Huston's adm'r v. Cantril

The bond executed by Clendenin as principal, and Huston as surety, to Mayo, bears date as far back as 1782. After various efforts made by the creditor, he at length, in 1800, obtained a judgment against Huston the surety, who paid the amount of the debt on the 29th of May, 1800. The supplemental bill by which Cantril and wife, and the other daughters of Clendenin and their husbands,, were made parties, was filed on the 21st of July, 1827. That bill seeks to set aside certain deeds as voluntary and fraudulent, by which Clendenin had conveyed some slaves to his three infant daughters, for the consideration of love and affection, which deeds were admitted to record as early as May, 1790. If the plaintiff has any right to set aside those deeds, and to subject the property conveyed by them to the payment of Huston’s debt due from the estate of Clendenin, that right accrued at least as early as May, 1800, more than 27 years before the filing of the supplemental bill; and the defendants rely on the lapse of time as a bar to the recovery.

It was contended by the appellant’s counsel, that the plaintiff’s action did not accrue till he had established his debt against the rightful administrator; and as an excuse for not making this demand at an earlier period, it was stated, that shortly after it was ascertained from the commissioner’s report what was due,, and then that there was not a sufficiency of other assets to discharge the debt, this bill was filed against the fraudulent donees. It is well established at law, that the limitation begins to run from the moment that the cause of action accrues, and not from the time *156that it is ascertained that damage has been actually sustained by the breach of contract. Battley, &c., v. Faulkner, &c., 8 Barn. & Ald. 288; 5 Eng. C. L. R. 288. and Wilcox, &c., v. Plummer’s ex’ors, 4 Peters 172; are strong cases to that effect, and I see no reason why the same rule should not prevail in equity. After the enjoyment of the property for 37 years, and 27 years after the right of action, if any, accrued to the plaintiff, I think the title of the children ought not to be disturbed. The supplemental bill ought not to have been allowed, and was properly dismissed.

I concur with my brethren in the opinion, that as the bond on which the claim is founded does not bind the heirs of the obligors, no decree can be rendered against the children of Clendenin, to subject to the payment of this debt any land inherited by them, other than that on which Huston acquired a lien by the deed in the record mentioned: and that, by the very terms of that deed, Huston was bound to allow for that land at the rate of one dollar per acre.

I am for affirming the decree.

The original bill in this case was filed to enforce a lien on a tract of land, given by Clendenin to Huston, in the form of a power of attorney to sell, but operating as a mortgage on the land. The bill was filed against the real and personal representatives of Clendenin, and on a hearing, the court decreed a sale of the land. It was sold; and the report of the marshal shewing that it left a considerable part of the debt unpaid, the court (without confirming the report, as I understand the record) gave leave to file a supplemental bill, for the purpose of impeaching three deeds made by Clendenin to his daughters, conveying to them slaves and other chattels, and of having those slaves sold to pay the residue of the debt. Without acting finally on the original bill, the court proceeded *157to hear the supplemental bill, and dismissed it: from which dismissal this appeal is taken by the plaintiff.

I think this dismissal right, for several reasons. In the first place, I do not think that under the aspect of the case at the time, the court ought to have given leave to file the supplemental bill. Here was a specific subject pledged for the debt, and resorted to by the bill, and until that was fairly exhausted and shown to be insufficient, there was no need and no propriety in seeking to condemn other property. How, to my mind, this specific fund has by no means been shown to be insufficient; on the contrary, the fact seems to be, that, properly disposed of, it would have discharged the debt and left a considerable surplus. The lien on the land, dated in December, 1794, contains a stipulation between the parties, that it should not be sold for less than one dollar per acre. This is prima facie evidence that, at that early period, the parties thought it worth that price. In the commissioner’s report, made in 1821, we find him representing “ that from 600 to 1,000 acres of this land is of the first quality for that country, and if sold in small tracts and on a reasonable credit, would probably produce five dollars per acre: but the balance thereof is worth but little.” This report was before the court when the last order of sale was entered. In 1822, Archibald Hutchinson makes oath that he is well acquainted with the land, and thinks it worth on an average one dollar per acre. And yet, in July, 1822, this whole tract is set up and sold in a lump, and bought in by Huston the plaintiff at 30 cents per acre, making, to be credited to the decree, §70 dollars only; whereas, if it had been sold according to the suggestions of the commissioner, 800 acres of it would probably have brought 4,000 dollars. I feel satisfied that if this monstrous sacrifice had been brought to the notice of the chancellor, he would have ordered a resale; this being strongly prayed for in the answers to the supplemental *158bill, ancl in itself most reasonable and proper. But the report seems never to have come under his notice: the subsequent proceedings are wholly taken up with the case made by the supplemental bill, answers and evidenee, ending with the dismission of that bill, from which the appeal is taken.

I think this dismission correct, in the second place, on the ground taken by the chancellor; that the deeds from Clendenin to his daughters, though in their origin voluntary, and, while they continued so, assailable by creditors, yet became, by the marriage of those daughters, deeds for a valuable consideration, and from the dates of their marriages the daughters and their husbands became purchasers for a valuable consideration, liable to no creditor of their father who had not, before such marriage, obtained, by judgment or otherwise, a specific lien on the property. That a deed voidable may be rendered valid and effectual by matter ex post facto, is an undeniable proposition, and as old as the statute of Marlbridge. (See 2 Inst. 111.) Prodgers v. Langham, 1 Sid. 133, a conveyance was made in trust for an only daughter for 21 years, to the intent that the profits before her marriage should be applied to her maintenance, and if she married with her father’s consent, then in trust for her during the rest of the term. The court held that the deed to the daughter was voluntary, and would have been void against the defendant, a subsequent purchaser for valuable consideration, if the marriage had not intervened; but when that took effect, the deed ceased to be voluntary, and became supported by a valuable consideration which was unimpeachable, inasmuch as the marriage was an advancement to the daughter, and the husband was induced (though that fact does not appear in the case) by the prospect of this provision. The cases of Kirk v. Clark, Prac. in Ch. 275, and East India Co. v. Clavell, Id. 377, are to the same effect, except that in *159these the marriage was had with notice by the husband of the deed, and in the first such notice was presumed. In Brown v. Carter, 5 Ves. 862, Lord Alvanzey reviews all the cases, and considers that proof of notice of the settlement before the marriage is not material. He says, “ The lady had a right, the children have a right, to have it considered that he had the estate which he appeared to have. Therefore I am of opinion, though it does not appear that the friends of the wife did speculate upon this and take it into consideration, it must be presumed they did act upon it, and the husband has not a right now to disturb it.” In the case of George v. Milbanke, 9 Ves. 190, Sir Ralph Milbanke h'ad a power of appointment of £5,000, to be raised under a trust term, and if he failed to appoint, then to his executors. In pursuance of this power, he directed that £500 should be paid to his natural son Mark Milbanke, and the rest of the £ 5,000 he appointed in favor of his natural children and their mother. Mark Milbanke (soon after the death of Sir Ralph) in consideration of £400, paid him by Gr. and P. assigned to them the £500 charged on the trust in his favor. Sir Ralph died in debt; and this bill was filed by a specialty creditor, also administrator with the will annexed, to have the £5,000, or so much as was not well appointed and disposed of by Sir R. in his lifetime, raised and paid to the plaintiff. Lord Chancellor Eldon said, it was too clear for argument, that the £4,500, appointed to the woman and children was part of the personal assets of Sir R. applicable to the payment of his debts, they being volunteers; but as to the £500, after a careful examination of the cases, he concludes thus: “This is an assignment, in equity merely, of a sum of money. But the question would be, whether the general creditors have a better equity than a purchaser of this specific part of the estate, having paid his money? And I think his the *160better equity. The son, as a volunteer, would hold it against every one but creditors; and the question is whether, being not-a volunteer but a purchaser, creditors having no specific charge upon this property have as good an equity? I think they have not.” In his review of the cases, Lork Eldon makes this remai’k upon Prodgers v. Langham: “In the case in Siderfin, the settlement is expressed to be by covin. The reason as stated is this, that though a voluntary feoffment is bad as between the creditor and the feoffee, yet it is good as between the feoffor and feoffee; and therefore the latter, if prior, shall hold against the subsequent feoffee of the feoffor. The consequence is, that the feoffment of the voluntary feoffee is good against creditors.” In Sugden on Vendors, ch. XVI, § 1, part III (American Edi. of 1836, vol. 2, p. 198-9), the author, having laid down the rule that a deed merely voluntary or fraudulent in its creation, and voidable by a purchaser, may become good by matter ex post facto, proceeds to cite the cases I have quoted, and remarks, “If a voluntary grantee gain credit by the conveyance to him, and a person is induced to marry him on account of such. provision, the deed, though void in its creation as to purchasers, will, on the marriage being solemnized, no longer remain voluntary, as it was in its creation, but will be considered as made upon valuable consideration. And it is to be inferred” (he adds) “from a late decision” (referring to Brown v. Carter) “that though it. does not appear that the friends of the wife did speculate upon the provision and take it into consideration, yet it must be presumed that they did act upon it; and it cannot after-wards be disturbed.” In Sterry v. Arden, 1 Johns. Ch. R. 261, Chancellor Kent remarks, “The marriage was a valuable consideration which fixed the interest in the grantee against all the world; she is regarded from that time as a purchaser, and as much so as if *161she had then paid an adequate pecuniary consideration. It has been a principle of long standing, and uniformly recognized, that a deed voluntary or fraudulent in its creation, and voidable by a purchaser, may become good by matter ex post facto. It is the constant language of the books and of the courts, that a voluntary deed is made good by a subsequent marriage; and marriage has always been held to be the highest consideration in law. Co. Litt. 9 b. The cases do not require that the settlement should have been made with a view to any particular marriage; it is sufficient that the settlement was afterwards known to third persons, and was one probable inducement to the subsequent marriage. Indeed, in Brown v. Carter, Lord Alvanley did not think it very material to prove that the marriage was even made with notice of the voluntary settlement, as the knowledge of the circumstances of the party, and the inducement, were to be presumed.” See 12 Johns. Rep. 536, where this case, on appeal, was unanimously affirmed; Spencer, J. delivering a .most able opinion.

The three deeds in the case before us seem to have been ordered to record in open court, in Kanawha, on the day of their date (May 3, 1790), upon the motion of the grantor—a circumstance calculated to give them much publicity; and it cannot be reasonably doubted that gentlemen inclined to address these ladies would in some way get notice of them. "We know too that on the death of the grantor the slaves were taken into the separate possession of the daughters, and never inventoried as the property of their father. The daughters were all married after this, and of course with the slaves in their possession, and their deeds of record. How can it be doubted that their husbands had a knowledge of these notorious and open facts before their marriages ?

It was said, however, that this defence of the mar*162riage and its operation as a purchase for value, was not pleaded, nor any way put in issue. It is true there is no plea, nor any formal defence on this ground; but fae£g are ap stated and not at all contested—indeed stated in the bill itself. It was further insisted that Clendenin, when he made these deeds, was not in a situation in which he could have made a marriage settlement in favor of his daughters that would have been valid, and therefore that the deeds could not be validated by the subsequent marriage. I cannot admit either the position, or the consequence deduced from it. What was the situation of Clendenin when he made these deeds? We hear of no debt but that to Huston, and he was a creditor at large; or rather, there was no debt even to him, but a liability only, which did not become a debt until ten years afterwards, when he paid the money as surety. Will it be said that if, at the date of the deeds, Clendenin had sold bona fide and for a valuable consideration every slave he had, Huston could have disturbed such sale ? And what is a settlement of slaves or other property upon a child in consideration of marriage, but a sale for a valuable consideration? Is not marriage the highest consideration, the most favored? ' I have always seen it so laid down. Co. Lit. 9 b.; 1 Bro. P. C. 244; 2 Id. 596; Mitford’s Plead. (4th edi.) 278. But let us take the case actually before us—the case of these deeds. Could Huston have set them aside? Never while he was a creditor at large; and he was no creditor till he paid the debt as surety, which was not till 1800. He must then have gotten a judgment and sued out execution before he could file a bill to impeach them. Instead of this course, he preferred to take a lien on the 8,000 acre tract, then by his own admission an ample security for the engagement into which he had entered as the surety of Clendenin. This lien indeed was given to enable him to sell the land and *163meet the debt, and ti; us save himself from paying any thing out of his own pocket; and if he had used due diligence, it would seem that he might have effected this; for he received the power of attorney in 1794, and Clendenin did not die till 1797. But be this as it may, after taking this security, what had he to do with Clendenin’s personal estate? Could he tie it up in any way ? Assuredly not. He stood merely as a surety bound for a deot and holding In his hands ample counter security. While he occupied this ground, Clendenin died; his daughters came into actual possession of the slaves, and married. This event, as the cases tell us, “ fixed the interest of the grantees against-all the world; from this moment they must be taken as-purchasers, and as much so as if they had then paid an adequate pecuniary consideration.” This seems to me a complete defence against the claim set up in the supplemental bill; for surely if, at the times of the marriages, the slaves had been sold to a purchaser for their value in -money, Huston could never have disturbed those sales.

I am also of opinion that the statute of limitations is a bar to the claim: but I have been so tedious upon the points already discussed, that I refer myself entirely to the view of my brother, the president, has taken of this point, and the cases he has cited.

In this ease, Huston, the surety of Clendenin, having paid off the debt after Clendenin’s death, claimed to be substituted to the rights of the bond creditor against his heirs and personal representatives. His right to be so substituted cannot be contested, and is not denied. But having failed to make his debt out of the personal estate in the hands of Clendenin’s administrator, and the lands in the hands of his heirs, the appellant, the administrator of Huston filed a supplemental bill, with a view to subject to his demand some *164slaves and other property in the hands of Clendenin’s daughters, which he conveyed to them in 1790, in fraud, as it is alleged, of his creditors, and of Huston m particular.

The first defence set up by Cantril and others against this demand is, that the court has no jurisdiction of the subject. The Court of Chancery, however, very properly thought otherwise, and proceeded to consider the case upon another point, on which it gave judgment against the plaintiff by dismissing the bill. This was, that although the deeds from Clendenin to his daughters were fraudulent in their inception, they were made good by the subsequent marriage of the daughters. That such would have been the effect of a marriage settlement cannot be questioned. Whether the mere marital rights of the husband would render valid an anterior fraudulent conveyance, is a broader question, upon which I do not feel prepared to pronounce, though the authorities indeed seem to sustain the proposition. Sterry v. Arden, 1 Johns. Ch. Rep. 261. Roberts on ffraud. Conv. 508, 508. Nor do I think it necessary to decide another question that has been made. It is contended that if a fraudulent donee, or any other who holds an estate subject to a charge, parts with it so as to withdraw it from the power of the creditor, the donee becomes personally liable for the demand. See Ferrars v. Cherry, 2 Vern. 384. If so, then it is said the femes covert here became, by the discharge of the property, debtors to its value, and the husbands have taken them and their property with that burden.1 Without, however, touching this question, or that upon which the chancellor dismissed the bill, I am satisfied it was properly dismissed on other grounds.

The^defendants are charged on the ground of a fraudulent conveyance executed 37 years anterior to the exhibition of this charge against them, the fraudulent grantor having also been dead nearly 30 years before *165this- assault upon Ms memory. There are two grounds on which the charge of fraud rests: first, that the conveyance was voluntary and without consideration; secondly, that possession did not accompany the deed.

As to the first, I cannot think it sustained by any thing that appears in the cause. It is not every voluntary conveyance to a wife or child that is to be taken to be fraudulent. I admit it is said that as to creditors a voluntary conveyance is prima fade ff audul ent. George v. Milbanke, 9 Ves. 194. But such a conveyance, made by a person not at all indebted, is certainly neither fraudulent nor void as to subsequent creditors, and the better opinion seems to me to be, that although the grantor may be somewhat indebted, yet if he be not embarrassed, or so greatly indebted as to afford evidence of fraudulent intent, the deed shall not be held void as to subsequent creditors. Hopkirk v. Randolph, 2 Brock. R. 132. It cannot be sustained against antecedent creditors indeed, according to the opinion of very able judges, though others have thought otherwise. In the case of Salmon v. Bennett, 1 Day’s Connect. Rep. N. S., p. 525, the chief justice is reported to have said that “if there be no fraudulent intent, and the grantor be in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift a reasonable provision for a child, leaving ample funds unincumbered for the payment of the grantor’s debts, the voluntary conveyance to the child will be valid against existing debts.” In these sentiments I fully concur, believing them to be the true exposition of the proviso of our statute which excepts from its operation conveyances upon good consideration and bona fide. If therefore the case required it, I should think it proper to look into this doctrine thoroughly, and to suggest to my brethren the propriety of settling, once for all, whether it really be the law of this land that no man can make a valid gift to a child, or settle*166ment upon his family, which shall prevail against subsisting creditors, whatever may be his wealth or his unembarrassed condition. But that question does not, I think, necessarily arise in this case, although the ^u^"^an(^e^ situation of Clendenin when he made the gifts might bring, him within the principles of the decision of Salmon v. Bennett, and although the actual and apparently voluntary execution of an instrument giving a lien for the debt on 3,000 acres of land, satisfactorily proves the fairness and bonafides of Clendenin throughout these transactions.

Without resting the case on these points, the length of time which has elapsed since the gift to the daughters, is, in my estimation, an insuperable barrier to the investigation of the alleged fraud in the conveyances. There is no principle more cherished in a Court of Equity than that which reprobates the entertainment of stale and antiquated claims. An equitable claim of 20 years’ standing is now considered as barred by length of time; and if the principle be just in relation to accounts and equities where there is no fraud alleged, it is still more just and proper where fraud is charged upon a defendant. It is not reasonable that after the lapse of 37 years a party should be called upon to answer to such a charge, unless it has been kept from view by his own cunning and contrivance. 2 Sch. & Lef. 634; 2 Eq. Ca. Abr. 10. pl. 11. It has been strongly and truly said, indeed, that no time will prevent the “unkennelling of fraud:” but the pursuit must be prompt, or it will prove unsuccessful. It is not reasonable to call upon a party to explain a transaction, when the evidences of its fairness may have been swept into oblivion by the lapse of more than the third of a century. I am of opinion that the rule established both at law and in equity, which requires the party who charges the fraud to proceed within a given time after its discovery, is a *167just and proper rule, equally demanded by policy and a fair analogy to the statute of limitations, and equally applicable to cases of constructive fraud as to cases of actual fraud. I shall content myself with a simple reference to some of the cases on this subject, without making extracts from them; though the remarks of the chancellor, 2 Sch. & Lef. 633-639, are strikingly apposite to this case. Bree v. Holbech, 2 Doug. 656; 3 P. Wms. 143; 4 Bro. P. C. (by Tomlin) 163; 2 Sch. & Lef. 607; Mitford’s Plead. 212, (4th edi. 269); 2 Eq. Ca. Abr. 10, pl. 11; and 4 Leigh 474, where the cases are cited by the bar in the argument.

How in this case the conveyances were made by the father to his daughters 37 years before the charge of fraud is brought forward, and 30 years after Clendenin himself was in his grave. It is not alleged in the bill that the fraud was recently discovered, nor is it possible so to conceive. The deeds of gift were recorded, and upon the death of Olendenin in 1797, his children took possession, and part of the property at least was carried out of the state. If, as the law presumes, the creditor trusts his debtor upon the faith of the property which he sees in his possession, we must take it that the creditor here knew that Olendenin lived and died in the continued possession of this property, which he looked to for the satisfaction of his debt, and that immediately upon his death that property was removed from the hands of his personal representative, and claimed, held and eloigned by his children as their own. Pressed as Huston was by this claim—committed as he was to close custody, and breaking jail as his only means of liberation, it is scarcely credible that he should not have diligently scrutinized the state of Olendenin’s property, and asserted his claim to charge these slaves at an earlier period, had he not been conscious that the transaction was fair and meritorious. Cantril, in his answer, alie*168ges that there was a valuable consideration for the gift to his wife. Thirty-seven years ago this might perhaps have been proved, though it would be wonderful indeed if to this late day the testimony as to that fact has been preserved. I am therefore of opinion that it is now too late to question the transaction, and that after such a lapse of time it must be taken to have been unimpeachable.

This view of the case applies with not less force to the second ground of fraud alleged in the bill, namely, the fraudulent retaining of possession by the grantor in the deeds. That might have been accounted for 37 years ago, in various ways, however difficult it may be to explain it now. What light could Cantril’s wife (then a small child) throw upon the transaction? In his lifetime, Olendenin might have shewn that there was a valuable consideration for the gift, in which case the retaining possession by him for his children would have been held good, according to the case of Braxton v. Gaines others, 4 Hen. & Munf. 151. But at this late day, such proof cannot be expected, and it would be unreasonable to demand it. It cannot be, that .such a fact can be made the subject of examination at any period however remote.

It is said, however, that there is no manner in which the party sued as executor de son tort can protect himself at law from the creditor’s claim by relying on the lapse of time. I cannot assent to this. In the scanty materials which the books afford upon this subject, the question does not seem to have occurred, nor does there appear to be any precedent of a plea of the statute in such a casé. I do not think such a plea could be sustained. But when, to the plea of no executor, the plaintiff replies that the defendant has taken possession of the goods of the decedent, the issue is made up on the question whether they are indeed his goods; *169and on the trial of that question, after a great lapse of time and an uninterrupted possession of the property, it would he competent and proper for the court to instruct the jury, that they might and ought to presume the delivery of possession, or an adequate excuse for its non-delivery. This principle of presumption from length of time has not been confined to the case of a bond or a mortgage: it has been extended even to the presumption of a deed or a patent, and among us, to the new and unprecedented case of a presumed compliance with the requisitions of our law against the importation of slaves into this commonwealth from adjoining states. George v. Parker, 4 Rand. 659. It is a principle of universal application, and essential to the protection of all rights which have been long and uninterruptedly enjoyed. The right to this protection cannot depend upon the form of action which the plaintiff may select. It must avail the defendant, in some form or other, in every suit which may be instituted against him, assailing a right which he has held without question, until the evidence of its validity has been lost by the lapse of time.

For these reasons, I am of opinion that the supplemental bill was properly dismissed, and indeed that it ought never to have been permitted to be filed.

“ The court is of opinion that there is no error in the decree dismissing the supplemental bill: but the court is of opinion that the heirs of the obligors in the bond from Clendenin and Huston to John Mayo, Jr.,, in the proceedings mentioned, not being bound to the obligee, they are not bound to Huston, the surety who paid the debt and seeks to be subrograted, except under some specific lien which may have been given upon the lands; and the instrument giving the lien in this-case providing expressly that the lands shall not be sold for a less price than one dollar per acre, the said Hus*170ton or his representatives cannot avail themselves of this lien, unless they, or some other person, will give an average of one dollar per acre for every acre in the tract. Therefore, it is decreed and ordered, that the said decree dismissing the supplemental bill be affirmed,” with costs to the appellees. And cause remanded to the Circuit Court of Augusta, “with directions to set aside the decree directing a sale of the land, and to direct a re-sale on the conditions above mentioned, and also to set aside so much of the decrees as directed an account of the other real estate of Clendenin, which descended to his heirs; and to be proceeded in to a final decree.”

This decree was subsequently, during the same term, set aside on the motion of the appellant: and on his further motion, and suggestion of diminution in the record sent to this court, a writ of certiorari was awarded; upon the return of which it appeared, that in the transcript of the record originally certified, the following proceedings had been omitted—

On the 18th of June, 1828, it was ordered, on the motion of the plaintiff, that if he should become the purchaser of the land directed to be sold by the former decree, the bond and security for the purchase money, required by that decree, might be dispensed with by the marshal, who was required to receive the bid of the plaintiff without such bond and security.

On the 20th of December, 1823, on the motion of the defendants by their counsel, and by.consent of the plaintiff, it was ordered as follows: “ that the marshal of the Superior Court of Chancery, holden at Lewis-burg, at any time before the next term, at the request of the defendants, and at their proper costs and charges, make sale of the lands in the preceedings mentioned, in such lots or parcels as the said defendants may di*171rect, for ready money, having advertised the time and place of such sale in such manner as directed by the decree made in this cause, or for such time, and in such manner, as the defendants may direct.” But it was understood and agreed, “ that the plaintiff shall be at liberty, at the next term, to take the benefit of such sale or sales, if he thinks proper, provided the whole land shall sell for less than the amount due to him, and if the whole product of all sales shall not be equal to the amount, the said marshal shall, instead of receiving the amount of the respective purchases from those who shall become the highest bidders, in money, take bonds with sufficient security from them respectively, to pay the sums of money due from them, when their titles shall be confirmed by the decree of this court, and not otherwise.” . And it was further ordered, by consent of the parties, “that the present cash prices of crop tobacco in the Petersburg market shall be the standard by which the sum due'to the plaintiff shall be ascertained,” and that certain persons of the city of Richmond should determine such price, that is to say, determine- at what price the quantity of tobacco due to the plaintiff could, at the date of the order, be purchased in the Petersburg market.

The following certificate of three mercantile firms of Petersburg was filed in the cause: “We hereby certify that a parcel of Petersburg passed tobacco might have been purchased in this market about the 28th of December last, say from 10 to 35,000 pounds, at 3 dollars and 50 cents per hundred pounds. Peters-burg, 31st day of March, 1824.”

On the 24th of July, 1824, by consent of the parties, the privileges granted the defendants, by the order made on the 20th of December, 1823, were continued ■until the next term.

To the marshal’s report, and to the sale made by him, tim defendants excepted on two grounds: 1st, *172because tbe land was sold in Greenbrier, and not in Nicholas, the county in which it lay; 2dly, because the marshal did not furnish proof that the requisitions of the decree directing the sale had been complied with.

On the 19th of July, 1827, the cause came on to be heard on the marshal’s report, and the defendants’ exceptions thereto; when the court overruled the exceptions, confirmed the report, and decreed that the marshal convey the land to the heirs of George Huston deceased.

The cause was again argued in April, 1840, by Johnson for the appellant and Leigh for the appellees, before a court consisting of Tucker, P., and Brooke, Cabell, Barker, and Stanard, J.

The questions mainly discussed at the bar, though not decided by the court, were, 1. Whether, supposing that the deeds from Glendenin to his daughters were voluntary and fraudulent as to creditors, the donees can avail themselves of the statute of limitations, as a defence against the claim made by the supplemental bill? 2. Whether, under the circumstances of this case, the lapse of time, considered independently of the statute, will operate as a bar of the claim ? On the first of these questions, the following authorities were cited and examined: Roberts on Fraud. Conv. 598; Hawes v. Leader, Cro. Jac. 270; S. C., Yelv. 196; Stamford’s Case, 2 Leon. 223.; Bethell v. Stanhope, Cro. Eliz. 810; Stoke’s Case, 3 Leon. 57; Read’s Case, 5 Co. 34a; Anonymous, 1 Salk. 313; Anonymous, Dyer 256a; 11 Vin. Abr. Executors, F. a. pl. 9, p. 219; 13 Id. Fraud. C. pl. 5, p. 517; 1 Roll. Abr. C. 1 pl. 3. p. 549, Edwards v. Harben, 2 T. R. 587; Pierce v. Turner, 5 Cranch 154; Chamberlayne, &c. v. Temple, 2 Rand. 384; 1 Williams on Ex’ors, pt. 1. bk. 3, ch. 5, *173p. 136, 9, 141, 2; 2 Saund. on Plead. 5, 6, 8, 9, [507. 510,] 104, [642, 3]; Rastall’s Entries, p. 322; Osborne v. Rogers, 1 Wms. Saund. 264, and note 2, p. 265; Duppa v. Mayo, 1 Wms. Saund. 282, and note 2, p. 283; 1 Chitt. Plead. 422; 2 Id. 105, note a.; 3 Id. 941, 2, and notes 1. m. n. o.; 3 Id. 1162, 3; 2 Rob. Prac. 251, 2, and cases there cited; Rice v. White, 4 Leigh 474; Western v. Cartwright, 2 Eq. Ca. Abr. 10. pl. 11; Booth v. Earl Warrington, 4 Bro. P. C. (by Tomlins) p. 163; South Sea Company v. Wymondsell, 3 P. Wms. 143; Elam v. Bass’s ex’ors, 4 Munf. 301; Garland v. Enos, 4 Munf. 504; Spotswood v. Dandridge, &c. 4 Hen. & Munf. 139; 11 Vin. Abr. Executors, F. a. 4, pl. 1, 2, p. 223. The cases referred to on the second question were the following: Hillary v. Waller, 12 Ves. 266-7; Prevost v. Gratz, &c. 6 Wheat. 481; Ricard v. Williams, 7 Wheat. 59, 109, 115; Carr’s adm’r, &c. v. Chapman’s legatees, 5 Leigh 164; Hayes, &c. v. Goode, &c. 7 Leigh 452.

Another question argued by the counsel was, 3. Whether the deeds from Clendenin to his daughters were in truth fraudulent as to Huston ? But this point also was left undecided by the court.

The other questions discussed were, 4. Whether the ground on which the chancellor dismissed the supplemental bill, namely, that the deeds were made valid by the subsequent marriage of the donees, was correct? 5. Whether, upon this appeal from the decree dismissing the supplemental bill, the original bill and the proceedings thereon were properly examinable by the court? And if so, 6. Whether the obligation executed by Clendenin and Huston to Mayo, bound the heirs of the obligors ? 7. Whether the letter of attorney from Clendenin to Huston was revoked by the death of the grantor; or operated, notwithstanding that event, as a lien in equity on the land which Huston was thereby empowered to sell?

*174On the fourth question, the authorities referred to were those cited in the opinion of Carr, J., (delivered on the first argument of this case)—on the fifth question, Madden v. Madden’s ex’ors, 2 Leigh, 377; Lomax v. Picot, 2 Rand. 247, and the other cases cited in 2 Rob. Prac. 433, on the sixth question, 3 Bac. Abr. Heir and Ancestor. F. p. 458-9,—and on the seventh question, Paley on Agency, p. 133 [p. 186, 2d American, 3d London Edi.]; Clayton v. Fawcett’s adm’rs, 2 Leigh 16; Hunt v. Rousmaniere’s adm’rs, 8 Wheat. 174; 1 Peters 1, and Lepard v. Vernon, 2 Ves. & Beam. 51.

The propriety of the decree dismissing the supplemental bill depends on the solution of the following question:

Were the conveyances made by Olendenin in trust for his daughters fraudulent in respect to existing creditors ?

If they were, has the property conveyed by them, or the responsibilities therefor, been discharged by the statute of limitations acting on the possession of the property, and on the appellant’s right of action against the donees, and thereby protecting the donees’ rights therein from the appellant’s claim; or by the marriage of the donees supplying a valuable consideration, and thereby giving validity to the conveyances ; or by the length of time that elapsed since the claim of the appellant accrued, and before the assertion of it against the donees by the supplemental bill?

I have no doubt that the conveyances were fraudulent in respect to the existing creditors of Clendenin whose claims cannot be satisfied without a resort to the property conveyed thereby; and the fullest proof that, at the.time those conveyances were made, Olendenin had ample property (exclusive of that so conveyed) to pay all his debts, would not protect the do*175nations from the claims of the then existing creditors. I fully assent to the doctrine deduced by Chancellor Kent in the case of Reade v. Livingston, 3 Johns. Ch. R. 481, from the many cases on the subject, upon a careful review of them; which doctrine is thus stated by him: “ The conclusion to be drawn from the cases is, that if a party be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts,” (that is, debts existing at the time of the settlement) “and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The presumption of law in this case does not depend upon the amount of debt, or the extent of the property in the settlement, or the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would be embarrassing if not dangerous to the rights of creditors, and prove an inlet to fraud. The law therefore wisely disables the debtor from making any voluntary settlement of his estate to stand in the way of existing debts. This is the clear uniform doctrine of the cases.” Such too is the doctrine of the Court of Appeals in the case of Chamberlayne &c. v. Temple, 2 Rand. 384.

My opinion further is, that the property and the responsibilities therefor were not discharged in either of the modes suggested.

1st. The act of limitations does not protect it from the claim of the appellant.

It has been a concessum in the argument, that a party holding property under a voluntary conveyance which may be avoided by a creditor of the grantor, may, on the death of the grantor, be sued by the creditor as executor de son tort. On the assumption that such suit may be brought, the limitation applicable to suits for the recovery of personal property, it is contended, is applicable in this case, and commences to run from *176the time such action might be brought; and when time has elapsed sufficient to protect the adverse possession of personal property from a suit to recover it, that time consummates the title of the donee in respect to the creditor, and the donee no longer holds the property, or is chargeable in respect of it, as executor de son tort. To this I cannot assent. The liability as executor de son tort does not subject the party to an action of detinue or trover by the creditor: the liability is to the action that the creditor might have against the rightful executor—the action of assumpsit or debt, if on a simple contract, of debt if on a specialty or judgment: and having incurred a liability to such actions, the only limitation by which he can protect himself from such liabilty is that which applies to the action to which he is so liable. The claim of the appellant could not have been barred by the statute of limitations, and the statute cannot give protection to the appellees.

2ndly. The marriage did not supply a valuable consideration, giving validity to the voluntary conveyance, and exonerating the donees from the responsibility that existed previous to the marriage. The title that accrues to a husband in the personal property of his wife, by force of the marital right, has not the stability and strength of that of a purchaser for valuable consideration. The husband is invested, by force of the marital right, with the rights of property that his wife may have had in the personalty that he reduces to possession. His rights in such property are measured by hers.' If acquired by her by covin, and that covin be secret, she might pass a good title to a purchaser for valuable consideration without notice; hut the marital right would not protect the property. A secret trust, or an unrecorded mortgage, which would not protect it from the claim of such purchaser, would certainly not be defeated by the marital right. Mar*177riage is an absolute gift to the husband of all the goods and personal chattels and estate which the wife was actually and beneficially seized or possessed of at that time in her own right, and of such other goods and personal chattels as came to her during marriage. 1 Roper on Husband and Wife, p. 169. The husband is not a purchaser of the personal chattels of the wife. 7 Ves. 174. Again, the wife, at the time of her marriage, was liable to the action of the creditor. Her marriage cannot 'per se absolve her from that action.. If, by force of the marriage, the title in the property be so changed as to protect it from specific charge,, more certainly would a sale of it by the donee, for-valuable consideration, to a purchaser without notice, have that effect. Yet in the latter case it would hardly be pretended that the donee, by selling the property in respect to which she was chargeable as executrix de son tort, would absolve herself from such liability.. In either view the liability to the creditor would continue.

■ 3dly. The lapse of time should not deprive the appellant of redress. It was proper for the appellant to seek satisfaction out of the estate of the debtor, rather than attempt to obtain it out of the property conveyed to the donees. If he could have sued at law, charging the donees as executors in their own wrong, I think, with the appellant’s counsel, that proof of the insufficiency of Clendenin’s estate to pay his debts, unless aided by the property conveyed to the donees, formed an indispensable part of his case. The creditor resorting to a Court of Equity might have made the donees parties; but this he could not have done so effectually, unless he had charged that Clendenin’s estate, unaided by the property conveyed to the donees, was inadequate to satisfy his claim. Without such an allegation, it would not appear that he was hindered or defrauded by the conveyances, and that they' were *178therefore void as to him; and the donees might have demurred. How, at the time the suit was instituted, there was every probability, according to the view the parties took of the liabilities of Clendenin’s estate, that it would-prove adequate; up to the order confirming the sale of the land, it was not ascertained to be inadequate; and during this time, the creditor was seeking to get satisfaction out of the subject that in equity ought to have been primarily charged for the protection of the donees. Though the creditor might, on the suggestion of the insolvency of Clendenin’s estate, have made the donees parties, he was not, against his own belief and the ostensible probabilities of the case, bound to do so, at the hazard of being subjected to costs to the donees, as I suppose he would have been, had the result shewn (as he had reason to •expect it would do) that Clendenin’s estate was not insolvent, and his claim been satified out of that estate without touching the donations. The responsibility of the donees in equity was secondary and eventual, and the time consumed in the attempt to fix the charge on and procure satisfaction out of the estate primarily chargeable, and which was believed to be adequate, cannot be computed in order to sustain the objection founded on the lapse of time, which operates only as evidence of satisfaction, or of abandonment or acquiescence. The donees cannot complain that that effort was made. It was necessary to fix the title of the creditor to a decree against them; and though they might have been made parties at an earlier date, had the creditor, against the probabilities of the case, thought proper to hazard the suggestion that Clendenin’s estate was insolvent, yet that fact not being ascertained or believed, the creditor was not bound to suggest it, and consequently not bound to make the donees parties at that time. I know of no case, or doctrine deduciblefrom analogies, which would *179justify the discharge of an eventual responsibility, on the length of time consumed in the diligent pursuit of satisfaction from the fund primarily chargeable. Were an executor to assent to and deliver legacies without leaving funds to satisfy debts, the creditors might embrace the legatees in a suit against the executor, by making that suggestion. Yet it never has been supposed that if the creditor pursues his claim against the executor, and at the end of a tedious litigation it is ascertained that he has not assets or ability to pay the debt, the time consumed in this pursuit could be used to repel the suit against the legatees, instituted within reasonable time after such abortive pursuit. I forbear to extend the argument in support of my opinion that the supplemental bill ought not to have been dismissed, as the other judges, on different grounds, dissent from it.

The resulting questions are, 1st. Can the court, on this appeal from the dismission of the supplemental bill, examine the previous decrees, and correct them if they be erroneous ? and 2dly. If this can be done, are those decrees erroneous?

The cases referred to in 2 Rob. Prac. 433, leave no doubt that the first question must be answered in the affirmative.

The solution of the second depends on the effect of the power of attorney, and of the obligation of the bond given by Clendenin to Mayo.

The obligation of the bond does not, in my opinion, extend to the heirs of the obligor, and the creditor therefore cannot charge the real estate, unless the power of attorney has given him a lien on the 3,000 acres mentioned in it.

The case of Hunt v. Rousmaniere’s adm’rs, 8 Wheat. 174, which has been recognized by this court in the case of Clayton v. Fawcett’s adm’rs, 2 Leigh, 19, is, I think, sound law, though in this case I apply it with *180the more reluctance, seeing that by it the creditor will be deprived of a security which he and the court below, and one at least of the defendants, supposed to exist. Assenting to the law of that ease after the fullest deliberation, the result 'is that the power of attorney expired with the life of Clendenin, and gave no lien after his death.

The decree therefore for the sale of the 3,000 acres of land was erroneous, and all proceedings under it must be set aside, the land restored to the heirs of' Clendenin, the conveyance of the marshal, made on the confirmation of the sale, cancelled, and a release- or reconveyance, with special warranty, by Huston or those claiming under him as heirs, devisees or grantees, decreed to be made to the said heirs of Clendenin.

I concur with the president in the opinion he is about to deliver; and I concur also in the-opinions of Judge Carr and Judge Brockenbrough, (delivered on the first argument of this case,) upon the-act of limitations. That act, as regards slave property, has been often applied to the right as well as the remedy. Bive years possession has been held not only to protect the right of a defendant, but to entitle a plaintiff to recover the slaves, even against one having a prior title. In the case before us, to hold that such a possession will not protect the property against the creditor of the donor, would be to prefer the right of" the creditor to the right of the true owner; which I think would be (where there is no lien on the property)to prefer the less to the greater right, and violate the object of the act of limitations; especially in a case in which the rights of the defendants accrued more than 27 years before the filing of the bill.

I have carefully reconsidered this case, and re-examined the opinion I delivered at the former-hearing, (to which I beg leave to refer,) and I find no-*181reason to depart from the conclusion at which I then •arrived. My mind has been fortified in the belief that a fraudulent donee, sued at law as executor de son tort, -cannot protect himself by the statute of limitations by way of plea, but that he may do so by moving an instruction to the jury to presume from lapse of time that every thing was fair. For if, to the plea of ne ■ungues executor, the plaintiff replies that the defendant had administered by taking possession of the property of the deceased, the question at once arises whether it was the decedent’s estate, and this would depend upon the question whether the conveyance impeached was or was not fraudulent; and in the decision of this question a jury ought, after great lapse of time, to presume every thing to have been right. And if the donee could so protect himself at law, it would seem a fortiori, that where, as in this case, the length of time is relied •on in equity, he should receive its protection. It is perfectly well settled that in case of an actual fraud, the statute of limitations is a good bar, both at law and in equity, or rather it operates as such in equity, by analogy to its effect at law. "Why then should a mere constructive fraud, implied from transactions oftentimes most praiseworthy and amiable, be denied the protection of a pi’inciple which has been established "by the legislature, and followed by the chancellors, for the purpose of protecting rights long uninterruptedly enjoyed, and for discountenancing that greatest mischief to the republic, the hunting up and the assertion of stale and antiquated claims? I cannot perceive; and I am therefore of opinion that a party may protect himself by length of time, from the attempt to charge him as a fraudulent donee. In this case I am satisfied that Huston might, as early as 1800, after he paid the -debt, have instituted his action, either at law or in equity, against the appellees as fraudulent donees, if they were really such, and that of course the lapse of *182time should be computed from that period. If so, 27 years elapsed before the institution of the present proceeding, which for the first time puts the defendants upon the proof of the fairness of a transaction 87 years old, with the circumstances of which they cannot reasonably be supposed to have any acquaintance. Though the deeds are apparently voluntary upon their face, yet parol evidence would be admissible to prove a valuable consideration to support them and rebut the fraud. Sugden on Vendors, 473, (American edi. of 1836, vol. 2, p. 200;) Chapman v. Emery, Cowp. 278. How, if this might be established by evidence, it may be presumed from lapse of time, which supplies the place of evidence.

"With these views, I am still of opinion to afiirm the decree in the supplemental cause. But some other questions have been pressed upon me, which I waived upon the former hearing as unnecessary to be decided, but which it seems desirable to pronounce upon, as we are not unanimous upon the point which I have disrcussed.

The question as to the effect of the marriage of the-voluntary donees is the first that I shall notice. It has been very satisfactorily treated by my Brother Parker,* and by our former able associate, Judge Carr. They have shewn, that upon principle and authority, the intermarriage with a voluntary donee renders the transaction valid. Their able views will render unnecessary any thing more than a few general remarks on the-subject.

Marriage, from the earliest times, has been considered in law a valuable consideration1! On the part of the-husband it is peculiarly so, as he is responsible for the-debts of the wife. Hence, it is beyond question that if a father makes a gift to his daughter in marriage, the-*183property given shall forever after be protected against the creditors of the father, how much soever he may have been indebted, provided it was under no specific lien. If, for instance, the slaves in question had been given by Clendenin to his daughters upon their marriage, Huston could have ho pretension to charge the property itself, or them or their husbands in respect of it. The real question then is, whether, if the marriage would protect the gift out and out against a creditor, it will fail of that effect in relation to that partial interest which, in contemplation of law, and by the operation of the statute, is, in case of a voluntary gift, left in the donor for the benefit of creditors ? Upon the reason of the thing, there would seem to be little room for doubt. So long as the whole shall he held to he greater than a part, so long must it he held that marriage with a fraudulent donee must extinguish the creditor’s right to charge the property, if a gift out and out at the time of the marriage would he protected by it. Upon authority the matter seems to have been long and well settled. Thus, in Prodgers v. Langham, 1 Sidd. 138, the father created a trust to raise a fund to support his daughter till marriage, and to portion her if she married one Poulson. She did not marry him, hut another, unacceptable to the father. The father then sold the land, thus charged, to a third person. It was decided that if he had sold before the marriage, the trust in favour of the daughter would have been held void; but that although it was void in its creation as to purchasers, yet as the marriage had taken effect, the first settlement no longer remained voluntary, as it was in its creation, but was upon valuable consideration and unavoidable, since the marriage was an advancement of the daughter, and of him who should he induced to marry her by that provision. This is a leading case, and said in 9 Ves. 193, to have been long considered good law. So in Kirk v. Clark, Prec. in Ch. 275, 3 *184Bac. Abr. 317, a voluntary settlement on a son, followed by a subsequent marriage, was held to be thereby made good and valid, and it was declared it ought to pe congi(jere¿ as made at the time of the marriage. go in East India Company v. Clavell, Prec. in Ch. 377, 3 Bac. Abr. 315, a voluntary settlement for raising a portion for a daughter, though in its creation invalid, yet was held to be rendered valuable and unavoidable by a subsequent marriage. See also Brown v. Carter, 5 Ves. 862. In Sterry v. Arden, 1 Johns. Ch. R. 261, affirmed unanimously by the court of errors, the cases are reviewed by Chancellor Kent, and he comes to the same conclusion. There the deed to the daughter was voluntary; but it was held that her subsequent mamage “ changed the character of the previous settlement, and placed her in the light of a purchaser for valuable consideration.” Principle and authority thus seem to me to concur in sustaining the proposition that the mamage of the daughters in this case rendered the gifts, if voluntary before marriage, good and unassailable afterwards.

It is said, however, that if the fraudulent donees had sold the slaves before marriage, they would have become personally responsible for the value; and that if marriage is a purchase, they must pari ratione be responsible, as by their act they have placed the property beyond the reach of the creditors: and then it is said the husbands, having taken them cum, onere, are , bound for the value of the property thus slipped from the grasp of the creditors. If this be so, the principle which protects the marital rights is of no value: “it keeps the word of promise to the ear, and breaks it to the hope.” If the property is protected against creditors by the marital rights on the one hand, the husband is made liable to its value on the other. What then does he gain by it ? Of what value is the *185'institution of these perplexing enquiries, if in every event he must be charged with the debt?

But is the principle such as is contended for? Does the daughter become debtor by the marriage? Is she considered as selling, and the husband as purchasing the property from her? By no means. She is considered as purchasing from her father by the act of marriage. The valuable consideration enures to make that conveyance valuable which before was voluntary. 'The property may not be, from some cause, in the wife’s possession at the time of the marriage. If they ■sue for it, the suit is brought by both, as in Sterry v. Arden. If she dies, her husband must administer, and recover in the character of administrator, as m East India Company v. Clavell, before cited. He, then, is not a purchaser from his wife: she has not parted with her right but by operation of law, and has not therefore incurred any responsibility whatever, for the protection afforded to the property by the marital rights.

Upon the whole, I am of opinion that on this ground also the'supplemental bill was properly dismissed.

Another question has been made as to the power of attorney, and its effect as an equitable mortgage. As to that, I shall only say that as this court seems to have recognized the case of Hunt v. Rousmaniere’s adm'rs, I shall of course bow with deference to its decision. It is, however, in entire conflict with my own opinions.

As to the bond, it clearly does not bind the heirs, and as this is not a bill to marshal assets,, the enquiry as to the real estate was unnecessary and erroneous.

These errors occur in the proceedings in the original cause, which should therefore be herein corrected.

The decree entered by the Court of Appeals was as follows:

*186“ The court is of opinion that whatever might have been the character, in its origin, of the transfer of the slaves sought to be subjected to the plaintiff’s demand by the supplemental bill, it was rendered good and available against creditors and purchasers upon the marriage of the daughters, who thereupon were to be considered as purchasers by relation for valuable consideration. The court is therefore of opinion that there was no error in dismissing the supplemental bill; but considering that by the appeal of Huston’s administrator the original proceedings, as well as the supplemental bill, were brought up to this court, and proceeding to examine the same, they are further of opinion that there is error in the said original bill and the proceedings thereupon, in the following particulars : 1st, In considering the power of attorney in the proceedings mentioned, as having the effect of an equitable mortgage, and as creating a charge upon the land; this court being of opinion that the said power, not having been carried into effect in Clendenin’s lifetime, was utterly revoked by his death, and that all the proceedings for subjecting the 3,000 acres of land in Greenbrier to the payment of the plaintiff’s demand were erroneous, and should be set aside, and a reconveyance to the heirs decreed. 2ndly, In directing an account of the real estate; as the bond did not bind the lands, and the bill does not seek to marshal assets. Such an account therefore could avail nothing, and involved the parties in unnecessary costs. Therefore,”1 SO MUCH OF THE DECREE AS DISMISSES THE SUPPLEMENTAL BILL AFFIRMED, AND THE PROCEEDINGS IN THE ORIGINAL CAUSE, SO FAR AS ABOVE DECLARED TO BE ERRONEOUS,. REVERSED, WITH COSTS TO THE APPELLEES AS THE PARTIES SUBSTANTIALLY PREVAILING. AND CAUSE REMANDED BOR FURTHER PROCEEDINGS PURSUANT TO THE FOREGOING. OPINION AND DECREE.