#### *Alexander H. Abrahams*vs. *James P. Cole and others.*

Where, pending suit against him, a debtor removed with his property (slaves) beyond the limits of the State, and after recovery of judgment, and after plaintiff’s execution had lost its active energy, the slaves were brought back into the *State:*— Iield} that plaintiff could sustain a bill to prevent the removal of the slaves until, he could revive his execution.

When a post-nuptial marriage settlement is void, as to creditors, for want of registration, a creditor, seeking satisfaction out of the property, may proceed as if no such deed existed.

*Before*Johnston, Ch., *at Charleston, March,*1852.

Joseph E. Cole, then a resident of Beaufort District, executed, March 2, 1832, a post-nuptial marriage settlement, by which he conveyed to Thomas Talbird, the elder, his distributive share of his father’s estate, (afterwards ascertained to consist of negroes,) in trust, “for'his wife and her children, should there be any, to be equally divided at his death ” — reserving to himself “ the right to the income, or to the possession, the one or the other, during his natural life.” This deed was recorded, May 7, 1832, in the Register’s office for Beaufort, but was never recorded in the Secretary of State’s office. In November, 1836, the plaintiff filed a bill, in the Court of Equity for Beaufort, against Joseph E. Cole, for dissolution of a copartnership then existing between them, and for account; and in May, 1841, obtained a decree against him for $3,000, besides interest and costs. Execution upon the decree was lodged, May 28, 1841. Pending the proceedings upon plaintiff’s bill — to wit, in 1836 or 1837 — Joseph E. Cole removed, with the negroes embraced in the settlement of 1832, to Alabama, where he died, June 10, 1841. The negroes were not returned by his administrator, as part of his estate, but were removed, shortly after his death, to Texas, by James P. Cole, who acted as the agent, of the trustee, who resided in Beaufort. The estate of Joseph E. Cole was declared to be insolvent, and the plaintiff received from the administrator in Alabama about $1,300, his ratable share of the. assets.

*336In 1843, the trustee, Thomas Talbird, the elder, died, and his son and executor, Thomas Talbird, the younger, assumed to act as trustee. At the death of Joseph E. Cole, the *cestui que trusts,*under the settlement, were his two infant children— his wife having pre-deceased him. Their residence was in Beaufort. In September, 1848, the negroes were sent by James P. Cole to South-Carolina, and they were hired out in Charleston by Edmund R. and Joseph B. Cheesborough, the agents of the trustee, Thomas Talbird, the younger. .

In January, 1851, the plaintiff, having discovered that the negroes were in Charleston, induced his friend, Jacob Cohen, to apply for letters of administration on the estate of Joseph E. Cole, and, as his execution had lost its active energy, he filed this bill against James P. Cole, Thomas Talbird, the younger, and Edmund R. and Joseph B. Cheesborough, for account; for an injunction to restrain defendants from removing or selling the negroes ; and for general relief. The bill was afterwards amended, by making the two infant children of Joseph E. Cole, and Jacob Cohen, who, in the mean time, had become his administrator, parties.

Johnston, Ch. It is unnecessary to make a statement of this case. The whole case is set forth in the pleadings and evidence in writing. I shall proceed directly to the delivery of the judgment of the Court.

There is strong ground to infer, from the testimony of William Barnwell, that the deed was executed by Joseph E. Cole while he was deeply indebted. But there is no necessity to inquire into the existence of that fact, or, if it existed, how far it tended to vitiate the deed, as against the plaintiff, Abrahams. It is sufficient that the deed is a marriage settlement, according to the case of *¿Sibley*vs. *Tutt,*(McM. Eq. 320,) and as such void, as against creditors, for the want of a schedule, and particularly for the want of registration, as required by the statute of 1823. (a)

*337It is said, however, that the plaintiff is barred of the remedy he seeks, because he did not proceed, within the statutory period, to set the deed aside.

It may admit of doubt whether he is barred, even if he were now seeking a decree to cancel this instrument. The statute of limitations is a bar only in the forums of this State. It cannot run, unless the party has an opportunity for an effectual proceeding in our own Courts. It may be doubted whether the absence of James P. Cole, who was in custody of the slaves in foreign parts, did not preclude an effectual proceeding. The presence of Talbird, the trustee, in the State, was not of itself sufficient to sustain a bill to set aside the deed. It would have been necessary for the plaintiff to bring before the Court both parties to the deed — both the grantor and the grantee. But the grantor was dead, and, until lately, had no personal representative within the jurisdiction. Could the statute run until Cohen took out letters ? The statute does not run when the suit is to bear against an individual who is dead, until there is a representative to be sued; and I suppose, that when the suit must necessarily embrace a deceased person, as one of several defendants, the statute is equally inoperative, until-a representative of that individual exists.

But if a suit for the purpose of cancelling the deed would be barred, does it necessarily follow, if the plaintiff has another remedy, that that remedy is also barred ? The contrary would seem to be reasonable, and not without authority. *Cholmonde-ley*vs. Clinton, 2 Meriv. 201.

The statute of 1823 makes the conveyance absolutely void, as against creditors. But, says Chancellor Harper, in *Fripp*vs. Talbird, (1 Hill, Ch. 143.) “ when it is said that a deed, good between the parties, is void as to creditors, there is, perhaps, a want of exact precision in the language. They may treat it as void. They are not compelled to institute any legal proceedings to avoid it, but may seize the property as if there were no deed. But, until they do seize the property, the deed remains perfectly good.”

*338It is clear, that no length of possession of the negroes, out of the State, would have any effect as against the plaintiff’s *fi.fa.*Whenever they were brought within its limits, the lien of the execution attached upon them, as was long ago decided in one of our reported law cases.

If the plaintiff’s execution had been leviable, as well as binding, whep he discovered the negroes, which had returned in September, 1848, he might have levied on them. But when he found out that the negroes were here, his execution had lost its active energy. His bill was filed to prevent their being eloigned, (in substance, to preserve the property,) until he could renew his *fi. fa.*

It is proper to remark, that in one of our cases, something is said apparently contradictory to Chancellor Harper’s assertion of a creditor’s right to avoid a trust deed by levying on the property. I cannot think, however, that though a creditor be obliged to forego a direct levy, and be obliged to come here to have the benefit of a lien and of a levy, that, therefore, we are to divest him of all the advantages he would have had from his execution, if he had levied it. Our interference with his legal right should not prejudice, him, but we should allow him the benefit of all the rights he would have had, had we not interfered. Our interposition is to protect the property of *cestui que*trusts, but not to frustrate the just rights, or frustrate the remedies, of creditors.

So much upon the merits of the case. As to James P. Cole, he has not been properly made a party. He is not within the jurisdiction, nor is he interested in or chargeable with the custody of the negroes since they came here. He has no agent here, nor has he had any agency in the suit. It is therefore ordered, that the bill be dismissed, as to him.

It is decreed, that the slaves (except Maria, to whom the plaintiff has made out no case) be delivered up, to be sold, in satisfaction of the plaintiff’s debt, referred to in the bill, and of the costs in this case.

If the plaintiff desires an account of hire, let him go before *339one of the Masters : I suppose he will be entitled to the balance of hire unexpended by the trustee. But I reserve the point, and leave it to be made before the Master, and so come up upon exceptions to the Master’s report.

The defendants appealed on the following grounds :

1. Because his Honor ought to have decreed upon the case made by the pleadings and evidence, that the defendants had acquired a right by possession to the negroes named in the bill; and that they were no longer subject to the debts of Joseph E. Cole.

2. Because, although there was no administration on the estate of Joseph E. Cole, in this State, until after the filing of the complainant’s bill, yet such administration was not neces.sary to give to the defendants’ possession of the said negroes an adverse character; but necessary only to enable the complainant to show that his decree had not been satisfied, and to revive it; and it was therefore his duty to cause administration to be taken opt.

3. Because the trustee, Thomas Talbird, sen., during his life, and his executor after his death, as well as James P. Cole, the administrator in Alabama, had each, by his possession of the negroes, made himself liable as executor *de son*tort, of Joseph E. Cole, and might have been sued, in that character, in this State, notwithstanding the property was out of the State.

4. Because the right of the complainant to revive his decree, and, under his execution, to levy on the property of Joseph E. Cole, is not denied; but it is submitted that the negroes in dispute, having been carried out of the State by Joseph E. Cole, before the complainant obtained his decree, were never subject to the lien of the execution; and when brought back, eight years after the death of the said Joseph E. Cole, the infant defendants had, by the possession of their trustees, even though it might have commenced in fraud, acquired a statutory title, as against all the world.

*3405. Because it is not pretended by the complainant that he was not apprised of the execution of the deed by Joseph E. Cole, at the time, or shortly after its execution ; or that he was not informed of his removal with his property to Alabama, and of his- death, at the time it happened, or that he was ignorant that the trustee, who held possession of the negroes for the defendants, and the defendants themselves, were living in the town of Beaufort, in this State, at the death of the said Joseph E. Cole, and so always continued to live,-,without interruption.

Wherefore, it is humbly submitted, that complainant ought to have filed his bill, to subject the specific property of Joseph E. Cole to the payment of the decree, within four years after the death of the said Joseph E. Cole.

6. Because, if the complainant has the right to subject the negroes in dispute to the payment of his decree, he certainly has no right to any account of their hire and wages from the trustee; it is therefore submitted that the decree is erroneous, in directing such account to be taken.

*Treville,*for appellants.

*Campbell,*contra.

(a)

**6 Stat. 213, 482.

The opinion of the Court was delivered by

JohNston, Ch.

There is no mistaking the ground upon which the decree is founded. The bill is framed with the sole object of subjecting the negroes, which were brought into this State in 1848, to the lien of the plaintiff’s execution against Joseph E. Cole. The plaintiff had obtained his judgment against his debtor, and had lodged his execution ; hut, pending the suit, the property had been removed to Alabama, and there was nothing within the jurisdiction out of which the money could be made. When the property was brought back, in 1848, for the first time the lien of the execution attached upon it, if it was Joseph E. Cole’s property; but, as the execution had lost its active energy, and the property was liable to be eloigned, *341it was necessary for the plaintiff to come here, to prevent its removal, until he could renew its execution according to the statute of 1827.

This is the whole case upon which the decree is founded ; and it would be a very simple one, if the debtor had never alienated the property. Independently of that circumstance, there could be no doubt the Court would be bound to lend its aid for the preservation of the property, to answer to the execution.

The property, however, had been alienated ; but the alienation was ineffectual, inasmuch as it was made by way of post-nuptial settlement, and the instrument had not been duly registered. It was void against the creditor, for want of registration. This point being decided, the plaintiff was entitled to his decree, as if no such settlement had been made.

It was not necessary to inquire whether the plaintiff was barred of his remedy, to set the conveyance aside: because, in fact, he needed no such remedy. Nor did the bill seek to set the instrument aside. All that is said in the decree upon that subject, and upon the subject of the parties necessary to such a proceeding, and the operation of the statute, as affecting that remedy, is merely speculative; and intended to meet arguments made at the hearing; the counsel having supposed that, in addition to the remedy which his bill specifically prays, he might have been entitled, under the general prayer, to have the deed set aside and cancelled.

We are satisfied that the decree is right, in aiding the plaintiff to the lien of his execution; which is the only point decided: and it is ordered that the decree be affirmed, and the appeal dismissed.

DunkiN, Dargan and Wardlaw, CC., concurred.

*Decree affirmed.*