was that of the trustee for the separate use of the wife; and that the property so held was not subject to the lien of judgments and executions for his debts.

7. Even a purchaser, still more a volunteer, taking possession of trust property with a notice of the trust, will be made a trustee by the Court.

8. In order that the marital rights may attach, at all events in this Court, it is necessary that the husband should take possession as husband and as of his own property, and not as trustee.

9. Permitting the property to go into the husband’s possession, though he may have thereby gained credit, could not of itself constitute fraud. It must be the fraud of the party beneficially entitled which will preclude him from asserting his title to it; and as in this case the wife was such party, *304the possession of the husband not having been acquired by any fraudulent contrivance of hers, her right could not be effected.

*Before*Dunkin, Ch. *at Chester, June Term,*1842.

By a decretal order made in the case of *James Barber and others*vs. *Rebecca Barber and others,*at July Term, 1835, for partition, it was ordered, that the slaves Ibby and Jane be vested in the complainant, (who was then married to Wm. Jackson,) “for her sole and separate use for life, and on her death to such child or children as .she may leave living, share and share alike; and upon her dying without leaving such child or children, then the said negroes are to be vested absolutely in Wm. Jackson.” It was also ordered, that the said Wm. Jackson “do execute to the commissioner of this Court, proper trust deeds of the slaves assigned to his wife, Martha Jackson, on the terms and under the limitations set forth in the decree, and that the deeds be immediately and within the time required by the Act of the Legislature, recorded in the office of the Secretary of State,, in Columbia, and in the office of the register of mesne conveyance for Chester district.” By an order made at July Term, 1831, in the case *James B. Pickett and John Pea,y*vs, *John M. Barber,*the letters of guardianship granted to the defendant in that case, as guardian of his minor children, (of whom the complainant was one) had been revoked, and he was ordered “to account before the commissioner for his guardianship, and to deliver over the estate of his children into the hands of the commissioner of this Court, unless he account fully before the commissioner, and give new security for the faithful discharge of his duty, (fee.”

The parol evidence of Mr. Samuel McAliley, (who was then the commissioner,) stated that under the last recited order of Court, he, as commissioner, hired out the negroes of the estate, including those now in litigation, until the decretal order first recited was made, and that at the end of the year 1835, after that decretal order, he permitted the husband, Wm. Jackson, to take the negroes allotted to his wife, without having executed the deed of trust. If Wm. Jackson had them in his possession previous to *305January 1836, it was under a contract of hiring with the commissioner. Subsequently to the 1st of January 1836, the debt of William Jackson was contracted with the defendants, McAliley and Ross, who afterwards obtained judgment thereon, and had their execution levied on the negroes now in litigation, as the property ofWra. Jackson, in order to satisfy their execution, without notice of the decretal order of 1835. A deed of trust was executed in October 1841, which was then recorded in proper time after its execution. The bill was filed to July Term, 1842, by the complainant, to have the benefit of the decretal order which had been made in 1835, ordering a partition of the negroes and a settlement of her proportion of them upon herself and children, and to enjoin the defendants from selling. His Honor Chancellor Dunkin pronounced the following decree, dismissing the bill:

Dunkin, Ch, The Court has carefully compared the circumstances of this case with those of *Price,*vs. *White*(1 Bail. Eq. 244) and has been entirely unable to discover any distinction in favor of the complainant.

Nothing can better illustrate the insufficiency of such decrees to protect the rights of married women than is developed by this cause. The husband is ordered to “execute to the commissioner of this Court proper trust deeds, on the terms and conditions set forth in the decree.” The order is made in 1835, the husband having been in possession since January previous. He has a strong interest to remain absolute owner and defeat the settlement. No one but his own wife and children have any interest to require the execution of the deed. But suppose him willing, as it is believed he was in this case, who is to prepare and tender the deedl

Can the Court require the commissioner, against his consent, to act as trustee in such case 1 Is he to be charged with the duty of preparing and recording the deed *1*And to be responsible for the consequences, if not recorded intime'? Can the commissioner of the Court be required to look after the conduct of the husband; and, if he is about to eloign or waste it, must he take measures to *306restrain him, and take the immediate custody of the trust estate *1*

Without any apparant wilful neglect on the part of any one, a deed, ordered to be executed and recorded in June 1835, was not executed till October, 1841, and the present commissioner then declined, without the positive mandate of the Court, to accept the trust, as he did not conceive it fell within his duties as commissioner ; and would, probably, materially conflict with the performance of his other duties. These remarks are made in order that some remedial rule may be established by which efficacy may be given to the decree of the Court, passed for the protection of married women, while the just rights of creditors are not disregarded.

It was admitted by the counsel of the defendant that the marital right of Jackson did not attach until the partition in 1835. The Court is of opinion that, on the authority Of Price and White, the bill must be dismissed, but without costs. And it is so ordered and decreed.

The complainant appealed, on the following grounds:

1st. That the former decree vested the property in Martha Jackson, and that the possession of the husband was as trustee under that decree, and in consequence the marital right did not attach so as to make the property subject to the husband’s debts.

2d. That no settlement having been made under the decree, it was not a case depending upon the registry Acts, in relation to marriage settlements.

3d. That no settlement having been made under the decree, and no final report of a settlement having been made to the Court, the case was still sub judice, and the possession of the property was in the Court, and having-been delivered to the husband by the officer of the Court, without a settlement, such delivery was in derogation of the decree of the Court, and wrongful, and the Court will set it aside, and recognize the deed of settlement which was subsequently made.

M’Call, for the appellant,

cited 1 Baily Eq. 244; 4- Yes. 18; 10 Yes. 90; 4 DeSaus. Rep. 591; 1 Mad. Ch. 485.

Gregg, contra.

*307
      *Caria, per*Harper, Ch.

There is certainly no question with respect to the recording of a marriage settlement, (supposing the conveyance directed by the order of the Court to be such settlement.) The only settlement executed was duly recorded. Then on what ground is the property in possession of the husband to be regarded as liable to bis creditors'! The argument is, that the slaves in question were the property of the wife, which the husband has reduced into possession, and which must therefore, to all intents, be regarded as his property. But in order that the marital rights may attach, at all events in this Court, it is necessary that the husband should take possession as husband, and as of his own property, and not as trustee. It has been repeatedly decided, that if the husband be in possession as administrator of an estate, of which his wife is entitled to a distributive share, the marital rights will not attach until the estate be fully administered and partition made. If he be in possession, as executor, of a specific legacy given to his wife, the marital rights will not attach until, by some act, he signifies his assent to the legacy, and his intention to take possession in the character of husband. If property be given to the separate use of the wife, by deed or by will, without the intervention of a trustee, it is the well settled doctrine of this Court, that, though the marital rights may attach at law, the husband will be regarded as trustee ; still more, if property were given to the husband, expressly, in trust for the separate use of his wife. And the lien of a judgment or execution will not attach on property which a man holds only as trustee. A specific legal lien will prevail against subsequent general legal liens, as where land is articled to be sold, the contract will be enforced against subsequent judgment creditors. *Finch*vs. *Marquis*of *Winchelsea,*1 Pr. Wms. 277. Is there any doubt, but that in the present instance a bill would at any time have been sustained on the part of the wife-against the husband, to compel him to execute a settlement in pursuance of the order of the Court *1*But a trust in personalty may be created by parol, without deed or writing, and the same law would apply if personal property wTere delivered to the husband, with a parol declaration, that it was in trust for the separate use *308of his wife. But this is precisely what I understand to have been done in the present case. The commissioner in equity was a trustee for the wife, and delivered the property to the husband, in pursuance of the order of the Court, and with a view to a settlement being made. Even a purchaser, still more a volunteer, taking possession of trust property with a notice of the trust, will be made a trustee by the Court.

I know of no other ground on which the decree could be sustained, unless that there was fraud in permitting the property to go into the possession of the husband, so as to enable him to gain credit. But this cannot of itself constitute fraud, or every one who lends or hires property to another, or furnishes him with goods on credit, would be guilty of the same sort of fraud. Though the commissioner may have been guilty of negligence, in delivering the property to the husband, until the settlement made and recorded, I do not perceive that any fraudulent purpose can be imputed to him. But it must be the fraud of the party beneficially entitled to the property, which will preclude him from asserting his title to it. The wife was such party in the present case, but it does not appear that the property went into the possession of the husband, by any fraudulent contrivance of hers, or that she had any agency in the matter.

It is ordered and decreed, that the decree of the Chancellor be reversed, and that the defendants be perpetually enjoined from enforcing *their execution on the*slaves in question.

Johnson, Ch. concurred.

Johnston, Ch. absent from indisposition.