ing the settlement, and that his future wife knew it; nor that the Antenup- tial agree- without notice of any contemplated fraud, (1) Campion v. Cotton, 17 Ves. 264; tween the time of a runaway marriage in (m1) [See Southerland v. Southerland, (n) 2 Roper Husband & Wife, 156. Postnup tial settle * Likewise a post-nuptial settlement of property by the husband on the wife is obligatory upon himself and all persons claiming as volunteers from or through him. (0) And ment. such a settlement will protect the property even against creditors, unless it can be considered, from the circumstances under which it was made, fraudulent as against them. (p) With respect to Am. ed.) 718; Riley v. Riley, 25 Conn. 154; Albert v. Winn, 5 Md. 66; Borst v. Corey, 16 Barb. 136; Reade v. Livingston, 3 John. Ch. 481; Kirksey v. Kirksey, 30 Geo. 156; Lassence v. Tierney, 1 Mac. & G. 551, and cases in note (2), 571; Hammersley v. Baron De Biel, 12 Cl. & Fin. 45; Surcome v. Pinniger, 3 De G., M. & G. 571, note (1), and cases.] These and other authorities have overruled Dundas v. Duters, 1 Ves. jr. 199. But if a man, on his marriage with a lady, enters into a mere parol agreement with her, that a sum of money shall be transferred to trustees upon trust for himself, his intended wife, and the children of the marriage, and the money is, before the marriage, actually transferred to the trustees, who hold it solely upon the trusts agreed upon, the fact that the instrument declaring the trusts is executed by them subsequently to the marriage, does not make it a voluntary instrument, and enable creditors to set it aside. Cooper v. Wormald, 27 Beav. 270. Indeed, if the non-reduction into writing be owing to the fraudulent conduct of the husband, equity will relieve. Lady Montacute v. Maxwell, 1 P. Wms. 620; S. C. 1 Stra. 236; 1 Eq. Cas. Abr. 19. (0) See Curtis v. Price, 12 Ves. 89; [Riley v. Riley, 25 Conn. 154; Paschall v. Hall, 5 Jones Eq. 108; Teasdale v. Teas dale, 2 Bay (S. Car.), 546; Bertrand v. Elder, 23 Ark. 494; Gardner v. Baker, 25 Iowa, 343; Kuhn v. Stansfield, 28 Md. 210; Jones v. Morgan, 6 La. Ann. 631.] (p) [Picquet v. Swan, 4 Mason, 443; Riley v. Riley, 25 Conn. 154; Rogers v. Ludlow, 3 Sandf. Ch. 104; William & Mary College v. Powell, 12 Grattan, 372; Butler v. Rickets, 11 Iowa, 107; Wright v. Wright, 11 Iowa, 107; Williams v. Avery, 38 Ala. 115; Wiley v. Gray, 36 Miss. 510; Albert v. Winn, 5 Md. 66; Leavitt v. Leavitt, 47 N. H. 329; Larkin v. McMullin, 49 Penn. St. 29; Woolston's Appeal, 51 Penn. St. 452; Barker v. Koneman, 13 Cal. 9; Scogin v. Stacy, 20 Ark. 265; Clayton v. Brown, 30 Geo. 490; Reynolds v. Lansford, 16 Texas, 286.] The statute 27 Eliz. c. 4, makes all voluntary settlements null and void against purchasers, but does not relate to creditors, and extends only to lands, tenements, and hereditaments. The statute 13 Eliz. c. 5, which relates to creditors, directs that no act whatever done to defraud a creditor or creditors shall be of any effect against such creditor or creditors. Therefore the statute does not militate against any transaction bonâ fide, and where there is no imagination of fraud; and so is the common law. Cadogan v. Kennett, Cowp. 434, by Lord Mansfield. See, also, Walker v. Burrows, 1 Atk. 93; 1 Smith's Leading Cas. 9 et seq.; Turnley v. Hooper, 3 Sm. & G. 349. The principle now established is this: The language of the act being, that any conveyance of property is void against creditors, if it is made with intent to defeat, hinder, or delay creditors, the court is to decide in each particular case whether, on all the circumstances, it can come to the conclusion that the intention of the settlor in making the settlement was to defeat, hinder, or delay his creditors. Thompson v. Webster, 4 Drew. 628, by Kindersley V. C. But it is not necessary to show from anything actually said or done by the party, that he had the express design by the deed to defeat creditors. If he includes in it property to such an amount that the court is satisfied, having regard to the state of his property, and to the amount of his liabilities, its effect might probably be to delay or defeat what is so regarded, if the debts of the husband, at the time of making the settlement, were considerable, and the effect of the settlement is substantiated, would be to defeat the creditors of their demands, then such settlement is void as fraudulent. (9) And if the husband, though not indebted at the very time, becomes so shortly afterwards, so that it may be presumed that he made the settlement with a view to being indebted at a future time, it is equally to be considered as fraudulent. (r) But, gencreditors, the deed is within the statute. Jenkyn v. Vaughan, 3 Drew. 424; Freeman v. Pope, L. R. 5 Ch. App. 538. [But any presumption of fraud arising from the mere fact that the settlor was indebted at the time of making a voluntary settlement may be rebutted. Thacher v. Phinney, 7 Allen, 146; Lerow v. Wilmarth, 9 Allen, 382; Woolston's Appeal, 51 Penn. St. 542; Babcock v. Eckler, 24 N. Y. 623; Case v. Phelps, 39 N. Y. 164; Kent v. Riley, L. R. 14 Eq. 190.] (q) Beaumont v. Thorp, 1 Ves. sen. 27; 1 Rop. Husband & Wife, 309. See, also, Holmes v. Penney, 3 Kay & J. 90; Barrack v. M'Cullock, Ib. 110; Acraman v. Corbett, 1 John. & H. 411; French v. French, 6 De G., M. & G. 95; Christy v. Courtenay, 26 Beav. 140; [Belford v. Crane, 16 N. J. Eq. 265. The doctrine is thus expressed by Lord Westbury L. C. in Spirett v. Willows, 3 De G., J. & S. 293, 302: "If the debt of the creditor by whom the voluntary settlement is impeached existed at the date of the settlement, and it is shown that the remedy of the creditor is defeated or delayed by the existence of the settlement, it is immaterial whether the debtor was or was not solvent after making the settlement." See the remarks of Lord Hatherly L. C. and Gifford L. J. in Freeman v. Pope, L. R. 5 Ch. Ap. 543, 544, upon, and in limitation of the doctrine thus expressed. See, also, Bellows J. in Pomeroy v. Bailey, 43 N. H. 122; Potter v. McDowell, 31 Missou. 62; Norton v. Norton, 5 Cush. 524; Brackett v. Waite, 4 Vt. 389; Van Wyck v. Seward, 18 Wend. 375; S. C. 6 Paige, 62; Babcock v. Eckler, 24 N. Y. 623; Reade v. Livingston, 3 John. Ch. 481; Tilley v. Register, 4 Minn. 391; Coolidge v. Melvin, 42 N. H. 531; Freeman v. Burnham, 36 Conn. 469; Gridley v. Watson, 53 Ill. 186; Stewart v. Rogers, 25 Iowa, 395; Hunters v. Waite, 3 Grattan, 26; Church v. Chapin, 36 Vt. 223 ; Ellinger v. Crowl, 17 Md. 361; Kuhn v. Stansfield, 28 Md. 210; Chambers v. Spencer, 5 Watts, 406; 2 Sugden V. & P. (8th Am. ed.) 714, note (t), where this subject is fully discussed and the cases cited; Mackay v. Douglass, L. R. 14 Eq. 106; Bridgford v. Riddell, 55 Ill. 261; Sims v. Rickets, 35 Ind. 181; Bancroft v. Curtis, 108 Mass. 49, and cases cited; Annin v. Annin, 24 N. J. Eq. 185; Phelps v. Morrison, 24 N. J. Eq. 195. In the above case of Spirett v. Willows, 3 De G., J. & S. 293, 303, Lord Westbury said: "It is obvious that the fact of a voluntary settlor retaining money enough to pay the debts which he owes at the time of making the settlement, but not actually paying them, cannot give a different character to the settlement or take it out of the statute. It still remains a voluntary alienation or deed of gift, whereby in the event the remedies of creditors are delayed, hindered, or defrauded." But it is said in Babcock v. Eckler, 24 N. Y. 623, that when the settlor retains a large amount, more than enough to pay his existing debts, the presumption of fraud is sufficiently rebutted. See Kipp v. Hanna, 2 Bland, 26; Taylor v. Eubanks, 3 A. K. Marsh. 239; Hopkirk v. Randolph, 2 Brock. 132; Brookbank v. Kennard, 41 Ind. 339; Moritz v. Hoffman, 35 Ill. 553; Miller v. Johnson, 27 Md. 6; Townsend v. Maynard, 45 Penn. St. 198; Tripner v. Abrahams, 47 Penn. St. 220.] (r) Stileman v. Ashdown, 2 Atk. 481, erally speaking, debts subsequently incurred will not defeat a postnuptial settlement; (s) nor will any presumption of fraud against creditors arise from the debts of the husband owning at the time, if they were of inconsiderable amount; (t) or if, though considerable, the payment of them is secured, as upon mortgages or by other means; (u) or if the settlement itself provides for their payment. (x) Besides the presumptive evidence of fraud arising from the situation of the husband, with respect to his debts, at the date of a postnuptial settlement, it has also been considered as a badge of fraud towards creditors, that the husband reserves to himself by the provisions of it, a power of revoking the limitations of the property in favor of the wife. (y) So fraud may be presumed * by Lord Hardwicke; Barling v. Bishop, ster 4 Drew. 628; Phillips v. Wooster, 36 29 Beav. 417. N. Y. 412; Holmes v. Clark, 48 Barb. 237; Thatcher v. Phinney, 7 Allen, 146; Case v. Phelps, 39 N. Y. 164; Crossley v. Elworthy, L. R. 12 Eq. 158; Carter v. Grimshaw, 49 N. H. 100, 105, 106; McLane v. Johnson, 43 Vt. 48; Bridgford v. Riddell, 55 Ill. 261.] (s) Townshend v. Wyndham, 2 Ves. sen. 10, by Lord Hardwicke; Kidney v. Couss. maker, 12 Ves. 136; Battersbee v. Farrington, 1 Swanst. 106; Holloway v. Millard, 1 Madd. 414. See Spirett v. Willows, 34 L. J. Ch. 365; [3 De G., J. & S. (Am. ed.) 293, note (2) and cases cited ;] Freeman v. Pope, L. R. 5 Ch. App. 538; Hare v. Gardner, L. R. 7 Eq. Cas. 317. [In Spirett v. Willows, 2 De G., J. & S. 293, 302, 303, Lord Westbury L. C. said: "If a voluntary settlement or deed of gift be impeached by subsequent creditors whose debts had not been contracted at the date of the settlement, then it is necessary to show either that the settlor made the settlement with express intent" to delay, hinder, or defraud creditors, "or that after the settlement the settlor had no sufficient means or reasonable expectation of being able to pay his then existing debts, that is to say, was reduced to a state of insolvency; in which case the law infers that the settlement was made with intent to delay, hinder, or defraud creditors, and is therefore fraudulent and void." See S. C. 3 De G., J. & S. (Am. ed.) 293, note (2) and cases cited; 2 Sugden V. & P. (8th Am. ed.) 714, note (t) and cases cited; Kindersley V. C. in Jenkyn v. Vaughan, 3 Drew. 419; James V. C. in Freeman v. Pope, L. R. 9 Eq. 206; Thompson v. Web (t) Lush v. Wilkinson, 5 Ves. 384, in which case Lord Alvanley intimated that the validity of the settlement will depend on the fact whether the husband was solvent at the time of making it. But it has been since held that it is not necessary to prove insolvency, though the mere existence of some debt is not sufficient. Townsend v. Westacott, 2 Beav. 340; Skarf v. Soulby, 1 Mac. & G. 364; [Malins V. C. in Smith v. Cherrill, L. R. 4 Eq. 389, 395; Norton v. Norton, 5 Cush. 524; Smith v. Yell, 3 Eng. 470; Potter v. McDowell, 31 Missou. 62; Dewey J. in Parkman v. Welch, 19 Pick. 231, 235; Wilson v. Howser, 12 Penn. St. 109; Wilson v. Buchanan, 7 Grattan, 334; Worthington v. Bullett, 6 Md. 172; S. C. 2 Md. Ch. 99; Parish v. Murphree, 13 How. 92; Hudnal v. Wilder, 4 McCord, 294; M'Elwee v. Sutton, 2 Bailey, 128; Robinson v. Stewart, 10 N. Y. 189; Bridgford v. Riddell, 55 Ill. 261.] (u) Stephens v. Olive, 2 Bro. C. C. 90. (x) George v. Milbanke, 9 Ves. 194. (y) 1 Roper Husband & Wife, 318, Jacob's ed. from the fact, that notwithstanding the postnuptial settlement purports to be an absolute transfer of personal property, the husband continues in possession of it, (2) unless, indeed, his possession be bona fide consistent with the nature of the settlement. (a) Where the settlement after marriage by the husband upon the wife is made for a valuable consideration, the presumption of fraud fails, though the husband be indebted at the time. (a1) Thus, if the settlement be made in consideration of her father, or some other person, advancing a sum of money, (b) or on occasion of an increase of fortune falling to her, (c) or in consideration of her relinquishing any valuable interest, as her jointure, (d) or dower, (e) or property secured to her for her separate use; (ƒ) in all these cases the settlement will be valid against creditors, unless the property settled so much exceeds the consideration in value, that from its inadequacy it appears that a fraud was intended on the creditors. (g) (z) That the continuance in possession is a badge of fraud, see Twyne's case, 3 Co. 81 a; Edwards v. Harben, 2 T. R. 587; Bamford v. Baron, Ib. 594, in note (a); [Benj. on Sales (1st Am. ed.), § 484 et seq.; Bellows C. J. in Putnam v. Osgood, 52 N. H. 148, 153 et seq.; Coolidge v. Melvin, 42 N. H. 510; Rothchild v. Rowe, 44 Vt. 389.] (a) Kidd v. Rawlinson, 4 Bos. & Pull. 59; Lady Arundell v. Phipps, 10 Ves. 139; Colvile v. Parker, Cro. Jac. 158. See Eastwood v. Brown, Ryan & M. 312; Martindale v. Booth, 3 B. & Ad. 498; 1 Smith's Leading Cases, p. 9 et seq.; Alton v. Harrison, L. R. 4 Ch. App. 622; [Bellows C. J. in Putnam v. Osgood, 52 N. H. 154; Morse v. Powers, 17 N. H. 296; Colt J. in Ingalls v. Herrick, 108 Mass. 353, 354; Brooks v. Powers, 15 Mass. 244; Benj. on Sales (1st Am. ed.), §§ 486, 502.] (a1) [See Hunt v. Johnson, 44 N. Y. 27; Barnum v. Farthing, 40 How. (N. Y.) Pr. 25; Duffy v. Ins. Co. 8 Watts & S. 413.] (b) Colvile v. Parker, Cro. Jac. 158; Ramsden v. Hylton, 2 Ves. sen. 308, in Lord Hardwicke's judgment; Brown v. Jones, 1 Atk. 190; Wheeler v. Caryl, 1 (c) 1 Roper Husband & Wife, 323, 2d ed. The court of chancery will order an additional settlement to be made on the wife on an increase of fortune falling to her, which will bind both the creditors and purchasers of the husband. Ib. (d) Cottle r. Fripp, 2 Vern. 220; Scot v. Bell, 2 Lev. 70. (e) Per curiam in Lavender v. Blackstone, 2 Lev. 147. See, also, Hewison v. Negus, 16 Beav. 598, by Lord Langdale. (ƒ) Lady Arundell v. Phipps, 10 Ves. 139. [When a husband owes his wife money he may make a bona fide conveyance of land to her. Peiffer v. Lytle, 58 Penn. St. 286.] (g) Ward v. Shallet, 2 Ves. sen. 16; Dewey v. Bayntum, 6 East, 257. What is a reasonable proportion or value between the thing given or paid, and that settled in consideration of it by the husband, is a calculation and result dependent upon each case in connection with collateral circumstances. The question is incapable of a general definite answer; and when the court is unable to draw the conclusion, the fact must be ascertained by a jury. 1 Roper Husband & Wife, 327, 2d ed. |