Opinion
02-17-1818
Scott and Wife and Claiborne v. Loraine and Others
David Robertson for the appellants. John F. May for the appellees.
Upon an appeal granted by a Judge of this Court from an order of the Superior Court of Chancery for the Richmond District, dissolving an Injunction, which had been granted, upon a bill exhibited by William Scott and Mary his wife (formerly Mary Davis) and Richard C. Claiborne their trustee, to prevent the sales under executions against the Complainant William Scott, of certain property covered by a Deed of marriage settlement.
The said Deed bore date April 13th, 1809, was not attested by any subscribing Witness, but admitted to record, November, 20th 1809, upon the acknowledgment of all the parties in the County Court of Dinwiddie. Upon its face, it appeared to have been executed before the marriage; the consideration set forth being, that a marriage was shortly intended to be had and solemnized, & c.; the conveyance being of the property of Mary Davis the intended Wife, by herself, with the consent of the said William Scott; and her maiden name being signed thereto. The trusts were for the said Mary 'till the solemnization of the said intended marriage; and, then, that the trustee should permit the said William Scott and Wife during their joint lives, to have, receive, take and enjoy all the interest and profits of the said property, to and for their own use and benefit, & c.
The bill of Injunction, sworn to by the trustee as well as by Scott and wife, stated that the Deed was executed on the 13th of April 1809, shortly before the marriage, and duly proved and recorded; that the only motive or reason which induced it, was that, the said Scott being at the time considerably embarrassed with debts, it was thought advisable to secure to the said Mary her own property, and to protect it from seizure to satisfy his creditors.
The precise time when the marriage took place, was not stated in the Bill, nor in any part of the record: but the defendants, in their answers, generally, averred, that the acknowledgment of the Deed, by the parties, was after the marriage, and without any privy examination of the wife; that there was no proof that in fact it had been executed before the marriage, which allegation therefore they did not admit to be true; that the grossest frauds might in this way be practised on creditors by husband and wife; and therefore, under all the circumstances, the said Deed ought to be considered void as to creditors. Some of the defendants alleged, also, that their claims were founded on contracts with the said William Scott, since the marriage, for articles furnished for the suitable support of himself and wife. They contended, therefore, that the property conveyed by the Deed, was not protected against their claims. Others, in whose favour a fieri facias had been levied on part of a crop of grain made since the marriage, insisted, that, if the deed were legal, it did not cover the profits of the estate against any creditors; the profits being expressly vested in the husband and wife, (and, of course, by operation of law, in the husband alone,) during the coverture; and, if this general position were incorrect, a Court of Equity would, at any rate, hold the profits bound to satisfy their claim, which was for goods sold and delivered to the said Scott and wife, for the use of themselves and their family, since the marriage.
No affidavits of witnesses were filed on either side; but, shortly after the coming in of the Answers, Chancellor Taylor dissolved the Injunction.
David Robertson for the appellants.
John F. May for the appellees.
OPINION
Judge Roane pronounced this Courts' opinion.
The Court (not meaning to establish a general principle that, in all cases, in which property is held under a deed recorded accompanied by possession, a fraud can be only charged regularly in a bill brought to set aside such deed,) is of opinion that as, in this case, the date of the Deed in question is sworn to be that of its execution by all the plaintiffs, including the trustee, who appears to have no interest except as a party to the suit, and it not being charged in the answers, or any of them, that the said Deed was in fact antedated, the Chancellor erred in dissolving the Injunction on the supposed ground that it was so antedated. The Court is therefore of opinion, that the Decree be reversed, and the injunction be re-instated; but that the same may be dissolved hereafter as to the value or amount of any supplies shewn to have been furnished for the proper support of the appellant Scott and his wife. This Decree, however, is without prejudice to any suit that may be hereafter brought by the defendants, or any of them, for the purpose of setting aside the Deed in question, on the ground aforesaid, or any other.