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tion stated in the exception to have been given thereby to open the contract to explanations at the former trial. and additions inconsistent with its face.

104*] *Mr. Justice Thompson. I have not been able to concur in the opinion of a majority of the court in this case. I admit in the fullest extent, the rule, that parol evidence is admissible to explain a latent ambiguity, but I cannot perceive any ambiguity in the contract in this case, requiring the application of that rule. The contract is dated the 19th of November, 1831, and was for the hire of the steamboat Franklin, to be placed on the route from Washington to Potomac Creek, until the Sydney should be placed on the route; and to commence on the day after the date of the contract, at the rate of thirty-five dollars per day, clear of all expenses, other than the wages of the captain, which were to be paid by the company. The only question in the case is, as to the admissibility of the parol evidence offered on the trial. I think it was properly rejected by the court. Whatever related to any conversations, or negotiations on the subject, previous to the consummation of the contract, were merged in the final conclusion of the contract; according to the well settled rule of law. And whatever passed between the parties, after the contract was concluded, was also inadmissible; because it tended to vary the contract, and substitute another for that which had been concluded between them. The contract was for the use of the Franklin, without any specified limitations as to time. It was to continue until the Sydney was placed on the route. The Sydney was owned by Mr. Bradley, and was at the time the contract was entered into, at Baltimore, for the purpose of being fitted with her engine, and other equipments necessary to complete her. The time, therefore, for which the Franklin was to be employed, depended entirely upon the Sydney's being placed upon the route. And this was at the election of Mr. Bradley: the boat was his, and the repairs or equipments were under his directions, and could not be hastened by the owners of the Franklin; and they had it not in their power to put an end to the contract, but were bound to keep their boat ready for the use of Mr. Bradley until the Sydney was placed on the route. It is not at all probable from the date of the contract, about the middle of November, that either party anticipated the freezing of the river so early as it did, or some provision would have been made in the contract for such event. The loss resulting from such an unexpected and temporary obstruction by the ice, ought to fall on the party who is chargeable with the delay in placing the Sydney on the route-and that was Mr. Bradley. The boat was his; and the placing her on the route was at his election, and of course at his risk.

Nor can oral evidence be called in to explain the ambiguity inferred from the circumstances and unexpressed intentions, in reference to which the parties are supposed to have contracted. Their entire meaning is taken to be in the writing. 3 Stark. Evid. 999, 1000.

By this means new and independent stipulations are sought, as I apprehend, to be added, dehors the written agreement, varying its terms plainly expressed; so that it may be made to operate different ways, according to the explanatory evidence. This case well illustrates the effect of the doctrine. Had the ice not closed the river, then Mr. Bradley would have had no excuse: this is matter of proof. Had the Sydney not been repaired, then he would have had no excuse: this is also matter of proof. Had the steamboat company established that they in previous winters took their boat, the Franklin, out of the Potomac, after the ice formed in this river, and run her in other waters, not subject to ice; and that Mr. Bradley prevented them from taking the usual course until the boat was frozen up in the river; then all equity and justice would have been on the side of the plaintiffs below. Hence the rights of the parties on another trial will not depend on the written contract; but it will operate according to the oral proof, and the conditions thus inserted into it. It is clear, the oral evidence, and not the writing, must produce the definite effect.

I hold, nothing can be added to a written agreement, unless there be a clear subsequent, independent agreement, varying the former; but not where it is matter passing at the same time with the written agreement.

Truly, where the terms of the written instrument are clear, oral evidence is used to point the application to this or that subject matter. It acts in aid of the written instrument, to give it the intended application; not to add to its terms, by inserting new conditions and limitations in the contemplation of the parties, and to be inferred from extrinsic circumstances, existing when the agreement was made.

To control its construction by oral proof of the objects of the contracting parties, and the purposes of the contract, would lead to the dangerous result of construing every writing not by its face, not by the language employed, but by matters extrinsic, variant in each case, as human testimony should make it: the construction, of necessity, to be determined by the jury, and not by the court, whose usual province it is to construe written agreements.

The controlling extrinsic circumstance invoked as an element to construe the contract before the court, is, that the boat Franklin was hired to carry the mail; and that so soon as the ice prevented her from running, it must be inMr. Justice Catron. The contract given in ferred the object of Mr. Bradley (at the date of evidence to sustain the action below is free the contract) was, to surrender the boat, and from any ambiguity on its face; and the ques-carry the mail *in stages. As to this, [*106 tion is, can oral evidence be resorted to-first, to raise an ambiguity, by showing the objects of, and circumstances that lead to, the contract; and second, to explain the ambiguity created by the oral evidence?

105*] I think no such ambiguity, by extrinsic and inferior evidence can be created,

the agreement is wholly silent, and the oral proof may contradict the assumption; if so, no ambiguity will be raised by the proof, as a foundation for further explanation. Suppose it to be proved that the intention of the plaintiff in error was to carry passengers, and to have the entire transportation on the Potomac,

at the opening and close of the session of Congress: and that he was willing to pay the price per day for the Franklin, for the sake of the monopoly, and the power to increase the fare; that he bought out a rival, risking the chances of the season, and the number of passengers. Or suppose it be proved that Mr. Bradley had (at the date of the agreement) taken his horses off of the stage line, and had no reliance to car: ry the mail but this boat, and that he designed to keep her until he supplied her place, even should the river close for a time. In these events the written contract would be construed to mean, as the oral evidence proved Mr. Bradley intended when he made it. He had the power to retain the Franklin as long as he chose to keep the Sydney out of the riverthroughout the whole spring and summer of 1832 and may have so intended, had the win ter been an open one, and the river not obstructed.

In

R. B. L. In 1809, then residing in Virginia, for a for the benefit of his wife, of certain personal valuable consideration, made a conveyance in trust property and slaves, which deed was duly recorded according to the provisons of the act of the Legislature of Virginia. The property thus conveyed, remained in the possession of the husband and wife while they resided in Virginia; and in 1814, R. B. L. removed to the District of Columbia, with his wife and family, and brought with him the slaves and property conveyed in trust for his wife. 1817, R. B. L. borrowed a sum of money of the Bank of the United States, on his promissory note, Indorsed by one of the trustees named in the deed of trust of 1809. At the time the loan was made, R. B. L. executed a deed of trust of eleven slaves, and among them were the slaves and the household furniture conveyed by the deed of 1809, to secure the bank for the amount of the loan. In 1827, R. B. L. died, entirely insolvent. During his residence in Washington, being in reduced circumstances, he sold some of the slaves, conveyed by the deed of 1809, for the support of his family; without objection by his wife or her trustees. In 1834, the debt to the bank being unpaid, a bill was filed against Mrs. E. L., the wife of R. B. L., and the trustees, in order to compel the surrender of the remaining slaves and the household furniture, to the trustee for the bank, for the sale of the same, to satisfy the debt due to the bank. Held, that the deed of 1809, vesting the property in Mrs. L.'s trustees, was tect the title thereto, against the subsequent creditors, or purchasers from R. B. Lee; and that the removal of R. B. L. and his wife into the District of Columbia, with the property conveyed to the trustees for the use of Mrs. L.. did not affect or impair the validity of the deed of trust.

If Mr. Bradley had the power to elect according to a reserved intention, and put an end to the agreement, so had the other side, on a sim-effectual, according to the laws of Virginia, to proilar reservation not expressed, but to be inferred from circumstances existing at the time, and in reference to which the parties are supposed to have contracted.

I think no oral proof could be let in to raise an ambiguity, nor to explain it when raised; and that in this case, as in all others, the parties must abide by their agreement, fairly made, and plainly expressed.

Mr. Justice Story. I had not intended to express any dissent from the opinion of the court in this case, but as my silence might now, un der the circumstances, lead to the conclusion that I concurred in that opinion, I wish to state that I concur in the opinions delivered by my brothers, Catron and Thompson, and for the reasons given by them.

A liberal construction should be given to the

clause of the Virginia statute for the suppression of fraud. This is the well established rule in the construction of the statute of Elizabeth, which the first section of the Virginia statute substantially adopts.

If A sells, or conveys his lands or slaves to B, and then produces to another his previous paper title, and obtains credit on the goods or lands, by pledging them for money loaned, he is guilty of not make his title known, he will be bound to make fraud; and if the true owner stands by, and does good the contract, on the principle that he who holds his peace when he ought to have spoken, shall not be heard now that he should be silent. He is deemed, in equity, a party to the fraud.

ton, in the District of Columbia.

N appeal from the Circuit Court of the This cause came on to be heard on the tran-United States for the County of Washing script of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.

The appellant filed a bill in the Circuit Court, stating, that in 1817 Richard Bland Lee represented himself to be the owner of certain after mentioned property, then in his possession; that he applied to the bank for a loan of $6,000, and offered to convey the said property in trust, to secure the repayment of said sum of money; that the loan was made, and a deed of trust executed and delivered on the 11th June, 1817, to Richard Smith, as trustee; that the said Lee died in 1827, intestate and insolvent, leaving said debt unpaid; that no administration was taken on his estate; that his widow, UNITED Elizabeth Lee, the defendant, has taken possession of said property, and withholds it from said trustee, alleging that it had been previousELIZABETH LEE, Edmund J. Lee, and Rich-ly conveyed by her said husband, in January,

107*] *THE BANK OF THE STATES, Appellant,

V.

ard Smith, Appellees.

Conveyance of personal property in trust for
benefit of wife, valid in Virginia, continues
so on removal-subsequent creditors-fraud,
Virginia statute for suppression of.
NOTE-Conveyances between husband and wife
upheld in equity.
Contracts between husband and wife, after mar-
riage, are a mere nullity by common law, for there
is considered to be a positive incapacity in each to
contract with the other. But courts of equity will,
under particular circumstances, give full effect

1809, to trustees, for her use.

The bill charges that the said deed of the 9th January, 1809, if ever made, was a voluntary and fraudulent deed; and therefore void against the complainants, who are bona fide purchasers, for a valuable consider. [*108 and validity to post-nuptial contracts. 2 Story Eq. Jur. sec. 1372; Fonbl. Eq. B. 1, ch. 2, sec. 6, note (n); Wallingford v. Allen, 10 Pet. 583.

If a wife, having a separate estate, should, bona fide, enter into a contract with her husband, to make him a certain allowance out of the income of such separate estate for a reasonable consideration,

ation without notice: that the considerations | Virginia, in which her husband held fiveexpressed in the said deed are false, or, if true, eights of eight thousand acres; and also to insufficient to give it solidity; that at the date convey her right in certain Fairfax land, conof the said deed, Richard Bland Lee was largely indebted, and incompetent at law to make the same; that if the said deed had every legal requisite, it was executed in Virginia, and never was recorded in Washington County, in the District of Columbia, to which place the said Lee and his wife removed, bringing with them the said property, or was other notice given to the public then of its existence; that E. J. Lee, the surviving trustee, in the deed of the 9th January, 1809, and Mrs. Lee, herself, knew that the complainant had loaned the $6,000 to Richard Bland Lee, upon his representations that he was the owner of the said property, and that Richard Bland Lee had conveyed the same to Richard Smith, to secure the payment of the said sum of money; and never communicated to the complainants, or to Smith, until several years after the death of Richard Bland Lee, the existence of the deed of the 9th January, 1809.

The bill prayed that the deed of the 9th January may be produced, the execution thereof and the recitals therein fully proved; and that it may be declared fraudulent and void against the complainants.

Elizabeth Lee, in her answer, admits the loan, and the execution of the deed to Richard Smith, but avers she was ignorant of its execution until long after it had been delivered, and never consented thereto; she denies any knowledge of the representations made by Richard Bland Lee, respecting the ownership of said property, when he applied for the loan.

She says, that on the 9th January, 1809, she and her husband, then living, and having a long time before dwelt in Fairfax County, Virginia, and the property in the deed mentioned therein, being in the said county, she agreed with her husband to relinquish her right of dower in certain lands in Spotsylvania County, the contract, although void at law, would be held obligatory, and would be enforced in equity. Ib.; More v. Freeman, Bunb. 205.

If the husband should, after marriage, for good reasons, contract with his wife, that she should separately possess and enjoy property bequeathed to her, the contract would be upheld in equity. Harvey v. Harvey, 1 P. Wms. 125, 126; 2 Vern. 659, 760; Com. Dig. Chancery, 2 M. 11, 12, 14; Bradish v. Gibbs, 3 Johns. Ch. 523, 540.

If husband and wife, for a bona fide and valuable consideration, should agree that he should purchase land, and build a house thereon for her, and she should pay him therefor out of the proceeds of her own real estate; if he should perform the contract on his side, she also would be compelled to perform it on her side. Livingston v. Livingston, 2 Johns. Ch. 537, 539; Townshend v. Windham, 2 Ves. 7.

taining two thousand one hundred acres, her
separate property, to trustees, to secure a debt
of $10,034.28, due from her husband to Judge
Washington; in consideration of which, and of
her execution of the conveyances and relinquish-
ment of her dower, her husband agreed to con-
vey to E. J. Lee, William Maffit, and R. Cole-
man, certain slaves, etc., of which those men-
tioned in the bill of complaint are part, for
her use; that it was agreed that her said hus-
band should be authorized to sell any part of
the said property, with consent of a majority
of the said trustees, provided he should con-
vey to the said trustees other property, to the
full value of that sold. She avers that in exe-
cution of this agreement, and in consideration
of the deed of the slaves, etc., of the 9th Jan-
uary, 1809, she executed the deed of the Spot-
sylvania land, and relinquished her dower there-
in; that on the 9th January, 1809, she conveyed
the land in Fairfax, to secure Judge Washing-
ton's debt; and on the same day *her [*109
husband, in fulfillment of his part of the agree-
ment, made and executed the deed of the 9th
January, 1809, to E. J. Lee, Maffit, and Cole-
man, of the slaves, etc., which deed was fully
proved and recorded in Fairfax County Court,
within eight months from its date; in which
said county, she still continued for some time
to reside with her husband, and where she
continued to hold the said property. The

deeds are exhibited with the answer.
She declares the agreement to have been bona
fide, and without fraud, and claims to be the
owner of said property. She admits her hus
band sold part of the property, with the con-
sent of her trustees, and other part under the
pressure of great distress, without their con-
sent, after they removed to Washington; that
her husband died in 1827; that they lived to-
gether until his death; and that her posses-

A post-nuptial agreement, made upon sufficient consideration, between husband and wife, will be enforced in equity. Tiles v. Fleming, 1 Dev. Eq. 185.

A post-nuptial contract between husband and wife, by which property is set apart for her separate use, although vold at law, will be sustained in equity. Garlick v. Strong, 3 Paige, 440.

Conveyances of property by a husband in trust for his wife and her issue, and purchases made on their behalf, will not be set aside as voluntary or fraudulent, where the husband has received and applied to the payment of his debts, or other use, funds or property of his wife, even though the values be not exactly the same. Taylor v. Herlot, 4 Desaus. 326.

Gifts between husband and wife, without the intervention of trustees, have often been supported in equity, when not made to the prejudice of creditors, or subsequent bona fide purchasers without notice. Jaycox v. Caldwell. 37 How. Pr. N. Y.

Transfers of property by husband to wife are not upheld at law. 17 Barb. 103; Hill & D. Supp. 358.

A wife may become a creditor of her husband by acts and contracts during marriage; and her rights as such will be enforced against him and his rep-240; Guardian of Elms v. Hughes, 3 Desaus. 158. resentatives. Thus, if a wife should pledge her estate, or otherwise raise money out of it to pay his debts, or to answer his necessities; whatever might be the mode adopted to carry that purpose into effect, the transaction would, in equity, be treated according to the true intent of the parties. She would be deemed a creditor for the sum so paid, and would be entitled to re-imbursement out of his estate, and to the like privileges as belong to other creditors. Tate v. Austin, 1 P. Wms. 264 2 Vern. 689 Neimcewiez v. Gahn, 3 Palge, 614; Pawlet v. Deluval, 2 Ves. 663, 669; Clinton v. Hooper, 3 Bro. C. C. 201; Innes v. Jackson, 16 Ves. 356, 357; 1 Bligh. 104, 114, 115 to 127; Roper on Husb. & Wife, ch. 4. sec. 1, p. 143 to 162; 2 Story Eq. Jur. sec. 1878.

But, although a deed or conveyance from husband to wife is void at law, yet equity will sustain it in a proper case. So contracts and promissory notes may be good between them. Shepherd v. Shepherd, 7 Johns. Ch. 57; Wicke v. Clark, 3 Edw. 58; Foster v. Foster, 5 Hun, 557; Smart v. Harring, 14 Hun. 276; Summons. McElwain, 26 Barb. 419; Townshend v. Townshend, 1 Abb. N. C. 81 Brooks v. Weaver. 3 Alb. Law Journ. 283; McCartney v. Welch, 44 Barb. 271; Woodworth v. Sweet, 44 Barb. 268.

So equity will enforce an agreement made between them for transfer of property, in a proper case. Livingston v. Livingston, 2 Johns. Ch. 537.

sion of the property, being domestic servants | trustees, is not a badge of fraud; and does not and household furniture, could not be separated affect the validity of the deed in which that from his, and was consistent with the deed. power is reserved. The case is stated more at large in the opinion of the court.

The Circuit Court decreed that the bill should be dismissed, and the complainants prosecuted this appeal.

For the appellant, Mr. Coxe and Mr. Sergeant contended

I. That the deed of 9th January, 1809, was, from the beginning, fraudulent and void.

1. Because on the face of said deed no valid consideration appears; but the same is voluntary by a person largely indebted, in favor of his wife and children.

2. Because no such agreement, as is set forth in defendant Elizabeth Lee's answer, is proved; although put in issue by the pleadings, and strict proof is required by the complainants.

3. Because it admitted that the property recited in said deed to have been conveyed to Turner and others, was merely conveyed, by way of mortgage, to secure a debt due to Judge Washington; which debt has been paid from other sources, and the said property so mortgaged has been exonerated from said incum

brance.

4. Because no such deed as is recited in the deed of 9th January, 1809, as having been then made to Ludwell Lee, appears ever to have been executed.

5. Because the deed of 16th July, 1809, from R. B. Lee and Elizabeth his wife, to Ludwell Lee, does not correspond with the description in the recital of the deed of 9th January, 1809. II. Because the continued possession, use, and enjoyment by said R. B. Lee, of the said property, purported to be conveyed by the deed of 9th January, 1809, was evidence of a continued ownership; and avoids said deed as against subsequent bona fide purchasers and creditors, without notice.

That the sale by Richard Bland Lee of portions of the said trust property, without the assent of the trustees, cannot affect the title of Mrs. Lee to that part which he did not sell.

Mr. Justice Catron delivered the opinion of the court:

The bill alleges, as a principle ground of relief, fraud in fact, in the inception of the conveyance sought to be set aside: this being denied by the answers, it is incumbent that fraud in fact should be proved by the complainants; and which, they insist, is established by the proofs. As the pleadings and exhibits furnish almost the entire evidence, it becomes material to set them out to a considerable extent. And in extracting the facts, from which it is supposed we are authorized to infer fraud, it must be done with reference to the bearing of the local and peculiar laws of Virginia on the transaction.

It appears that in 1817, Richard Bland Lee, the husband of Elizabeth Lee, the respondent, borrowed from the Bank of the United States, at their office of discount at Washington, $6,000 on his note at sixty days (renewable at the pleasure of the bank), and indorsed by Ed. J. Lee and Walter Jones: and further to secure the repayment of the money, executed a deed of trust for eleven slaves, and sundry household goods, valued at $7,200, to Richard Smith, the cashier of office of discount, with power to the trustee to sell in default of payment, after giving thirty days' notice. The deed also pledged some outstanding claims, not necessary to be noticed, as they proved to be of no material value. The debt not having been paid, after long indulgence, suit was brought, and a recovery had against Richard Bland Lee, and Walter Jones, one of the indorsers; but no part of the judgment has been satisfied.

III. That said deed, so executed in Virginia, will not validate the possession, use, and enjoyment of said property in the city of Washing-pany of the bank filed their bill against Ed

ton.

IV. Because the whole case exhibits a case of gross and palpable fraud, which ought not to stand in a court of equity.

110*] *For the appellees, Mr. Marbury and Mr. Cooke insisted that the deed of January 9th, 1809, is valid against the complainants. That, considered as a voluntary settlement, it is good against the complainants, they being subsequent creditors.

That the said deed was made for good and valuable considerations between the parties. That there is no evidence to charge Mrs. Lee or her trustee with any fraudulent practice on the complainants, in the concealment of their title to the property at any time.

That the possession of Richard Bland Lee, after his removal to the District of Columbia, was consistent with the deed, and the necessary consequence of his relation to Mrs. Lee.

That it was not necessary to record the deed in the District of Columbia, on the removal of the parties and of the property to Washington City.

That the power reserved to Mr. Lee to dispose of the property with the consent of the

In 1834 the president, directors and commund J. Lee, Elizabeth Lee, and Richard Smith, the trustee; alleging that [*111 Richard Bland Lee died in 1827 intestate; that no one had administered on his estate, and that Elizabeth Lee had converted the slaves and household goods to her own use after the death of her husband; that she was executrix in her own wrong, and bound to pay the debt; but refused to do so, asserting the property pledged to pay the bank debt by her late husband had been conveyed by him as early as 1809 to Ed. J. Lee, William Maffit, and Richard Coleman, in trust for the sole and separate use of the said Elizabeth; that she had exhibited the deed to the complainants, but which they aver was voluntary, fraudulent, and void, as against them, because they were purchasers for a valuable consideration, without notice of such deed; as also creditors of Richard Bland Lee, the grantor. That the considerations set forth in the deed are not truly stated; but, if truly stated, they are wholly insufficient to give validity to the same. That Richard Bland Lee, at the date of the deed in 1809, was largely indebted, and incompetent in law to make such deed for the benefit of his wife and family.

It also appears that the complainants com. menced an action of replevin against Mrs. Lee for the slaves and household goods, and which was, by an agreement of the parties, suspended until the termination of this suit.

That if the deed was duly executed, and up- | whom, and from what funds, and the respondon legal and adequate considerations when ents are required to produce the deed. made, yet the same was executed in the Commonwealth of Virginia; that the trustees had never acted under it, or taken possession of the property embraced in it; but had suffered Richard Bland Lee, the grantor, at all times, and without interruption, from the date of the deed to the time of his death, to retain possession of the property, and to use, enjoy, and dispose of the same, and hold himself out to the world as the true and absolute owner; and especially that the trustees had permitted the grantor to bring the slaves and furniture from Virginia to the District of Columbia and County of Washington, about the year 1814, and there to continue his use and enjoyment of the same, as if he were the absolute, entire, and unqualified owner thereof.

Ed. J. Lee answers that the deed of 1809 was executed by Richard Bland Lee to himself and others as trustees for Elizabeth Lee, the wife of said Richard Bland Lee; that it sets forth the true consideration for the same; that the respondent is the only surviving trustee; that he never did give notice to the complainants of the existence of the deed; but that he did not know, until shortly before Richard Bland Lee's death, that he had made the deed of trust to Richard Smith; and which never received respondent's assent. That he cannot state, from general recollectior how the debt due to Judge Washington was paid; but it is his impression it was paid either by stock in the Bank of Alexandria, which belonged to Elizabeth Lee, and was held in trust for her by her brother Zacheus Collins, deceased; or by a sale of part of the farm called Langley.

That the deed was never recorded in the County of Washington, nor notice given to the public or the complainants of its existence during the lifetime of Richard Bland Lee, nor for some years after his death, but he was permitted to obtain credit and contract debts upon the faith of his being the sole and absolute owner of the slaves and goods described in the Elizabeth Lee answers that the loan of $6,deed; and permitted to sell and dispose of 000 was made by the bank as charged, but parts of the same without any assertion of that she was ignorant of the execution of the right or title on the part of the trustees or said deed of trust to Richard Smith, to secure the Elizabeth; and that Ed. J. Lee, the only sur- repayment of the money until long after the viving trustee, and the said Elizabeth, knew deed had been delivered and the loan made; that the complainants had made the loan of the denies she ever assented thereto, or waived her $6,000 to Richard Bland Lee, in the full faith rights to the slaves, or any part of the property that he was the real and unqualified owner of purporting to have been conveyed by the deed. the property; and knew he had made and exe- Admits the recovery of the judgment as alcuted the deed of trust to Richard Smith, to se-leged; and that Richard Bland Lee died in 1827, cure the repayment of the money; yet they did not communicate to the complainants the existence of the deed made for the benefit of the said Elizabeth, during the lifetime of Richard Bland Lee, nor until several years after his death; nor did said Ed. J. Lee, or Elizabeth, intimate in any manner, or give the complainants, or their trustee, reason to suspect that there was any defect in the title derived under the deed to Richard Smith, nor that Ed. J. 112] *Lee, or Elizabeth, had any title or claim, or pretended to have, to the slaves and furniture.

The foregoing allegations present two aspects, 1st. That the deed of 1809 was fraudulent and void in its inception, and, 2d. That if valid in Virginia, it not having been recorded in the County of Washington (formerly a part of Maryland), and the continued possession of the property covered by it having remained with the grantor, both in Virginia and here, up to the time of his death, was such a fraud upon creditors of, and purchasers from, Richard Bland Lee, as to destroy the effect of the con

veyance?

The deed of 1809, amongst other things, sets forth that Richard Bland Lee owed Judge Washington $10,034.28; and, as a part of the consideration, Mrs. Lee had joined her husband in a mortgage to trustees for Judge Washington's use, pledging her separate estate to secure the debt. These specific facts the bill does not set forth; but, by way of interrogatory, asks the defendants to answer, whether the debt mentioned in said deed as being due to Judge Washington had ever been paid; by

intestate and insolvent, and that no one has administered on his estate.

And, further answering, says that on the 9th day of January, in the year 1809, the said Richard B. Lee and this respondent, then dwelling, and having for a long time before dwelt in the County of Fairfax in the State of Virginia, and the slaves and other personal *prop- [*113 erty hereinafter mentioned then being in the said county, she agreed with the said Richard to relinquish her right of dower in a certain tract of land in the County of Spotsylvania, in the Commonwealth of Virginia, on the Rappahannock River, containing eight thousand acres, more or less, of five undivided eighth parts, of which the said Richard Bland Lee was seized in fee-simple, and to join the said Richard in a conveyance thereof to Ludwell Lee.

She also on the same day agreed to join her said husband in the execution of a deed of trust to Henry Smith Turner, Thomas Blackburn, and Bushrod Washington, Jun., conveying to them two tracts of land in the said County of Fairfax, one situated on the River Potomac, near the Little Falls thereof, containing sixteen hundred acres, more or less, the other being the estate on which the said Richard and this respondent then resided, containing five hundred and thirty acres, more or less, which tracts of land were then held in trust for this respondent; which last-mentioned conveyance was to be made to the said Turner and others in trust to secure the payment of the sum of ten thousand and thirty-four dollars and twenty-eight cents, due from the said Richard to the Honorable Bushrod Washington. And

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