PIERCE

V.

TURNER.

If he had been trusted upon the faith of this property, which he had in his possession, and which was supposed to have come by his wife, such creditors, who were ignorant of the deed, would have a right to payment out of this property. If they could not, the possession of the slaves would have been a fraud upon such creditors.

It is true, in the present case, the debt was contracted before the marriage, but that cannot alter the principle of law. If the deed be void as to any of his creditors, it is void as to all.

The term creditors is general, and literally comprehends creditors of the husband, as well as creditors of the wife. Where the words of a statute are plain, the court cannot indulge any latitude of construction, but must pursue the words. Call, 106. 2 Call, 183. Eppes v. Randolph.

3

If the property was liable for the husband's debts, it was assets, and her appropriating it to her own use, makes her an executrix in her own wrong; (Toller, 17.) although she did it claiming them as her own, and under a void deed; 2 Vin. Abr. 211. 2 Term Rep. 588. Edwards v. Mercer. Cro. Fac. 270. Hawes v. Loring. 2 Bac. Abr. 338. 5 Co. 34. a., even if there be a rightful administrator. But the possession taken by the sheriff of Northumberland county was not an administration. 2 Term Rep. 97.

If this deed be valid against creditors, no marriage settlement need be recorded. It renders unnecessary all the precaution which the legislature so anxiously took to prevent this kind of fraud and imposition.

C. Simms, P. B. Key and Jones, contra.

The act for regulating conveyances, as it relates to creditors and their debtors, was intended to protect the former against secret deeds and conveyances made by the latter; it never was intended to

injure the rights of third persons, who do not claim PIERCE under the debtor.

Lord Mansfield, in the case of Cadogan v. Kennett, Cowp. 434. speaking of the statute of 13 Eliz. c. 5. which relates to frauds against creditors, says, that "such a construction is not to be given in support of creditors as will make third persons sufferers."

If there is any difficulty in the construction of this act it arises from the generality of the expression "creditors and subsequent purchasers.'

The first section of the act declares, that no conveyance shall be good against any creditor or purchaser, for valuable consideration, not having notice thereof, unless it be acknowledged or proved by three witnesses, &c.

What purchaser is intended by this act? Unquestionably a purchaser from the person who made the first deed. The effect or operation of the act, is to give validity to the second deed duly proved and recorded in preference to a prior deed, not duly proved and recorded; and not to invalidate the first deed, in favour of a purchaser for a valuable consideration from a person other than the maker of the first deed..

To illustrate the subject; suppose A. the rightful owner of property makes a conveyance of it to B. which is not recorded. C. who sets up a claim to the property, sells and conveys it to D. for a valuable consideration, and the deed is duly recorded; would the deed from A. to B. be considered as void against D. who does not claim under A.? certainly not. Then the subsequent purchaser must claim under the person who made the first deed, or the first deed cannot be considered void as to him. So the general term "creditors," used in the act must, for the like reasons, be understood to mean the creditors of the grantor or bar

TURNER.

PIERCE

V.

TURNER.

gainor in the first deed, and none but such creditors can set aside the deed.

If A. by deed conveys property to B. and the deed is not recorded according to the act. C. the heir of A. contracts debts. The creditors of C. would have no lien or claim on the property conveyed by A. to B., nor would it be liable in any manner to C.'s debts; yet, but for the deed, the land would have descended to C. The right which creditors have to the property of their debtor is derivative. If he never had a right to the property, they can have none. Charles Turner never had any right to this property, unless under the deed.

Rebecca Kenner, before the marriage, was the sole and absolute owner of it, and was fully competent to dispose of it as she thought proper.

She did dispose of it by a deed to trustees, which she was competent to make, which was completely binding upon her, and which devested from her all legal title and claim to the property. At the time of the marriage she had no legal estate in her which could, by operation of law, be transferred to her husband by the marriage. As he was a party to the deed, and thereby assented to it, he was bound by it, and could never set it aside. Between all the parties to the deed it was as valid and binding as if it had been duly acknowledged and recorded. The creditors of Charles Turner can claim nothing which he could not claim. If the marriage did not transfer the property to him, they cannot claim it at law. What never was his cannot be theirs.

If the property never was his, so as to be assets, the defendant can never be charged as executrix in her own wrong for taking possession of it.

But even if this property should finally be adjudged to be assets, yet we contend she is not liable as executrix de son tort. If she took possession of the slaves on a fair claim of property, believing her

self lawfully entitled to them, it cannot amount to such a tortious act as will charge her as executrix de son tort. Bro. Abr. Administrator, pl. 36. Executor, pl. 162. Fitz. Abr. Executor, pl. 65. Roll, Abr. Executor, pl. 417. 11 Vin. Abr. Executor, C. a. and B. a. pl. 5. 2 Leon. 226. Com. Dig. Administrator, C. 2. Freem. 13. pl. 12. Dyer, 166. Stokes v. Por

ter.

The

The deed was good at law between the parties, and by the assent of her trustees she had a legal right to the possession; and wherever a person comes lawfully into the possession of the goods he can never be charged as executor de son tort. rightful executor could never claim these slaves as assets, because the deed was good between the parties, and he would be estopped by the sealing and delivery of the deed by Charles Turner, his testator.

If the creditors of the husband have any remedy, it, must be in equity; where it is a well settled principle that if the representatives of the husband are obliged to resort to equity to get possession of the wife's estate, they shall first make her an adequate settlement. She is considered as a fair creditor to that extent. 1 Fonbl. c. 2. § 6. p. 87: note k. 10 Ves. jun. 360. Rider v. Kidder. 1 P. Wms. 382. Jacobson v. Williams. And so far from setting aside such a deed as this, a court of equity will enforce a mere agreement for a settlement even in opposition to creditors.

If this were a contest between the creditors of the wife, and the creditors of the husband, the contest must be decided in favour of the former. "Though the husband by the marriage adopts the wife and her circumstances together, and is liable to her then debts, yet he is liable to them only during the coverture, unless the creditor recover judgment against him in the life-time of the wife; nor can a court of equity make him liable in respect of the fortune which he may have had with her." 1 Fonb. 91. c. 2. § 6. 1 P. Ïms. 461. Earl of Thomond v.

Vol. V.

X

PIERCE.

V.

TURNER.

V.

PIERCE Earl of Suffolk. 3 P. Wms. 410. Heard v. StamTURNER. ford. Forrester, 173. Her debts do not by the marriage become absolutely his debts. Her creditors do not lose their right of action against her; but after his death may pursue their remedy against her and her separate estate.

The terms debtor and creditor are correlative. The creditor meant by the statute must mean the creditor of that debtor whose deed is to be set aside.

This deed was not void ab initio as to any creditor of either of the parties. For eight months it was valid as to all creditors; and is still valid as to all the parties.

Here is no fraud, either legal or moral, as to the creditors of the husband. The consideration of marriage is a fair, a valuable, and a highly favoured consideration, and has always prevailed, both at law and in equity, even against creditors.

The plaintiff's counsel, however, set up the marriage itself to defeat the deed made in consideration of that marriage.

The case of Edwards v. Mercer, 2 Term Rep. 588. was a case of fraud. It was void ab initio; not by reason of the omission to record it

MARSHALL, Ch. J. mentioned the case of Anderson v. Anderson, 2 Call, 204. where it seems to have been decided that the word creditor, in the act, included creditors of the husband as well as creditors of the wife.

Jones. That was not the case of a conveyance, but of a contract before marriage without the intervention of a trustee. This contract did not, and could not, prevent the legal operation of the marriage which transferred every thing to the husband. The wife was possessed of the legal estate at the time of the marriage. But in the present case the