The eastern clarion., 1859-04-13

ms SUIT was brought IN the Vice ChAncery Court
at Macon TO set aside conveyance for fraud, and
subject the property to the satisfaction of iudg-
ment at law recovered by the compainants against
the defendant Gray.
The bill charged that the defendant, Gray. in the
year 1850, was indebted TO the compliments in q
large sum Of money, for which they brought suit
and recovered Judgment on the 18th Of October 1852
for Sll+9 60, upon which execution issued and was
retured HuIJd bona. That said defendant utterly
insolvent and that nothing could be made out Of him
That the defendant the owner Of certain slaves
and while so indebted on the 10th of March, 1851,
that he conveyed the said slaves 10 Turner in
trust for defendants wife, Mrs Virginia GRAY. That
these slaves conveyed in trust 70 Turner, -o-e de
verCd into his possession, ana that the conveyance
purported to be made in payment for or in lieu of
property which the separate estate Of Mrs. GRAY
anu am, III y. % ~ I4l sPP ateu 70 nj own
use That the property conveyed IN trust greatly
ceeded in value the amount of the debt alleged to be
due by Gray to his wife. And further, that the
YeyanCe of the SAID slaves WAS fraudulent and void
as 10 the compainants, who. when il was made were
bona ffc creditors Of the grantor.
The answer admits that the defendant GRAY was
indebted TO cumpainsnts when the trust deed was
executed, and the recovery Of the Judgment as al
legged in the bill 1t denies expressly that Gray
insolvent when the conveyance was made. Ii admits
the execution Of the trust deed at the time alleged
but denies that 1t voluntary intended to him
der delay or defeat the claims Of creditors II AYERS
that said conveyance made for full and valuable
consideration, which is truly stated in the deed
That Gray was Justly indebted to his wife for the pro-
cecdS Of the sale of two negroes and for other
ey which belonged TO her in her separate right,
which lac had received and applied TO his own use
That the conveyance TO the trustee made in con-
sideraton and intended on indemnity or repayment
Of the amount which GRAY thus indebted to Mrs
Gray and that the property conveyed and settled to
her use did not exceed in value the amount of said
debt.
No evidence was offered by the complaints-of con,
sequence no proof was adduced in support of the
allegation in the bill that Gray insolvent when
the settlement was made
The evidence for the defendants showed that Mrs
Gray was possessed of separte property, consisting
Of securities for money and two slaves; that the
money was collected 10y Cray thatths slaves were sold
| by Gray and the purchase money received by him
| and that the whole amount of the money thus re
ceiyed by him was about equal TO the value of the
| property settled upon Mrs Gray.
decree was rendered sustaining the validity o
| the settlement and the bill was dismissed Hence
| this writ of error Is prosecuted.
The capacity ofa husband and wife after marriage tc
contract Tor bona de and valuable consideration for
transfer Of property from the husband to trustee fol
the benefit Of the wife, to her directly il not nov
subject open for discussion. In transactions of thi,
character the person claiming under the conyeyauce
stands in the attitude OF purchaser. For that rea
son, post nuptisl settlements founded upon val
| liable consideration or which are made for fraudn
lent purposes. void to third parties And fo,
the same reason it il hed-and the doctrine Is vol
| setted-that such settlements, where made b1na III
upon valuable and adequate consideration are gooC
against creditors and purchasers (2 L. L. 81 Ather
" on Mar. Sett l56, l62 land cases referred tor
And is not material TO the validity of post mn
tal settlement upon wife, that the husband shouic
not he indebted at the time when he made the settle
ment. the true point of inquiry here; and il Is IN,
question presented by the iirst pxception taLor :,
| the decree Is whether the conveyance was unon ,
valuable and fair consideration, a. TO repel IN,
| presumption of fraud. Atherly Mar Settl l55 l6I
|
try. that the devotion of her property by wif,
| 70 the use of her husband, the making a charg,
upon Il for his benefit will support a settlement f,
the husband in favor Of his wife Lady Arundel vs.
| Phillips 10 Nesey $50; Chapman vs.. Emory, Gown
$50 Athery Mar. Settl l62, Us L. Lib a5;l TsyI6
| vs. Heriot, Derpars 22I ]. Ch Rep. 2el; BullsrC
| vs. Briggs. Pick. 53s.
But here it is insisted that the settlement wee no
based upon a consideration arising from previous sd
vauces made by Mrs. Gray, or from devotion of hel
| separate property TO the Of her husband =. tha
the money was appropriated and the saIves sIj LII
/ no fl0t her tiflg
wise been affected by such sale, and that she has nov
the unquestioned right TO sue for and recover then
| from the purchasers. Having made no advance L
her husband nor released any right to her propert,
for his benefit il is contcnded that she is not 70 h.
| regardedas bona fdc purchaser for a valuable con
sideraon. And hence that the settlement il frandu
| lent and void as to existing creditors.
| These positions are more plausible than sound
There trustee appointed TO take charge of the
property Of Mrs. Gray-Gray, therefore, in virtue o
his marital relation, was entitled TO the possession O
it, And in reference thereto he occupied the charac
ter Of trustee, and as such, was responsible to Mrs
| Gray.
slaves, without her assent appropriated 70 his
own by Gray, there could he no doubt that upon
application to Court of Equity he would have been
| compelled to make ample indemnity BY settlement
| out Of his own property. 1t is general principle
| that whatever man may be compelled by law to do
and his will be legal and valid If therefore the
| settlement actually made was reasonable and lust
and such a. a Court Of Equity in view Of all the cir
cumstances would have ordered, it will certainly not
| be avoided upon the ground thst il was voluntary
| and fraudulent as to existing creditors.
| Further, il was not material whether Mrs Cray's
funds and property, were appropriated by Gray with
or without her consert in either event she was in
an equitable point of view acreditOr Of GRAY 10 the
| amount Of the value Of the property which he ha.
~ onnseI that her title 10 the slaves ha NOT baen III
vcscd-it is therefore clear that she had al her clec
ton the right 10 proceed against Gray or to recover
| the slaves by suit against his vendees But as she
| could uot have relief against Gray and at the same
time recover the slaves il clear that by accept
ing the settlement and claiming under it. she was es
topped from setting up any claim or title 10 them
lease of her ttlewhch, according 10 all the author
ties, was consideration Of value, sufficient to sus
| tain settlement of this character.
| What has been above said renders it unnecessary
| to examine the question raised by the second snc
| only remaining exception to the decree. For i
| where husband has applied the funds and convert
cd the property Of his wife Ia his use, withou
her consent the debt or obligation thereby incurred
| Isl valuable consideration for post nuptia settle
mont: it is manifest that the principle contended fo
hy counsel does not apply to the facts of this case
L Is clear thIt u can Sny APP Apply 70 cases IN whei
wife to the husband, or where there a devotion
Of her property 70 his use, or the making ehsrg
upon il for his benefit In such cases, Il hiss beeI
held hut the rule is not uniform, that it must apppea
either that there was an agreement between the hus
hand and wife at the time advances made TO Sc
cure her by settlement, and such agreement as
would be obligatory upon him to perform, or that tn
parting with her own property or incumhering Il Is
her husbands benefit intended Ia serve AZ a con
sderation for a settlement to be afterwards made b.
him; aud that the deed of settlement when execu
ted had reference t0e cOnYeNanc
would be considered as merely voluntary and conse
| quently invalid TO existing creditors. But her
nc settlement vests for its validity upon the eauits
BILE right Of the wife 20 be ndemnihed or repaid h
the husband ont Of his own property; and his cOnst
quent obligation 10 secure her by settlement
| property TO hcruse, equal in value TO the money an
slaves which he had applied and converted TO hi
| own use.
The allegation in the bill that when the settemeu
was made Gray was totally insolvent was expressl
| denied and no evidence was offered 10 sustain tn
hin in this respect The fact admitted in the answp
that GRAY was then indebted 10 the appellants n M
| Of itself sufficient ground for questioning the bon
/, | fdeS Of the settlement which as have seen WI
| made upon a valuable consideration. The propert
| conveyed in settlement was about equal in value
the debt which was due from Gray TO his wife
Upon the whole, we think the decree Of the Vic,
ChAneelor ought to stand, aud therefore order It
| be afhrmed. RNJGH.