UNITED STATES SUPREME COURT DECISIONS ON-LINE

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; clubjuris

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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 clubjuris

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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. "

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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. clubjuris

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WASHINGTON, J., delivered the opinion of the Court as follows:

This is an action brought by a creditor of Charles Turner against Rebecca Turner, who is charged as his executrix, and the questions submitted to the consideration of the court are 1st, whether the slaves, mentioned in the deed of 14 February, 1798, are to be taken as assets belonging to the estate of Charles Turner, and if so, then, 2d, whether Mrs. Turner can, under the circumstances of this case, be properly charged as an executrix of her own wrong? If the first question be determined in favor of the defendant in error, it will become unnecessary to consider the second; as it does not appear that Mrs. Turner intermeddled in any manner with the estate of her deceased husband, unless these slaves did, in point of law, constitute a part of that estate. clubjuris

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The first question depends upon the construction which the court may give to the 4th section of the statute of Virginia, passed on 13 December, 1792, entitled "An act for regulating conveyances," which declares that all conveyances of land, marriage settlements of lands, slaves, or other personal property, deeds of trust and mortgages thereafter made should be void as to all creditors and subsequent purchasers, unless the same were acknowledged or proved, and recorded within the time prescribed by the statute, but that the same as between the parties and their heirs should nevertheless be valid and binding.

The deed from Rebecca Kenner, the defendant in error, previous to her intermarriage with Charles Turner, by which the slaves in question were settled on the said Charles Turner and herself during their lives and the life of the longest liver of them, with remainder to the heirs of the said Rebecca, not having been proved and recorded within the time prescribed by law, it is contended by the plaintiff in error that the same became void as to the creditors of Charles Turner, whose rights remained unimpaired by that deed, in the same manner as if it had never been made, in which case, it is not denied that an absolute estate would have vested in the husband, on his marriage.

This argument proceeds upon the ground that by the words "all creditors and subsequent purchasers" is meant as well the creditors of the grantee and subsequent purchasers from him, as those who might derive title under the grantor. Although the words are certainly broad enough to comprehend the whole, it is believed by a majority of the Court that the construction should be such as to limit the application of them to the creditors of, and subsequent purchasers from, the grantor. In no case but one, where a title can be set up for the grantee paramount the deed, can it ever be the interest of a creditor of the grantee to insist upon such a construction as is contended for in this, for as he must derive his title clubjuris

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under the deed, if it be void as to him, it is impossible for him to found a claim upon it in right of the grantee, whose only title is under the deed. It would be strange that a deed should be binding upon the grantee and his heirs, and yet void as to persons claiming under him, for a valuable consideration; and yet such would be the consequence, if the words "all creditors and subsequent purchasers" should be understood to apply to persons claiming under the grantee as well as those claiming under the grantor. Indeed, it would seem repugnant and absurd to apply the same expressions to persons, who, if they claim at all, must claim under the deed, and also to those who claim against the deed; in the latter case, the invalidity of the deed is consistent with the claim, in the former it is destructive of it.

It may be said, however, that these observations are inapplicable to this particular case, because the creditors of the husband do not claim under but against the deed, and in this respect stand upon the same ground as the creditors of the grantor. But if in every other case which can be stated, the invalidity of the deed is applicable to the creditors of the grantor, or those claiming under him, and to none other, by what rule of construction can the same words have a more extended meaning, so as to be applied to persons who claim in right of a party to the same deed other than the grantor. If the deed in question had granted to Charles Turner an estate in fee as to the land, and for life in respect to the slaves, would it have been void as to simple contract creditors, who could go only against the personal estate, and good as to specialty creditors, who might subject the real assets? and yet, if the deed be void at all, as to the creditors of the husband, it must be so throughout, in which case it might well be doubted whether the land could be made liable to the payment of the husband's debts; or, to present the question in a less doubtful shape, would the deed be considered void as to a purchaser from the husband of the slaves, and good as to a purchaser of the land? Let the true interpretation of the words "all clubjuris

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creditors and subsequent purchasers" be once ascertained, and every difficulty in the case is at an end. If they are construed to mean the creditors of the grantor, or subsequent purchasers from him, then, the deed being good between all the parties to it, no estate vested in Charles Turner but such as the deed itself passed to him. The title of his creditors being clearly derivative, if he had no title under the deed (and being himself bound by it, he could have none which was inconsistent with it), then his creditors could have none. But if he had a title incompatible with that granted by the deed, then he was not bound by the deed; contrary to the statute which declares that he was bound. If his creditors have any such title, it cannot be derived from him when, in point of law, he had none in himself, and, independent of his title, it is impossible to show any in them. If a subsequent purchaser, with notice of a prior unrecorded deed, could not prevail against the title of the first purchaser, and most unquestionably he could not, how much stronger is the case when such subsequent purchaser is even a party to the first deed, and claims an interest under it? To say in this case that, upon the marriage of Charles Turner or at any time afterwards, the law cast upon him an estate in the property conveyed by this deed, of which he had notice, and to which he was a party, inconsistent with the estate conveyed to him by that deed (and this must be said, if his creditors can claim such estate in his right), is, in the opinion of a majority of the Court, repugnant to the plain meaning and spirit of the law under consideration.

That creditors of the husband or purchasers from him may be injured by the construction which this Court feels itself compelled to give to this law need not be denied, but it is not for this tribunal to afford them relief. It might, perhaps, be well if the law were so amended as to render deeds made in contemplation of marriage void in express terms, as to the creditors of the husband, or purchasers from him, in case the same should not be recorded within the time prescribed by law. clubjuris

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The Court has felt some difficulty in consequence of a decision of the court of appeals in the case of Anderson v. Anderson, but it is believed that the judgment in that case was perfectly correct, let the particular point which occurs in this cause be settled one way or the other. In that case, the contract was not only executory and rendered void at law by the subsequent intermarriage of the parties to the contract, but it was, at the time when the slaves were taken in execution, perfectly contingent whether the wife could ever claim any interest in them, in opposition to persons deriving title under the husband. For if the husband should have survived the wife, or if they should have had issue, the absolute legal estate of the husband, gained by the intermarriage, would have remained unaffected by the deed. There was therefore no reason why the creditors of the husband should be prevented from receiving satisfaction of their debts out of his legal estate in the slaves, because it was subject to an equitable contingent interest in the wife, which might never become effectual. A court of equity might well say to her as you have no remedy at law for a breach of the contract by the husband in consequence of not having interposed trustees to protect your rights, and have omitted to record the deed by which creditors and subsequent purchasers might be defrauded, we will not now decree you a specific performance against creditors who have law and equity on their side.

Decree affirmed.

JOHNSON, J.

I am unfortunate enough to dissent from my brethren in this case. I think the creditors of Turner entitled to recover, and entitled to recover in this form of action.

I will not contest the general principle that the creditors, to whose benefit this act must be understood to operate, are the creditors of that party only from whom the estate moves. But this case presents an exception to the general rule, and the reasoning clubjuris

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from which the general conclusion results will be found inapplicable to the case of husband and wife with regard to the personal estate of the latter.

The words of the act are admitted to be sufficiently comprehensive to include the creditors of both: the general rule is that the letter must prevail, and it is only when an adherence to the letter will involve a court in absurdity, or inextricable difficulty, that the spirit is resorted to as a restriction upon the literal meaning. But the construction which I give to this act removes repugnance and absurdity, and produces a concordance between the letter and the spirit, which appears to my mind conclusive upon its correctness.

What was the object of the legislature? It was to protect the community from that false credit which men acquire in society, from the possession of or supposed interest in property; to place within their reach the means of avoiding those frauds which may be practiced upon them, by the possessor of property, when an estate or interest in it exists in fact in some other person.

The argument in favor of the defendant is that the creditors of the grantee can derive no benefit from a deed which the act declares void, and which consequently could vest no interest in their debtor. Through him they must claim, and no other estate but that which existed in him ought to be subjected to their debts.

I will not pass an opinion upon the correctness of an argument which, in the case where possession follows the alienation, may make the act productive of the very fraud which it was intended to obviate. My opinion is founded upon a ground which is unaffected by the conclusion upon this point, or rather in perfect coincidence with that conclusion. I deduce my conclusion from the consideration that the claim of Turner's creditors is not derived through clubjuris

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the deed, but is in fact in direct hostility with its operation. The effect of the marriage in transferring the property to the husband is the foundation of their claim, and the deed executed on the intermarriage of the defendant with Charles Turner, constitutes the subject of the defense against their claim. The creditors, in order to maintain their action, prove first the property in the wife before marriage, then her intermarriage with their debtor. These facts, in operation of law, upon her personal property, sustain their right of recovery. But in opposition to their claim, the wife endeavors to avail herself of this deed, and this question is brought up on an exception taken by the creditors to its legal validity. The ground of their objection is that it wants that evidence of authenticity, which the law requires, to make it, as to them, a valid instrument. No doubt is entertained with regard to the invalidity of this instrument, as to the description of creditors; but it is contended, on behalf of the defendant, that no other creditors can avail themselves of that objection, except the creditors of the wife before marriage. There appears to me to be no reason for the distinction in the case of husband and wife. Her creditors before marriage become his during coverture; she can contract no debts to which she can be made personally liable; her personal property becomes his by the act of intermarriage, and he acquires all the credit in society resulting from the acquisition and possession of that property. It is not upon a deed, which this act declares void, that the creditors found their claim, but upon an act in pais, the operation of which is an immediate transfer of property, unless that effect be prevented by the legal execution of some instrument of writing. If such an instrument, executed before marriage, be not recorded within eight months, it loses all legal validity as to creditors, and it is the same as if no such instrument had ever been executed. The recording, as to them, is as necessary as the sealing and delivery is between the parties. clubjuris

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The consistency of this opinion with the argument that the creditors of the grantee can derive no interest under a deed which, as to them, is declared void will appear from distinctly reflecting on the necessary consequence of such an admission in this case. Declare the deed void and what is the consequence? It no longer affects the property of the wife so as to produce a state of things different from that which would exist if it had never been created, and the operation of the deed was not to vest an interest or estate in Charles Turner, but to prevent any estate from vesting in him by the ordinary effect of marriage. Remove the preventing cause and the property becomes unquestionably subject to the husband's debts.

Two objections to this opinion have been urged on which it may be proper to make some remarks. The first that I shall notice is how the same deed can be valid as between the parties, so as really to prevent any transfer of property to the husband, and yet, through him creditors may derive such an interest as to subject it to the payment of his debts. If this argument proves anything, it proves too much. A moment's reflection will show that it is as applicable to the case of the grantor as of the grantee, for after the execution of the deed, the grantor has, in fact, and in the acknowledgment of the act, no more interest in the property than the grantee had before its execution, or upon its becoming void for want of recording. But every apparent absurdity may be reconciled thus. Legal claims must be supported by legal proof. The abstract rights of parties become immaterial if not susceptible of substantiation by evidence. In a question, then, between the direct representatives of the husband and wife, the deed is a valid instrument, and may be received as duly authenticated written evidence, to support a right derived under it. But between the one party and the creditor of the other, the law declares it wholly inefficacious for want of a ceremony which is made essential to its authenticity. The most ordinary deed cannot be clubjuris

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received in evidence until proved according to the rules of evidence, and the operation of individual acts, in producing transfers of property, must ever be subject to such modifications as may be made by positive law.

The other difficulty arises from the consideration how this deed can be valid against all persons (which it confessedly is) during eight months, and then cease to operate as to creditors. To this it may be answered that this objection, as well as the preceding, is equally applicable to the case of the creditor both of alienor and alienee, and if valid at all, might defeat the operation of this act altogether. But as a provision of positive law, such considerations are not to defeat it. Possibly some inconvenience may result from holding property in this suspended situation; but the duration of the inconvenience is not long, nor the contingency far remote. Nor is an analogous state of things unknown to the common or civil lawyer; executory devises, contingent remainders, and shifting uses produce a similar uncertainty and suspension of right. During the eight months which are given for recording a deed, the interests of parties must have vested only sub modo, or subject to the contingency of recording it within the legal time, and no doubt a court of equity would interpose its authority, during that period, to adjust the rights of parties. Nor will this objection at all affect the opinion which I entertain respecting the rights of the plaintiff, for although the deed certainly did hold the personal property of the wife in a suspended state, during the eight months, so that the creditors could not, in that time, have taken it under execution, yet, after the expiration of that period, the deed lost its protecting effect, and that property then became subject to their debts.

These views of the subject appeared to me to solve every difficulty, and lead to a conclusion upon the second point made in the argument; viz., whether the defendant may be charged as executrix de son tort. The case of Harding v. Mercer comes clubjuris

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fully up to the present, and it will be found of necessity, in order to give effect to this act, that this remedy should be countenanced. The hardships of it would no doubt be remedied by a court of equity in cases free from collusion or moral fraud, so as to prevent the defendant from being charged to an amount greater than the value of the goods which actually came to her hands. But the necessity of sanctioning this mode of pursuing property, circumstanced as in this case, will appear from the impossibility of a creditor's getting at it in any other manner, at law. Should the creditor himself administer, he can never recover it, because, as the legal representative of the husband, the deed would be valid against him without being recorded. Should any other person administer, he could never be charged with the value of assets, which for the same reason, could never come to his hands. So that both precedent and principle concur in supporting the correctness of permitting him to resort to the present remedy.