deed was good, and no legal estate remained in Rebecca Kenner, at the time of her marriage.

Swann, in reply.

The words of the act are, that the deed shall be void as to "all creditors and subsequent purchasers" unless, &c. The plaintiff being a creditor, it is void. as to him. By the marriage the property, as to the plaintiff's claim, vested in Charles Turner, in the same manner as if Rebecca Kenner had transferred it to him by deed duly acknowledged and recorded. He received possession of them, and from that possession acquired credit with the plaintiff and others. If this property should not be rendered liable to his debts, the object of the law will be frustrated.

To restrict the term creditors to the creditors of the grantor is neither consistent with the letter nor the spirit of the law.

If this construction be correct, the creditors of a subsequent purchaser are not entitled to the benefit of this act. If the property should pass through the hands of six purchasers, would not the creditors of the last purchaser be entitled to seize it? And shall the vendor set up a secret deed, and claim it, because the creditor.is not his creditor? How would this differ from the case of a creditor of the first purchaser? The claim of such a creditor would be good against the secret deed of the vendor.

The marriage being a purchase; the creditor stands upon the same ground.

The creditors of the vendor and purchaser have a right to consider the deed as null.

If the vendor retains possession of the property, and appears to be the owner, the creditor may seize it notwithstanding a secret unrecorded deed.

So if a purchaser has obtained a deed for it, and

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PIERCE

V.

TURNER.

is the apparent owner of it, the creditor of the purchaser may seize it notwithstanding a secret unrecorded deed.

Unless the act of assembly has this operation, it has none, and no marriage settlement will be recorded in future.

The derivative title may be better, than the original; as in the case of a purchaser without notice from a purchaser with notice.

Charles Turner had notice, but if he had sold to a purchaser who had not notice, this purchaser must have held the property against this unrecorded deed. Sugden's Law of Vendors, 448. 2 Vern. 384. Amb. 313. 2 Atk. 242.

The deed was void ab initio as to creditors, as soon as the time for recording had elapsed.

March 13.

WASHINGTON, J. delivered the opinion of the court as follows, viz.

This is an action brought by a creditor of Charles Turner, against Rebecca Turner, who is charged as his exécutrix; and the questions submitted to the consideration of the court are, 1st. Whether the slaves, mentioned in the deed of the 14th of February, 1798, are to be taken as assets belonging to the estate of Charles Turner; and if so, then, 2d. Whether Mrs. Turner can, under the circumstances of this case, be properly charged as an executrix of her own wrong? If the first question be determined in favour of the defendant in error, it will become unnecessary to consider the second; as it does not appear that Mrs. Turner intermeddled in any mauner with the estate of her deceased husband, unless these slaves did, in point of law, constitute a part of that

estate.

The first question depends upon the construction which the court may give to the 4th section of the statute of Virginia, passed on the 13th of December, 1792, enutled "An act for regulating conveyances," which declares that all conveyances of land, mar-. riage settlements of lands, slaves, or other personal property, deeds of trust and mortgages thereafter made should be void as to all creditors and subsequent purchasers, unless the same were acknowledged or proved, and recorded within the time prescribed by the statute; but that the same as between the parties and their heirs should nevertheless be valid and binding.

The deed from Rebecca Kenner, the defendant in error, previous to her intermarriage with Charles Turner, by which the slaves in question were settled on the said Charles Turner and herself, during their lives, and the life of the longest liver of them, with remainder to the heirs of the said Rebecca, not having been proved and recorded within the time. prescribed by law, it is contended by the plaintiff in error that the same became void as to the creditors of Charles Turner, whose rights remained unimpaired by that deed, in the same manner as if it had never been made; in which case, it is not denied that an absolute estate would have vested in the husband, on his marriage.

This argument proceeds upon the ground, that by the words all creditors and subsequent purchasers," is meant as well the creditors of the grantee and subsequent purchasers from him, as those who might derive title under the grantor. Although the words are certainly broad enough to comprehend the whole, it is believed by a majority of the court that the construction should be such as to limit the application of them to the creditors of, and subsequent parchasers from, the grantor. In no case but one, where a title can be set up for the grantee paramount the deed, can it ever be the interest of a creditor of the grantee to insist upon such a construction as is contended for in this; for as he must derive his title

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under the deed, if it be void as to him, it is impossible for him to found a claim upon it in right of the grantee, whose only title is under the deed. It would be strange that a deed should be binding upon the grantee and his heirs. and yet void as to persons claiming under him, for a valuable consideration; and yet such would be the consequence, if the words "all creditors and subsequent purchasers" should be understood to apply to persons claiming under the grantee as well as those claiming under the granIndeed it would seem repugnant and absurd to apply the same expressions to persons, who, if they claim at all, must claim under the deed, and also to those who claim against the deed; in the latter case, the invalidity of the deed is consistent with the claim, in the former it is destructive of it.

tor.

It may be said, however, that these observations are inapplicable to this particular case, because the creditors of the husband do not claim under but against the deed; and, in this respect, stand upon the same ground as the creditors of the grantor. But if in every other case which can be stated, the invalidity of the deed is applicable to the creditors of the grantor, or those claiming under him, and to none other, by what rule of construction can the same words have a more extended meaning, so as to be applied to persons who claim in right of a party to the same deed other than the grantor. If the deed in question had granted to Charles Turner an estate in fee as to the land, and for life in respect to the slaves, would it have been void as to simple contract creditors, who could go only against the persona! estate, and good as to specialty creditors, who might subject the real assets? and yet, if the deed be void at all, as to the creditors of the husband, it must be so throughout; in which case it might well be doubted whether the land could be made liable to the payment of the husband's debts; or, to present the question in a less doubtful shape, would the deed be considered void as to a purchaser, from the husband, of the slaves, and good as to a purchaser of the land? Let the true interpretation of the words "all

then his
title in-

creditors and subsequent purchasers" be once ascer-
tained, and every difficulty in the case is at an end.
If they are construed to mean the creditors of the
grantor, or subsequent purchasers from hin, then,
the deed being good between all the parties to it, no
estate vested in Charles Turner, but such as the
deed itself passed to him. The title of his creditors
being clearly derivative, if he had no title under
the deed, (and being himself bound by it, he could
have none which was inconsistent with it,)
creditors could have none. But if he had
compatible with that granted by the deed, then he
was not bound by the deed; contrary to the statute
which declares that he was bound. If his creditors
have any such title, it cannot be derived from him,
when, in point of law, he had none in himself; and,
independent of his title, it is impossible to show any
in them. If a subsequent purchaser, with notice of
a prior unrecorded deed, could not prevail against
the title of the first purchaser, and most unquestion-
ably he could not, how much stronger is the case
when such subsequent purchaser is even a party to
the first deed, and claims an interest under it? To
say in this case, that, upon the marriage of Charles
Turner, or at any time afterwards, the law cast up-
on him an estate in the property conveyed by this
deed, of which he had notice, and to which he was
a party, inconsistent with the estate conveyed to him
by that deed, (and this must be said, if his creditors
can claim such estate in his right,) is, in the opinion
of a majority of the court, repugnant to the plain
meaning and spirit of the law under consideration.

That creditors of the husband, or purchasers from him, may be injured by the construction which this court feels itself compelled to give to this law, need not be denied; but it is not for this tribunal to afford them relief. It might, perhaps, be well if the law were so amended as to render deeds made in contemplation of marriage void in express terms, as to the creditors of the husband, or purchasers from him, in case the same should not be recorded within the time prescribed by law.

PIERCE

V.

TURNER.