Act of February 24, 1819—January 1, 1820. R. C. ch. 99.* 1. § 1. No estate of inheritance or freehold, or for a term of more than five years(2) in lands or tenements, shall be conveyed from one to another, unless * All the provisions of this act, which are referred to, as having been enacted by act of 1785, c. 62, took effect on the first of Jan. 1787, 12 Stat. Larg. 154. Former general laws on this subject; act of Jan. 1639-40, act 16, 1 Stat. Larg. 227; Mar. 1643, act 12, 1 Stat. Larg. 243; Dec. 1656, act 4, Ib. 417; Mar. 1657-8, act 88, Ib. 472; Oct. 1705, c. 21, 3 Stat. Larg. 318; Oct. 1710, c. 13, 3 Stat. Larg. 516; Oct. 1748, c. 1, 5 Stat. Larg. 408; Oct. 1785, c. 62, 12 Stat. Larg. 154. Deeds were originally directed to be recorded in the general court, or county courts, generally, without regard to the county in which the lands lay within six months from the delivery. See acts, Dec. 1656, act 4, 1 Stat. Larg. 417; Mar. 1661, act 73, 2 Stat. Larg. 98. By the act of Oct. 1705, 3 Stat. Larg. 319, they were required to be recorded in the general court or court of the county in which the lands lay, within eight months. By act of Oct. 1710, 3 Stat. Larg. 516, 518, the provisions of the act of 1705, were re-enacted; and all former deeds declared good, though not recorded within six months, nor in the court of the county where the land lay. The act of Oct. 1748, c. 1, 5 Stat. Larg. 408, is the same as those of 1705 and 1710, as to time and place of recording. The same act, § 11, 12, 13, contains very important provisions, giving effect to deeds, that had been previously irregularly executed and recorded. By the act of Nov. 1766, c. 11, 8 Stat. Larg. 199, deeds dated within eight months preceding the first of Nov. 1765, and between that date and the first of June, 1766, might be recorded within eight months from the first of Mar. 1767; this relief was given on account of the confusion produced by the stamp act. On the institution of the district courts, in 1788, the same jurisdiction was given them in respect to probat of deeds of lands within the districts wherein the lands lay respectively, as the general court had exercised. Act 1788, c. 66, R. C. The superior courts of law succeeded on the first of Jan. 1809, to the same jurisdiction in this respect, within their respective counties, which belonged to the district courts within their districts. Act Feb. 1, 1808–Jan. 1, 1809, c. 120, ed. 1808. But by the act of Feb. 9-Mar. 1, 1814, c. 10, the probat of deeds is confined to the courts of the county and corporation where the lands lie, after the first of Nov. 1814; and deeds are allowed to be recorded on acknowledgment of the parties, or proof by three witnesses, in the clerk's office, or on acknowledgment before two justices in the county, certified in due form under seal. As to deeds partly proved, before the last mentioned act, in the general or superior courts, and previous commissions to take the privy examination of femes covert, provision was made for completing the probat and recording in the general or superior courts, and for recording the execution of such commissions, in the courts having jurisdiction under existing laws, or in the county court, by act of Dec. 20, 1814, c. 28. So, formerly, deeds partly proved in the general court might be fully proved and recorded there, or sent to the district court, by act of 1789, c. 13; and a like provision was made in respect to deeds partly proved in the district court, on the institution of superior courts by act Feb. 10, 1808, c. 121, ed. 1808. From Mr. Leigh's note. (2) See The People v. Rickert, 8 Cowen, 226; Doc v. Bell, 5 D. & E. 471; Cruise on real prop. vol. 1, tit. 9, c. 1, § 29. Act of February 24, 1819-January 1, 1820. R. C. ch. 99. the conveyance be declared by writing, (1) sealed and delivered ;† (Any instrument, to which the person making the same, shall affix a scroll, by way of seal, shall be adjudged and holden to be of the same force and obligation, as if it were actually sealed. (a) 1789, c. 28; Dec. 4, 1792, c. 76, R. C.; and c. 128, § 94, ed. 1819,) nor shall such conveyance be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless the same writing be acknowledged by the party or parties, who shall have sealed and delivered it, or be proved by three witnesses (2) to be his, her, or their act, before the court of the county, city or corporation, in which the land conveyed or some part thereof lieth, or in the manner hereinafter directed, and be lodged with the clerk of such court to be(b) there recorded. 1785, c. 62, 12 Stat. Larg. 154; R. C. c. 90; See Oct. 1705, c. 21, 3 Stat. Larg. 318; Aug. 1734, c. 6, Oct. 1710, c. 13, Ib. 516; Oct. 1748, c. 1,5 Stat. Larg. 408. 2. § 2. No covenant or agreement, made in consideration of marriage, shall be good against a purchaser for valuable consideration, not having no (1) See 2 Inst. 672. See Lessee of Sicard et al. v. Davis et al. 6 Peters, 124-135. On the subject of sealing and delivery, see Souverbye & ux. v. Arden et al. 1 Johns. Ch. Rep. 240. Ex parte Hodgkinson, 19 Ves. 296; Doe dem. Garnons v. Knight, 5 Barn. & Cress. 671; Cecil v. Butcher, 2 Jacob & Walker, 565, 573, &c.; Clarke v. Gifford, 10 Wend. 310; The Com. v. Selden, 5 Munf. 160, and 4 Leigh, 566. (a) This provision is declaratory of the common law of Virginia. See 1 Wash. 42, 170; 2 Wash. 63. For the common law of England on this subject, see the elaborate opinion of Kent, C. J. in Warren v. Lynch, 5 Johns. R. 244. It seems that the instrument must recognize the scroll, (in terms,) as having been affixed by way of seal. This point has not been expressly adjudicated. See Baird et al. v. Blaigrove, 1 Wash. 170; Austin's adm'x v. Whitlock's ex'rs, 1 Munf. 487, and 1 Dyer, 19, a; Goddard's case, 2 Rep. 5; Jones et al. v. Logwood, 1 Wash. 42; Anderson v. Bullock et al. 4 Munf. 442; Taylor et al. v. Glaser, 2 Serg. & Raw. 504, in which Tilghman, C. J. remarks on the case of Austin's adm'x v. Whitlock's ex'rs, 1 Munf. 487. An instrument concluding "witness our hands," with a scroll annexed to the signature, and the word "seal" written therein, is only a simple contract. Jenkins v. Hurt's commissioners, 2 Rand. 446; Peasley v. Bootwright, 2 Leigh, 195; Buckner v. Mackay, 2 Leigh, 488. A contract in writing has a scroll annexed, opposite the signature, and the word seal written in the scroll, but there is no recognition of the scroll as a seal, in the body of the instrument: Held, the instrument is no deed, but merely a simple contract. Cromwell v. Tate's ex'r, 7 Leigh, 301. In this case, the question, whether a scroll must be recognized as a seal in the body of the instrument, in order to consti tute it a deed, was distinctly presented, and decided. The decision of the court pronounced by P.Tucker, in an able opinion. A scroll affixed to an instrument has the force and obligation of a seal, when it appears by the instrument, that the person making the same, affixed the scroll by way of seal. Parks v. Hewlett, &c., 9 Leigh, 511. Where it is stated at the foot of an instrument of emancipation, that it was signed, sealed and acknowledged in presence of two attesting witnesses, and the instrument is afterwards duly proved by the witnesses in the county or corporation court, it sufficiently appears that the person making the instrument, affixed the scroll by way of seal. S. C. As to the necessity of a seal, see Jackson v. Wood, 12 Johns. R. 73; Roane, J. 3 H. & M. 380. (2) They need not subscribe their names. Turner v. Stip, 1 Wash. 319; and Long v. Ramsay, 1 Serg. & Raw. 72. (b) A deed duly proved or acknowledged, and ordered to be recorded, and lodged with the clerk for that purpose, shall be considered as recorded from the time of its being so lodged in the office, though it may never in fact, be recorded, owing to its having been lost by the negligence of the clerk or other accident. The words in the § 4, "recorded according to the directions of this act," (R. C. ed. 1803, p. 157;) [this deed was made in 1808,] impose no farther duty on the vendee, than was imposed by this section. If a subsequent purchaser, &c. should be injured, by the negligence of the clerk, in having lost the deed, &c. it seems, on the principle of the case of Douglass v. Yallop, 2 Burr. 722, that the clerk would be answerable. Beverley v. Ellis et al. 1 Randolph, 102, 106; The King v. Hopper et al. 3 Price's E. Rep. 495; see post. note (g.) 52 Act of February 24, 1819—January 1, 1820. R. C. ch. 99. tice thereof, or any creditor, unless the same covenant or agreement be acknowledged by the party bound thereby, or proved by three witnesses, to be his, her, or their act, if land be charged, before the court of the county, city or corporation, in which the land or part thereof lieth; or, if the personal estate only be settled or covenanted, or agreed to be paid or settled, before the court of that county, city or corporation, in which such personal estate shall remain,' or in the manner hereinafter directed, and be lodged with the clerk of such court, to be there recorded. 1785, c. 62, 12 Stat. Larg. 154. 3. § 3. When any such deed or conveyance shall be acknowledged or proved, in order to their being recorded; the livery of seisin thereupon made, in such cases where the same is by law required, shall in like manner be acknowledged or proved, and shall be recorded together with the deed or conveyance whereupon it shall be made. Oct. 1705, and 1710, &c. 4. § 4. All bargains, sales and other conveyances, whatsoever, of any lands, tenements or hereditaments, whether they be made for passing any estate of freehold or inheritance, or for a term of years, and all deeds of settlement upon marriage, (c) whether either lands, slaves, money or other personal thing (c) Marriage settlements, must be recorded within eight months, or they will be void against prior creditors of the husband, though the subject of the settlement was the property of the wife. Anderson v. Anderson, 2 Call, 198; and see Taylor v. Hariot's ex'r, 4 Dess. Ch. R. 227. The case of Pierce v. Turner, 5 Cranch, 154, was reviewed and approved in Land et al. v. Jeffries et al. 5 Rand. 211, in which it was held, that the act of assembly applied only to creditors of the vendor. J. Green, dissented in an elaborate opinion. In Pierce v. Turner, 5 Cranch, 154, it was decided (Washington, J. deliv. court's op'n) that a marriage settlement conveying the property of the wife to trustees, by a deed to which the husband was a party, though not recorded, protects the property from the creditors of the husband, because, the terms "creditors and subsequent purchasers" only included those of, and from, the grantor. Johnson, J. dissenting. A deed of marriage settlement, executed before the marriage, but recorded after the marriage, on the acknowledgment of the husband, wife and trustee, without the privy examination of the wife; such recording being within eight months after its execution, will protect the property of the wife thus conveyed, against the prior creditors of the husband, there having been no instant of time during which the settled property was liable to satisfy their claims. Scott et ux. et al. v. Gibbon et al. 5 Munf. 86-91; Scott et ux. v. Loraine et al. 6 Munf. 117. For the nature of marriage settlements, and their construction, as respecting the property conveyed, and the rights and obligations of the parties thereto, see Roane's ex'r v. Hearn et al. 1 Wash. 2; Tabb et al. v. Archer et al. 3 H. & M. 399; Wilcox v. Hubbard, 4 Munf. 346; Pickett et ux. v. Chilton, 5 Munf. 467; Stewart v. Stewart et Aikee Tomas v. 21, Merenst reaplins" 2 al. 7 Johns. Ch. R. 229. See Magniac et al. v. Thompson, 7 Peters's Rep. 348. To make an antinuptial settlement void as act fraud on creditors, it is necessary, on principle and authority, that both parties should concur in, or have cognizance of the intended fraud. If the settler alone intend a fraud, and the other party have no notice of it, but is innocent of it, she is not and cannot be affected by it. In contemplation of law, marriage is not only a valuable consideration to support such a settlement, but is a consideration of the highest value, and from motives of the soundest policy, is upheld with a strong resolution. The husband and wife, parties to such a contract, are therefore deemed in the highest sense, purchasers for a valuable consideration, and so that it is bona fide, and without notice of fraud, brought home to both sides, it becomes unimpeachable by creditors. Stubbs v. Whiting, 1 Randolph, 322; Ewing et al. v. Smith et al. 3 Desaus. R. 428-445. Metho. Epis. Ch. v. Jaques, 3 Johns. Ch. R. 77-114, 17 Johns. R. (in error) 548, S. C. and the authorities in these cases cited. Marriage settlement of slaves to use of husband and wife during their joint lives; remainder to wife, if she survive; remainder to whomsoever the wife shall appoint, if she die before husband; remainder, in default of such appointment to husband for life, and after, to offspring of the marriage; to the intent, that the property shall not be subject to disposal, debts, contracts or engagements of husband: Held, during wife's life, the property cannot be disposed of by husband, or applied to satisfaction of his debts. Hughes v. Pledge et al. 1 Leigh, 443. J. M. by deed conveys land and slaves and other personalty to W. F. in trust, for the support and maintenance of J. M. and L. his wife, and their children and family during their joint lives and the life of the longest liver of them, remainder to their Act of February 24, 1819-January 1, 1820. R. C. ch. 99. shall be settled or covenanted to be left or paid, at the death of the party or otherwise; and all deeds of trust and mortgages, whatsoever, (d) which shall children, with full power to the trustee to manage the estate, and to sell any part of the trust subject to pay the debts of J. M. then due; J. M., in the period of seven months, contracts a debt to merchants for goods furnished to an amount equal to the whole yearly profits of trust estate. Held, such debt cannot be charged by a court of equity on the prospective profits of the estate, so as to bereave J. M.'s wife and children of support-that trustee could not pledge such profits-necessary for the current support of the cestui que trust, if contracted even by the trustee himself, for their past support, much less, the debts contracted by one of the cestui que trusts without the trustee's consent or knowledge. Mark ham v. Guerrant & Wilkins, 4 Leigh, 279. Real and personal estate settled by deed to the use and benefit of R. and E. his wife, during their joint lives, and if R. should survive E. his wife, then to his use during his life, and after his death, to the children of R. by E. his wife: Held, the joint interest of R. and E. during their joint lives, is not subject to R.'s debts, but his contingent interest, in case he should survive his wife, is subject to his debts. Roanes v. Archer, 4 Leigh, 550. By deed of marriage settlement, slaves of the feme are conveyed to a trustee, in trust to permit the husband to take the profits during the joint lives of himself and his wife; remainder, if the husband should first die, to the wife; and if she should first die, to such persons as she should appoint; with an express declaration, that the property should not be subject to the husband's debts: Held, the husband's interest, in the profits during the joint lives of himself and his wife, is subject to his debts; and provision should be made for satisfaction of a creditor, by hiring the slaves out, or otherwise, as most convenient. Butler v. M'Cann et al. 4 Leigh, 631. It was stipulated in marriage articles, that money in the funds, the property of the intended wife should be for her sole and separate use, to all intents and purposes, as if she were sole and unmarried: Held, on the death of the wife without issue, and without having made any appointment of the property, the husband was entitled to it as her administrator, and not her next of kin. Proudley v. Fielder, 2 Mylne & Keene, 57. To protect the wife's interest at law, the legal title must be invested in a trustee. I find no case (says Prest. Tucker,) in which, at law, a marriage settlement has availed to secure the property of the wife, without the intervention of a trustee. Faulkner v. Faulkner's ex'rs, 3 Leigh, 255. citing that husband had sold his wife's estate, and she had joined him in conveyances thereof, under a promise from him to settle an equivalent on her,) therefore husband conveys real estate to a trustee, 1. to the separate use of wife for life, unless she should, in writing under her hand, direct trustee to sell and convey the whole, or any part of trust subject, in which case he should hold the proceeds of sale subject to the separate use and order of wife; 2. after wife's death, to the use of husband for life; and 3. after husband's death, to and for the use of the devisees or heirs of wife, to be divided and conveyed to them in such portions as she shall by will direct, or the law of the land in that case made and provided, shall determine. By mortgage afterwards executed by husband and wife, (the wife duly joining, but the trustee in the settlement nowise joining in the same,) the same real estate is mortgaged to creditors of husband to secure a just debt due from him: Held, 1. that under the deed of settlement, the wife has full power to dispose of the whole estate in the trust subject, by deed in her lifetime, duly executed by her husband and her, according to the statute of conveyances, as well as by will; and, therefore, 2. that the mortgagees are entitled to have the whole estate in the trust subject sold for satisfaction of their debt. Lee and others v. The Bank of the U. S. 9 Leigh, 200. (d) All deeds of trust, and mortgages of chattels, are included within this section, and must be executed and proved as conveyances of land, and recorded within the same period. Moore's ex'r v. The Auditor, 3 H. & M. 232; Hodgson v. Butts, 3 Cranch, 140; and see post. No. 18, § 11, and Clayborn v. Hill, I Wash. 177, 180, 3 H. & M. 235, note (1); see Lang v. Lee et al. 3 Rand. 410, 422, 429; Bird v. Wilkinson, 4 Leigh, 266; Bond v. Wenburn et al. 1 Brock. R. 316. When it is stipulated in a mortgage, that money shall be paid on or before a given day, and 'tis paid after that day; the mortgagee is not deprived of his right of action at law, on the mortgage. The acceptance of the money by the mortgagee, after the day appointed for payment, does not change the rights of the parties at law. Faulkner's adm'x v. Brockenbrough, 4 Rand. 245. For the nature of the implied lien of the vendor on the land for the purchase money, see the opinion of Story, J. in Gilman v. Brown et al. 1 Mason's R. 212, 219, and the note to Wragg v. Compt. Gen'l by Desaussure, c. 2, Desaus. R. 509, 518. C. sold land to S. delivered possession, and received part of the purchase money; By postnuptial deed of settlement, (re- but made no conveyance, nor took any secu CONVEYANCES. Act of February 24, 1819-January 1, 1820. R. C. ch. 99. rity for the balance of the purchase money. But merely taking bond and security, without executing a conveyance, will not discharge the lien. I. devised his lands to be sold, his executors sold them to G. H. who gave his bonds with T. H. his surety, payable at different periods; no conveyance was made to G. H. tho' possession was delivered to him. G. H. paid off several of the bonds, but died leaving a considerable balance due, having been possessed of the land in virtue of the sale, from fifteen to twenty years. His personal property being insufficient to discharge the balance, (there were many unsatisfied judgments against the estate of G. H.) the executors of T. H. the surety, not having paid the money, filed their bill, (in the nature of a quia timet,) against the representatives of I. and of G. H. to subject the land for the balance of the purchase money which was decreed. Hatcher's adm'r v. Hatcher's ex'rs, 1 Randolph, 53. B. conveyed a tract of land to G. by an absolute deed of bargain and sale, and acknowledged the receipt of the purchase money therein, and also by a separate receipt at the foot of the deed; but in fact only received the bonds of the vendee for the amount; it was expressly agreed by the parties verbally, that B. should retain possession until the purchase money, &c. was paid. Held, B. retained an equitable lien on the land against a purchaser from the vendee having actual notice of such agreement. Duval v. Bibb, 4 H. & M. 113. This lien is waived, by the vendor's taking a distinct security for the money, [see Tayloe v. Adams, Gil. R. 329,] either of property or the responsibility of a third per son. A vendor taking a mortgage of the subject sold to secure the purchase money, can only claim under the mortgage, and according to its terms: the mortgage supersedes the implied equitable lien for the purchase money, which, but for the mortgage, would have attached to the subject. Little & al. v. Brown, 2 Leigh, 353; Fish v. Howland et al. 1 Paige's Rep. 20; Stafford v. Van Cowen, 316. Renssellaer, Right of vendee to relief in equity against payment of the purchase money, see Beale v. Seiveley et al. 8 Leigh, 658, and authorities cited by Tucker, P. The implied equitable lien of a vendor upon the subject sold for the purchase money, does not give the vendor asserting the lien, any claim for the profits of the subject. Little et al. v. Brown, 2 Leigh, 353. A negotiable note of the vendee, endorsed by a third person, payable at future times by instalments, is such a distinct security Gilman v. Brown as extinguishes the lien. et al. 1 Mason's R. 191; 4 Wheat. 255, 290-91; see Hughes v. Kearney, 1 Sch. & Lefr. 132; Grant v. Mills, 2 Ves. & Beam. 306; and Saunders v. Leslie, 2 Bal. & Beatty, 514, 515; Winter v. Ld. Anson, 1 S. & S. 434; 3 Russel, 488, S. C.; on appeal reversed. In the late case of Bayley v. Greenleaf et al. Sup. Ct. U. S. Feb. T. 1822, 7 Wheat. 46, it was admitted as settled law, that a vendor, who has taken no other security for the purchase money, retains a lien for it on the land as against the vendee, or his heirs; and that it was equally well settled that this lien was defeated by an alienation to a purchaser without notice. The particular point settled by this case, is, that this lien of the vendor cannot be asserted against the creditors of the vendee, holding under a bona fide conveyance from him. And, it was strongly intimated by the court, that creditors of the vendee, coming in under him, by act of law, could not be affected by such lien; questioning, in this particular, the dictum of Mr. Sugden in his Law of Vendors, p. 398, 399, 2 Am. ed. See the very able opinion of the court, by Marshall, C. J. 49, 58, in which the authorities on this subject are reviewed. See Semple v. Burd, 7 Serg. & Raw. 286; Tompkins v. Mitchell, 2 Rand. 428; see Preston on Abs't, 1 vol. 73; Fish v. Howland, 1 Paige's Ch. R. 20. In the case of Lupin et al. v. Marie et al. 2 Paige, 169; 6 Wend. 77, (in error,) it was attempted to extend this lien to personal property, but unsuccessfully. The Chancellor and court of errors unanimously deciding that a vendor of personal property has not a lien on the property sold, as has the vendor of real estate on the premises by him conJames v. Bird's adm'r, 8 Leigh, veyed. 510. A party who, having lent money to enable a vendee to pay the vendor a part of the |