Wells v. Treadwell

Mr. Justice HANDY delivered the opinion of the court. — 724 — The. substance of this bill is, that the complainant, Mary P. Treadwell, was married to her husband, Owen G. Treadwell, in the State of North Carolina, in the year 1823, and received a considerable estate, partly in slaves, from her father, which came to the possession of her husband; that she and her husband removed to this State in the year 1835, bringing with them said slaves, and her husband afterwards sold much of the property which came to her from her father, including two slaves named Dicey and Eda; that afterwards, in the year 1844, her husband, being then unembarrassed, and for the purpose of making a settlement upon her to reimburse her for the property which he had disposed of, which came to her from her father, gave her the sum of five hundred dollars, the proceeds of the sale of another slave which came from her father, and also permitted her to use another slave, which also came to her from her father. This last-mentioned slave and the sum of five hundred dollars she gave for the slave Dicey and her children, Albert and Kitty, and received a bill of sale in her own name, as a settlement from her husband, and being the only settlement made by him for the use of the entire estate which she received from her father. The bill further states, that afterwards, in the year 1848, her husband sold the slave Albert to one Banister Wells, without her knowledge or consent, and appropriated the proceeds to his individual use, and that Mary Wells now holds this slave in right of Banister Wells. The object of the bill is to recover this slave, or his value, with hire. The defendant filed a general demurrer, which was overruled; and from that decree this appeal is prosecuted. The principal question presented by counsel in support of the demurrer is, whether the arrangement by which the slave Dicey and her children were conveyed to the complainant, is to be considered fraudulent as to the subsequent purchaser, so as to render the subsequent sale by the husband valid against the right of the wife. It has been settled by this court, in the cases of Ratcliffe v. Dougherty, 24 Miss. 181, and Warren v. Brown, 25 Ib. 66, that a deed of gift directly from a husband to his wife, where there — 725 — is no ground to suspect fraud, and it only amounts to a reasonable provision for the wife, is valid in equity against the claim of the husband or his representatives. But it cannot be sustained, either at law or in equity, against the creditors of the husband who were such at the time it was made; though it is valid as to subsequent creditors, if made bond fide, and not in contemplation of such future indebtedness. Sexton v. Wheaton, 8 Wheat. 229; Townsend v. Wyndham, 2 Vesey, 11; Reade v. Livingston, 3 J. C. R. 481; Fonbl. Eq. b. 1, ch. 4, § 12. The bill here alleges, and the demurrer admits, that the husband was not in debt at the time the arrangement in question was made, and no other circumstance is made to appear showing that the transaction was founded in a fraudulent intent. Regarding the transaction, therefore, as a direct conveyance by the husband to the wife, as we think it was in substance and legal effect, there is nothing disclosed in the bill tending to impeach its fairness and validity. But it is insisted, in behalf of the appellant, that this being considered as a voluntary conveyance by the husband to the wife, the subsequent sale to Wells is conclusive evidence that the conveyance to the wife was collusive and fraudulent; that the rule is, that, as to subsequent purchasers, a voluntary conveyance is absolutely void per se. This is not the approved doctrine upon the subject. It has the sanction of many of the authorities, founded on too narrow a construction put upon the provision of the statute 27 Eliz. declaring certain conveyances “ void,” the force of which is well explained by Chief Justice Spencer, in Anderson v. Roberts, 18 J. R. 515. We think that the true doctrine upon the subject is, that a voluntary conveyance is presumed to be fraudulent as to a subsequent purchaser. Fonbl. Eq. b. 1, ch. 4, § 13, n. /, and authorities there cited. But this presumption may be destroyed, and if the conveyance, though voluntary, appear to have been made upon a meritorious consideration, without fraud or covin, it is not void against a subsequent purchaser; for, in the language of Lord Mansfield, “ there is no part of the statute which — 726 — affects voluntary settlements eo nomine, unless they are fraudulent.” Ib.; also Doe v. Routlidge, Cowp. 708; Verplank v. Sterry, 12 I. R. 555. Chancellor Kent, in Sterry v. Arden, 1 J. C. R. sanctions the doctrine that voluntary conveyances are absolutely void as to subsequent purchasers, and holds that such is the rule held by the English authorities. On the contrary, Chief Justice Marshal], in Cathcart v. Robinson, 5 Pet. 264—281, held that the rule settled by the English cases at the period of time referred to by Chancellor Kent, and the sound rule upon the subject is, that “ a subsequent sale without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement the burden of proving that it was made bond fide? We consider this as the true exposition of the statute; for it does not declare all voluntary conveyances, but all fraudulent conveyances, to be void. Otherwise, the statute, which was intended to prevent frauds, might be turned into the most effectual instrument of perpetrating frauds, by placing it in the power of a party who had made a bond fide conveyance, upon a just and praiseworthy consideration, to defeat the act and violate all morality and justice by a subsequent sale for his own benefit. Is the presumption of fraud, then, rebutted by the facts of this case, as they are presented 1 It appears by the pleadings, that the husband had disposed of the estate which had come to his wife from her father, and in order to secure to her something as a settlement, the arrangement was made by which these family slaves were conveyed to her. This was certainly a just and meritorious consideration; and the husband appearing not to be indebted at the time, and no other motive to a fraudulent act being shown, that consideration must be held to be just and legal, and sufficient, in the absence of all proof of a fraudulent design, to support the conveyance. Again. It is said that the fact that a schedule of this property is not shown to have been recorded under the provisions of — 727 — the 7th section of the act of 1846, Hutch. Code, 498, is a circumstance prejudicial to the claim of the complainant. That statute does not in terms, nor in necessary legal effect, render the registration of such schedule a condition to the right of property in the wife, nor is there any penalty or forfeiture annexed to the failure to make a registration of it. It was doubtless intended as a means of notice that the property belonged to her; but as the legislature have not made it necessary to the enjoyment of the right of property, nor given any distinct effect to the failure to perform the act, we cannot say that the failure to make the registration works a forfeiture of the property. Under certain circumstances, and in connection with other facts tending to show fraud, it might be considered as indicating a fraudulent arrangement; but of itself it could scarcely be considered as a badge of fraud. Again. It is insisted, that inasmuch as the husband had “ the control and management of the slaves, the direction of their labor, and the receipt of the productions thereof,” under the provisions of the married women’s act of 1839, he had the right to sell his life-estate in the slaves, and to that extent, that the sale of the husband passed a good title. We do not think that this position is in accordance with the spirit of the act of 1839. That act recognizes the absolute property in the slaves in the wife, and contemplates that they are to remain in such a condition as that the wife’s property in them can be readily asserted without embarrassment, for her own benefit, upon the death of her husband, or for the benefit of her children. This right might be greatly embarrassed if the husband had the power to take the slaves from the possession of the wife during his life, and sell them for such a time to strangers, who might take them to parts unknown and cause a total loss of them to the wife and her children. We do not think that the legislature intended to vest a distinct estate in the slaves for any term or period of time in the husband, but simply to give him the management of them, the direction of their labor, and the receipt of its proceeds, in such a manner as not to interfere with or embarrass the right of property in the wife at all times. — 728 — The decree of the chancellor is in accordance with the foregoing views, and is therefore affirmed, and the cause remanded, and the defendant below required to answer within sixty days.