« ПретходнаНастави »
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
Nor can oral evidence be called in to explain been able to concur in the opinion of a majority the ambiguity inferred from the circumstances of the court in this case. I admit in the fullest and unexpressed intentions, in reference to extent, the rule, that parol evidence is admissi- which the parties are supposed to have conble to explain a latent ambiguity, but I can.
tracted. Their entire meaning is taken to be in not perceive any ambiguity in the contract in the writing. 3 Stark. Evid. 999, 1000. this case, requiring the application of that rule.
By this means new and independent stipula. The contract is dated the 19th of November, tions are sought, as I apprehend, to be added, 1831, and was for the hire of the steamboat dehors the written agreement, varying its terms Franklin, to be placed on the route from Wash plainly expressed; so that it may be made to ington to Potomac Creek, until the Sydney operate different ways, according to the exshould be placed on the route; and to com- planatory evidence. This case well illustrates mence on the day after the date of the con
the effect of the doctrine. Had the ice not tract, at the rate of thirty-five dollars per closed the river, then Mr. Bradley would have day, clear of all expenses, other than the wages had no excuse: this is matter of proof. Had of the captain, which were to be paid by the the Sydney not been repaired, then he would company. The only question in the case is, as
have had no excuse: this is also matter of to the admissibility of the parol evidence of proof. Had the steamboat company established fered on the trial. I think it was properly re- that they in previous winters took their boat, jected by the court. Whatever related to any formed in this river, and run her in other wa
the Franklin, out of the Potomac, after the ice conversations, or negotiations on the subject, previous to the consummation of the contract, ters, not subject to ice; and that Mr. Bradley were merged in the final conclusion of the con- prevented them from taking the usual course tract; according to the well settled rule of law. until the boat was frozen up in the river; then And whatever passed between the parties, after all equity and justice would have been on the the contract was concluded, was also inadmissi- side of the plaintiffs below. Hence the rights ble; because it tended to vary the contract, and of the parties on another trial will not depend substitute another for that which had been on the written contract; but it will operate acconcluded between them. The contract was for cording to the oral proof, and the conditions the use of the Franklin, without any specified thus inserted into it. It is clear, the oral evilimitations as to time. It was to continue dence, and not the writing, must produce the until the Sydney was placed on the route. The definite effect. Sydney was owned by Mr. Bradley, and was
I hold, nothing can be added to a written at the time the contract was entered into, at agreement, unless there be a clear subsequent, Baltimore, for the purpose of being fitted with independent agreement, varying the former; her engine, and other equipments necessary to but not where it is matter passing at the same complete her. The time, therefore, for which time with the written agreement. the Franklin was to be employed, depended
Truly, where the terms of the written instru. entirely upon the Sydney's being placed upon ment are clear, oral evidence is used to point the route. And this was at the election of Mr. the application to this or that subject matter. Bradley: the boat was his, and the repairs or It acts in aid of the written instrument, to give equipments were under his directions, and it the intended application; not to add to its could not be hastened by the owners of the terms, by inserting new conditions and limitaFra lin; and they had it not in their power tions in the contemplation of the parties, and to put an end to the contract, but were bound to be inferred from extrinsic circumstances, to keep their boat ready for the use of Mr. existing when the agreement was made. Bradley until the Sydney was placed on the
To control its construction by oral proof of route. It is not at all probable from the date the objects of the contracting parties, and the of the contract, about the middle of November, purposes of the contract, would lead to the that either party anticipated the freezing of the dangerous result of construing every writing river so early as it did, or some provision would not by its face, not by the language employed, have been made in the contract for such event. but by matters extrinsic, variant in each case, The loss resulting from such an unexpected as human testimony should make it: the conand temporary obstruction by the ice, ought to struction, of necessity, to be determined by fall on the party who is chargeable with the the jury, and not by the court, whose usual delay in placing the Sydney on the route-and province it is to construe written agreements, that was Mr. Bradley. The boat was his; and
The controlling extrinsic circumstance inthe placing her on the route was at his election, yoked as an element to construe the contract and of course at his risk.
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, the agreement is wholly silent, and the oral to raise an ambiguity, by showing the objects proof may contradict the assumption; if so, no of, and circumstances that lead to, the con ambiguity will be raised by the proof, as tract; and second, to explain the ambiguity foundation for further explanation. Suppose created by the oral evidence ?
it to be proved that the intention
the plain105*] *I think no such ambiguity, by ex. tiff in error was to carry passengers, and to trinsic and inferior evidence can be created, I have the entire transportation on the Potomac, purchasers, for a *valuable consider. (*108 NOTE.—Conveyances between busband and wife and validity to post-nuptial contracts. 2 Story Eq opbeld in equity.
at the opening and close of the session of Con- R. B. L. In 1809, then residing in Virglola, for a gress: and that he was willing to pay the price for the benefit of his wife, of certain personal
valuable consideration, made a conveyance in trust per day for the Franklin, for the sake of the property and slaves, which deed was duly recorded monopoly, and the power to increase the fare; according to the provisons of the act of the Legisthat he bought out a rival, risking the chances ature of Virginia. The property thus conveyed,
remained in the possession of the husband and wife of the season, and the number of passengers, while they resided in Virginia; and in 1814, R. B. Or suppose it be proved that Mr. Bradley had L. removed to the District of Columbia, with his (at the date of the agreement) taken his horses wife and family, and brought with him the slaves off of the stage line, and had no reliance to car: 1817, R. B. L. borrowed a sum of money of the
and property, conveyed in trust for his wife. ry the mail but this boat, and that he designed Bank of the United States, on his promissory note, to keep her until he supplied her place, even
Indorsed by one of the trustees damed in the deed of
trust of 1809. At the time the loan was made, R. should the river close for a time. In these B. L. executed a deed of trust of eleven slaves, and events the written contract would be construed among them were the slaves and the household to mean, as the oral evidence proved Mr. Brad. furniture conveyed by the deed of 1808, to secure
In 1827, R. ley intended when he made it. He had the B. L. died. entirely insolvent. Durlog his residence power to retain the Franklin as long as he in Washington, being in reduced circumstances, he chose to keep the Sydney out of the river- sold some of the slaves, conveyed by the deed of throughout the whole spring and summer of tion by his wife or her trustees.
1809, for the support of his family; without objec
In 1834, the debt 1832—and may have so intended, had the win to the bank being unpaid, a bill was filed against ter been an open one, and the river not ob Mrs. E. L.. the wife of R. B. L., and the trustees,
in order to compel the surrender of the remaining structed.
slaves and the household furniture, to the trustee If Mr. Bradley had the power to elect accord- for the bank, for the sale of the same, to satisfy ing to a reserved intention, and put an end to the debt due to the bank. Held, that the deed of the agreement, so had the other side, on a sim effectual, according to the laws of Virginia, to pro
1809, vesting the property in Mrs. L.'s trustees, was ilar reservation not expressed, but to be infer- tect the title thereto, against the subsequent creditred from circumstances existing at the time, ors, or purchasers from R. B. Lee; and that the reand in reference to which the parties are sup
moval of R. B. L. and his wife into the District of
Columbia, with the property conveyed to the trust. posed to have contracted.
pes for the use of Mrs. L., did not affect or impair I think no oral proof could be let in to raise the validity of the deed of trust. an ambiguity, nor to explain it when raised; clause of the Virginia statute for the suppression
A liberal construction should be given to the and that in this case, as in all others, the par- of fraud. This is the well established rule in the ties must abide by their agreement, fairly construction of the statute of Elizabeth, which the made, and plainly expressed.
first section of the Virginia statute substantially
adopts. Mr. Justice Story. I had not intended to ex:
It A sells, or conveys his lands or slaves to B,
and then produces to another his previous paper press any dissent from the opinion of the court title. and obtains credit on the goods or lands, by in this case, but as my silence might now, un
pledging them for money loaned, he is guilty of der the circumstances, lead to the conclusion not make his title known, he will be bound to make
fraud ; and if the true owner stands by, and does that I concurred in that opinion, I wish to good the contract, on the principle that he who state that I concur in the opinions delivered by holds his peace when
he ought to have spoken, shall my brothers, Catron and Thompson, and for the deemed, in equity, a party to the fraud.
not be heard now that he shonld he silent. reasons given by them.
N This cause came on to be heard on the tran. O ^ appeal from the Circuit Court of the
United States for the County of Washingscript of the record from the Circuit Court of ton, in the District of Columbia. the United States for the District of Columbia, The appellant filed a bill in the Circuit Court, holden in and for the County of Washington, stating, that in 1817 Richard Bland Lee repreand was argued by counsel; on consideration sented himself to be the owner of certain after whereof, it is ordered and adjudged by this mentioned property, then in his possession; court, that the judgment of the said Circuit that he applied to the bank for a loan of $6,Court in this cause be, and the same is hereby 000, and offered to convey the said property in reversed with costs; and that this cause be, trust, to secure the repayment of said sum of and the same is hereby remanded to the said money; that the loan was made, and a deed of Circuit Court, with directions to award a trust executed and delivered on the 11th June, venire facias de novo.
1817, to Richard Smith, as trustee; that the said Lee died in 1827, intestate and insolvent, leaving said debt unpaid; that no administra
tion was taken on his estate; that his widow, 107") "THE BANK OF THE UNITED Elizabeth Lee, the defendant, has taken possesSTATES, Appellant,
sion 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, ard Smith, Appellees.
1809, to trustees, for her use.
The bill charges that the said deed of the Conveyance of personal property in trust for 9th January, 1809, if ever made, was a volun.
benefit of wife, valid in Virginia, continues tary and fraudulent deed; and therefore void 80 on removal-subsequent creditors-fraud, against the complainants, who are bona fide Virginia statute for suppression of.
Jur. sec. 1372; i Fonbl. Eq. B. 1, ch. 2, sec. 6, note Contracts between husband and wife, after mar. (n); Wallingford v. Allen, 10 Pet. 583. rlage, are a mere pullity by common law, for there If a wife, having a separate estate, should, boda 18 considered to be a positive incapacity in each to ride, enter into a contract with her husband, to contract with the other. But courts of equity will, make him a certain allowance out of the income of onder particular circuimstances, give full effect such separate estate for a reasonable consideration, enforced in equity. Tiles v. Fleming, 1 Dev. Eg. If the husband should, after marriage, for good 185. reasons, contract with his wife, that she should A post-nuptial contract between husband and separately possess and enjoy property, bequeathed wife, by which property is set apart for her sepato her, the contract would be upheld in equity. rate use, although void at law, will be sustained in Harvey v. Harvey, 1 P. Wms. 125, 126 ; 2 Vern. equity. Garlick v. Strong, 3 Paige, 440. 659, 760; Com. Dig. Chancery, 2 M. 11, 12, 14; Conveyances of property by a husband in trust Bradisb . Gibbs, 3 Jobps. Ch. 523, 540.
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, con• of the said deed, Richard Bland Lee was large- taining two thousand one hundred acres, her ly indebted, and incompetent at law to make separate property, to trustees, to secure a debt the same; that if the said deed had every legal of $10,034.28, due from her husband to Judge requisite, it was executed in Virginia, and Washington; in consideration of which, and of never was recorded in Washington County, in her execution of the conveyances and relinquishthe District of Columbia, to which place the ment of her dower, her husband agreed to consaid Lee and his wife removed, bringing with vey to E. J. Lee, William Maffit, and R. Colethem the said property, or was other notice man, certain slaves, etc., of which those mengiven to the public then of its existence; that tioned in the bill of complaint are part, for E. J. Lee, the surviving trustee, in the deed of her use; that it was agreed that her said husthe 9th January, 1809, and Mrs. Lee, herself, band should be authorized to sell any part of knew that the complainant had loaned the the said property, with consent of a majority $6,000 to Richard Bland Lee, upon his repre- of the said trustees, provided he should consentations that he was the owner of the said vey to the said trustees other property, to the property, and that Richard Bland Lee had con- full value of that sold. She avers that in exeveyed the same to Richard Smith, to secure the cution of this agreement, and in consideration payment of the said sum of money; and never of the deed of the slaves, etc., of the 9th Jan. communicated to the complainants, or to Smith, uary, 1809, she executed the deed of the Spotuntil several years after the death of Richard sylvania land, and relinquished her dower thereBland Lee, the existence of the deed of the in; that on the 9th January, 1809, she conveyed 9th January, 1809.
the land in Fairfax, to secure Judge WashingThe bill prayed that the deed of the 9th ton's debt; and on the same day *her (*109 January may be produced, the execution there. husband, in fulfillment of his part of the agreeof and the recitals therein fully proved; and ment, made and executed the deed of the 9th that it may be declared fraudulent and void January, 1809, to E. J. Lee, Maffit, and Coleagainst the complainants.
man, of the slaves, etc., which deed was fully Elizabeth Lee, in her answer, admits the proved and recorded in Fairfax County Court, loan, and the execution of the deed to Richard within eight months from its date; in which Smith, but avers she was ignorant of its execu- said county, she still continued for some time tion until long after it had been delivered, and to reside with her husband, and where she never consented thereto; she denies any knowl. continued to hold the said property. The edge of the representations made by Richard deeds are exhibited with the answer. Bland Lee, respecting the ownership of said She declares the agreement to have been bona property, when he applied for the loan. fide, and without fraud, and claims to be the
She says, that on the 9th January, 1809, she owner of said property. She admits her hus and her husband, then living, and having a band sold part of the property, with the conlong time before dwelt in Fairfax County, Vir- sent of her trustees, and other part under the ginia, and the property in the deed mentioned pressure of great distress, without their contherein, being in the said county, she agreed sent, after they removed to Washington; that with her husband to relinquish her right of her husband died in 1827; that they lived todower in certain lands in Spotsylvania County, gether until his death; and that her possesthe contract, although void at law, would be held A post-nuptial agreement, made upon sufficient obligatory, and would be enforced in cquity. Ib. ; consideration, between husband and wife, will be More v. Freeman, Bunb. 205.
for his wife and her issue, and purchases made on If husband and wife, for a bona fide and valua- their behalf, will not be set aside as voluntary or ble consideration, should agree that he should pur: fraudulent, where the husband has received and chase land, and build a house thereon for her, and applied to the payment of his debts, or other use, she should pay him therefor out of the proceeds of funds or property of his wife, even though the her own real estate; if he should perform the con- values be not exactly the same. Taylor v. Herlot, tract on his side, she also would be compelled to 4 Desaus. 326. perform it on her side. Livingston v. Livingston, Gifts between husband and wife, without the Johns. Ch. 537, 539; Townshend v. Windham, 2 intervention of trustees, have often been support. Ves. 7.
ed in equity, when not made to the prejudice of A wife may become a creditor of her busband by creditors, or subsequent bona fide purchasers with. acts and contracts during marrlage; and her rights out notice. Jaycox_v. Caldwell. 37 How. Pr, N. Y. as such will be enforced against him and his rep- 240 ; Guardian of Elms v. Hughes, 3 Desaus. 158. resentatives. Thus, it a wife should pledge her es- Transfers of property by husband to wife are not tate, or otherwise raise money out of it to pay his upheld at law. 17 Barb. 103 ; Hill & D. Supp. 358. debts, or to answer his necessities; whatever might But, although a deed or conveyance from bus. be the mode adopted to carry that purpose into ef: band to wife is void at law, yet eguity will sustalo tect, the transaction would, in equity, be treated it in a proper case. So contracts and promissory according to the true intent of the parties. Sbe nutes may be good between them. Shepherd v. would be deemed a creditor for the sum 80 paid, Shepherd, 7 Jobps, Ch. 57 ; Wicke v. Clark, 3 Edw. and would be entitled to re-imbursement out of his 58 ; Foster v. Foster, 5 Hun. 557 : Smart' v. Harestate, and to the like privileges as belong to other ring, 14. Hun. 276; Summons. McElwaln, 26 creditors. Tate v. Austin, 1 P. Wms. 264 ; 2 Vern. Barb. 419; Townshend v. Townshend, 1 Abb. N. C. 689: Neimcewlez v. Gahn, 3 Palge, 614 ; Pawlet v. 81: Brooks v. Weaver, 3 Alb. Law Journ. 283; Deluval, 2 Ves. 663, 669; Clinton v. Hooper, 3 Bro. McCartney v. Welch, 44 Barb. 271; Woodworth v. C. C. 201 ; Innes v. Jackson, 16 Ves. 356, 357 ; 1 Sweet, 44 Barb. 268. Bligh. 104, 114, 116 to 127 ; Roper on Husb. & So equity will enforce an agreement made bewife, ch. 4. vec. 1, p. 143 to 162; 2 Story Eg. Jur. tween them for transfer of property, in a proper
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 opin That the sale by Richard Bland Lee of porion of the court.
tions of the said trust property, without the The Circuit Court decreed that the bill should assent of the trustees, cannot affect the title be dismissed, and the complainants prosecuted of Mrs. Lee to that part which he did not sell. this appeal.
For the appellant, Mr. Coxe and Mr. Sergeant Mr. Justice Catron delivered the opinion of contended
the court: I That the deed of 9th January, 1809, was, The bill alleges, as a principle ground of from the beginning, fraudulent and void. relief, fraud in fact, in the inception of the
1. Because on the face of said deed no valid conveyance sought to be set aside: this being consideration appears; but the same is volun- denied by the answers, it is incumbent that tary by a person largely indebted, in favor of fraud in fact should be proved by the complain. his wife and children.
ants; and which, they insist, is established by 2. Because no such agreement, as is set forth the proofs. As the pleadings and exhibits furin defendant Elizabeth Lee's answer, is proved; nish" almost the entire evidence, it becomes although put in issue by the pleadings, and material to set them out to a considerable ex. strict proof is required by the complainants. tent. And in extracting the facts, from which
3. Because it admitted that the property re- it is supposed we are authorized to infer fraud, cited in said deed to have been conveyed to it must be done with reference to the bearing Turner and others, was merely conveyed, by of the local and peculiar laws of Virginia on way of mortgage, to secure a debt due to Judge the transaction. Washington; which debt has been paid from It appears that in 1817, Richard Bland Lee, other sources, and the said property so mort- the husband of Elizabeth Lee, the respondent, gaged has been exonerated from said incum. borrowed from the Bank of the United States, brance.
at their office of discount at Washington, 4. Because no such deed as is recited in the $6,000 on his note at sixty days (renewable at deed of 9th January, 1809, as having been then the pleasure of the bank), and indorsed by Ed. made to Ludwell Lee, appears ever to have J. Lee and Walter Jones: and further to secure been executed.
the repayment of the money, executed a deed 5. Because the deed of 16th July, 1809, from of trust for eleven slaves, and sundry houseR. B. Lee and Elizabeth his wife, to Ludwell hold goods, valued at $7,200, to Richard Smith, Lee, does not correspond with the description the cashier of office of discount, with power in the recital of the deed of 9th January, 1809. to the trustee to sell in default of payment,
II. Because the continued possession, use, and after giving thirty days' notice. The deed also enjoyment by said R. B. Lee, of the said prop- pledged some outstanding claims, not necessary erty, purported to be conveyed by the deed of to be noticed, as they proved to be of no mate9th January, 1809, was evidence of a continued rial value. The debt not having been paid, ownership; and avoids said deed as against after long indulgence, suit was brought, and a subsequent bona fide purchasers and creditors, recovery had against Richard Bland Lee, and without notice.
Walter Jones, one of the indorsers; but no III. That said deed, so executed in Virginia, part of the judgment has been satisfied. will not validate the possession, use, and enjoy. In 1834 the president, directors and comment of said property in the city of Washing- pany of the bank filed their bill against Ed. ton.
mund J. Lee, Elizabeth Lee, and Richard IV. Because the whole case exhibits a case Smith, the *trustee; alleging that (*111 of gross and palpable fraud, which ought not Richard Bland Lee died in 1827 intestate; that to stand in a court of equity.
no one had administered on his estate, and 110'] *For the appellees, Mr. Marbury and that Elizabeth Lee had converted the slaves and Mr. Cooke insisted that the deed of January household goods to her own use after the death 9th, 1809, is valid against the complainants. of her husband; that she was executrix in her That, considered as a voluntary settlement, it own wrong, and bound to pay the debt; but is good against the complainants, they being refused to do so, asserting the property pledged subsequent creditors.
to pay the bank debt by her late husband had That the said deed was made for good and been conveyed by him as early as 1809 to Ed. valuable considerations between the parties. J. Lee, William Maffit, and Richard Coleman,
That there is no evidence to charge Mrs. Lee in trust for the sole and separate use of the or her trustee with any fraudulent practice on said Elizabeth; that she had exhibited the deed the complainants, in the concealment of their to the complainants, but which they aver was title to the property at any time.
voluntary, fraudulent, and void, as against That the possession of Richard Bland Lee, them, because they were purchasers for a valu. after his removal to the District of Columbia, able consideration, without notice of such deed; was consistent with the deed, and the necessary as also creditors of Richard Bland Lee, the consequence of his relation to Mrs. Lee. grantor. That the considerations set forth in
That it was not necessary to record the deed the deed are not truly stated; but, if truly in the District of Columbia, on the removal of stated, they are wholly insufficient to give the parties and of the property to Washington validity to the same. That Richard Bland Lee, City.
at the date of the deed in 1809, was largely That the power reserved to Mr. Lee to dis- indebted, and incompetent in la to make such pose of the property with the consent of the deed for the benefit of his wife and family.
That if the deed was duly executed, and up- I whom, and from what funds, and the respond. on legal and adequate considerations when ents are required to produce the deed. made, yet the same was executed in the Com- It also appears that the complainants com: monwealth of Virginia; that the trustees had menced an action of replevin against Mrs. Lee never acted under it, or taken possession of the for the slaves and household goods, and which property embraced in it; but had suffered Rich was, by an agreement of the parties, suspended ard Bland Lee, the grantor, at all times, and until the termination of this suit. without interruption, from the date of the Ed. J. Lee answers that the deed of 1809 deed to the time of his death, to retain pos. was executed by Richard Bland Lee to himself session of the property, and to use, enjoy, and and others as trustees for Elizabeth Lee, the dispose of the same, and hold himself out to wife of said Richard Bland Lee; that it sets the world as the true and absolute owner; and forth the true consideration for the same; that especially that the trustees had permitted the the respondent is the only surviving trustee; grantor to bring the slaves and furniture from that he never did give notice to the complainVirginia to the District of Columbia and Coun ants of the existence of the deed; but that he ty of Washington, about the year 1814, and did not know, until shortly before Richard there to continue his use and enjoyment of the Bland Lee's death, that he had made the deed same, as if he were the absolute, entire, and of trust to Richard Smith; and which never reunqualified owner thereof.
ceived respondent's assent. That he cannot That the deed was never recorded in the state, from general recollectior how the debt County of Washington, nor notice given to the due to Judge Washington was paid; but it is public or the complainants of its existence dur- his impression it was paid either by stock in ing the lifetime of Richard Bland Lee, nor for the Bank of Alexandria, which belonged to some years after his death, but he was permit. Elizabeth Lee, and was held in trust for her ted to obtain credit and contract debts upon by her brother Zacheus Collins, deceased; or the faith of his being the sole and absolute by a sale of part of the farm called Langley. 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 intestate and insolvent, and that no one has not communicate to the complainants the ex. administered on his estate. istence of the deed made for the benefit of the And, further answering, says that on the 9th said Elizabeth, during the lifetime of Richard day of January, in the year 1809, the said Bland Lee, nor until several years after his Richard B. Lee and this respondent, then dwelldeath; nor did said Ed. J. Lee, or Elizabeth, ing, and having for a long time before dwelt in intimate in any manner, or give the complain the County of Fairfax in the State of Virginia, ants, or their trustee, reason to suspect that and the slaves and other personal "prop- /*113 there was any defect in the title derived under erty hereinafter mentioned then being in the the deed to Richard Smith, nor that Ed. J. said county, she agreed with the said Richard : 112*] *Lee, or Elizabeth, had any title or to relinquish her right of dower in a certain claim, or pretended to have, to the slaves and tract of land in the County of Spotsylvania, in furniture.
the Commonwealth of Virginia, on the RappaThe foregoing allegations present two as. hannock River, containing eight thousand acres, pects, lst. That the deed of 1809 was fraudu- more or less, of five undivided eighth parts, of lent and void in its inception, and, 2d. That if which the said Richard Bland Lee was seized valid in Virginia, it not having been recorded in fee-simple, and to join the said Richard in in the County of Washington (formerly a part a conveyance thereof tó Ludwell Lee. of Maryland), and the continued possession of She also on the same day agreed to join her the property covered by it having remained said husband in the execution of a deed of with the grantor, both in Virginia and here, up trust to Henry Smith Turner, Thomas Blackto the time of his death, was such a fraud up: burn, and Bushrod Washington, Jun., convey: on creditors of, and purchasers from, Richard ing to them two tracts of land in the said Bland Lee, as to destroy the effect of the con County of Fairfax, one situated on the River veyance?
Potomac, near the Little Falls thereof, contain: The deed of 1809, amongst other things, sets ing sixteen hundred acres, more or less, the forth that Richard Bland Lee owed Judge other being the estate on which the said RichWashington $10,034.28; and, as a part of the ard and this respondent then resided, containconsideration, Mrs. Lee had joined her husband ing five hundred and thirty acres, more or less, in a mortgage to trustees for Judge Wash- which tracts of land were then held in trust for ington's use, pledging her separate estate to se- this respondent; which last-mentioned convey, cure the debt.
These specific facts the bill ance was to be made to the said Turner and does not set forth; but, by way of interroga- others in trust to secure the payment of the tory, asks the defendants to answer, whether sum of ten thousand and thirty-four dollars and the debt mentioned in said deed as being due twenty-eight cents, due from the said Richard to Judge Washington had ever been paid; by to the Honorable Bushrod Washington. And 84