Upon a careful examination of the proceedings in this case, and reading and considering the arguments of the counsel for the parties, I am of opinion that the deed of trust of the 2d of June, 1842, from Henry Hook to James H. Miller, is fraudulent and void against the creditors of the grantor, either existing or subsequent.
It has been frequently decided, and is the undisputed law, that a conveyance is void as against creditors under the statute of 13 Elizabeth, ch. 5, unless it be made upon a good consideration, and Iona fide, and authorities are abundant, to show that though a voluntary conveyance, made by a person not indebted at the time, cannot be impeached by subsequent creditors upon the mere ground of its being voluntary, yet if it be shown to have been made with a fraudulent intent, or with a view to future debts, it may he successfully assailed by such subsequent creditors. Sexton vs. Wheaton, 8 Wheaton’s Rep., 229.
The deed impeached by the bill in this case is not simply a post nuptial settlement by the husband upon the wife, which would be good as to subsequent creditors, provided there ,was no fraudulent intent, or it was not made with a view to future debts. The deed here is supposed to be fraudulent and void as to creditors, both prior and subsequent, because of the trusts in it in favor of the grantor, and the authorities seem to me fully to establish the proposition for which they were cited by the complainant’s counsel.
The case of Taylor vs. Jones, 2 Atk., 600, and Ford vs. Caldwell, 3 Hill, S. C. Rep., 242, seem to be conclusive against the validity of such deeds as the present, with reference to the subsequent as well as prior creditors.
*481Upon, examining the deed in this case, it may be very fairly inferred that it comprehended all or nearly all the grantor’s estate, real, personal, and mixed, and it appears to have been carefully drawn to retain to him the actual use and enjoyment of the property, without subjecting it to the payment of his debts. Certainly it is quite impossible to say that this deed was intended chiefly for the benefit of the wife, whoso power and control over, and interest in the property, is so subordinate to that of the husband.
If a man may, after marriage, make provision for his wife and children, provided he does not impair the right of existing creditors, and a provision so made will be considered as founded upon a good consideration, andJona fide and impregnable against subsequent creditors, it by no means follows that he will be permitted, under cloak of providing for his wife and children, to place his property in a condition in which he shall have the substantial use and enjoyment of it during his life, with power to dispose of it by will or to direct its course after his death, that it shall descend to his heirs-at-law, and at the same time have it protected from the claims of those who may deal with, and trust him during his life.
The trusts of this deed, are 1st, for the use of the grantor and his wife during their joint lives, and the life of the survivor, with power to them jointly to dispose absolutely of the property during their joint lives; 2dly, in case the grantor should survive his wife in trust, to permit him to dispose of the property at his pleasure; and, 3dly, whether he survives her or not, in trust for such person or persons as he may appoint by his will, and in case of his failure, to make such testamentary appointment, then in trust for his heirs-at-law.
The whole interest, therefore, of the wife, is an interest in common with her husband during their joint lives, or for her own life, in case she should survive him. But no power of disposition is reserved to her independently of her husband, whilst to him after her death, such power in the fullest terms is given, either by deed or will, and in case he fails thus to dispose of the property, it descends to his heirs-at-law.
J. M. Campbell, for Complainants. C. II. Pitts, for Defendants.It appears to me that such a deed is clearly fraudulent and void, both with reference to pre-existing, and subsequent creditors.
It cannot be regarded as a voluntary conveyance, made by a husband in favor of his wife, which, if bona fide, will be pei’mitted to stand as against subsequent creditors, but it is a conveyance made by a party for his own benefit, and although his wife was designed to participate with him’ to some extent, in the enjoyment of the property, the beneficial interest of the husband greatly preponderates over hers. It is emphatically a deed for the use of the grantor, which renders it void against all creditors, existing or subsequent.
The claims of the suing creditors are fully established by the pleadings and proofs, and it appears they have by their proceedings at law, placed themselves in a position to impeach the deed. A decree, therefore, will be signed, vacating this deed of the 2d of June, 1842, and appointing a trustee to make sale of the property embraced in it, which remains unsold, for the paymeixt of the complainants, and the other creditors of the grantox’, and directing the trustee to call them in as usual by advertisement. The equities of the creditors inter se, will be reserved for further order or decree. The complainants’ counsel will prepare such a decree.