*Present*— Chancellors Hoisorr, Mathews 'and Eusebdob.

*JUNE,*1793.

CASE EXXXVI.

A wife joins her husband in conveying her real estate in ice to a third person; and he conveys ii back to too husband;the husband alter wards conveyed certain land.; and slaves to trustees, for his children, and then dies insolvent; his creditors insist on being paid out of the lands. The trustees insisted that the husband and wife intended to convey the land originally in trust for their children, but the trusts were, omitted by mistake. Pa-rol evidence was offered to prove this, which was ultimately rejectee1, as contrary to the statute of frauds. Thelandwas decreed to be liable to the hu-band’s de1'!

#### Lloyd and Motte, trustees of Inglis, for the children of Mrs. Inglis, *vs.*executors of Alexander Inglis.

The bill states that Alexander Inglis, by intermarrying with Mary Deas,became entitled to a considerable personal estate, and also seized in right of said wife of a considerable real estate. That said Alexander inglis being desirous of havmg said real estate of said wife vested in himself, in order that he might thereby divide the same, or an equivalent thereto, amongst the children of the said Inglis and wife in such manner as he might think proper, (some of their children being already partially provided for) said Inglis applied to his wife, requesting her to execute conveyances to vest said estate in himself, for the purpose aforesaid. That said Mary Inglis assenting, did accordingly send to Lambert Lance, attorney at law, to draw the aforesaid conveyances, and in giving instructions for the same, informed him that she intended vesting said real estate so far only in her said husband as to enable him to dispose thereof in such manner and to such children as he should think proper; but not to enable him to convey the same to a stranger, nor to be liable to his debts, unless he would settle an equivalent thereto upon said children; to which said Inglis, present, assented. That the said Lance did accordingly draw certain conveyances from the said Inglis and wife to John Lloyd of said state, and from him back again to said Inglis, for vesting said real estate of said wife in him; but by some mistake, owing to the great haste with which said conveyances were drawn, in consequence of Mrs. Inglis’ situation, omitted inserting the necessary trusts, whereby said real estate became absolutely vested in said Inglis at law. That some very short time after the execution of the said conveyances, said Mary Inglis died; and Alexander Inglis some time after, mindful of the trust on which said real estate was conveyed to him, did, by lease and i-elea.se, dated 22d and 23d day of August, 1785, convey to John Lloyd and Isaac Motte, and George Inglis, their heirs, &c, certain lands *334and slaves in said, indenture specified, in trust for tlie children of the said Alexander Inglis, and Mary his wife, and their heirs forever, in such manner, upon such conditions, and in such shares and proportions, as the said Alexander Inglis should afterwards by will or otherwise direct, limit and appoint. That some time after the execution of said conveyances, the said Alexander Inglis died, having first made a will, and appointed sundry executors thereof, of whom only William Marshall and Alexander Inglis, jun. have qualified; in which said will he devised and bequeathed all the real and personal estate so conveyed to the complainants in trust as aforesaid, to and amongst the children of the said Alexander Inglis, on the said Mary Inglis begotten. That after the death of said Inglis, the said William Marshall and Alexander Inglis, jun. executors as aforesaid, possessed themselves of the aforesaid real and personal estate so conveyed to complainants in trust, and have received the profits thereof. That complainants have since the death of said In-glis, applied to William Marshall and Alexander Inglis, jun. for possession of said real and personal estate, and for an account of the profits thereof received by them since the death of said Alexander Inglis. But that they conceiving that the said conveyance of real and personal estate by the said Alexander Inglis to complainants, is void against the creditors of the said Inglis, and that the estate of said Inglis, exclusive of the estate so conveyed, is insufficient to discharge his debts, refuse to deliver to your .orators possession of the estate so conveyed to them as ' aKírcsa'id, and to account for the profits thereof received by thtérn since the death of the said Alexander Inglis.— The hill therefore prays that possession of the aforesaid mit'ánd personal estate may be delivered to the complain-sluts, and that the defendants maybe compelled to account for the profits thereof which have been received by them since the death of the said Alexander Inglis; and that such further and other relief may be given to complainants as the court shall think fit.

Answer admits that testator Alexander Inglis intermarried with Mary Deas, whereby he became entitled to *335a considerable personal estate; and also to a qualified right of a real estate. That his wife joined, with him in conveying to John Lloyd, one of the complainants, her real estate; and that said John Lloyd re-conveyed the same to the testator of defendants; but defendants were not privy to any agreement or conversation between said Mary and their testator relative to the objects of said complainants, or the conditions on which the same wras made; nor do iiey know that the consideration and condition in bill mentioned were terms stipulated by the parties, or the motives which gave rise to the conveyance, being ignorant of said business, otherwise than as they heard from Mrs. Inglis herself. That said Alexander Inglis did snake conveyance in bill mentioned, dated in August 1785, ■ vherehy he conveyed the property mentioned in complainants’ bill, to complainants and Mr. George Inglis; and that defendants have possessed themselves of said property, conceiving the same liable to their testator’s debts, wdiich they believe will not be satisfied out of the remainder of his estate, if the property claimed by complainants in behalf of the children should be adjudged them. The answer then concludes praying dismission with costs, Ac. Ac.

Mr. Lance was examined as a witness without prejudice to any objection which might be made to the admissibility of such parol evidence. lie stated that it was intended the land should be held in trust lor the children of Mrs. Inglis. He understood from Mrs. Inglis that she. wished the estate to be placed in the hands of her husband in sucha manner as would enable him to divide it amor such of her children as were most deserving of that one child should not take the whole, dering Mr. Inglis a rich man, he (the witness titles in such a manner as merely to divest Mrs the estate, and put it in Mr. Inglis’s power to fd intentions. Mrs. Inglis was then in a very bad s health, and she died before the execution of the trusf from Inglis to Lloyd and Motte. It was objected at the-hearing that this parol evidence was inadmissible, being io vary a deed which would be contrary to the statute of Ira uds.

*336Mr. Parker for complainants

contended that the doctrine of trusts is entirely with this court, and the common law has no cognizance of it. The statute of frauds would apply at common law, but not here. Trusts respecting personal estates are not included in the statute of frauds; and parol evidence is admitted respecting personalty, even in contradiction to a deed. Mr. Parker produced the deed executed by Inglis, after the death of his wife, as evidence of the parol trust, to which it was to give effect and operation. As this court would have compelled Mr. Inglis to do what had been agreed to be done, a for-tiori, it will support the execution of the trust which has been made by Inglis. 3 P. Wins. 337. If Lance’s evidence is admitted, it establishes the parol trust. The statute of frauds relates only to transactions between the parties themselves, and not to creditors; and an executor is not. obliged to plead the statute in favor of creditors. 2 Atk. 155, 417. Burr, 2628, If defendant waives the statute of frauds, no one else has a right to set it up for him, not even the court. 1 Atk. 526. 2 Vesey, 631, 3. The ere. ditor can have no more equity than his debtor. Inglis did not record the deed of trust; if he had, he Avould have brought all his creditors upon him. 3 Co. Rep. 80, 89. The deed is bona fide, and for valuable consideration. Parol evidence may be produced to prove a parol trust. See 3 Wilson, 275.

General Pinckney for complainants

insisted that the creditors of Inglis could never have trusted him on this property, because all his debts were contracted previous *to*the execution of the deed, Avhich divested the property out of Mrs. Inglis. The deed from Mr. and Mrs. Inglis to Lloyd, was dated the 23d July, 1785. The deed of trust from Inglis to Motte and Lloyd for the benefit of his children, as he might direct by will or othenvise, was dated 23d August, 1785. Cited 2 Ves. 377. 2 Vern. 380. 1 Eq. Cas. abr. 19. 2 Eq. Cas. abr. 749, 310, 260.

Mr. Smith for defendants

said, the court is obliged to take notice of the Statute of frauds, though not pleaded; and that statute prevents the admission of parol evidence in such a case; and without the parol evidence, the com*337plainant has not made out any case for the court to decree upon. Cited 2 Vern. 98, 621. Cases Temp. Talbot, 240. 2 Atk. 372, 172, 383.

decheebook., P- in-

Mr. Lee for defendants

said, the doctrine is settled, that even in cases between the parties, and no third persons or creditors interested, the court will not admit pa-rol evidence to shew what was the intention of the parties by the deed, and that there was something omitted. See Comyn’s, title chancery, 171, 175. 1 P. Wms. 618, 620; and if the parol evidence be rejected, the complainants have no ground to stand upon.

Mr. Pringle for defendant

said, where a statute declares a debt to be void ah initio, an executor is hound to plead it, or he is liable to he charged with a devastavit. Powel, 430, 276, 294, 5. The statute of frauds is a remedial law, and the court will give it that construction which will advance the remedy, and prevent the mischief,

Mr. Rutledge for defendants

said, the statute of frauds forbids the admission of parol evidence to establish a declaration of trust. If a deed is not executed agreeably to the statute, you cannot bring a third person, who was standing by and saw the execution, as a supplementary evidence; for, as he did not sign his name as a witness, he cannot bo admitted as such by parol. Cited 2 Ves. Lord Townsend *vs.*Windham. 3 Atk. 8.2 Bla. Rep. 1249.

This case was, on motion for a re-hearing, argued a second time. Afterwards, chancellor Mathews (in whose handwriting the deree is extant, corrected by chancellor Hutson) delivered the decree of the court.

This is a demand made by trustees under a deed, Avliich it is contended, if admitted to operate according to the intention of the grantor, will materially affect the claim of the creditors; in whose behalf it is contended, that Mr. Inglis had no right to make such a deed, because there is no legal evidence that the deed from Mr. and Mrs. In-glis to Mr. Lloyd, was intended as a trust fob the benefit of their children; but that on the contrary, it is a plain and absolute conveyance in fee simple from Inglis and wife to Lloyd, and so of Lloyd hack to Mr. Inglis. That the parol evidence offered and admitted in this cause, *338ought tobe disregarded, and judgment to be given on the deed alone. Although the arguments were very long, and placed the case in every point in which it could possibly be viewed, we think there is but one to which our atten-iion is to be confined, and on which it will be necessary for us to decide, viz. the deeds from lnglis and wife to Lloyd, and from liim to lnglis. As to the parol evidence of Mr. Lance, although it was refused at the first hearing, hut admitted at the second, yet we are of opinion that no kind of notice should be judicially taken of it, as such cognizance would be attended with dangerous consequences, and wovdd be in direct violation of the true intent and meaning, and of the objects contemplated by the statute of frauds. A distinction has been taken at the bar between the admission of parol evidence to prove a trust of personal and of real estate: That in the first case it is admissible, though not perhaps in the second; in the latter, it clearly is not; and that is the nature of the case now before us. And we are firmly supported in this opinion by the authorities of Brown *vs.*Selwyn, reported in Talbot’s cases, and which was affirmed in the house of lords, by the case of Ulrick *vs.*Litchfield, 2 Atk. which, respected personal estate; but still, the parol ex idence was not admitted, though the chancellor said he wished to do so, yet he was not authorised to follow his inclinations: also, by the case of Parteriche *vs.*Powlett, in the same book, even when the parol evidence had been heard, yet the chancellor in giving his decree said, “ he should pay no regard to it, for to add any thing to an agreement in writing, by admitting parol evidence, which would affect land, would not only be contrary to the statute of frauds and perjuries, hut also to the rule of common law before that statute was in being.” By the case of Montacute *vs.*Maxwell, in 1 P. Wms. where the chancellor said, “ that one who relies on the honor, word, or pro - mise of another, the statute making those pi’omises void, equity will not interfere.” This is similar to tiic case before us, lor much stress has been laid on Mi’s. lnglis’ intention ol‘ ci’cating a trust for the benefit of her childi’cn, at the time she executed the deed which deprived her of *339her inheritance in the lands in question: But as it was no more than an intention on her part, it is from hence to be •presumed that she placed an implicit confidence in her husband to have the same carried into effect; and there can be no doubt but that the trust deed from Inglis to Lloyd and Motto, and his will in consequence thereof, would have fulfilled such intentions, had there been no creditors in the case: But as there are, and they have put in their claims, we are bound to notice them accordingly. The case of Dalzell and wife *vs.*Timrod, determined in this court, where parol evidence was read to prove that there was a mistake in the deed, owing entirely to the drawer of the deed being ignorant of the technical meaning of the word spinster; the intention of the grantor in that case being to convey to Catharine MMuíusk, the wife of Michael M‘[nfuss, and not to Catharine the daughter. But the court overruled the evidence, declaring that they would not admit parol evidence to explain away the words of a plain and solemn deed. In the case of Todd and wife *vs.*the executors of Rivers, also determined in this court, parol evidence was admitted to prove that a bond and mortgage was given merely as a counter security; hut in that case the evidence of several persons was full and clear to this point; therefore, the court allowed the evidence to stand, and granted relief accordingly. For, it not being a bona fide debt, but merely a cautionary engagement by one party, to save the other harmless, as his security, these facts being- so clearly proved, under the particular circumstances of the case, the court did allow the parol evidence; and this is the only instance which we can recollect of its ever having been admitted in this court. Butin the same cause it appeared, that another bond and mortgage was given for the same purpose, on another account, but for want of sufficient proofs, the court refused to interfere. In the case also of Olyphant *vs.*the executors of Singleton, determined here, the court would not admit the parol evidence that had been offered as sufficient to set aside the bond. From the train of adjudications here referred to, and for the reasons we have offered, wo think we are well *340Warranted in rejecting the evidence of Mr. Lance. And as the case then stands simply on the deed from Lloyd to Inglis, we cannot hesitate a moment to say it is a case in ■ which this court cannot interfere: And whatever might. be our private opinions, and however hard we may think £jie case -s regard to minors, yet we cannot, consistent with the rules of law, pursue any other line of conduct, but such as they prescribe. The bill must therefore be dismissed with costs.

[The court said, that notwithstanding the decree, it would be open for the defendant to file a bill against Mr, Lloyd, to discover whether the deeds from Mr. Alexander Inglis and his wife, were upon any and what trusts; and when the deed was executed; and at what time deli-, vered to his possession. This was accordingly done; but -Mr. Lloyd in his answer stated, *'•' that neither Mrs. nor Mr. Inglis at the time of the execution of the deeds of conveyance from them to him, ever signified to him that it Was their intention to create a trust estate.” That with respect to the settlement made by Mr. Inglis, after his. wife’s death, he (Mr. Lloyd) was not consulted about it; but Mr Inglis delivered him as trustee a deed under a sealed cover, which he said was a settlement of the property he had acquired by marriage on his wife’s children; and the deed remained unopened till some years afterwards, when Mr. Inglis’ property was advertised for sale by his creditors; upon which, he advised him to take the advice of counsel as to its validity, and he re-delivered the deed for that purpose. This answer not establishing any trust in the first deed, the decree was acquiesced in.]