Lewis v. Caperton's Ex'r

• Court: Virginia Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Lewis v. Caperton's Ex'r, 49 Va. 148 (1851)
• Decision Date: 22 September 1851
• Parties: LEWIS & als. v. CAPERTON'S ex'or & als.

49 Va. 148

LEWIS & als. v. CAPERTON'S ex'or & als.

Supreme Court of Appeals of Virginia.

September 22, 1851

(Absent Cabell, P. and Moncure, J.^[a1])

1. A deed executed bona fide to secure a loan of money not to be enforced for ten years, is a valid deed as against creditors of the grantor.

2. A deed which conveys without a schedule, household furniture the various kinds of stock on a farm, bacon and lard, to secure a bona fide debt, but not to be enforced for eighteen months after its execution, is valid against creditors, though the deed was made without the knowledge of the creditor, and the grantor was indebted to insolvency at the time of the conveyance.

3. A deed which conveys land to secure a bona fide debt which is not to be enforced for two years, and only then or afterwards upon a notice of the sale for one hundred and twenty days, is valid against creditors.

4. Such a deed is valid though the execution of the deed is postponed for five years from the date of the conveyance; and the rents and profits of the property in the meantime, is reserved to the grantor.

5. A deed which conveys future rents and profits of property conveyed in other deeds, which were reserved to the grantor in the previous deeds, for the purpose of paying a bona fide debt, is valid against creditors of the grantor.

6. A vendor of land retains the title in accordance with the contract. He has a lien on the land for the purchase money as against creditors or incumbrancers of the vendee; and this though the vendee has subsequently executed a deed by which he conveys other property to secure the purchase money.

7. A postnuptial settlement made by a husband on his wife, of personal property derived from her father's estate, but of which he retains possession, not having been properly recorded, is void as against the creditors of the husband.

8. A deed made by a husband embarrassed at the time, by which he conveys the proceeds of his wife's land which had been sold, and the note for the purchase money made to him, in trust for himself and his wife for their lives and the life of the survivor, and during his life to be under his control and management, is voluntary and fraudulent as to creditors.

9. A deed which conveys land to secure a bona fide debt due to the grantee, and also a debt to the grantor's wife, which is voluntary and fraudulent as to his creditors, and the nature of which debt is known to the grantee, is null and void as a security for the first as well as the last mentioned debt, as against subsequent incumbrancers and creditors of the grantor.

10. The declarations of a wife at the time she executes a deed or at other times, that she has executed or does execute the deed because her husband had promised that he would settle or because he had settled upon her certain property derived from her father's estate is not sufficient evidence of a contract between them for such a settlement in consideration of her relinquishment of her right of dower in her husband's land, and thus to support such settlement if made, against creditors or incumbrancers, even to the extent of a reasonable compensation for the right of dower which she relinquished.

11. There being several deeds, conveying in succession the same property, and not merely the equity of redemption therein, every successive incumbrance binds all the property not absorbed in satisfaction of the previous valid incumbrances. And if some of the incumbrances are declared void at the suit of a creditor of the grantor, such creditor is not entitled to have his debt substituted in the place of such void incumbrance to the extent thereof; but the subsequent valid incumbrancers have preference.

12. Property covered by various deeds of trust which may be enforced at different periods, having been sequestrated at the suit of a judgment creditor of the grantor; when the Court disposes of the trust subjects and the rents and profits thereof, the creditor will only be entitled to the rents and profits of the different trust subjects up to the earliest period when either of the valid incumbrances covering such subject was authorized to be enforced. And the different incumbrancers will each be entitled to the rents and profits of the subject covered by his deed from the time he was authorized by the terms of the deed to enforce it.

13. The wife of the grantor not having joined in the first deed conveying land to secure a debt; but uniting in a second deed conveying the same land to secure another creditor, the second incumbrancer is entitled to the value of the wife's contingent right of dower in the land, to be paid out of its proceeds, as against and in preference to the first incumbrancer.

14. QUAERE. If the wife's relinquishment of her contingent right of dower in land, where there is no complete alienation of the estate by the husband, but a mere incumbrance given for the security of a debt, constitutes a sufficient consideration for a settlement on the wife.

This was a bill filed in the Circuit court of Monroe county in October 1842 by Hugh Caperton against John B. Lewis and the trustees and cestuis que trust in twelve deeds executed by Lewis, eleven of which were charged to be fraudulent and intended to hinder and delay the plaintiff, a creditor of Lewis, in the recovery of his debt. The pleadings and proofs exhibit the following facts:

John Lewis devised to his two sons John B. Lewis and Thomas P. Lewis, the Sweet springs, in the county of Monroe, with a considerable body of land in Monroe and Alleghany counties; the Sweet springs tract proper containing one hundred and fifty-nine acres. By an agreement under their hands and seals bearing date the 25th of September 1834, Thomas P. Lewis sold to John B. Lewis all Thomas's right and title in and to the Sweet springs, together with all other lands bequeathed to him by his father, situate in the counties of Monroe and Alleghany, for the sum of 20,000 dollars, with legal interest from the first day of the next January 1835; the amount to be paid by annual payments extending to the year 1846; but no conveyance was made.

By deed poll bearing date the 9th day of February 1837, and prepared and probably executed in South Carolina, John B. Lewis conveyed to William E. Haskell, the Sweet springs tract of land containing one hundred and fifty-nine acres, for the purpose of securing to Haskell the payment of 10,000 dollars with its interest, which he at that time borrowed from Haskell, and for which he gave his bond with his brother William L. Lewis as his surety, payable in ten years; the interest thereon to be paid annually. Mrs. Caroline S. H. Lewis, the wife of John B. Lewis, was not a party to this deed, but she signed it, and her privy examination having been taken before two justices of the peace for the county of Monroe, the deed with the certificate of the privy examination of Mrs. Lewis, was admitted to record in the clerk's office of the county of Monroe.

By deed poll executed in South Carolina and bearing date the 11th day of January 1839, John B. Lewis, upon the consideration as expressed in the deed of natural love and affection, and of one dollar, conveyed to William L. Lewis twenty-four slaves by name, which the deed stated had been allotted to John B. Lewis in right of his wife, on a division of the negroes of the estate of her father William R. Thomson of South Carolina; also the sum of 7000 dollars, then vested in a note drawn by William S. Thomson and others in his favour, the consideration of which was the interest of Mrs. Lewis in the real estate of her father William R. Thomson. This conveyance was in trust for the use and benefit of himself and wife during their lives and the life of the survivor, and during his life to be under his control and management; and if he should invest the said 7000 dollars in property the same was to be subject to the same trusts; and upon their death to their children who should survive either of them.

This deed was admitted to record in the Orangeburgh district, South Carolina, on the day of its date, upon proof of its execution by a witness thereto; and was recorded in the clerk's office of the County court of Monroe on the 9th of January 1840. The endorsement of the clerk on the deed is: " The foregoing was presented in this office, and which, together with the certificate of its acknowledgment, was admitted to be recorded, which was done." The clerk who was examined as a witness, stated that John B. Lewis took the deed to the clerk's office and handed it to the clerk with a request that he would record it, and give it to him before he left; which was done. The deed was not reported to the Court or advertised at the courthouse door; but this omission was accidental.

Between the period when John B. Lewis purchased the interest of Thomas P. Lewis in the Sweet springs property, and the end of the year 1841, he proceeded to make improvements upon it at great cost; and in 1841 he was largely indebted: Among his creditors was Hugh Caperton of Monroe county. In February 1841 Lewis executed to Caperton two single bills, one for 5641 dollars 57 cents, and the other for 13,102 dollars 83 cents. And about the same time he with James L. Woodville as his surety, executed another single bill to Caperton for about 4520 dollars 25 cents. In December 1841 Caperton instituted suits upon the first two of these single bills, and recovered judgments thereon in May 1842.

Soon after the service of the process upon Lewis at the suit of Caperton, he seems to have visited South Carolina; and whilst there he executed two deeds poll bearing date the 24th of February 1842. The one reciting that he was indebted to William L. Lewis of Orangeburgh district, South Carolina, as trustee of the wife of...