William & Mary College v. Powell

• Citation: 53 Va. 372
• Court: Supreme Court of Virginia
• Decision Date: 15 May 1855
• Parties: WILLIAM & MARY COLLEGE v. POWELL & als.

53 Va. 372

WILLIAM & MARY COLLEGE v. POWELL & als.

Supreme Court of Appeals of Virginia.

May 15, 1855

(Absent ALLEN, P.)

1. A post nuptial settlement is made by a husband upon his wife. The wife afterwards dies; and then a bill is filed by a creditor of the husband, against her children, to set aside the settlement as fraudulent as to the creditor. The husband is not a competent witness to prove the consideration upon which the settlement was made.

2. Such a settlement is made, which recites that the consideration in part is the agreement by the wife to unite in a conveyance of land, a part of which is her own derived from her father, and in another part of which she has a right of dower, for the purpose of paying a debt of her husband; and she does afterwards unite in the conveyance. The deeds themselves are proofs of the consideration, and the settlement will be sustained to the extent of the value of the interests she conveys.

3. A husband conveys a tract of land, one part of which is his own and the other part is his wife's maiden land, in trust to secure a debt. Afterwards the husband and wife unite in a conveyance of the land to a third person, upon the consideration of five hundred dollars, and that the grantee will pay the debt to secure which the land had been conveyed in trust by the husband. The creditor has an equitable lien upon the land under this last deed, which is good against parties claiming under the grantee. And if the five hundred dollars has not been paid, it will be postponed to the creditor's lien.

4. A trustee sells land and bids it in for the creditor, but no conveyance or memorandum in writing of the purchase is made nor is possession taken, but the possession remains in the former owner, under an agreement, as it is said, with the trustee, who is the agent of the creditor, that the said owner shall take it at the bid. The purchase is not valid and the creditor will not be charged with the land at the price at which it was bid in.

5. There is a principal and a surety in a bond; and the principal conveys land to the surety in consideration that the surety will pay the debt. This does not convert the surety into the principal and the principal into the surety in respect to the creditor; so that the original principal may be released by the dealing of the creditor with the original surety.

Thomas J. Powell being indebted to William and Mary college, he executed his bond, bearing date the 25th day of April 1836 with George N. Powell as his surety, to the college, for one thousand five hundred dollars, payable on demand: And on the same day he executed a deed by which he conveyed to Edmund Christian, who was the bursar of the college, a tract of land in the county of King William, described as containing three hundred and nine acres, in trust to secure the payment of said debt. One moiety of this land in quantity, and that part of it on which was the dwelling-house, was the property of Powell's wife, of which he was tenant by the curtesy; the other moiety Powell had purchased of one of the heirs of Mrs Powell's father. Her moiety was much the most valuable.

By deed bearing date the 1st of April 1841, Thomas J. Powell and Mary E. his wife, in consideration of the sum of five hundred dollars in cash, and for the further consideration that George N. Powell should pay Christian, agent of William and Mary college, the debt aforesaid of one thousand five hundred dollars, with its accruing interest, conveyed to said George N. Powell the said tract of land, described as containing three hundred and three acres.

In 1841 George N. Powell had become personally indebted to the college; and on the 27th of September of that year, he executed to the college his bond for six hundred and forty-eight dollars and ninety-one cents; payable one-sixth thereof annually, with interest payable annually, from the date of the bond.

In 1846 Christian, the agent of the college, instituted actions on both the above mentioned bonds in the Circuit court of King William county. The process in the first case was not served upon Thomas J. Powell, who had then removed from the county, but it was served on George N. Powell; and judgments were recovered against him.

Whilst these actions were pending, George N. Powell, by deed bearing date the 6th day of April 1846, conveyed to Frances W. Scott the tract of land which had been conveyed to him by Thomas J. Powell and wife, and describing it as that land, and also other lands, slaves, and indeed all his property, in trust to secure numerous creditors named in the deed. These creditors were divided into three classes. The first embraced a number of persons, to whom he stated he owed small debts, and a debt of five hundred dollars stated to be due to James H. Powell. The second class embraced debts stated to be due to his children, amounting to upwards of four thousand dollars. And the third class embraced the two debts due to William and Mary college. Scott, the trustee, was about to proceed to sell the trust property, when the college obtained an injunction to the sale, from the judge of the Circuit court of King William county: The bill was sworn to by Christian, the bursar of the college. It set out the debts aforesaid due from the Powells to the college, and stated that judgments had been recovered upon them, and that the same were still due. It stated the conveyance by Thomas J. Powell in trust to secure the debt he owed; and the subsequent deed by Thomas J. Powell and wife to George N. Powell, and also the deed of the latter to Scott; and charged that the two last were fraudulent and void as to the college. And the prayer of the bill was for an injunction, and for a receiver. That the said trust deed might be declared void, and the property applied to the plaintiffs' debts, and for general relief.

George N. Powell, in his answer, did not question that the debt of one thousand five hundred dollars was due, but he denied that the deed from Thomas J. Powell and wife to him was fraudulent; and insisted that his deed to Scott did not deprive the college of their lien under the deed of trust from Thomas J. Powell to secure his debt to the college, but that that land was primarily liable to that debt. He also denied that the deed to Scott was fraudulent, or that the debts stated to be due to his children were simulated.

In November 1847 a decree was made in this cause by consent, by which the property was directed to be sold; and it was provided, that should the plaintiffs become the purchasers of the land conveyed by Thomas J. Powell to Edmund Christian, to secure the debt of one thousand five hundred dollars, the commissioner was to take a written memorandum of the sale signed by the plaintiffs or their agent, without further security, and return the same with his report. Under this decree this land was sold, and was purchased by Christian for the college at seven hundred and two dollars, and the sale was reported to the court: And it does not appear in this record what further has been done in that cause.

By deed bearing date the first day of January 1839, Thomas J. Powell conveyed to James Bosher a tract of between eighteen and nineteen acres of land lying in the county of Henrico near the city of Richmond, four slaves and some household furniture, in trust for the separate use of his wife Mary E. Powell during her life, with a general power of appointment; and if she should make no appointment, to her heirs. And Mrs. Powell was authorized to direct a sale and reinvestment of any part of the trust property. This deed recited that Mary E. Powell was the owner of the tract of three hundred and three acres of land in King William, before mentioned, and had theretofore agreed that it might be sold by her husband, and that she would join in the conveyance thereof, on the condition of a settlement to her separate use of property equivalent therefor; and that with an understanding that the land mentioned in this deed should be thus settled, she did theretofore by the said James Bosher as her next friend, out of her own private funds or pin money, pay the sum of six hundred dollars to William A. Carter, in part for the purchase of the same. And upon these considerations, as well as of natural love and affection, the settlement was made. This deed was executed by Thomas J. Powell, Bosher the trustee, and Mrs. Powell. At the time of the execution of this deed Thomas J. Powell was in embarrassed circumstances, and became insolvent.

The land conveyed in the deed of January 1839 was sold by the direction of Mrs. Powell, and the proceeds were invested in a lot in the city of Richmond. Mrs. Powell died prior to 1850, leaving ten children, and without having exercised her power of appointment: And in November 1850 Bosher the trustee conveyed the trust property to her children. He afterwards purchased three of the interests of the children in the property.

In 1851 the parties interested in this property instituted a suit in the County court of Henrico for the purpose of having it sold and divided; and a decree was made appointing Herbert A. Claiborne a commissioner to sell and distribute the proceeds. The sale was made, and the net proceeds of the slaves amounted to one thousand eight hundred and ninety-eight dollars and thirty-five cents. The lot sold for one thousand dollars.

Before the proceeds of the sale aforesaid were paid over to the parties, William and Mary College filed a bill in the Circuit court of Henrico against Thomas J. Powell, Bosher and the children of Mary Powell, in which they state the indebtedness of Thomas J. Powell to the college, and the deed of trust given to secure it, the conveyance by George N. Powell to Scott, and their suit in the Circuit court of King...