US SUPREME COURT DECISIONS

The act of assembly of Virginia which makes unrecorded deeds void as to creditors and subsequent purchasers means creditors of and subsequent purchasers from the grantor.

A marriage settlement conveying the wife's land and slaves to trustees, by a deed to which the husband was a party, although not recorded, protects the property from the creditors of the husband.

Error to the Circuit Court of the District of Columbia, sitting at Alexandria, in an action of debt brought by Pierce against Rebecca Turner, charging her as executrix in her own wrong of her late husband, Charles Turner, deceased.

Upon the issue of never executrix the jury found a special verdict stating in substance the following case:

On 14 February, 1798, the defendant, by the name of Rebecca Kenner, being a feme sole, and seized and possessed, in her own right, of certain land and slaves, conveyed the same by deed, in consideration of an intended marriage between herself and Charles Turner, to trustees, to be held in trust for the use of herself until the marriage should be solemnized, and from and after the solemnization thereof to the use of herself and the said Charles Turner, and the longest liver of them, and from and after their deaths, to the use of her heirs. The deed purports to be an indenture tripartite, in which Charles Turner is named as the second party, and as such he duly executes the deed; chanrobles.com-red

Page 9 U. S. 155

he does not, however, make any settlement of his own property upon his intended wife, but appears to be made a party merely for the purpose of testifying his privity and consent.

About four months after the execution of the deed, two of the three subscribing witnesses proved the execution before the County Court of Fairfax, where all the parties inhabited. That probate was duly certified by the clerk under direction of the court. But the deed purporting to be a conveyance of land as well as slaves, and one of the subscribing witnesses, soon after the execution of it, having left the United States, and never having returned, the deed was not fully admitted to record, but remained in the clerk's office under the certificate of probate before stated, until 1 September, 1807, when the county court, upon proof of the absence of the third subscribing witness, and of his handwriting, admitted the deed to record, all which is certified by the recording clerk and found by the special verdict.

Soon after the execution of the deed, and in the same month (February, 1798), the contemplated marriage took place, whereupon the trustees put Turner into possession of the land and slaves, and he continued possessed of the same with the knowledge and approbation of the trustees till his death, which happened sometime in the month of December, 1802, less than five years from the time of his marriage and of his first coming into possession of the property.

Turner and his wife resided in Alexandria from the time of their marriage till the autumn of 1801, when they removed into the County of Northumberland, in the State of Virginia, taking the slaves with them by consent of the trustees; they continued to reside there, upon the land in the deed mentioned, on which the slaves were kept, till his death in December, 1802. Upon his death, she remained in possession both of the land and slaves, claiming exclusive property in the same and to chanrobles.com-red

Page 9 U. S. 156

hold possession of the same with the privity and approbation of the trustees, whose privity and approbation are expressly found. In the autumn of 1803, the defendant removed back to Alexandria, in the District of Columbia, and brought with her a part of the slaves (of value sufficient to satisfy the plaintiff's debt), and has ever since resided in Alexandria, and there used the slaves so brought with her.

Three months after Turner's death, and seven months before the defendant removed from Northumberland back to Alexandria, the County Court of Northumberland, finding that no person would apply for administration of the intestate's estate, committed the administration to the sheriff of the county under a particular statute of Virginia. The sheriff returned an inventory of assets apprised at $4,631.72, which was distributed in due proportions among the creditors, under the special direction of the court. But the plaintiff put in no claim, and, not being on the list of creditors reported to the court, received no part of the sum so distributed. None of the slaves conveyed by the said deed were meddled with in the course of the sheriff's administration, nor included in the inventory and appraisement, although they were all then in the county, and some of them have continued in the county ever since Turner's death. It is found that Turner died insolvent, unless the said slaves are charged with his debts.

By the 4th section of the act of assembly of Virginia entitled "An act for regulating conveyances," it is enacted,

"that all conveyances of lands, . . . and all deeds of settlement upon marriage wherein either lands, slaves, money or other personal thing shall be settled, . . . and all deeds of trust and mortgages whatsoever, . . . shall be void as to all creditors and subsequent purchasers, unless they shall be acknowledged, or proved and recorded according to the directions of this act; but the same, as between the parties and their heirs, shall nevertheless be valid and binding. "

Page 9 U. S. 157

The deed in question never was proved or acknowledged and recorded according to the directions of the act, and the question was whether it was void as to the creditors of the husband so as to charge the widow as his executrix in her own wrong.

The opinion of the court below was that the deed was good and effectual to prevent the property vesting in the husband by virtue of the marriage, and consequently was never liable for his debts. That at the time of the marriage no legal estate in the slaves was vested in the wife, and therefore nothing was transferred to the husband by the marriage. chanrobles.com-red

Page 9 U. S. 164