Verplank v. Sterry — 12 Johns. 536

Majority

p. 536

Philip Verplank, impleaded with James Arden, Richard D. Arden, and De Witt Clinton, Appellant. agai nst Robert Sterry, and Louisa Ann, his wife, Respondents.

Headnote

A deed may be Worda, or. acts •without. Words, may íe either to tó\8thir(f pe°r o?’tue grantee8 pL* i&'dS? takeebbctiasecap'be of "no

. a conveyance, count of fraud brcovinimayhe made^vaiid and tetter ex post

THIS was,an' appeal from the court of chancery. The'respondents filed tlieir bill, in the court below,- 'against the appef-' 1 ’ . •, ° , ' : rr 'anb and the others, above named, stating that Louisa, Ann, one-G^- the respondents, is the- daughter of James Arden, by Eliza •drden, his wife, now deceased. That during her last illness; and in contemplation of approaching' death, the said Eliza requested, her husband,, James Arden,- to-unite,, with'her in-making.a suitable ahd permanent provision for their daughters ; ■ to which request he. acceded, assuring his dying, wife, fhart the contemplated arrangement for such provision should, never be thereafter disturbed by him. In pursuance and execution of . . . ... ‘ .. ^ this arrangement, as. it respected tbe $aid ■ Louisa Ann,, dames Arden and his wife, before the intermarriage of the respondents, by a deed, duly executed, bearing date the 25th of A'ovtmber, 1805, for the consideration of their natural love and affection towards the said Louisa Ann, and for the'further consideration of one dollar,, paid to them by Be Witt Clinton and Richard B. Arden, parties of the second part, bargained, sold, and eon-' veye.d, to the said Be Witt Clinton and Richard B. Arden, their heirs .and assigns for ever,, in joint tenancy, a certain lot of- -i , ‘ i i ' i v i • *y-v '• y • • ground, messuage* and dwelling house, in Greefmich*str-eeU m , . , ^ °_r *7 T ° t , , * . . ' the city of At ew -York, to.nave audio hold the same, &c.,,upon thé trust and confidénce.thát the said Louisa Ann should stand ,. , • ‘ ' s, ■ i . • seisec' °f We lot and premises, for and during her natural life; Gn<^ upon the further trust and confidence, that, in case the said Loyisd Ann should die, leaving lawful issue, Wat. then the said trustees should Stand seised of the premises, in trust, for the benefit of such child or children, of the body of the said Louisa 4tfh lawfully to be begotten, in fee simple; and-, for want of such child or children, then in trust for the. benefit of all and every the perspn and pepsons, their heirs and for such child or children, then in trust for the. benefit of all and

vaííabieastonsL thTgnwtíe of a !°insntcrbditebjr *ydUher onmí¡cyiSoasmabeior aucti conVey-3DC6, OH- the marriage,ceases to be voluntary, and becomes subsequent bm¡a Jide purchaser tionsiderTtion616 diBbren™ektShe° cuiarr8 marriage 5aUn ca°t ‘ tbe funtary-‘settleSañteémarried ?ent°0fthlrc™¿ iher, tbe grant-

Whether a voluntary conveyanee,,by e father in affluent circumstances, and.not indebted .to trustees, for the úse of his daughters, for life, and1 in ¿ráse of their death,,for their children* hopestiy and fairly made, without any intention to deceive-br defraiid'any person, is not good against a subagent bgna fide purchase? for valuable consideration, having notice of &uch vpJuntgry déedí Qum " .......

p. 537

as would be entitled to the same by the laws of . the state, In case the said James Arden had died intestate, and that deed had never been made. That the deed was, at, or shortly after; its execution, delivered, by the grantors, into the ‘hands of Louisa Ann, the cestuy que trust therein named. That the premises conveyed were worth 25,000 dollars. That after the "execution and delivery of the deed, and before intermarriage of the respondents, the said Eliza Arden died, to wit, on the 4th of August, 1806. That the deed, from the time of its delivery until the death of her mother, and a considerable time afterwards, remained in the possession of the respondent, Louisa Ann; but, some time in the year 1807, and before the intermarriage of the respondents," James Arden requested the respondent, Louisa Ann, to place the deed under his charge, assigning as a reason, that she had no place convenient for 'keeping it, and that it would be more secure in his custody. That she,. Louisa, accordingly, delivered the deed to him, for safe keeping only, and without any intention of relinquishing or impairing her estate or right under the same. That on various occasions, before, as well as after, the delivery of the" deed to him, :he, James Arden, represented and declared that the premises belonged to Louisa Ann, and fully recognised her estate and title thereto, by virtue of the said deed. That, afterwards, and before the intermarriage of the respondents, James Arden intermarried with his present wife, and the respondent, Louisa Ann, being apprehensive respecting the said deed, urged him to have it deposited in the custody of some other person ; and he, accordingly, on the 8th of. January, 1809, deposited it the possession oiJDe Witt Clinton, one, of the trustees, with whom it still remained. On the 11th of December, 1809, the respondents intermarried, and have a child born, and still living. The respondent, Robert Sterry, when the marriage took place, understood and believed that the said Louisa Ann had a beneficial interest in the trust premises, according to' the conveyance. That the said James Arden fraudulently executed a deed of conveyance of the said trust premises, to the appellant, Philip Verplank, a relation, who, knowing the interest of the respondents in the premises, fraudulently accepted such deed, and claimed to hold the premises by virtue thereof; they, the said James Arden and Philip Verplank, thereby intending to defraud the respondents, and,'defeat the said deed in trust for

p. 538

the said Louisa Ann, and the estate -thereby created. . That the pretended deed to Verplanlc was dated the 11th of December, 1809, and. expressed tp.be in consideration of,.a large .sum of money paid by him to the said J'ames Arden ; but that, in fact, the deed was not executed tin that, but on, some subsequent day, and fraudulently-dated anterior to its -actual. delivery ; and that if, in fact,, it was executed on the 11th of December, 1809, it was ;so executed and accepted at an hotir subsequent to, and with full knowledge of the intermarriage of the respóm dents ; and'that the consideration mentioned in the deed to Verplank, «tas never truly paid or ^secured by him to the .said James Arden, from the proper funds of the said Verplanlc. The. bill prayed that the right of the respondents to the premises in question might, be established; by a decree of the court of chancery, and that the defendants below, of such of them as it might concern, might account with the respondents for the- rents and profits'of the premises, and pay over the,same to them, and that they might be let into possession of the premises; and that the same might be decreed to be conveyed to them, or, in some effectual way, secured for their' benefit; and for such furthet and.other relief, &c. ,

The defendants below answered, separately,

The. appellant, -Verplanlc, in his .answer, stated, that before the,execution of the deed of James Arden, and his wife, to him, he-hqd heard that the said James Arden had made stirne provi-sion for his daughters, out of property situated in Greenwich-street, but who informed -him- he could not recollect, and was .wholly ignorant of the circumstances, attending such -provision, or the manner in which such settlement was made; but that at the time the deed- from the said j. Avien,.to him,, wag-executed, he had no knowledge, or notice, that the premises conyeyed to him had been previously, conveyed to the trustees, on .the trust, as stated in the bill of the,respondents; that he became the purchaser of the premises, of the said J ames Arden,; for thq stim, tif, 16,0.0.0 dollars, and that, on qr about the 11th,of December, 1809, received the deed, 'which was ■set forth verbatim,- in big answer, from - Arden and his present wife ;, that, for, several months prior to.the execution and delivery of the deed to him? for the premises -in question; he was in treaty with Arden fqrfhe purchase thereof, and the terms of purchase were partly agreed qn, qt leást,onq month prior to the said 11th -of December, 18Q9;

p. 539

'and that at the time of the execution of the said deed to him, he had no knowledge, to the best of his recollection, of the intermarriage of the respondents; that he could not recollect tlm precise day on which the deed to him was executed, but is positive that it was executed between the 11th and 14th days of Decemberj that he actually paid the whole consideration mentioned in the said deed; and has, since the execution thereof, ■received the rents and profits of the premises in question, to his own, exclusive use. That he married the niece of the said James Arelen.; and he insisted that the prior deed, a conveyance in trust, for the said Louisa Ann, was voluntary, and void, by •virtue of the act, entitled, “ an act for the prevention of frauds and he denied all collusion and fraud.

James Arden, in his answer, stated, that on the 25th of JV*o vember, 1805, he was seised in fee, of the premises in question ; that he., and his then wife, Eliza, now deceased, being about that time minded to make some provision for their daughter, Louisa Ann, and her children, if she should have any, executed the deed mentioned, about, or shortly after, the time it bears date, in the presence of two witnesses ; and that he believed that he and his wife may have used the formal words'of delivery of the deed s. that, after it was executed, it remained in his possession and power, from thenceforth, until, or about, the 9th of January, 1809/ when his1 daughter, Louisa Ann, having expressed some apprehension that the deed, in case of his death, might be lost or destroyed, he placed the same in the hands of De Witt Clinton, for her benefit, stating to him, at'the time of so depositing the deed, in the presence of his present wife, and his said daughter, Louisa Ann, and her sister, that it was to be understood that the income of the property should come to him during his life, ■ and that if Louisa Ann married without his consent or approbation, that then the said deed should not operate:, or that he made use of words to that effect. That the respondents, afterwards,' intermarMed, but Without his knowledge, consent, or approbation. That the yearly value of the premises was from 1,300 to 1,500 dollars, which he had received since the date of the said deed of trust, until the sale and conveyance of the premises to Verplank* That considering himself, in consequence of the said Louisa Anna's marriage, without his consent, as'the absolute owner of the premises, he did, on or about the 11th of December, 1809, sell and convey the premises to the appellant, Verp(ank. ior the consider

p. 540

ration of 16,000 dollars» That the deed to Verplank was ease*. outed' on some day between "the 11th and 14th' of December j 1809, but on which day he did not recollect; but it was after the intermarriage of the respondents.. "

The answer :of DeJV.itt Clinton, was substantially the same as that of .James Arden, in regard to the deposite of the deed of. trust, and the verbal declarations of Ai'den, at the time ; but. though the daughter acquiesced, in her, father’s receiving the rents during his life, yet that she' did: not acquiesce in the decía-' ration, that the deed should not operate, in case she married without his consent. ,

Richard D. Arden, the other appellant, also put in his answer ; but knew nothing éf-the transaction relative to the deed,, or its contents, except from a copy shown to him by James Arden.'

The material parts of the. evidence contained in the depositions of the witnesses, are sufficiently stafjéd by the judges in delivering their opinions,, ' . . >

The cause having been brought to a hearing in the court below,, the chancellor,- on the 3d of October, 1814, decreed, that the deed of conveyance .igemJames Arden, and Eliza bis wife,. to De Witt Clinton A-lid Richard DV Arden, was duly executed and delivered omfhe 25th of December, 1805,. so as to pass the estate and interest in the premises therein described, to the said De Witt Qlinion ánd Richard D. Arden, and to vest the same, in thcni/to the uses, and. upon the trusts therein mentioned; and that the said deed of conveyance was valid and effectual in lajwaccordingly. And.that, as it satisfactorily appeared to the ytfourt; that Robert : Sterry, and Louisa Ann, had intermarried before the execution of the deed of the same premises to. Philip ■Verplank, of the .11th oí December, 1809; and that the said Verplank, at'the timé he accepted the said deed, last mentioned, had notice of the said intermarriage ;.and also had notice of the said deed of conveyance to the said Do Witt Clinton and Richard D. Arden; it was further decreed, that the said deed from the, said James Arden and wife, to the said Philip Verplank, is void, as against the said De Witt Clinton and Richard D„ Ardent AS trustees, &c.; and that the same be set aside accordingly, as against the said parties. And the said Verp'lank was further', ordered to bring the Said deed of conveyance to him-, into court, áñd deposite the same with the:registéi^ tq abide the further order

p. 541

of the court; and that any of the parties, as to that matter, have leave to apply to the court for further directions.

It was further decreed, that Sterry and his wife,. in right of the wife, be let into the immediate possession of the premises, and into the perception of the rents and profits thereof, in arrear, and thereafter to accrue, and become payable; or that the said D.e Witt Clinton and Richard D. Arden be let into possession, as trustees, &c.; and in case they, or the survivor of them, should take possession of the premises, they, or the survivor, should' take the rents and profits" in arrear, and thereafter to accrue, in trust for, and pay over the same, from time to time, to the said Robert Sterry, and Louisa Ann, his wife, in right of his wife, during their joint lives, and to the said Louisa Ann, during her life, in case she should survive her said husband ; or that the-said De Witt Clinton and Richard D. Arden, or the survivor of them, should permit the said Robert' Sterry, and Louisa Ann, his wife, in right of the said Louisa Ann, to take the said rents and profits during their joint lives; and the said Louisa Ann to take the same during her life, in case she survived her husband; and that after the death of the said Louisa Ann, the rents and profits should be received and applied according to the uses and trusts, in the deedof trust, before mentioned, limited, and declared and that the trustees, or the survivor of them, and any other person claiming interest therein, under the said deed, be at liberty to apply to the court for its further directions in that behalf. And it was further decreed, that the said De Witt Clinton and Richard D. Arden should, within twenty days after notice of the said decree, -cause the said deed to be acknowledged or proved, and registered according to law, for the greater safety Of the title, See. And further, that the said Robert Sterry, and Louisa Ann, his wife, during their joint lives, and the said Louisa Ann, after the death of her said husband, if she survived him, should be at liberty to use the names of the said trustees, or the survivor of them, and to use the said deed, for the purpose of prosecuting at. law, if necessary, to obtain the possession of the premises, or to recover. the rents and profits^ &c. And further, that the said Philip Verplank account with the said Robert Sterry,- and Louisa Ann, his wife, for the rents and.profits of the premises, from the 11th oí December, 1809, and that it be referred to one of the masters, to take the account accordingly; and that, in taking the account, the master charge the said Philip

p. 542

VerpldnU with the rents of the premises received, which might, without wilful default, have «been received for the saíneand that the-master make just allowances to the said Philip Verplank, for taxes and repairs; and that ’ he report thereon to the court, &.c,; and that the question of costs', and all further directions, be reserved Until the said report come in. ‘. ;•

From this decree, as far as his rights were affected by it, the said Philip Verplank entered his appeal to this .court. : ! ;

The Chancellor gave the reasons for his decree.^[4] -

Baldwin, for the appellant,

contended,' 1. That there was no delivery of the. "deed from James Arden, and his wife,- to De Witt Clinton and Richard T). Arden, at the lime of its execution. The grantees were not present,, and the careless manner in-which the deed was kept,, showed that there was no delivery to the respondents. To make good a delivery of a deed, it must be delivered to the grantee, or to some person to be delivered to iim; and - it.must.be put ou-tof the" power of, the grantor.^[34] If there was any delivery, it was that which, was made in January, 1809, which was ón. two .conditions, first, that the-grantor should receive the rents and profits during life; and, second, that the-'deed, should be inoperative, in case Louisa Ann, the cestuy que trust, married without the consent of the grantor; and this conditian has failed. Any declaration made by the grantorat the time of the delivery, is binding.^[28] .Whether the daughter assented to the condition, or not, is immaterial, "The grantor had a right to annex what condition he pleased' to his gift, and; the grantee rnu'st receive it with the conditions, or not at all..

2. The deed .was voluntary and void, as against a subsequent purchaser for a valuable consideration.^[29] This was the establish--i. i. r i ~ 6CI tUie OI ÍBW. * •

3." It appeared from the -case, that the appellant was a -bona fide purchaser, without notice of 'the deed, or intermarriage of the respondents; but that even if the appellant had notice of the prior deed, or of the intermarriage, it could not affect his rights as a purchaser for a valuable consideration. In support of these positions, he"cited the following authorities : Sugden’s Law of Vend. 431, 436, 508, 510. 1 Fonbl. 269, 270, 271. 14 Vesey, 519. 7 Vesey, 219, 1 Vesey, 456. 6 Vesey, 332. 2 Vesey, 10, 51, 299. 3 Atk. 388. 1 P. Wms. 577. 2 P.

p. 543

Wms. 359. Gilb. Eq. Cas. 11. 3 Cruise, 376. 2 Wils. 257. 2 Bl. Com. 300, 301. 1 Atk. 489, 2 Atk. 54. 174. 2 Bro. Ch. Cas. 291. 1 Ch. Cas. 259. 2 Ch. Cas. 216. 2 Vesey, 440. Skinner, 423. 1 East, 95. 9 Vesey, jun. 190. Roberts on Frauds, 495. 3 Atk. 438. 1 Vesey, 464. Cowp. 278. 705. Cro. Eliz. 445. 1 Ch. Rep. 196. 2 Dickens, 444. 2 Vent. 193. 2 Lev. 246. 1 Keb. 486.

Griffin and Riggs, contra,

contended, 1. That there was a good and' valid delivery of the trust deed, on the 25th of Decernher, 1805. A deed may be delivered to a third person, for the grantee, and there may be a constructive, as well as an actual delivery of a deed.^[34] It was not necessary that the deed should be delivered to the trustees ; it is sufficient that it was delivered to the person interested.^[28] The handing of the deed, in 1809, to Mr. Clinton, could not be called a delivery, m law. It was á deposite merely. If a deed has been once delivered, there cannot be a second delivery, and no subsequent acts or declarations can have any operation" or effect.!^[29]

-yr i . . . , . , 1 • -i • i t i . JNo paroi evidence is admissible to explain this deed; but it is attempted to attach certain conditions to thé delivery; but after a deed is reduced to’ writing, it cannot be explained by paroi testimony.^[30] Had the conditions been contemporaneous with the delivery of the deed, they could not be proved by paroi.^[31] At the timé of the execution and delivery, in December, , . ..... ' 1805, not a word was said ol any conditions; and in the very few instances in which, as exceptions to the general rule, courts have allowed paroi evidence to be given, it has been where a mistake has been satisfactorily proved. There is no pretence of, any fraud in obtaining the deed,. and though there is a suggestion of a mistake, there is not the least proof of it, A trust-estate is to be regarded as a legal estate, though it may be necessary to apply to a court of chancery to obtain the rights of the trustees,^[32] , '

, A voluntary deed is as much respected, in courts of law and equity, as a deed given for a valuable consideration.^[33] A voluntary deed cannot be revoked;^[21] and it will be carried into specific execution by a court of chancery, equally as one given for a valuable consideration.^[22]

The bill expressly charges Verplank with notice of the prior deed, and his answer does not negative the .charge. Notice

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ought to be denied ~ii the an~wer,:positi.veIy and decidedly, ~ve~ though it was~not charged.^[34] The answer, in this case, as it doea not expressly deny the notice~ must, be deemed impli~dIy to• admit it. Ind1eed,~ the ci~ct~ms~ances proved show that Verj~lank musthave had notice.^[28]

-. An honest family settlement is good, at common law, against ~Iiy sUbsequent ~ut~chàser, with notiCe; but' the appellant ~elie~. on the statute of frauds.^[29] But the object of this act was to set aside. fraudulent ~conveyances, not honest family settiements~ Indeed, the 4th ~ection, whi~h'mak,~ si~chfr~udule~it cm~vey~ ance a crime, and -infli~ts a penalty on the parties to it, shows the spirit and,ob~ect of the act. Thol4gh the weight of the English authorities may, at this day,' go to~u~port the proposition' that, within, the statute of the 27 Eliz. every i.oluntary conveyance is frauduler~t and void, as to subsequent p~i'rcha~ers for, a valuable consid~rution;.'ye~. it ~vili; be fou~d~ that; priQrtothe1~9th of April, i 775, it was held otherwise b~ judges of gieat reputa~ lion; and, according to `the constitution, the pou~rts of this state are' not bound by any i~'ng'lish adjudications subse~q~nt t~ that

That voluntary seIt'lenieiits were ~ot~ void, merely f~r their bein~' ~iuntaFy, where thei~e was:~1o fr~ud,'w~haveThé autho~i ty of Lord Hale,^[30] Lord Rolle,^[31] Chief Baron Gilbert,^[32] Lord Mansfield,^[33] Sir Wm. Blackstone,^[21] Lord Ch. J. Wilmot,^[22] and sev~raI wf'iters on the subject.^[23]

The 1ead~ng case to ~he' coatr~ry; Evelin v. Templar, (2 Bro. Ch. Cas. 1737.,) ~nd all the subse~uent cases7 go on the ground7 exp~e~sly~ that so, many es~ate~ in ~mgTand stood i~poh the:. rt~ki that the .v~1uatary settlement wa~ ~oid, as against a purcha~er for a va1u~b1e-cons~dera~ion, thà.t,.it ~s too late and too ha~~rd~ ous to shake ~t; thoi~ghth~jrucTge~ wh~p cT~ided,did not hesj~ tate to d~ciare, that if it were i'e.~' iinlegra, they should has~ come to a different conc~usioi.^[24]

In Doe v. Martyr,^[25] Sir Jantes Mansfield regrets the deci~ sion, in Evelyn v. Templar, that even a notice of a prior voluntaFy se~tIen~en.t would not defea; a subsequent purchase for a va1ua~ bie consideration.

In. George v. Milbank,^[26] Lord Eldon held, that~a provisioa for debts made ii~ a voluntary set~lemenç would support it ~gainst all 1~u:tu~e ~redito~s ; ~and it i~ agreed.~ that a vol.ui~tary se~lethëñt is good agafn~t the gra~tor. He cannot revoke th~

p. 545

deed, unless it'contains a power of revocation.^[34] The effect of this doctrine is, that though the grantor cannot retain the land in the first instance, he may convey it away to a third person for some valuable, but, in fact, nominal consideration ; who may, afterwards, reconvey it to the grantor. The law, in England, has been so long read wrong, that the judges there feel themselves compelled to read it the same way, to support titles which had been obtained under such erroneous decisions ; but our courts are under no such necessity : they are not obliged to yield to the authority of a decision,, for which reasons are assigned which cannot apply to the present case.

In Newstead v. Scarles,^[28] Lord Hardwicke held, that a Conveyance by a widow, prior to her second marriage, to’trustees, for the use of the cestuy' que trust and her children, Was not a voluntary conveyance, within the statute of the 27 Eliz.; and where the Conveyance makes provision for future branches of the family, it is considered such a valuable consideration as prevents its being voluntary, within the statute.^[29]

But though a conveyance may be deemed Voluntary, or fraudulent, in its creation, yet it may become good, by matter ex post fiacto.^[30] An after marriage, in consequence of the settlement, is,- on all hands, allowed to be a sufficient consideration to support the conveyance.^[31] Here, the marriage of the cestuy que trust' took place prior to the' purchase by Verplank. ' The husband is to be considered in the light of a purchaser, It is not necessary that the settlement should háve been made with a view to any particular marriage, nor that the marriage was superinduced by the settlement.^[32]

- Again, Verplank was not a bona fide, purchaser, for he does not deny that he had heard of the marriage ; and he knew of the settlement. He is not entitled to the benefit Of the -statute, unless he is a bona fide purchaser, and for a valuable and adequate consideration.^[33]

Baldwin, in reply,

insisted on his former arguments, and said that Lord Ellenborough, in Doe v. Manning, (9 East, 59.,) had examined all the authorities On the subject, and showed, most conclusively, that .it was the established law of England, prior to the year 1775, that all Voluntary Conveyances were, under the statute of the 27 Eliz., Considered fraudulent and void, against bona fide, purchasers for a valuable consideration. The

p. 546

chancellor, in the present-case,- admitted that Verplank was a bona fide purchase}:, It. is'not'pretended . that’'he had actual notice of the prior defed. All- that is shown is, that he was informed that Mr. Arden had made some provision for his daugktors, in property in Greenwich-slreel. ■ ■

• -■ In, Brown v. Carter,^[34] the master of the rolls did not go into the consideration of the effect of the statutes of Elizabeth, on the settlement. Though: where • a marriage is in view at the timé the settlement' i§/made, it' may be a good. consideration ; yét where it is made without any such view,- and some person should, afterwards, marry the daughter, against; his. consent, and who is. particularly odious-to him,, it cannot be said to be a consideration ' with the; father-for making -the settlement on" his. daughter. . 1 .

The iirst cjuestion arising in , this cause, is as to the execution of the deed of the 25th of November, 1805, from James Arden, and Eliza, his, wife, to De Witt Clinton and Richard í), Árden, in trust for Louisa Ann,, the - daughter of the grantors. . - ,, • , '

From the testimony of one of the subscribing witnesses, who proves the execution of this deed, it does ’not appear that either of the trustees were present, or that any condition was men-boned at ihe timeb" If it was intended to have been a conditional delivery, it is an unusual departure from the course the grantors ought to have adopted, in omitting to state the condition (if any existed); to the subscribing witnesses. This omission raises a Strong, presumption against the operation of - the deed, in any manner different "from the purposes expressed in it; and from the unquestionable possession of this deed by the daughter, subsequen tly, the inference is irresistible, -that the delivery wa$ to her, she being immediately -interested, and that it took place in the presence of’ Mrs. Arden, under whose, maternal auspices, and at whose particular instance and request,, the. settlement on her daughter was; made., It was not necessary for the trustees to be there personally to receive it. In Taw's executor v. Bury, (3 Dyer, 167. b.,) a delivery to a third person, without speaking .of it as the deed- Cf the party,. the deed is held good, and is, in law, the deed of the defendant, before any, delivery over to the party; and the refusal of the party cannot .undo it, as the deed of the party from the beginning.

p. 547

I do not think this transaction is enveloped in such mystery, as not to admit of a satisfactory explanation. •

It is unreasonable to suppose that this deed was intended to be subjected to the future control of the'husband.; It was executed at the instance of Mrs. Arden, during her illness, and in contemplation of approaching death, for the express purpose of making a permanent and suitable provision for the support and maintenance of her daughter; and her subsequent declarations show what her intentions and expectations were, in relation to the business, which, it appears, had given her much anxiety and uneasiness before it was done. She expressed to several of the witnesses her satisfaction with her husband’s conduct, in complying with her wishes, and that she felt dasier, and better, since Mr. Arden had made a settlement on her daughters. -

The idea that he intended, at the time, to deceive the expiring partner of his bosbm, cannot be indulged for a moment. It appears he acted openly and decidedly, "by leaving the deed in the possession of the daughter, in the presence of the mother, to be disposed of as they might think proper. The manner in which he, afterwards, obtained possession of this deed, is satisfactorily explained by some of the witnesses, and shows decidedly, that, previous to his taking it from his daughter, he had assumed no control over it. .

Not one of the witnesses who were present when the deed was signed, mention that any condition was stated at the time; and those on the part of the appellant, who give evidencé on the subject, appear to have collected their information from desultory conversations, at different periods, with members of the family; á species of evidence, at all times, dangerous to be received, to explain the intent, or control the operation, of a written instrument, even in a court of equity, on the ground of. a mistake,' which, in this case, it is alleged, was made by Abraham Skinner, who drew the deed; but there is no evidence to support the allegation, except the assertion of Arden himself.

If this mistake had actually taken place, it is somewhat extraordinary that the appellant has not availed himself of the benefit of SkinneAs testimony to explain it; and still more so, that he did not cause it to be'rectified .; for, by the evidence of Richard D, Arden, the deed was kept in his father’s desk, in

p. 548

the office below* until it was .taken to his mother’s bed roóm to be signed. A sufficient length of time, therefore, 'must have intervened, after it' was drawn, and before, .it was signed,, to hake enabled ’him to correct the error, Under these circurnstanc'es, I do not believe the. deed was drawn different from Arden’s intentions at the time-; but allowing the whole of the testimony to have its due weight,: on the ground, of'mistake,, the witnesses on the part of the respondents,, as to conversations with Arden, .and others of the family ? showing a different undetstanding with regard to the transaction, greatly preponderate; so that, without noticing the subsequent conduct of Mr: Arden, I thi^r,' from the- facts disclosed by tüé evidence in the case, there remains no ground for reasonable doubt, that’ the deed was perfected at- the time,, and that he then intended it should operate, unconditionally, according to the terms, of'it; andthe subsequent, delivery, of this deed to Mr-.. Clinton, upon the con-' ditions stated at the time, can be of no 'avail; it pan afford him' no possible benefit. He had devested himself of the property the moment he executed and, delivered the deed, in thé first instance;, and, bf course,'retained n.o authority" to'giyé it;’an operation, different from what was'contained in it."

A deed cannot be delivered, twice'; "for, if the first delivery has, any effect,, the second will; be void, • (3 Cruise’s Dig. 29. sect. 59.) Korean this second delivery pvevent or limit its' operation, if even it is .admitted that the deed is voluntary, In 2 Vernon, 473., “A. had made a voluntary settlement of an estate, subjeetto-some annuities,'in-trast'for his grandson1 and' his heirs-.and,', .afterwards, he, makes'another voluntary settle-: ment of the same' estate* to the use of his eldest son for life,, and to his first, &c, sons in tail," with remainders over; and, by will, gives a considerable estate to his grandson.” Although it was proved that, A. • always kept the' first settlement:- in' his 'Custody, and’never published it,a and1 it was,, after his death, found amongst waste paper, and the last deed was often mentioned by him, and he told, his' tenants the plaintiff was to be-. their landlord after his death* y et. the son could not be relieved against the first-settlement. In 1 Vernon, 464., the court say, “A settlement, though voluntary, is not revocable.”

This deed, then* having -been duly executed,, and it being evident that its validity could not be affected by a" second delivery, .a further' question remains" to be determined; whether

p. 549

its operation can be defeated by the subsequent deed from Jantes Arden, and Ann, his present wife, to the appellant, dated oh or about the' 11th Of December, 1809. .

I do not think we are called upon to express an opinion' on the question whether a voluntary settlement ought mot, according to the words of the statute, to be fraudulent and covenous, and for the purpose and intent tó deceive, in order to make it void against a subsequent purchaser; but from- the facts in this case, it will be sufficient, according to my view, to determine whether the first deed is, in fact, a voluntary conveyance, or whether this court are not bound, under the circumstances, to' consider it a deed for a valuable consideration.

It appears, by the declaration of trust contained in it, that a life estate in the premises was given to Louisa Ann Arden; and in case she should die, leaving lawful issue, that then it should be held in trust for the benefit of such issue, &c.

In Munn v. Wilsmore, (3 D. & E. 529.,) Lord Kenyon observes, that very small considerations have been Iiolden sufficient to give validity to a deed, when, in framing family settlements,' limitations are made in favour of the'distant branches of a family ; such remainders are not considered as voluntary, if the object of the parties in making the settlement was fair and honest.

The case of Newstead and others v. Searles and others, (1 Atk. 264.,) supports the same principle. It would seem, from those cases, thát the.limitation to distant issue would alone be sufficient consideration to protect this deed; but connect with it the marriage of Sterry, - and I think .its validity cannot be questioned. Marriage, of itself, is a sufficient consideration. That Louisa Annys right to the property forwarded the marriage, is evident; because Mr. Starry, as a discreet and prudent man, must have felt an interest in the future support anti maintenance of his family, and the avails of this property towards such- support might well have been contemplated by him. This appears to have been the ease, from his conversation with Colonel Hawkins on the subject. Indeed, proper. feelings for the comfort as well as happiness of the object of his attachment, must have given importance to the immediate possession of this property :. it, therefore, operated as an inducement to the connexion.

p. 550

This marriage took place, on the 11th of December, 1809, and the deed to Ver-planh "was executed between-the 11th and 14th of the same month; so that the-marriage:unist,. .at all events, have been solemnized before the deed existed. • •

. Sugden, (in h-is Law of Vendors,), in treating on. voluntary settlements, (page 437.,) says, “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, büt will be considered 'as- made - upon, a valuable, -consideration, This principle is -recognised in Brown v. Carter, (5 Vesey, jun. 862.,) and by Lord Ellenborough, in, the case of Otley v. Manning, (9 East, 60.)

If, then, it is even admitted that- the conveyance of the 25th of November, 1805, to Messrs. Dlint'on and Arden,, w-Us voluntary in'its creation, it is- evident it assumed a different character in-, consequence of the marriage ; as that alone must be deemed a valuable consideration-, ".which gave-it a validity not ,to be'.af-féctecl by the subsequent deed to the appellant.

The chancellor’s decree being founded upon the validity and. operation of this deed,, my opinion is, -that,thé'éame'-ought to he affirmed. " , -

The first point which claims thegconsideration of the court, is, whether the deed from James Arden to Louisa Ann, his daughter, was s.qfar .legally and duly,executed, .on,the 25th of November, 1805, as, between the parties to the deed, to devest the grantor of all his estale_and interest in'the premises granted-thereby. •••...

. James Arden, by his answer, admits, that shortly after the time the deed bears' date, (25th of November, 1805,) he signed and; sealed ¡it,, and'believes that he and his wife may have used the formal words of delivery; but he insists that the. deed remained in his possession and'power, thenceforth,, until on or.about 'the: 9th of Januaryt. 1809, when, to relieve the apprehensions entertained by. his daughter, that, in case of his death, it might be lost or destroyed, he placed the same in the hands of De Witt Clinton, one of the trustees, for her benefit, with certain Conditions accompanying such tradition; viz. that the income of ..the property should coiné to him during his life, and that, if his-'

p. 551

daughter married without his consent or approbation, then,. lh,e deed should not operate. *

The proofs in die case, in my judgment, are decisive, that-the deed was legally and effectually executed, só as to become operative on the 25th of November, 1805, notwithstanding the cleniai and answer of Arden. . •

Mrs. 'Braine was present at the execution of the deed. She proves that it was read over by Arden,’ and that thereupon it was executed in the bed room of Mrs. Arden ; that being very intimate with Arden's daughters, and very frequently with them, she saw the deeds in their bed room that on one occasion, she heard her cousins read over their deeds; that on a particular occasion, James Arden came into their bed room,, and seeing the deeds lying on the projection of a book case, or wardrobe, he reproached them with carelesness, and, with their consent, took the deeds into his own keeping.

. Mrs. Servant confirms all the material facts deposed by Mrs. Braine, relative to the custody of the deeds,, by her and her sister, and their being taken by her father for safe keeping.

Robert J. Livingston proves that Louisa Ann had the custody of the deed given to her; that on a particular occasion she produced it to him, and that he read it, and now identifies it.

That Mr. Arden intended the two houses in Greenwich-strcet for his daughters, appears by the testimony of William, Edgar ; and that he had in his own opinion devested himself, in favour of his daughters, of these houses, is proved by Mrs. Talbot, -who states, that shortly after the death of Mrs. Arden, as she was walking in Greenwich-street, she met lV£r. Arden, when Mrs. Talbot, pointing to the houses, asked if those were his, to which he answered, “ my daughters’houses, madam;” and then-said his daughters would be good fortunes.

The fact admitted by Arden's answer, that he may have used tlie formal words of delivery, confirmed by the testimony of one' of the - subscribing witnesses, Mr. Hamilton, who proves the execution of the deed; taken in connexion with the fact, that the deeds were, for some time, in the custody of the cestuy que trust, Louisa Ann, and the total absence of all proof impeaching the. force,óf these facts, can leave no doubt on the mind, that Arden not only intended an effectual execution of the deed, but that every legal formality was complied with. A deed is available if delivered to the party grantee, or even to a stranger, without special

p. 552

authority,' if intended for the'use of the grantee; and-a.de6¿í may he delivered by words, or by deeds, without words» (Shep. Touch. 58., and cases cited.) The subsequent tradition of the' deed to Mr. Clinton, if it became operative before, can have. iio eiFect; nor ivas it in the power of Mr.: Arden to impose any conditions, upon a grant which, had already become 'effectual. The appellant has entirely failed' to show that any fraud or .mistake intervened in drawing the deed. ' The suggestiomis ab, together without support, texcepting frorn his 'own allegations. It is, therefore, useless ,to inquire-how far a deed can be impugned’ by the admission of paroi evidence.-

. Admitting, for the present, that the deed from Mr. Arden to. his daughter!, Mrs, Stem/., .was liable to be defeated by a sub? sequent deed’,- on the ground that it was Voluntary, and,;; in a legal point of view, fraudulent, as against - subsequent bona fide purchasers for a valuable - consideration ; we are, then, • to .inquire what operation the-marriage between, the respondents": had in reference to the deed» . ., . .. .

It is an undeniable proposition, that a deed, voidable, may be tendered valid.and effectual by matter é¡ie post facto.-'. If á man, makes a feoffment by covin, or without any.valuable considera? tioti, and1 the feoffee makes, a. feoffment for yaiuabl-e. considera*. tioh, and then, the first feoffor enters, and makes.- a feoffment for valuable consideration also, the feoffee off the .first feoffee shall hold tile .lands. ■ (Sugden's Law of Vendors, 436, 437., and cases there cited.)

So*, if a voluntary.grantee gain- credit by the conveyance, and ,a person is induced to marry her on- account of such provision,, the deed-, if even voidable as to purchasers, .will, on the mar? riage:being solemnized, no longer remain- voluntary, as .it, was- ■ in its creation, but will be considered us made upon valuable . .'consideration, -.(Sugden, 437., and the cases there, cited.)-, Upon.this -point the. decisions aré numerous, and Thave not met with a single, case or dictum to the contrary. Blackstone vevy correctly defines (2 Bl. Com. 297.) a valuable consideration to .be imoney, marriage, or the • like; 'and', he 'observes, the;, law esteems them an equivalent given for the grant. : "

The facts, in this case, prove, undeniably, that the marriage between the respondents - preceded the deed from Arden to the appellant; and that-the marriage itself ivas induced by the .provision secyred tp |jlra, Shrry by the deed iq. question. It WUS

p. 553

not necessary to the validity of the marriage, or to any of the consequences following from it, that Mr. Arden should have given his consent to it. .

It would be unnecessary to. proceed further, to entitle the respondents to an affirmance óf the decree of the court of chance-. ry; nor was it absolutely necessary .for -the court below to go .into the Consideration of the question, how far forth the deed from Arden to - his daughter would have been available to her, h,ad not the marriage between the respondents intervened. The chancellor has seen fit to discuss and decide that point, and I do not mean to insinuate that, in doing so, he has at all travelled out of the record ; the case fairly presented the question, and he has promptly decided. it. Believing his decision incorrect in this particular, I think this court is bound also to express its opinion: under the circumstances of the. case, to give the question the go by, would be a silent acquiescence in the opinion delivered in the court below.. The point has been fully and ably argued, and it may save great expense, and future litigation, to settle it finally. .

It is contended that the deed to Mrs. Ste.rry having been voluntary, and without any other consideration than that. of. blood and natural affection, it was in the power of the grantor, by a subsequent deed, founded on a valua ble consideration of money, to defeat the operation of the first deed, in favour of the second alienee, although such second alienee knew of the existence of-the first deed, and although, in point of fact, there was no original intent with either of the parties to the first deed, to .defraud any subsequent purchaser.

In the present case, his honour, the-chancellor, is of the opinion that the appellant is chargeable with constructive notice of the deed of the 25th of November, 1805, to; Mrs.. Sterry, It may well be questioned, whether this conclusion is warranted by the facts. We have no other proof of the constructive notice, than the admissions of the appellant-in. his answer. He admits he had heard, before the delivery of t'h’e deed to him, that Arden had made some provision, by deed, or otherwise, for his daughters, of property in, Greenwich-street. This information is loose and inexplicit; and I cannot say that I am satisfied that it was equivalent to direct notice. It is not very important, however, whether it was so, or not. ' ■

p. 554

■ Our statute’ for the. prevention of frauds.has adopted'¿toHdety verbis’,', the statutes of 13th Eliz. ch. 5., and 27th Eliz. ch. 4. The former declares void all gifts and conveyances' of lands, tenements, hereditaments; goods, .and chattels,1 had ór máde, de-vised and continued of. malice, fraud, covin, collusion or guile, to the-end, purpose, or intent to delay, hinder, or defraud creditors and others, of their- just debts,; ¿^c. The latter' declares void, every conveyance,-&c., of anylánds, tenements, or heredita-ments, to be had pr.made- for the intent and purpose 'to defraud. and deceive such person as phallpurchase' the l/Upds, so befdre conveyedt- Both statutes leave ..the conveyances and. gifts-:as good between the. parties, and their representatives. The 13th of Ffe. avoids the'covenous act in favour of; Creditors. , The 27th Eliz. avoids.it in favour of subsequent purchasers for"money or other good consideration. " '

The 4th section of our statute, in/confonhity with the.' 13th -.and 27th of Eliz., inflicts a penalty ánd forfeiture of one year’s value of the lands upon the party to such fraudulent transaction, who shall' .maintain or defend the fraudulent -deeds' or conveyanees’,, pronounced. void'' by .those 'statutes ;/<the '6 thi: section of bur statute adopts the proviso to the 27th Eliz., and saves from the operation of the statute conveyances made upon good coil-side-ration, and bona- fule.. 1 ■ , ' ■1

■If the statute of the 27th of Eliz. was -now, for thé'first time,. to receive-a construction, it does- seem, to me impossible that it should; bfe held to:, embrace withm- its ,,purview -the case :under/ consideration. ", < ' - '

Mr. 'Arden, as we must believe, was, in 1805, a man of a handsome and unencumbered fortune. In compliance with" the .earnest desire, of his" then wife, he deliberately pits down to make a suitable provision for his two daughters, and -their-' issue." -The. transaction is open,-, public.," and • notorious, No One. can believe that, it entered 'into- the-hearts,'or heads,'of .the'fatifor or his daughters,- that the. deeds he'.'was -executing, were with the. intent, -or' fpr the purpose, ..of defrauding and deceiving such person as should'-thereafter purchase the estate thusconveyed; yet' this court is called upon to consider -these deeds as; void, bn the ground of an original covenous, guileful, and fraudulent design,: boeval with the - .transaction, between the .father ¡ and- his daughters. It would be with extreme reluctance that I should

p. 555

consent to brand as innocent and pure a transaction as ever took place with the odious and detestable crime of fraud. '

There may be cases in which a common error may have been matured into a right, and then the error must be submitted to as the lesser evil. The construction of statutes belongs ,to the courts of law and equity; and if a construction has been adopted by the courts, and confirmed in the one of dernier resort; and, more especially, if the public act on the erroneous construction, justice and policy concur in requiring that the error be adhered to; or, otheíwise, no man could be safe in his dealings. The adjudications which have taken place in England since the 19th of April, 1775, form no part of the common law of this state* íf, since that period, cases have occurred overruling the anterior decisions, the courts of this state can pay no other respect to them, than as the reasonings of learned and eminent men* They can have no more influence on our decisions than the lucubrations of jurists*

The cases which we met with prior to the above period, and which have turned upon the construction of the 27th of Eliz., are not in harmony; though I think the preponderance, in weight and number, is decidedly adverse to the doctrine which now prevails in the courts of Westminster~hall.

Lord Ellenborough, in delivering the opinion of the court of king’s bench, in Doe v. Manning and another, (9 East, 63.,) has collected the cases. He states that, in the eases which arose nearest the time of passing the statute, the judges seem to have thought that a voluntary settlement was only, prima facie, fraudulent against a purchaser. By a reference to the cases, it will appear that it was matter of evidence to the jury, on which they passed', whether a voluntary conveyance, as such, was fraudulent. There are very great names in support of this doctrine, among which may be mentioned Lord Hale, Lord’ Rolle, Chief Baron Gilbert, and Chief Justice Eyre. Baron Gilbert is extremely. perspicuous and clear in his observations, and I cannot pass them by without notice. “ A voluntary conveyance (he says) hath no badge of fraud, unless the .party were then in debt, or in treaty for a sale of the lands; for a man may have reason to settle his estate for the good- of his wife and children; and if he hath a clear estate, and no intention to sell, the settlement must be taken to be a good one; for that cannot lie under a suspicion when there is no discovery made of an intent to use

p. 556

that settlement td fraudulent purposes, at the time of mating it<$ (Gilb. Ev., by Lofft, 307.)

There aré, undoubtedly, very great names who have held,a contrary doctrine,.that Conveyances merely'Voluntary are voidv . able at law, by a'subsequent purchaser for .valuable considerationand among these may he ranked -Lord llardwicke, Chief Justice De Grey, and several others. Lord Mcinsjl-eld-undoubiedly maintains the doctrine inculcated by the judges who lived nearest the. passing the statute of 27th Eliz., apd Lord Éllehborough, in his opinion in the case cited, does not present the- Opinion, of this eminent judge .in the. strong, point of view it merited, in the case; of Doe v. Rutledge, (Cowp. 713.) Ho divides the argument he there delivered,'into four heads, and he specially considers, whether the deed' of 1763, a voluntary deed, ■ with no other consideration than that of blood for its support, was a fraudulent covcnous deed within'the- {rué. intent and meaning of the statute. . He gives a distinct consid'eratioji, to the question, whether the subsequent purchaser was such a one as -was -entitled to- object to the .voluntary deed.-': In -commenting on the-voluntary deed of 1763, lie observes, that, the 27th of Eliz. contains not a word, impeaching voluntary settles ments, merely as being voluntary, but as. fraudulent and cose nous, He. notices the title of the. síatute;.,ánd, the enacting part, as-making .provisions’ against such practices, as if they ¡were' a 'crime, tie gl-vés a criterion of determining, each case “ one great-circumstance,” he says, “ which should always be attended to-in these transactions, is, whether the person was indebted" at the time he made the settlement'; if he was, it is a strong badge .of fraud.” . The - léárné'd editor of Sir Wmt.Bl'ackstonets Commentaries (Mr. Christian) understands Lord Mansfield in the manner I have doné/ (2 Bl. Com. 297. n. 1.)

In. Doe v. Manning (9 East, 71.,) Lord' Ellenborough concludes thus: “And we cannot but say, as at present advised, and considering the construction put on the" statute, that it. Woyld have been better if the. statute had avoided, conveyances oply against purchasers for valuable consideration,- without-'notice- of the-prior convey anee. ” " •' i ; .

In Evelyn v. Templar, (2 Bro. 149.,) Lord Thurlow said; “ that although it would- have been as well; at first, if the. voluntary -conveyance had-hot been thought so little of, yet the rule*

p. 557

was such, and so many estates stand upon it* that it cannot be shaken¿ In Doe v. Martyr, Sir J. Mansfield, tih. J.* regretted that it had ever been decided, that even notice of the prior setilement would not defeat a subsequent purchase?

It is a sound and settled principle, that notice to a purchaser of a prior fraudulent deed will not affect the subsequent purchaser, and that such subsequent purchaser mriy avail himself of the fraud in the first deed; and-the reason for this is solid; because, if he knew the transaction, he knew it was void by law; but to extend this principle to voluntary deeds, made by «a father as a pro vision, for his children* made, too, by a father hot indebted at the time, arid with every act of publicity usually attending the conveyance of an estate, would be, in my judgment, to beg the very question in controversy.

Legal inductions are very properly and necessarily drawn, from legal analogies ; and* in this view, let us examine the constructions which courts of law and equity have given to the' 13th Eliz. It is perfectly Well settled, that to impeach a volun--' settletnent made on a meritorious consideration, it is necessary that the seller should not only be indebted, but should be insolvent, or in doubtful circumstances, at the time. The 13th Eliz. ivas intended to prevent the conveyance of property with a design to defraud creditors. If the person making a settlement is insolvent, or in doubtful circumstances, the settlement, . depriving his creditors of the means of satisfying their debts* '-comes within the statute; but if the grantor be not indebted to such a degree as that the settlement will deprive -the creditors of fin ample fund for the payment of their debts, the considerat'ion of natural love and affection will support the deed, although a voluntary one, against his creditors ; for, in the language of the decisions, it is free from the imputation of fraud. Lord Elardwicke is very full and explicit on this points in Townsend v. Windham, (2 Ves. 11.,) he said, If there is a voluntary conveyance of real estate, or chattel interest,, by one not indebted at the time, though he afterwards become indebted, if that voluntary conveyance was far a childi and no particular badge of fraud to deceive ór defraud subsequent creditors,1 that will tío.” (See, also, 2 Bro. Ch. Cas. 20. 5 Ves. 384.) Both the statutes, the 13th and 27th Eliz,, contain the general proviso annexed to our statute, excepting from their operation those deeds only which are bom fide, .and upon good con

p. 558

¿{deration; and it is very clear, that Lord Hardwícke-,m the opinión just cited, lays- stress on the circumstance that the voluntary conveyance Was for a Child; - The deed from Arden to Mrs. Sierryhas these two circumstances : it was bona fide, and it had a good consideration, that of love and natural affection'; and I have no doubt that this deed is saved by the express proof the statute. * The question naturally occurs, can the-late decisions in the English courts, on the two statutes of the 13th and 27th Eliz., be reconciled by-the principles of just construction.. Under the former, a man out of debt may make a settlement upon his child, and if he afterwards Becomes indebted, the subsequent -creditor cannot impeach the gift, be-. cause it was not made to deceive, or defraud" him, nor any one else; and, therefore, is'- not within the statute, , How, then, can it.be maintained, that, if the sátiie father, in-consideration of blood, make á bon¡a fide settlement jqn his child, at a time when. he is not indebted,; this transaction shall be deemed void, and that, it shall be taken for granted, contrary to the real truth and fact, that it was with1 intent to deceive such person as should afterwards purchase the Restate, -even with full notice of the,.bona, fide conveyance ? As well might it be? said, that the settlement on a child is void, as to future-creditors, as that a settlement on a child is void as to future purchasers. The settled, and decided, and uniforinvconstruction, on. the Í3th óf .Eliz., is entirely.opposed to the l&te English decisions on the 27th of E'liz. ; and it would be extremely absurd- to adhere'to-4 . both. It is manifest, to me, not only from the regret expressed by the judges and chancellors in England that such a construe-t-ion had taken- place in regard to the 27th Eliz., but from, the evident .discrepancy in the constructions of the' two statutes, that the latter decisions.have been influenced by a sort of judicial expediency,. rather than an adherence to the meaning, or wording of the statute of the 27th Eliz.; it was to avoid the unsettling of éstqtes,' Now, we are not in that predicament; we can give a rational.and true^construction to the act, without doing violence to the meaning of the legislature, or our' own consciences, or unsettling estates. % ,

If any other consideration was necessary tin bring us -to: this result, it would be found in the 4th section of our act, which is also copied from the two English statutes; by that.section a

p. 559

penalty of one year’s value of the premises is imposed for maintaining or defending covinous or fraudulent conveyances.

If a subsequent purchaser, with notice, can set aside a deed like the one under consideration, it .must be on the ground that the anterior deed is fraudulent; and thus a transaction, which no one can doubt to have been fair and bond fide, is to be com sidered criminal, and punished as a fraud. This would be quite contrary to another part of Lord Mansfield^s opinion, in Doe v. Rutledge: “that no person making a voluntary settlement, by way of provision for his family, was ever considered in that criminal light,”

It has been already observed, that the statute excepts from its operation deeds- made on good consideration, and bona fide. A settlement may, in its origin, have both these requisites, and yet may become fraudulent, and kept on foot against good faith, “ If a fraudulent use is made of a settlement, that, indeed, (said Lord Mansfield, in Doe v. Rutledge,) may be carried back to the time when the fraud commenced.” And I am free to admit, that, but for the intervention of the marriage between the respondents, prior to the deed to the appellant, as the proofs stand before us, the appellant must have prevailed. ¿Lrdetfs continuance in the possession of the property, his receipt of the rents and profits, and, above all, the ignorance of the appellant that he had made the settlement, would, as respects him, have been ■ strong circumstances that a fraudulent use had been made of the deed of settlement, and would have contaminated it. On the other hand, if the appellant had notice of the deed of settlement, the possession of the property by Ardent and his réceipt of the rents and profits, Would not have been badges of fraud, and would not have misled him 5 and, in that case, he would not, in my estimation, have been a bona fide purchaser, entitled to set aside the settlement.

In affirming this decree, I proceed entirely on the ground, that the marriage between the respondents furnished a valuable consideration to the voluntary deed from Mr. Arden to his daughter, Mrs. Sterry, eie post;:facto ; and that, as against the appellant, the deed ceased lo be a voluntary one, for good consideration merely.

In my opinion, the decree of his honour the chancellor ought to; be affirmed.

p. 560

.Such being the unanimous opinion of the court, it xvas, thereupon, ORDERED, ADJUDGED, and, drcreed,1 that the decree of the.courf of chancery be affirmed, with costs, to be taxed;,' and that the record be remitted, &e, " , 1 ’ • " <"* ..... 1 .1 " . - ‘ >

Judgment of,affirmance.-