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PIERCE hold possession of the same with the privity and TURNER. 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.

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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 apprized at 4,631 dollars and 72 cents, 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."

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.

E. J. Lee, for the plaintiff in error.

By marriage all the personal estate of the wife becomes the absolute property of the husband. The operation of this principle can only be prevented by pursuing strictly the mode pointed out by law. This deed wants those legal solemnities which the law requires to make it valid against creditors. The plaintiff is a creditor; the deed is, therefore, not valid against him. The word creditor, in the act of assembly, means not only the creditors of the grantor, but the creditors of every person whose debts could have been legally satisfied out of the property, if such deed had not been made. If the word is to have the limited construction contended for on the other side, and the deed be void only as to her creditors, and as to subsequent purchasers from her, the statute becomes nugatory; because after marriage she has no creditors, and cannot sell and convey. Her creditors have become his creditors; her debts have become his debts. If the deed be void as to her creditors, it must be void as to his creditors. If she can neither sell nor have creditors, the act must apply to his creditors, or it will be idle and unavailing.

If the husband had sold these slaves to persons ignorant of the deed, the sale would have been valid.

PIERCE

V.

TURNER.

PIERCE

V.

TURNER.

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

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

The term creditors is general, and literally comprehends creditors of the husband, as well as creditors of the wife. Where the words of a statute are plain, the court cannot indulge any latitude of construction, but must pursue the words. 3 Call, 106. 2 Call, 183. Eppes v. Randolph.

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

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

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

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

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

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

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

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

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

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

PIERCE

V.

TURNER.

PIERCE

V.

TURNER.

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

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

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

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

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

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

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