#### Napier, *Rapelye and Bennett*vs. *W. J.*Wightman, *and Ann, his*wife, *and John Bauskett.*

1. J. M. died in 1834, possessed of considerable real and personal estate. A. M., E. M. and H. M. were his next of bin, and heirs, all of whom were aliens. The interest of the State in the realty was granted to A. M, in Dec. 1834, by the Legislature ; and in 1835, administration of the personalty having been granted by the Ordinary, to defendant, B., he sold the same at public auction, the greater portion of which was purchased by defendant, W., who had intermarried with A. M., to an amount beyond her interest in the estate. W. did not comply with the terms of the sale, by giving note and security, or any other obligation for the purchase money, but retained possession of the property, under an agreement with the administrator, that the legal title should remain in him, as a security for any sum which might he due him by W., on settling the accounts of the estate ; and that the balance should be settled on the wife of W., on such terms as should be deemed expedient. In July, 1837, defendant joined in a deed, in which, after reciting the facts above stated, W. and his wife conveyed to the administrator, B., three several plantations of which J. M. died seized, together with the property purchased by W., at the sale, upon certain trusts: 1. To discharge any arrears or balance due the administrator, by W. and wife, or by W., on account of his purchases at the sale of J. M., beyond the distributive share of his wife, or on account of money advanced by the administrator to W. since his administration. 2. That the administrator permit W. and wife “to have, hold, use and enjoy, the income and profits of all and singular the said properly, both real and personal, during their joint lives, and from and *358after the death of one of them, then for the exclusive use and benefit of the survivor, during life.”

2. The deed further provides, in the event that W. died first, he should have power to dispose of one half the personalty by will, to take effect after the death of his wife, reserving to her a life estate. If he made no will, then to be distributed according to the statute of distributions, as in cases of intestacy; and in the event that the wife died first, the same power is reserved to her, as to the other half of the personalty, and all the real estate, to take effect after the death of the husband, to whom a life estate in both is reserved. Should she not make a will, to be distributed in like manner amongst her kindred. Deed recorded in the office of the Secretary of State, 5th August, 1837, and in that of the Register of Mesne Conveyance, 1st January, 1838. Complainants were the creditors of W., to whom, in June, 1823, he confessed judgment, in the Superior Court of Richmond County, Georgia, and in June, 1836, the sheriff returned *nulla bona*on the execution. They, af-terwards, brought debt on the judgment in the Federal Court for the district of South Carolina, and recovered. The marshal returned *nulla bona*on the execution. By letter of the 1st July, 1839, W. informed the marshall that he had no other than the settled property, referring to that described in the deed. It was alleged that defendant, B., after formal notice of the demand of complainants, sold tho greater portion of the estate, both real and personal; and admitted by defendants that sales, to a considerable extent, were made under an order of the Court of Equity, but that a large portion of the property remained undisposed of It was *held*that the administrator, B., had a lien on the property for whatever balance might be due him from W., on a settlement of the estate. Also, that the remaining property, after paying B., would be liable to complainants’s demand.

3. Also, that the deed was not a marriage settlement, within the meaning of the Registry Act, and not void as to creditors, for want of recording. *Vide, The Banks*vs. *Brown,*2 Hill’s Ch. Rep. 565.

4. Under the agreement with the administrator, the legal title to the property purchased at the sale, did not vest in defendant W. *Vide, Dupree*vs. *Harrington,*Harp. Rep. 391; *Bennett*vs. *Sims,*Rice Rep. 421.

5. As defendant, B.. had a pripr lien on the property, for a demand not yet ascertained, the Law Court having no authority to direct an account, this court had jurisdiction of the cause.

6. It was the interest of both parties, and especially the defendants, that their rights should be first ascertained, and this is the foundation of the general rule that when a deed stands in the way of a creditor, he may come into this court to set it aside. *See*2 Story’s Equ. 9, 10.

7 *Query.*Whether defendant, W., under the statute of Uses, had a vested interest in the whole of the real estate for life ?

*3598. All other matters being out of the way, the entire income of the estate for the joint lives of defendant, W. and wife, and the one half of the personalty, saving the life estate of the wife, if she survive, would be liable for his debts. Per Johnson, Ch.

9. Defendant, B. ordered to account before the Commissioner for his administration of his intestate’s estate, so far as the interests of his co-defendants were concerned. Also, for monies advanced them since his administration, with a view to ascertain whether any, and what, balance might be due them; but the court declined to express any opinion on a motion on the part of complainants, to extend the order, so as to require B. to-account for the rents of the land; for the hire of the slaves conveyed to him by the trust deed; also, for money received by him on account of sales of portions of the real estate, as its merits would nesessarily arise on the reference as to W’s. indebtedness to defendant, B.

*Before*Johnson, *Ch.,at Edgefield, June Term,*1841. The facts of this case will be fully understood from the decree of the presiding Chancellor.

Johnson, Ch. John Moore died in September, 1834, intestate, being at the time seized and possessed of a considerable real and personal estate. The defendant, Ann, her brother, Henry Moore, and her sister, Eleanor Moore, his nieces and nephew, were the next of kin, and heirs, and they were all aliens. His real estate, of course, es-cheated to the State, and the Legislature, by an Act passed in December, 1834, granted to the defendant, Ann, all the interest of the State in the realty. Administration of his personal estate was granted to the defendant, Bauskett, who sold the whole at public auction, in 1835, under the authority of the ordinary. At this sale, the defendant, William J. purchased a large portion of the property, consisting, among other things, of seventy-nine negroes, a large number of live stock, furniture, (fee., to an amount .greater than the interest of his wife in it. He did not comply with the terms of the sale, by giving note and security, or any other obligation for the money, but he retained possession of the whole; and the defendants all state in their answers, that this was permitted under an agreement between him and defendant, Bauskett, that the title to the property should remain in Bauskett, as a security for any *360sura that might be due him from William J. on a settlement of the accounts of the estate, and that the balance should be settled on the defendant, Ann, under such limitations as might be deemed expedient; and Bauskett states in his answer, that he “never did permit-him to reduce said property into his possession, as the share of his wife, and never would have permitted him to do so, without proper security to himself, and an adequate settlement on his wife.”

In July, 1837, the defendants all joined in a deed, wherein is recited the death of John Moore, intestate; the interest of the defendant, Ann, therein; the grant of the State to her, of the lands oí which he died seized; the sale of the personalty by the administrator, and the purchases by defendant, William J.; his omission to give the security *361required by the terms of the sale, and the agreement that the legal.title to the property should remain in Bauskett, as a security for any sum that might be found due to him from the defendant, William J.., on a settlement of the estate, and the residue to be settled on defendant, Ann, on such terms as should be deemed expedient; and in consideration thereof, the defendant, William J. and his wife, Ann, conveyed to defendant, Bauskett, in the usual form, three several plantations whereof John Moore died seized, and all the personal property purchased by William J. at the administrator’s sale, all of which is particularly described, upon the following trusts, viz: 1st. To pay off and discharge any arrears or balance due to the said John Baus-kett, by the said William J. Wightman and wife, or Wil*362liam J. Wightman, on account of the prices or sums at which said personal property was bid off beyond the amount of the distributive share of the said Ann Wight-man, in the personal estate of the said John Moore, deceased ; or on account of money advanced by the said John Bauskett to the said William J. Wightman, since the date of his administration. 2d. That the said John Bauskett “shall and do permit and suffer the said William J. Wight-man and Ann, his wife, to have, hold, use, and enjoy, the income and profits of all and singular the said property, both real and personal, during their joint lives, and from and after the death of one of them, then for the exclusive use and benefit of the survivor, during life.” The deed then goes on to provide that William J., in the event of *363his dying first, should have power to dispose of one half thé personalty by will, to take effect after the death of the said Ami, reserving to her a life estate; and if he made no will, it should be distributed as directed by the statute of distributions in cases of intestacy. In the event of Ann’s dying first, the same power is reserved to her over the othet half of the personalty, and all the real estate, to take effect on the death of William J., to whom a life estate in both is reserved; and in the event of her not making a will, to be distributed in like manner amongst her kindred.

This deed bears date in July, 1837, the day of the month having been left blank. It is recorded in the office of the Secretary of State, 5th August, 1837, and in the office of Register of M. C., for Edgefield, 1st January, 1838.

*364The complainants are creditors of the defendant, William J. In June, 1823, he confessed a judgment to them in the Superior court of Richmond county, for $1857 73, a debt due to them by the house of Campbell and Wight-man, of which he was a partner; and on the 23d June, 1836, the sheriff of that county returned *nulla bona*to an execution in that case. In 1838, complainants brought debt on that judgment in the Federal court for the district of South Carolina, and there recovered judgment against the defendant, William J., for the amount of debt, interest and costs, and the marshal for the district returned *nulla bona*on the execution. A letter from defendant, William J., to the marshal, dated 1st July, 1839, was given in evidence, in which he states that he had no other than the *365settled property, referring to the property before described.

The complainants insist that this deed is void, and that the property is liable to their demands, on two grounds, 1st. That the said deed is a marriage settlement, and is void as to creditors, because it was not recorded in the office of Register M. C., within the time prescribed by law. 2d. That the property bid off by William J., at the administrator’s sale, vested in him, and his conveyance of it to the uses expressed in the deed, was voluntary, and void as to creditors, although the deed be not regarded as a marriage settlement.

The defendants take issue on these two grounds, and they further insist that the complainants are not entitled to *366come into this court until they have exhausted their remedy at law, against the defendant, William J. Preparatory to the consideration of these questions, it will be necessary to inquire into the defendant, Bauskett’s, connexion with, and interest in, the property in question. The complainants state in their bill, that defendant, Bauskett, after formal notice of their demand, sold the whole or greater portion of the estate, both real and personal; and the defendants admit in their answers, that sales were made to a considerable extent, under an order of this court, of the last term, for what purpose is not stated ; but I suppose it was on account of William J’s. liability to Bauskett; but that forty negroes and other property of considerable value are yet undisposed of; and whether the deed be void *367for want of recording or not, or void as to creditors, as merely voluntary, there is no question that Bauskett has a lien on the property for whatever balance may be due him from William J., on a settlement of the estate. No settlement has yet been made, and as I have come to the conclusion that the remaining property, after paying Bauskett, will be liable to complainant’s demand, I shall direct an. account of that matter.

The case of the *Banks*vs. *Broim et al,*2 Hill’s Ch. Rep. 565, is decisive of the first ground taken on the part of the complainants, to sustain their bill. There, it was held that a conveyance made by the husband, to the use of the wife, in consideration of her renouncing her inheritance in real estate, was not a marriage settlement within the meaning of the Registry Acts, and is not void as to creditors for want of recording; and the same rule applies, in all its force, to a conveyance founded on any other con*368sideration proceeding from the wife, provided the value of the property so conveyéd is not so disproportioned to the consideration as to induce the belief that it was intended to defraud the creditors of the husband.

Here the whole estate belonged to the wife, and the husband was utterly insolvent. The personal estate was in such form in the hands of the administrator, that the husband could not have obtained possession of it without his assent, and that, in his answer, he declares that he would not have given, or by a bill in this court. Under these circumstances, there can be no question that the court would have secured to her a large portion, if not the whole, of the personalty. Now, by this deed, the husband is entitled to the income of the whole, in common with the wife, during their joint lives ; to the whole, if he survive her, during his life, with the power of disposing of one half absolutely. In the event of the wife’s dying first, the husband would only have been entitled to the share of the real estate allowed by the Act of Distributions, and this deed secures to him the whole for life. These circumstances abundantly show that this settlement was founded on a consideration proceeding from the wife; and, as will be seen in the end, the rights relinquished by her greatly exceed any interests reserved to her by the deed.

It is stated in the answers, that defendant, William J., did not comply with the terms of the sale of the property which he purchased, and that defendant, Bauskett, suffered it to remain in his possession under an agreement that the title of the property should *remain in*Bauskett, as a security for any money that might be due him on a settlement of the estate, and that the balance should be settled on the wife. No evidence was offered on either side as to this agreement; but in the argument, the fact of such an agreement was assumed, and the question is, whether the property vested in William J.

In *Dupree*vs. Harrington, Harp. Rep. 391, the plaintiff sold a horse to one Haney, with a stipulation that the right of property should not pass to the vendee until one half of the price was paid; and it was held that until payment made, the legal property in the horse remained in the vendor.. The principle of this case was followed in *Ben*
      *369
      *nett*vs. *Sims,*Rice Rep. 421, and is conclusive of this question. There is another matter of some importance that has not been argued, which I suppose escaped the notice of counsel.

I take it as universally true, that a debtor is bound to surrender to his creditor all the available means which he possesses, in satisfaction of his demand, and that the courts of justice will compel him to do that which he ought to do. At law, all the property, real and personal, of a visible and tangible nature, and of which he is seized or possessed in his own right, is the subject of execution, and by a *ca. sa.*he may be compelled to surrender all his monies and choses in action, and other rights of an untangible nature. So all. property in which he has a vested interest, though not in possession, is liable to execution. In *Harrison et al.*vs. *Maxwell,*2 Nott *&*McCord, 347, it was held that a vested interest in real estate, dependent on the termination of a life estate, and whilst the tenant for life was in possession, was the subject of execution. A mortgaged estate is liable to execution against the mortgagor ; *Slate*vs. *Laval,*4 McCord Rep. 336. So if one be in possession of land under a contract to purchase, his interest may be taken in execution and sold; *Jackson*vs. *Scott,*18 John’s Rep. 94. So if there be joint partners, and execution against one, the whole partnership effects may be taken in execution, and the interest of the one sold; Com. Dig. Execution D. 4. And it would be slander on the Court of Equity to suppose, that the remedy there, in cases of which it has jurisdiction, falls, short of that afforded by the law courts.

Now, this settlement provides that the defendant, William J. and his wife, shall have the whole of this estate during their joint lives, without assigning any part to her separate use ; and if it be true,1 and that will not be controverted, that all the chattel interests of the wife belong to the hushand, he is entitled to the whole income of this estate, as long as they ’both live; and if arrested on a *ca. sa.*from the court of law, would be required to assign it.

I shall not stop here to enquire whether, under the statute of uses, the defendant, William J. has not a vest*370ed interest in the whole of the real estate for life. It is very clear, however, that under the provision in the settlement, he is entitled to the income of the whole estate, real and personal, for the joint lives of himself and his wife, and during his life, if he survives, with the power of disposition in either event, as to one half of the personalty, absolutely. I can not conceive of, any higher claim that one could have to property, than the right to the present use, and the power of absolute disposition, and unquestionably these rights are subject to the claims of his creditors.

These questions have not been argued, and are not required, necessarily, to be decided now. These suggestions have been thrown out for the consideration of the counsel, and will necessarily arise on the coming in of the report of the commissioner, on the accounts, a reference as to which will be ordered. I am, however, strongly inclined to think that, all other matters being out of the way, the entire income of the estate, for the joint lives of the defendant, William J. and his wife, and the one half of the personalty, saving the life estate of the wife, if she survive, is liable for his debts. About the question raised by the defendant, as to the jurisdiction of the court, there can be no difficulty. It may be that *bjf. fa.*or *ca. sa..,*or both, from the law court, the complainants might have obtained satisfaction of their debts. But defendant, Bauskett, has a prior lien on the property, for a demand not yet ascertained, and the law court has no authority to direct an account, and however well defined the right of defendant, William J., under the deed may be, when brought to a judicial investigation, the difficulties which the defendants have now thrown in the way of a discovery, prove that no one would have purchased at a sheriff's sale who did not desire to be involved in litigation, or who could not obtain the property ata price which would indemnify him against the expenses and delays of a law suit and all other contingencies. It was the interest, therefore, of both parties, and especially defendants, that their rights should be first ascertained, and this is the foundation of the general rule, that when a deed stands in the way of a creditor, he may come into this court to set it aside. 2 Story’s Eq. 9, 10.

It is, therefore, ordered and decreed, that the defendant, Bauskett, do account before the commissioner, for his ad*371ministration of the estate of the intestate, John Moore, so far as the interests of the co-defendants are concerned, and for money advanced to them since his administration, with a view to ascertain whether any, and what, balances may be due to him.

I shall not, for the present, make any further order, as it will be necessary to ascertain the amount due to Bauskett, before any relief can be afforded to the complaimants, and on the coming in of the report, all the orders that circumstances may render necessary may be made.

The defendants moved in the Court of Appeals, to reverse the Chancellor’s decree, upon the following points:

1. That the decree is not responsive to the allegations and prayer of the bill; as the plaintiffs claim nothing under the trust deed, as a valid instrument.

2. That the plaintiffs are not entitled to the jurisdiction of this court, as they have not exhausted their legal remedies.

3. That the said William J. Wightman has no interest under said trust deed, which is liable for his debts in law or equity.

4. That the said trust deed should be reformed, if necessary, according to the intentions of the parties, for the protection of the interests of Mrs. Ann Wightman, in the estate and property conveyed.

5. That, under the pleadings and proofs, the defendants were entitled to the dismissal of the bill.

The plaintiffs also appealed from the decree of his Hon- or, and moved the court to reverse it, on the following points:

1. As to the deed from Wightman and wife, to Baus-kett, they will insist that the same is void for want of recording, and because it was voluntary and fraudulent as to the creditors of Wightman.

2. They will insist that there is no just ground upon which the claims of Bauskett, as administrator or otherwise, can be preferred to the claims of the plaintiffs.

*Wardlaw,*for the motion. *Griffin*&• *Burt,*contra.

*372
      *Caria, per*Johnson, Ch,

This appeal has been abandoned, on the part of the defendants, and it is conceded t n the part of the complainants, that the grounds of their appeal cannot be sustained. It has, however, been moved, on the part of complainants, that the order directing the defendant,- Bauskett, to account before the commissioner, for his administration of the estate of John Moore, his intestate, should be extended so as to require him to account for the rents of the land and the hire of the slaves conveyed to him by the trust deed, and for money received by him on account of the sale of portions of the real estate. It is not intended to express any opinion as to the merits of this motion, for it is thought unnecessary, as all the questions raised by it must necessarily arise on enquiring on the reference as to the amount of Wm. J. Wightman’s indebtedness to the defendant, Bauskett. Appeal dismissed.

Harper, Dunkin and Johnston, Chancellors, concurred.