Clagett v. Gibson

The CouRT. (nem. con.) permitted the record to be read in evidence only to show the existence and pendency of the suit for alimony.

Mr. Jones, for the defendant, contended that the defendant must be considered as a creditor of. her husband, (having sued for alimony,) at the date of the deed of emancipation, and that the deed, being made in fraud of her rights, was void ; and being “ in prejudice of” a creditor, was also void as to her under the 29th section of the Act of 1796, c. 67. By filing the bill, she had a lien on all his property for her separate maintenance.

Mr. Goxe, contrd. By a manumission by deed, the right of freedom vests ins tauter, although to take effect in futuro. It is otherwise in emancipation by will. The order for alimony was not made until the following March. The decree is only in per-sonam ; it created no lien on the property.

The Coukt (Theuston, J., contrd,) was of opinion, that the wife, at the date of the deed of manumission, ought to be considered as a creditor in equity, and it was therefore competent for her to show that the deed was made in fraud of her rights. She had a right to maintenance; she had claimed it in her petition; and whether it would be granted or not, was immaterial.

The Court also, at the prayer of the defendant’s counsel, in*361structed the jury, that if they should be satisfied by the evidence that Gerard Gibson made the deed of manumission while the claim of his wife for alimony was pending, and for the purpose of preventing her from recovering her said claim, then such deed of manumission was fraudulent and void, and the petitioners are not entitled to their freedom under the said deed. But if the jury shall believe, from the evidence, that he made the said deed with the view of preventing her from obtaining, at his death, a distributive portion of his said property, such motive for making the said deed, is ño ground for impeaching its validity.

Verdict for the defendant.