Vason v. Bell

McCay, Judge. 1. Marriage is a valuable consideration, and a marriage settlement, bona fide made, the forms and requirements of law duly complied with, is an instrument that a court of equity will not be slow to enforce. At common law the husband became, upon the marriage, the purchaser of all the wife’s property (personal) in possession, and became entitled to reduce into possession any she might be or might become entitled to. He acquired the right to control her person and her labor, and the consideration of marriage has ever been held of the very highest nature: see the case of Campion vs. Cotton, 17 Vesey, 263, where the doctrine was carried so far as to sustain an ante-nuptial settlement of all the husband’s property on the wife to the exclusion of his creditors; nay, it was even held that stocks belonging to other persons, but to which the husband had apparently the title, passed under the settlement to the wife as a bona fide, purchaser for a valuable consideration. Nor does it require that specific property in specie must be settled. The husband may, as he did in the case before us, covenant to settle, and this will create a debt against him which he may charge on his estate as a debt. Such covenant creates a debt provable in bankruptcy, if it, the covenant, be to settle immediately : See Bright on Husband and Wife, 134, 161. If this be a debt why should it not be the subject of mortgage duly executed and recorded? Mr. Roper, in Roper on Husband and Wife, considers that if a husband covenant to settle on his future wife all the personal [424] estate of which he was then possessed, the ownership of the property is changed in equity, and if lie sell and invest the proceeds in land, even in his. own name, the money so laid out may be followed; for the benefit of the beneficiaries under the marriage settlement, and their interest will be a lien or charge on the land in equity against the heir. The settlement in this case, or- the covenant, is very sweeping in the' charge it makes on his property. It includes present and future acquired property. As' to the future, we see no difficulty. A man may charge or sell all his estate by deed. It is only a question of discretion. A part of his estate would be too uncertain, but all his estate is broad enough and plain enough. It is as good as metes and bounds, since it is just as capable of being made certain as any other description. As £o the charge on the future acquisitions, that is unquestionably illegal; one cannot convey or mortgage property not his at the time. “It is common learning in the law that a man cannot give or charge that which he hath not :” Robison vs. McDonnel, 5 M. & S., 228. Under our registry laws there might arise difficulties in a contest with purchasers or judgment creditors of lands not in the county of the registry. But there is no such question here, and if there were we are not prepared to say that the registry of the marriage settlement, according to the act of 1847, would not be good notice even as to lands out of the county. We are clear, therefore, that upon all the property owned by Mr. Yason at the time of this first marriage settlement, then free from other liens, this deed created a debt to his wife and to the children of the marriage, secured by morfgage on his then property, and that, as against subsequent creditors, as it was duly recorded, it has a preference. We are clear, too, that this enures not only to the children of the contemplated marriage but to the children of the first marriage included in the deed. As against creditors, we do not see why it would not be good as a gift to these children. The consideration of natural love would support it, and the record of the mortgage would be notice. [425] 2. But as we hold that the marriage settlement can be enforced as to those within the scope of the marriage consideration, these children of the first marriage come within the well settled rulé, that when equity enforces a marriage contract, it will enforce it in favor of all included in it whether they are within the scope of the marriage consideration or not. And this, on the very simple ground that it was not the intent , to give all to those within the scope; that the agreement is entire and would perhaps not have been made at all except as it is. 3. Even a marriage settlement cannot divest legal liens; cannot convey title not belonging to the husband. The most that can be claimed for the beneficiaries, is that they stand in the relation of purchasers for value. And even a purchaser for value takes subject to legal liens, such as judgments duly recorded, mortgages, etc. 4. To follow trust funds, it must be possible to identify them, to show that they have gone into the property sought to be subjected. We have diligently sought to find a case to justify the position of the counsel for these minors, but we do no think such a case can be found. The case put, of a deposit in a bank by a trustee, of money, to his own account, turned on the power of identification; the court held that, under the facts, it was possible to show exactly what money was in the bank, since each check appropriated the money . first put in and so on. The statute of distributions is confined to the case of the death of the trustee. Our law makes, in such a case, a special rule for debts due as trustee. But it makes various other specific preferences, and we see no authority in the courts to extend the rule to other cases — as insolvency, etc. That is for the legislature and not the courts. 5. We see no reason to hold that a laborer who takes a promissory note of a third person in discharge of his debt, stands on a different footing from other-persons agreeing to take the note of a third person in discharge. That is the clear law, and is just as applicable to laborers as to other [426] people. He holds no debt against Vason: See Addison on Contracts, 1098 and 1099. 6. We do not go into the question of whether this first or second settlement was a fraud upon the creditors of Mr. Va-son. The court has found that it was not, and there is plenty of evidence to sustain that finding. 7. The parties having waived a jury and consented that the judge might act as a jury and find the facts, his decision stands before us asa verdict and we do not feel authorized to disturb it. We, however, reverse his judgment on the questions of law indicated in the head-notes to this opinion, with directions as to the disposition of the' case. Judgment reversed.