The iirst cjuestion arising in , this cause, is as to the execution of the deed of the 25th of November, 1805, from James Arden, and Eliza, his, wife, to De Witt Clinton and Richard í), Árden, in trust for Louisa Ann,, the - daughter of the grantors. . - ,, • , '
From the testimony of one of the subscribing witnesses, who proves the execution of this deed, it does ’not appear that either of the trustees were present, or that any condition was men-boned at ihe timeb" If it was intended to have been a conditional delivery, it is an unusual departure from the course the grantors ought to have adopted, in omitting to state the condition (if any existed); to the subscribing witnesses. This omission raises a Strong, presumption against the operation of - the deed, in any manner different "from the purposes expressed in it; and from the unquestionable possession of this deed by the daughter, subsequen tly, the inference is irresistible, -that the delivery wa$ to her, she being immediately -interested, and that it took place in the presence of’ Mrs. Arden, under whose, maternal auspices, and at whose particular instance and request,, the. settlement on her daughter was; made., It was not necessary for the trustees to be there personally to receive it. In Taw's executor v. Bury, (3 Dyer, 167. b.,) a delivery to a third person, without speaking .of it as the deed- Cf the party,. the deed is held good, and is, in law, the deed of the defendant, before any, delivery over to the party; and the refusal of the party cannot .undo it, as the deed of the party from the beginning. *547I do not think this transaction is enveloped in such mystery, as not to admit of a satisfactory explanation. •
It is unreasonable to suppose that this deed was intended to be subjected to the future control of the'husband.; It was executed at the instance of Mrs. Arden, during her illness, and in contemplation of approaching death, for the express purpose of making a permanent and suitable provision for the support and maintenance of her daughter; and her subsequent declarations show what her intentions and expectations were, in relation to the business, which, it appears, had given her much anxiety and uneasiness before it was done. She expressed to several of the witnesses her satisfaction with her husband’s conduct, in complying with her wishes, and that she felt dasier, and better, since Mr. Arden had made a settlement on her daughters. -
The idea that he intended, at the time, to deceive the expiring partner of his bosbm, cannot be indulged for a moment. It appears he acted openly and decidedly, "by leaving the deed in the possession of the daughter, in the presence of the mother, to be disposed of as they might think proper. The manner in which he, afterwards, obtained possession of this deed, is satisfactorily explained by some of the witnesses, and shows decidedly, that, previous to his taking it from his daughter, he had assumed no control over it. .
Not one of the witnesses who were present when the deed was signed, mention that any condition was stated at the time; and those on the part of the appellant, who give evidencé on the subject, appear to have collected their information from desultory conversations, at different periods, with members of the family; á species of evidence, at all times, dangerous to be received, to explain the intent, or control the operation, of a written instrument, even in a court of equity, on the ground of. a mistake,' which, in this case, it is alleged, was made by Abraham Skinner, who drew the deed; but there is no evidence to support the allegation, except the assertion of Arden himself.
If this mistake had actually taken place, it is somewhat extraordinary that the appellant has not availed himself of the benefit of SkinneAs testimony to explain it; and still more so, that he did not cause it to be'rectified .; for, by the evidence of Richard D, Arden, the deed was kept in his father’s desk, in *548the office below* until it was .taken to his mother’s bed roóm to be signed. A sufficient length of time, therefore, 'must have intervened, after it' was drawn, and before, .it was signed,, to hake enabled ’him to correct the error, Under these circurnstanc'es, I do not believe the. deed was drawn different from Arden’s intentions at the time-; but allowing the whole of the testimony to have its due weight,: on the ground, of'mistake,, the witnesses on the part of the respondents,, as to conversations with Arden, .and others of the family ? showing a different undetstanding with regard to the transaction, greatly preponderate; so that, without noticing the subsequent conduct of Mr: Arden, I thi^r,' from the- facts disclosed by tüé evidence in the case, there remains no ground for reasonable doubt, that’ the deed was perfected at- the time,, and that he then intended it should operate, unconditionally, according to the terms, of'it; andthe subsequent, delivery, of this deed to Mr-.. Clinton, upon the con-' ditions stated at the time, can be of no 'avail; it pan afford him' no possible benefit. He had devested himself of the property the moment he executed and, delivered the deed, in thé first instance;, and, bf course,'retained n.o authority" to'giyé it;’an operation, different from what was'contained in it."
A deed cannot be delivered, twice'; "for, if the first delivery has, any effect,, the second will; be void, • (3 Cruise’s Dig. 29. sect. 59.) Korean this second delivery pvevent or limit its' operation, if even it is .admitted that the deed is voluntary, In 2 Vernon, 473., “A. had made a voluntary settlement of an estate, subjeetto-some annuities,'in-trast'for his grandson1 and' his heirs-.and,', .afterwards, he, makes'another voluntary settle-: ment of the same' estate* to the use of his eldest son for life,, and to his first, &c, sons in tail," with remainders over; and, by will, gives a considerable estate to his grandson.” Although it was proved that, A. • always kept the' first settlement:- in' his 'Custody, and’never published it,a and1 it was,, after his death, found amongst waste paper, and the last deed was often mentioned by him, and he told, his' tenants the plaintiff was to be-. their landlord after his death* y et. the son could not be relieved against the first-settlement. In 1 Vernon, 464., the court say, “A settlement, though voluntary, is not revocable.”
This deed, then* having -been duly executed,, and it being evident that its validity could not be affected by a" second delivery, .a further' question remains" to be determined; whether *549its operation can be defeated by the subsequent deed from Jantes Arden, and Ann, his present wife, to the appellant, dated oh or about the' 11th Of December, 1809. .
I do not think we are called upon to express an opinion' on the question whether a voluntary settlement ought mot, according to the words of the statute, to be fraudulent and covenous, and for the purpose and intent tó deceive, in order to make it void against a subsequent purchaser; but from- the facts in this case, it will be sufficient, according to my view, to determine whether the first deed is, in fact, a voluntary conveyance, or whether this court are not bound, under the circumstances, to' consider it a deed for a valuable consideration.
It appears, by the declaration of trust contained in it, that a life estate in the premises was given to Louisa Ann Arden; and in case she should die, leaving lawful issue, that then it should be held in trust for the benefit of such issue, &c.
In Munn v. Wilsmore, (3 D. & E. 529.,) Lord Kenyon observes, that very small considerations have been Iiolden sufficient to give validity to a deed, when, in framing family settlements,' limitations are made in favour of the'distant branches of a family ; such remainders are not considered as voluntary, if the object of the parties in making the settlement was fair and honest.
The case of Newstead and others v. Searles and others, (1 Atk. 264.,) supports the same principle. It would seem, from those cases, thát the.limitation to distant issue would alone be sufficient consideration to protect this deed; but connect with it the marriage of Sterry, - and I think .its validity cannot be questioned. Marriage, of itself, is a sufficient consideration. That Louisa Annys right to the property forwarded the marriage, is evident; because Mr. Starry, as a discreet and prudent man, must have felt an interest in the future support anti maintenance of his family, and the avails of this property towards such- support might well have been contemplated by him. This appears to have been the ease, from his conversation with Colonel Hawkins on the subject. Indeed, proper. feelings for the comfort as well as happiness of the object of his attachment, must have given importance to the immediate possession of this property :. it, therefore, operated as an inducement to the connexion.
*550This marriage took place, on the 11th of December, 1809, and the deed to Ver-planh "was executed between-the 11th and 14th of the same month; so that the-marriage:unist,. .at all events, have been solemnized before the deed existed. • •
. Sugden, (in h-is Law of Vendors,), in treating on. voluntary settlements, (page 437.,) says, “If a voluntary grantee gain credit by the conveyance to him, and a person is induced to marry him on account of such provision,; the deed, though void in its creation, as to purchasers, will, on the marriage being solemnized, no, longer remain; voluntary, as it was. in. its Creation, büt will be considered 'as- made - upon, a valuable, -consideration, This principle is -recognised in Brown v. Carter, (5 Vesey, jun. 862.,) and by Lord Ellenborough, in, the case of Otley v. Manning, (9 East, 60.)
If, then, it is even admitted that- the conveyance of the 25th of November, 1805, to Messrs. Dlint'on and Arden,, w-Us voluntary in'its creation, it is- evident it assumed a different character in-, consequence of the marriage ; as that alone must be deemed a valuable consideration-, ".which gave-it a validity not ,to be'.af-féctecl by the subsequent deed to the appellant.
The chancellor’s decree being founded upon the validity and. operation of this deed,, my opinion is, -that,thé'éame'-ought to he affirmed. " , -
Spencer, J.The first point which claims thegconsideration of the court, is, whether the deed from James Arden to Louisa Ann, his daughter, was s.qfar .legally and duly,executed, .on,the 25th of November, 1805, as, between the parties to the deed, to devest the grantor of all his estale_and interest in'the premises granted-thereby. •••...
. James Arden, by his answer, admits, that shortly after the time the deed bears' date, (25th of November, 1805,) he signed and; sealed ¡it,, and'believes that he and his wife may have used the formal words of delivery; but he insists that the. deed remained in his possession and'power, thenceforth,, until on or.about 'the: 9th of Januaryt. 1809, when, to relieve the apprehensions entertained by. his daughter, that, in case of his death, it might be lost or destroyed, he placed the same in the hands of De Witt Clinton, one of the trustees, for her benefit, with certain Conditions accompanying such tradition; viz. that the income of ..the property should coiné to him during his life, and that, if his-' *551daughter married without his consent or approbation, then,. lh,e deed should not operate. *
The proofs in die case, in my judgment, are decisive, that-the deed was legally and effectually executed, só as to become operative on the 25th of November, 1805, notwithstanding the cleniai and answer of Arden. . •
Mrs. 'Braine was present at the execution of the deed. She proves that it was read over by Arden,’ and that thereupon it was executed in the bed room of Mrs. Arden ; that being very intimate with Arden's daughters, and very frequently with them, she saw the deeds in their bed room that on one occasion, she heard her cousins read over their deeds; that on a particular occasion, James Arden came into their bed room,, and seeing the deeds lying on the projection of a book case, or wardrobe, he reproached them with carelesness, and, with their consent, took the deeds into his own keeping.
. Mrs. Servant confirms all the material facts deposed by Mrs. Braine, relative to the custody of the deeds,, by her and her sister, and their being taken by her father for safe keeping.
Robert J. Livingston proves that Louisa Ann had the custody of the deed given to her; that on a particular occasion she produced it to him, and that he read it, and now identifies it.
That Mr. Arden intended the two houses in Greenwich-strcet for his daughters, appears by the testimony of William, Edgar ; and that he had in his own opinion devested himself, in favour of his daughters, of these houses, is proved by Mrs. Talbot, -who states, that shortly after the death of Mrs. Arden, as she was walking in Greenwich-street, she met lV£r. Arden, when Mrs. Talbot, pointing to the houses, asked if those were his, to which he answered, “ my daughters’houses, madam;” and then-said his daughters would be good fortunes.
The fact admitted by Arden's answer, that he may have used tlie formal words of delivery, confirmed by the testimony of one' of the - subscribing witnesses, Mr. Hamilton, who proves the execution of the deed; taken in connexion with the fact, that the deeds were, for some time, in the custody of the cestuy que trust, Louisa Ann, and the total absence of all proof impeaching the. force,óf these facts, can leave no doubt on the mind, that Arden not only intended an effectual execution of the deed, but that every legal formality was complied with. A deed is available if delivered to the party grantee, or even to a stranger, without special *552authority,' if intended for the'use of the grantee; and-a.de6¿í may he delivered by words, or by deeds, without words» (Shep. Touch. 58., and cases cited.) The subsequent tradition of the' deed to Mr. Clinton, if it became operative before, can have. iio eiFect; nor ivas it in the power of Mr.: Arden to impose any conditions, upon a grant which, had already become 'effectual. The appellant has entirely failed' to show that any fraud or .mistake intervened in drawing the deed. ' The suggestiomis ab, together without support, texcepting frorn his 'own allegations. It is, therefore, useless ,to inquire-how far a deed can be impugned’ by the admission of paroi evidence.-
. Admitting, for the present, that the deed from Mr. Arden to. his daughter!, Mrs, Stem/., .was liable to be defeated by a sub? sequent deed’,- on the ground that it was Voluntary, and,;; in a legal point of view, fraudulent, as against - subsequent bona fide purchasers for a valuable - consideration ; we are, then, • to .inquire what operation the-marriage between, the respondents": had in reference to the deed» . ., . .. .
It is an undeniable proposition, that a deed, voidable, may be tendered valid.and effectual by matter é¡ie post facto.-'. If á man, makes a feoffment by covin, or without any.valuable considera? tioti, and1 the feoffee makes, a. feoffment for yaiuabl-e. considera*. tioh, and then, the first feoffor enters, and makes.- a feoffment for valuable consideration also, the feoffee off the .first feoffee shall hold tile .lands. ■ (Sugden's Law of Vendors, 436, 437., and cases there cited.)
So*, if a voluntary.grantee gain- credit by the conveyance, and ,a person is induced to marry her on- account of such provision,, the deed-, if even voidable as to purchasers, .will, on the mar? riage:being solemnized, no longer remain- voluntary, as .it, was- ■ in its creation, but will be considered us made upon valuable . .'consideration, -.(Sugden, 437., and the cases there, cited.)-, Upon.this -point the. decisions aré numerous, and Thave not met with a single, case or dictum to the contrary. Blackstone vevy correctly defines (2 Bl. Com. 297.) a valuable consideration to .be imoney, marriage, or the • like; 'and', he 'observes, the;, law esteems them an equivalent given for the grant. : "
The facts, in this case, prove, undeniably, that the marriage between the respondents - preceded the deed from Arden to the appellant; and that-the marriage itself ivas induced by the .provision secyred tp |jlra, Shrry by the deed iq. question. It WUS *553not necessary to the validity of the marriage, or to any of the consequences following from it, that Mr. Arden should have given his consent to it. .
It would be unnecessary to. proceed further, to entitle the respondents to an affirmance óf the decree of the court of chance-. ry; nor was it absolutely necessary .for -the court below to go .into the Consideration of the question, how far forth the deed from Arden to - his daughter would have been available to her, h,ad not the marriage between the respondents intervened. The chancellor has seen fit to discuss and decide that point, and I do not mean to insinuate that, in doing so, he has at all travelled out of the record ; the case fairly presented the question, and he has promptly decided. it. Believing his decision incorrect in this particular, I think this court is bound also to express its opinion: under the circumstances of the. case, to give the question the go by, would be a silent acquiescence in the opinion delivered in the court below.. The point has been fully and ably argued, and it may save great expense, and future litigation, to settle it finally. .
It is contended that the deed to Mrs. Ste.rry having been voluntary, and without any other consideration than that. of. blood and natural affection, it was in the power of the grantor, by a subsequent deed, founded on a valua ble consideration of money, to defeat the operation of the first deed, in favour of the second alienee, although such second alienee knew of the existence of-the first deed, and although, in point of fact, there was no original intent with either of the parties to the first deed, to .defraud any subsequent purchaser.
In the present case, his honour, the-chancellor, is of the opinion that the appellant is chargeable with constructive notice of the deed of the 25th of November, 1805, to; Mrs.. Sterry, It may well be questioned, whether this conclusion is warranted by the facts. We have no other proof of the constructive notice, than the admissions of the appellant-in. his answer. He admits he had heard, before the delivery of t'h’e deed to him, that Arden had made some provision, by deed, or otherwise, for his daughters, of property in, Greenwich-street. This information is loose and inexplicit; and I cannot say that I am satisfied that it was equivalent to direct notice. It is not very important, however, whether it was so, or not. ' ■
*554■ Our statute’ for the. prevention of frauds.has adopted'¿toHdety verbis’,', the statutes of 13th Eliz. ch. 5., and 27th Eliz. ch. 4. The former declares void all gifts and conveyances' of lands, tenements, hereditaments; goods, .and chattels,1 had ór máde, de-vised and continued of. malice, fraud, covin, collusion or guile, to the-end, purpose, or intent to delay, hinder, or defraud creditors and others, of their- just debts,; ¿^c. The latter' declares void, every conveyance,-&c., of anylánds, tenements, or heredita-ments, to be had pr.made- for the intent and purpose 'to defraud. and deceive such person as phallpurchase' the l/Upds, so befdre conveyedt- Both statutes leave ..the conveyances and. gifts-:as good between the. parties, and their representatives. The 13th of Ffe. avoids the'covenous act in favour of; Creditors. , The 27th Eliz. avoids.it in favour of subsequent purchasers for"money or other good consideration. " '
The 4th section of our statute, in/confonhity with the.' 13th -.and 27th of Eliz., inflicts a penalty ánd forfeiture of one year’s value of the lands upon the party to such fraudulent transaction, who shall' .maintain or defend the fraudulent -deeds' or conveyanees’,, pronounced. void'' by .those 'statutes ;/<the '6 thi: section of bur statute adopts the proviso to the 27th Eliz., and saves from the operation of the statute conveyances made upon good coil-side-ration, and bona- fule.. 1 ■ , ' ■1
■If the statute of the 27th of Eliz. was -now, for thé'first time,. to receive-a construction, it does- seem, to me impossible that it should; bfe held to:, embrace withm- its ,,purview -the case :under/ consideration. ", < ' - '
Mr. 'Arden, as we must believe, was, in 1805, a man of a handsome and unencumbered fortune. In compliance with" the .earnest desire, of his" then wife, he deliberately pits down to make a suitable provision for his two daughters, and -their-' issue." -The. transaction is open,-, public.," and • notorious, No One. can believe that, it entered 'into- the-hearts,'or heads,'of .the'fatifor or his daughters,- that the. deeds he'.'was -executing, were with the. intent, -or' fpr the purpose, ..of defrauding and deceiving such person as should'-thereafter purchase the estate thusconveyed; yet' this court is called upon to consider -these deeds as; void, bn the ground of an original covenous, guileful, and fraudulent design,: boeval with the - .transaction, between the .father ¡ and- his daughters. It would be with extreme reluctance that I should *555consent to brand as innocent and pure a transaction as ever took place with the odious and detestable crime of fraud. '
There may be cases in which a common error may have been matured into a right, and then the error must be submitted to as the lesser evil. The construction of statutes belongs ,to the courts of law and equity; and if a construction has been adopted by the courts, and confirmed in the one of dernier resort; and, more especially, if the public act on the erroneous construction, justice and policy concur in requiring that the error be adhered to; or, otheíwise, no man could be safe in his dealings. The adjudications which have taken place in England since the 19th of April, 1775, form no part of the common law of this state* íf, since that period, cases have occurred overruling the anterior decisions, the courts of this state can pay no other respect to them, than as the reasonings of learned and eminent men* They can have no more influence on our decisions than the lucubrations of jurists*
The cases which we met with prior to the above period, and which have turned upon the construction of the 27th of Eliz., are not in harmony; though I think the preponderance, in weight and number, is decidedly adverse to the doctrine which now prevails in the courts of Westminster~hall.
Lord Ellenborough, in delivering the opinion of the court of king’s bench, in Doe v. Manning and another, (9 East, 63.,) has collected the cases. He states that, in the eases which arose nearest the time of passing the statute, the judges seem to have thought that a voluntary settlement was only, prima facie, fraudulent against a purchaser. By a reference to the cases, it will appear that it was matter of evidence to the jury, on which they passed', whether a voluntary conveyance, as such, was fraudulent. There are very great names in support of this doctrine, among which may be mentioned Lord Hale, Lord’ Rolle, Chief Baron Gilbert, and Chief Justice Eyre. Baron Gilbert is extremely. perspicuous and clear in his observations, and I cannot pass them by without notice. “ A voluntary conveyance (he says) hath no badge of fraud, unless the .party were then in debt, or in treaty for a sale of the lands; for a man may have reason to settle his estate for the good- of his wife and children; and if he hath a clear estate, and no intention to sell, the settlement must be taken to be a good one; for that cannot lie under a suspicion when there is no discovery made of an intent to use *556that settlement td fraudulent purposes, at the time of mating it<$ (Gilb. Ev., by Lofft, 307.)
There aré, undoubtedly, very great names who have held,a contrary doctrine,.that Conveyances merely'Voluntary are voidv . able at law, by a'subsequent purchaser for .valuable considerationand among these may he ranked -Lord llardwicke, Chief Justice De Grey, and several others. Lord Mcinsjl-eld-undoubiedly maintains the doctrine inculcated by the judges who lived nearest the. passing the statute of 27th Eliz., apd Lord Éllehborough, in his opinion in the case cited, does not present the- Opinion, of this eminent judge .in the. strong, point of view it merited, in the case; of Doe v. Rutledge, (Cowp. 713.) Ho divides the argument he there delivered,'into four heads, and he specially considers, whether the deed' of 1763, a voluntary deed, ■ with no other consideration than that of blood for its support, was a fraudulent covcnous deed within'the- {rué. intent and meaning of the statute. . He gives a distinct consid'eratioji, to the question, whether the subsequent purchaser was such a one as -was -entitled to- object to the .voluntary deed.-': In -commenting on the-voluntary deed of 1763, lie observes, that, the 27th of Eliz. contains not a word, impeaching voluntary settles ments, merely as being voluntary, but as. fraudulent and cosenous, He. notices the title of the. síatute;.,ánd, the enacting part, as-making .provisions’ against such practices, as if they ¡were' a 'crime, tie gl-vés a criterion of determining, each case “ one great-circumstance,” he says, “ which should always be attended to-in these transactions, is, whether the person was indebted" at the time he made the settlement'; if he was, it is a strong badge .of fraud.” . The - léárné'd editor of Sir Wmt.Bl'ackstonets Commentaries (Mr. Christian) understands Lord Mansfield in the manner I have doné/ (2 Bl. Com. 297. n. 1.)
In. Doe v. Manning (9 East, 71.,) Lord' Ellenborough concludes thus: “And we cannot but say, as at present advised, and considering the construction put on the" statute, that it. Woyld have been better if the. statute had avoided, conveyances oply against purchasers for valuable consideration,- without-'notice- of the-prior convey anee. ” " •' i ; .
In Evelyn v. Templar, (2 Bro. 149.,) Lord Thurlow said; “ that although it would- have been as well; at first, if the. voluntary -conveyance had-hot been thought so little of, yet the rule* *557was such, and so many estates stand upon it* that it cannot be shaken¿ In Doe v. Martyr, Sir J. Mansfield, tih. J.* regretted that it had ever been decided, that even notice of the prior setilement would not defeat a subsequent purchase?
It is a sound and settled principle, that notice to a purchaser of a prior fraudulent deed will not affect the subsequent purchaser, and that such subsequent purchaser mriy avail himself of the fraud in the first deed; and-the reason for this is solid; because, if he knew the transaction, he knew it was void by law; but to extend this principle to voluntary deeds, made by «a father as a pro vision, for his children* made, too, by a father hot indebted at the time, arid with every act of publicity usually attending the conveyance of an estate, would be, in my judgment, to beg the very question in controversy.
Legal inductions are very properly and necessarily drawn, from legal analogies ; and* in this view, let us examine the constructions which courts of law and equity have given to the' 13th Eliz. It is perfectly Well settled, that to impeach a volun--' settletnent made on a meritorious consideration, it is necessary that the seller should not only be indebted, but should be insolvent, or in doubtful circumstances, at the time. The 13th Eliz. ivas intended to prevent the conveyance of property with a design to defraud creditors. If the person making a settlement is insolvent, or in doubtful circumstances, the settlement, . depriving his creditors of the means of satisfying their debts* '-comes within the statute; but if the grantor be not indebted to such a degree as that the settlement will deprive -the creditors of fin ample fund for the payment of their debts, the considerat'ion of natural love and affection will support the deed, although a voluntary one, against his creditors ; for, in the language of the decisions, it is free from the imputation of fraud. Lord Elardwicke is very full and explicit on this points in Townsend v. Windham, (2 Ves. 11.,) he said, If there is a voluntary conveyance of real estate, or chattel interest,, by one not indebted at the time, though he afterwards become indebted, if that voluntary conveyance was far a childi and no particular badge of fraud to deceive ór defraud subsequent creditors,1 that will tío.” (See, also, 2 Bro. Ch. Cas. 20. 5 Ves. 384.) Both the statutes, the 13th and 27th Eliz,, contain the general proviso annexed to our statute, excepting from their operation those deeds only which are bom fide, .and upon good con*558¿{deration; and it is very clear, that Lord Hardwícke-,m the opinión just cited, lays- stress on the circumstance that the voluntary conveyance Was for a Child; - The deed from Arden to Mrs. Sierryhas these two circumstances : it was bona fide, and it had a good consideration, that of love and natural affection'; and I have no doubt that this deed is saved by the express proof the statute. * The question naturally occurs, can the-late decisions in the English courts, on the two statutes of the 13th and 27th Eliz., be reconciled by-the principles of just construction.. Under the former, a man out of debt may make a settlement upon his child, and if he afterwards Becomes indebted, the subsequent -creditor cannot impeach the gift, be-. cause it was not made to deceive, or defraud" him, nor any one else; and, therefore, is'- not within the statute, , How, then, can it.be maintained, that, if the sátiie father, in-consideration of blood, make á bon¡a fide settlement jqn his child, at a time when. he is not indebted,; this transaction shall be deemed void, and that, it shall be taken for granted, contrary to the real truth and fact, that it was with1 intent to deceive such person as should afterwards purchase the Restate, -even with full notice of the,.bona, fide conveyance ? As well might it be? said, that the settlement on a child is void, as to future-creditors, as that a settlement on a child is void as to future purchasers. The settled, and decided, and uniforinvconstruction, on. the Í3th óf .Eliz., is entirely.opposed to the l&te English decisions on the 27th of E'liz. ; and it would be extremely absurd- to adhere'to-4 . both. It is manifest, to me, not only from the regret expressed by the judges and chancellors in England that such a construe-t-ion had taken- place in regard to the 27th Eliz., but from, the evident .discrepancy in the constructions of the' two statutes, that the latter decisions.have been influenced by a sort of judicial expediency,. rather than an adherence to the meaning, or wording of the statute of the 27th Eliz.; it was to avoid the unsettling of éstqtes,' Now, we are not in that predicament; we can give a rational.and true^construction to the act, without doing violence to the meaning of the legislature, or our' own consciences, or unsettling estates. % ,
If any other consideration was necessary tin bring us -to: this result, it would be found in the 4th section of our act, which is also copied from the two English statutes; by that.section a *559penalty of one year’s value of the premises is imposed for maintaining or defending covinous or fraudulent conveyances.
If a subsequent purchaser, with notice, can set aside a deed like the one under consideration, it .must be on the ground that the anterior deed is fraudulent; and thus a transaction, which no one can doubt to have been fair and bond fide, is to be com sidered criminal, and punished as a fraud. This would be quite contrary to another part of Lord Mansfield^s opinion, in Doe v. Rutledge: “that no person making a voluntary settlement, by way of provision for his family, was ever considered in that criminal light,”
It has been already observed, that the statute excepts from its operation deeds- made on good consideration, and bona fide. A settlement may, in its origin, have both these requisites, and yet may become fraudulent, and kept on foot against good faith, “ If a fraudulent use is made of a settlement, that, indeed, (said Lord Mansfield, in Doe v. Rutledge,) may be carried back to the time when the fraud commenced.” And I am free to admit, that, but for the intervention of the marriage between the respondents, prior to the deed to the appellant, as the proofs stand before us, the appellant must have prevailed. ¿Lrdetfs continuance in the possession of the property, his receipt of the rents and profits, and, above all, the ignorance of the appellant that he had made the settlement, would, as respects him, have been ■ strong circumstances that a fraudulent use had been made of the deed of settlement, and would have contaminated it. On the other hand, if the appellant had notice of the deed of settlement, the possession of the property by Ardent and his réceipt of the rents and profits, Would not have been badges of fraud, and would not have misled him 5 and, in that case, he would not, in my estimation, have been a bona fide purchaser, entitled to set aside the settlement.
In affirming this decree, I proceed entirely on the ground, that the marriage between the respondents furnished a valuable consideration to the voluntary deed from Mr. Arden to his daughter, Mrs. Sterry, eie post;:facto ; and that, as against the appellant, the deed ceased lo be a voluntary one, for good consideration merely.
In my opinion, the decree of his honour the chancellor ought to; be affirmed.
*560.Such being the unanimous opinion of the court, it xvas, thereupon, ORDERED, ADJUDGED, and, drcreed,1 that the decree of the.courf of chancery be affirmed, with costs, to be taxed;,' and that the record be remitted, &e, " , 1 ’ • " <"* ..... 1 .1 " . - ‘ >
Judgment of,affirmance.-