#### *John J.*Ryan, *adm’r. of Duncan, v. Wm. R. Bull*& *wife et al.*

#### *D. F.*Jamison, trustee, v. *Geo. D.*Keitt, *sheriff.*

Columbia,

Nov. 1849.

The guardian of a female ward who had been married, and was an infant, and whose property, consisting of lands, slaves aad money, was *still*in *Ms*possession, before a settlement with her husband, required him to execute a trust deed of the lands and negroes “ to the sole and separate use” &c. of his wife. The deed was made to a trustee, selected by the guardian, in consideration of the marriage, of the guardian’s fully accounting and paying over such sums of money of the ward as had come to his hands, delivering up the negroes, &e. At die time of its execution there was existing against the husband the lien of a judgment for a small amount in favor of one who was no party to the bill; lie was also indebted to several others (one of whom only was a party) on demands upon which judgments were subsequently obtained. The *Court*sustained the settlement, against the claims of the creditors of the husband.

What the Court, on application, would have ordered to be done, it will sanction, when done by the parties voluntarily.

*Before*Caldwell, Ch. *at*Orangeburgh, February, 1849.

Caldwell, Ch. As these cases depend upon the same facts and principles, they were taken up and heard together, and must therefore abide the same result; the trustee, by bill for injunction against Sheriff Keitt, (who levied upon Catey, one of the trust negroes,) insists on the same rights that he sets up, by way of defence, in the first case.

William R. Bull was born on the 10th of May, 1819, and Julia A. Carson on the 24th of January, 1823. They intermarried on the 2d of December, 1838, while Thomas W. Glover was her guardian, under the appointment of the Court of Equity. On the 10 th of September, 1839, William R. Bull *87gave a note, with Willis J. Duncan as surety, for $440 43, payable one day after date, to J. G. W. Duncan, who obtain-^ ed judgment by confession against them, lor $507 98, with interest on $440 43, from 11th January, 1841. Judgment was entered up and a fi. fa. issued against them, on the 15th January, 1841, which remained unsatisfied. William R. Bull is insolvent, and all legal remedies against him have been exhausted ; after all his property has been sold, he still owes, (as appears from a schedule of his debts, offered in evidence,) several debts ; in one of them, McTyre v. Bull, judgment was entered up on 2d of May, 1839, on which no sat-. isfaction has been entered. William R. Bull became greatly involved in debt during his infancy, and after he arrived at age, the guardian of his wife, before a settlement with him for his wife’s property, required him to execute a trust deed to David F. Jamison, on the 20th of May, 1840, conveying certain tracts of land situated in Edisto Fork, on the North Edisto river, (being lands devised by the late James A. Carson to Julia A. Carson and Mary Winningham, sometime Mary Carson, his widow,) and thirteen slaves, and the issue of the females, in consideration, as the deed expresses it, of the marriage, and of the guardian’s fully accounting and paying over such sums of money of the ward as had come to his hands, and of delivering up the negroes, and in consideration of the sum of one dollar. The trusts are “ to and for the sole and separate use and benefit of the said Julia A. Bull, during the joint lives of her and her husband, William R. Bull, and to and for the use and benefit of the survivor during life, and after the death of the said William R. Bull and Julia A., to and for the use of such child or children as shall survive them : and if there be no child of said marriage, then to the survivor absolutely.” It appears from the release of Wm. R. Bull to the guardian, cotemporaneously executed with their settlement and the trust deed, that the guardian paid over to him, on their adjusting their accounts, the sum of $2826 80, which was in full lt for negro hire, rents, money received, or from any other source.” The bill seeks to set aside the trust deed, as fraudulent and void, and to subject the property to the payment and satisfaction of the judgments remaining open and unsatisfied against Wm. R. Bull, and particularly the judgment of J. G. W. Duncan against him and Willis J. Duncan, his surety, (of whom John J. Ryan, the plaintiff, is the executor,) in the same manner and to the same extent as if the trust deed had not been executed, and that the trustee render an account of all the property which was conveyed by the trust deed, and of the subsequent increase thereof; and that the whole of the property may be subjected to the payment and satisfaction of the plaintiff, and other creditors of Wm. R. Bull; also for general relief. The defendants, Wm. R. Bull and his wife, state in their answer, that she was enti-*88tied, at her marriage, to the lands and negroes described in ,the bill, which, ivith securities drawing interest, were under the control and management of Thomas W. Glover, her guardian. That Wm. R. Bull applied to her guardian for the possession of her property, on his attaining the age of twenty-one years, on the 10th May, 1840, and that the guardian declined and refused to comply with his request, or to account with, or pay over to him the amount in his hands, 'unless Wm. R. Bull should make provision for his wife from her property in the hands of the guardian, and that Wm. R. Bull therefore consented to execute, and did execute, the trust deed, and the guardian accounted to him for the sum of two thousand eight hundred and twenty-six dollars and eighty cents. Wm. R. Bull admits as true, that he drew the promissory note in favor of J. G. W. Duncan, as set forth in the plaintiff’s bill, while an infant, and he expected to pay it and other debts, out of his own property, and he believes that many of his Barnwell creditors looked to the same source for the payment of their claims against him. That on the 18th of March, 1840, a division of his father’s estate was made, and eleven negroes were allotted to him as a distributee, which, with the rest of his patrimony, and the amount he had received of Thomas W. Glover, the guardian of his wife, were applied to the payment of debts which were contracted, with few exceptions, in his infancy, <fce. The defendants insist that the provisions of the trust deed were proper, just and equitable, and that it is neither fraudulent or void, or subversive of the rights of the creditors of W. R. Bull.

Clancy on Married men 10.

Ognell’s case 4 Rep. 51. Ves. 91.

The property of the ward, Julia A. Carson, at her intermarriage with William R. Bull, and also at the time of settlement with her guardian, and of the execution of the deed of trust, consisted of three classes — lands, negroes and choses in action. The only subsisting judgment that existed prior to this time, is that of McTyre, for $50 68 and costs $9 05. This judgment and execution has a lien on whatever property.was vested in Wm. R. Bull, and must be paid in preference to all other claims brought forward against him. I shall consider the question of the liability of the property of the ward, in the hands of her guardian, to her husband’s debts, in the order in which they have been named. The husband has only a qualified right to rents and profits of his wife’s lands, if he survived her. At common law, however, he is entitled to as become due duringthe coverture; but if she survived him, she would be entitled to them, and not his executors; but the husband could not recover rent in arrear *before*the marriage, yet he is entitled to recover all that arose *during*coverture; the former part must be considered as a chose in actK)n, and the latter part of the rent was a right that he could ’have enforced without the intervention of this Court, as the marriage, of the ward terminated the guardianship, so that *89the husband might legally have taken possession of her lands and received the rents and profits.

1 McCord’s Ch. R. 191.

The negroes compose the second class. The possession of such personal chattels by an agent or attorney, always enures to the same legal extent as if it were the possession of the principal; and upon the same principle the possession of the tenant is considered the possession of the landlord, and has the same legal effect in protecting his rights as if he actually occupied the premises. When a female ward intermarries, her husband’s marital rights, *ipso*facto, attach as absolutely and indefeasibly upon her personal chattels, in the possession of her guardian, as if they had been formally delivered to the husband. *Davis*v. *Rhame.*The marriage transfers their title and possession to him, and they are equally subject to the claims of his creditors as any of his other personal property, of which he had obtained possession by a *bona fide*bargain and sale. The legal effect of marriage is to deprive the wife of her equity in such property and to vest the chattels in the husband absolutely. The negroes, therefore, of Julia A. Carson, in the hands of her guardian, on her marriage, became the property of William'R. Bull, and must be held as subject to the claims of his creditors as his other property. The same may be said of the hire of the negroes after the intermarriage, as that was a mere incident, to which he was absolutely entitled as to them. But I think there is a material distinction between the securities bearing interest, and the other choses in action, in the hands of the guardian, and that these could with propriety be settled upon the wife; they were, however, paid and delivered over to the husband on his executing the trust deed. The guardian would not have delivered the property, or accounted to the husband, *unless he*had made a suitable settlement upon his wife. Such a course was highly prudent on the part of the guardian, and there can be no doubt of the propriety of the motives of all the parties to' the settlement, and to the trust deed, the terms of which appear to be reasonable and just. But the rights of creditors, who are a class of persons highly favoied by the law, must be protected, and the whole transaction must stand upon the question, how far the marital rights attached upon the wife’s property absolutely, and the consideration of the trust deed. If the negroes and their hire, after the marriage, constituted the sole consideration, then the trust deed must be set aside, unless the property of the husband was sufficient to pay his subsisting debts. But as there were other considerations, and the funds which have been received have been applied to discharge his debts, such part of the ward’s estate, in her guardian’s hands, as consisted of choses in action, in which she had an equity, was a lair subject of settlement by a trust deed, and to this extent the deed is valid. The guardian, no doubt) presumed *90in the future what he had perceived in the past conduct of the husband, that he was improvident, and would probably waste his wife’s property; it was therefore his duty lo secure his wart], by all legal means, against such an impending calamity. If the husband does voluntarily what this Court would have decreed to be done, in making a settlement of the wife’s property, for her benefit; if he or his creditors had been compelled to come here to obtain her property, such a settlement upon her must be supported. But if the consideration of the trust deed be grossly inadequate, it ought to stand good only for the amount of the choses in action in the guardian’s hands, in which the wife had an equity at the time of the settlement.

It is therefore ordered and decreed, that it be referred to the Commissioner of Orangeburg District to report on the matters of account in these cases, and that he do ascertain and report particularly what choses in action were in the guardian’s hands, liable to the wife’s equity, at the time of the settlement, and to what extent they constituted the consideration of the trust deed; also what was the value of the property, lands and negroes, conveyed by William R. Bull to the trustee, and what proportion the value of the absolute estate of the husband, in the wife’s property, bore to the chos-es in action aforesaid; and that he report any special matter.

D. F. Jamison and W. R. Bull and wife moved to reverse his Honor’s decree, made in the two above cases, on the following grounds :

1. That Wm. R. Bull’s marital rights did not attach on the property in the guardian’s hands, under the circumstances of this case.

2. That the deed executed by Wm. R. Bull was neither fraudulent nor void against his creditors.

The complainant also gave notice that in the Appeal Court a motion will be made to reverse so much of the Chancellor’s decree as decides that the marital rights of Wm. R.Bull *did not attach absolutely to all the 'property in the hands of the guardian of his wife*— which property, in fact, consisted of nothing but the negroes and cash received by the guardian, *whose possession enured to the same legal extent as if it were the possession of the husband.*

*Glover,*for the motion.

*Bellinger*& *Hutson,*contra.

*Curia, per*

Johnstoit, Ch.

It has been insisted, in the argument, that the slaves embraced in this settlement had become the absolute property of the husband, *jure mariti, upon*the marriage; and that, therefore, he had no right to settle them, to the prejudice of his creditors.

It is unnecessary to conclude any thing on this point, there being other considerations, upon which the settlement may, *91in our opinion, be fully sustained. But I take the occasion to say, that in the actual state of the case I would incline to ( sustain the settlement independently of the other considerations to which I have alluded.

The case at the time of the settlement, was that of a female ward, who had been married in her infancy, and whose property still remained in the custody of the officer specially deputed by the Court to take charge of it, and hold it for her benefit. She was still an infant, at the time of the settlement, and incapable of attending to her property interests. If, under these circumstances, the guardian had declined to settle with the husband, and deliver over to him his wife’s property without a settlement upon her, and had applied to this Court to have a settlement made, I think the experience of the profession in this State must furnish them with proof that his application would have been sustained; and what the Court would have ordered to be done, it will sanction, when done by the parties voluntarily.

It is said that, at law, the title of the slaves vested in the husband, upon the marriage. This may be so. But the question is, whether it vested so as to put it-beyond the control and interference of this Court, acting for the protection of its ward, and in relation to property still in the custody of the trustee, to whose hands the Court had, itself, specially confided it. I do not speak of cases where the property had been surrendered by the trustee ; nor of cases where the ward had attained age; but of the actual case before us, — in which the trustee was still in possession, and holding for an infant, entitled to the protection of the Court by the double claim of being an infant and a married woman. In such a case, I apprehend' the trustee has always been sustained ih an application for a settlement. It seems very difficult to say, in such a case, that because a Court of Law may regard the chattels of the wife in the hands of her guardian as covered by the marital right of her husband; — -that, therefore, a Court of Equity is to disregard the infancy of the wife, and the possession conferred by itself upon the trustee of its own appointment ; or forget that the very object of the Court in taking charge of the infant’s property, and in placing it in the guardian’s hands, was to protect it for her benefit; or that duly estimating the obligation thus assumed, it should shrink from the complete performance of it. Nor am I aware that it has ever done so. Certainly nothing of the sort is to be inferred from the case of *Davis*v. *Rhame,*nor from *Saussy*v. *Garden,*quoted in argument, where the wife was dead, and a settlement, therefore, out of the question.

But, passing by these considerations, the Court is of opinion that the settlement must stand upon other grounds.

At the time of its execution there was existing against the *92husband the inconsiderable lien of a judgment for 50 dollars, (held by a creditor who is no party to these proceedings;— and he was also indebted to Duncan, (and to another person who is not a party,) upon demands on which judgments were subsequently obtained.

2 Hill Ch. 558.

Rice Eq. 405.

If, under these circumstance, he had for a valuable consideration and *bona fide*sold to a stranger the same property which he conveyed to the trustee by way of settlement, it is impossible to say that the sale could have been impeached by Duncan or the other creditor who had not obtained judgment. And, although the lien of the small prior judgment might have followed the property, or its holder might have been relieved against the conveyance, if he had applied for relief; yet no other creditor, not standing in his circumstances, is entitled to claim the advantage of his lien, there being no intentional fraud in the case. In such a case, the discharge of the lien would free the transaction of all imputation; and it is not perceived how other parties, not defrauded, nor intended to be defrauded, could impeach the transaction, in the name of one who does not choose to complain; or have a remedy greater in extent than that to which, if complaining, he would have been entitled. The doctrine we are now discussing has no relation, whatever, to *voluntary*conveyances, which are voidable generally by any existing creditor; but it is intended to be applied exclusively to conveyances for valuable consideration and made in good faith. And such conveyances are liable only to pre-existing liens.

This was a case, however, in which the alienation was not made to a stranger, nor did the consideration proceed from a stranger. The conveyance was made to a trustee selected by the guardian, and the consideration was money in the hands of the guardian, and which he paid over to the husband on condition that he would make it.

This money was not subject to the marital right of the husband. Although due to the wife, it was still a *chose in*action, resulting from the accountability of the guardian. If the husband had called upon this Court, as he must have done, for an account, undoubtedly the guardian, or any other friend of the wife, might have interposed for a settlement. The evidence is, that, when called on, the guardian did insist on a settlement.

The case, then, is as if the guardian holding the wife’s money, and entitled to have it settled, had purchased the property which was settled, with the money. It is, in principle, pre-the case of *Banks*v. Brown, in which it was held that a purchase of the husband’s property by the wife out of her own property, if made *bona fide,*was entitled tobe supported. It is entirely unlike the case of *Bank*v. *Mitchell,*quoted in argument, in which it appears that nothing “ was said about *93the settlement when the money was paid.” It stands upon a principle well established, and recognized, among other cases,, in the *Union Bank*v. *Toomer.*

Hill Ch. 27.

Of the *bona fides*of this settlement there is not a particle of doubt. The evidence shews that it was made without reference to creditors, and without the least intention to defraud them; but solely upon the ground that the trustee would not! part with the money unless a settlement was made. The only objection, then, that can be urged against it, is, that the money was not equivalent to the property settled. This objection can only apply to the slaves; for the land was the undoubted property of the wife. Regarding the slaves as belonging to the husband, as contended for, it does not appear that they greatly exceeded in value the price paid for them. There were 13 of them, of whom *7*were children. What were their qualities we do not know. The sum paid was near 3,000 dollars. It is not pretended that there was the semblance of such inadequacy as infers a fraudulent intent. But as Chancellor Harper observes in the *Bank*v. *Mitchell, “*if there is *any*consideration, then the question is of *bona fides,*or of actual fraudulent intention;” and the Chancellor, upon the evidence in this case, tells us that no fraud was intended *;*for, says he, “there can be no doubt of the propriety of the motives of all the parties to the settlement,” “ the terms of which appear to be reasonable and just.”

It is ordered and decreed that the bill in the first case (that of J. J. Ryan, adm’r. of Duncan,) be dismissed; and that in the second case (that of D. F. Jamieson, trustee, v. Geo. D. Keitt, sheriff,) an injunction do issue perpetually enjoining the defendant from proceeding to enforce the execution referred to in the pleadings in that case.

Dunkin, Ch. concurred.

Dargan, Ch. absent at the hearing.

*Bill dismissed in the first case, and decree reformed in the second.*