Colquitt vs. Thomas et al.

ing at the time when the claimant and his vendors purchased. They ought to have been told, that the pendency of the suits, although not conclusive in law, or in fact, as to notice, yet was a fact which they were at liberty to consider, in determining, in connection with the other evidence in the case, whether they had notice or not; and this, wholly irrespective of the reasons given by the Court, as to the consideration of the notes sued on, and the plea.

[10.] Farther, the plaintiff's counsel requested the Court to instruct the Jury, "That if they believed, first, that the deed to Harrison & Williams, made by the defendant in fi, fa. was fraudulent as to creditors, and that Nathaniel Harrison, the claimant, knew of the indebtedness of the defendant, Thomas, to the plaintiff for the purchase money of the fractions, and of Thomas' insolvency, and the pendency of the suits, at any time before he paid the purchase money and received a title, that a deed taken after such notice would not defeat the incumbrance, and that such deed would be fraudulent in law." The Court refused to charge as thus requested, and we think correctly.

In this case, a deed taken after knowledge of the plaintiff's incumbrance, of Thomas' insolvency, and of the pendency of the suit-such knowledge being before the payment of the purchase. money-would not, necessarily, defeat the incumbrance. That part of the instruction asked is true; yet it is not true that the deed would be fraudulent in law. I repeat, that the fraud to be proven, is a fraud in fact; and the notice to be charged upon the purchasers, is notice of this fraud in fact. The fraud being proven, and notice of it carried home to the purchasers, they become parties to the fraud, and the law adjudges, then, that their title is not good. The fact of fraud, and the fact of notice, are to be submitted to the Jury. Hence, if the knowledge of the incumbrance, of Thomas' insolvency, and of the pendency of the suits, be proven, those facts do not, as of legal necessity, annul the deed. I am aware, that the desired instruction assumes that this sale was fraudulent. Let that be so; still, knowledge of these facts, to wit: Colquitt's debt, Thomas' insolvency, and the pendency of the suits, does not, necessarily, make the deed to claimant void. Whether void or not, is the issue upon the question of notice, and these facts are submitted to the Jury upon that issue. Upon the requisition in the request, that upon knowledge of these

Colquitt vs. Thomas et al.

facts the claimant's deed be charged to be fraudulent, the Court is invoked to determine the issue as to the notice. He did not err in not responding favorably to the invocation. He, however, in response, charged, " that if any considerable part of the purchase money had been paid, and the contract of purchase complete, before notice, that the claimant was not compelled to stop, but had a right to go on and take a deed, which deed would, in no wise, be affected by the notice in this suit, the plaintiff averring that he did not rely upon his lien in Equity." The lien in Equity being out of the question, it remains to inquire, whether there be any error in this instruction? When a purchaser goes into Equity, for relief against a prior incumbrance, upon the ground that he is a bona fide purchaser, without notice, he will not be reliev ed, if he has notice before he pays all the purchase money, although he has paid a part. The rule in such a case goes thus far, to wit: notice before actual payment of all the purchase money, although it be secured, and the conveyance actually executed, or before the execution of the conveyance, notwithstanding the money be actually paid, is equivalent to notice before the contract. 2 Sugden on Vendors, top p. 312. 3 P. Wms. 387. 2 Atk. 630. 1 Johns. Ch. R. 288. 1 Munf. 38. 7 Johns. Ch. R. 65.

I do not mean to say, that this rule applies in this case. In the case put by the Court, he says, that the purchaser may go on and take his deed. True, he may; but he proceeds to say, that in such a case, notice would in no wise affect the deed; that is, in a case where a considerable part of the purchase money is paidthe contract of purchase being complete the purchaser then receiving notice, before the balance of the purchase money is paid, and before the deed is taken, the deed will in no wisebe affected by the notice. We do not agree with the Court in this idea. The purchaser may go on, in such a case, to take his deed, and as against a prior incumbrance, with notice, it would not avail him in Equity; and here, we think, he takes it at the peril of its being set aside for notice of the fraud. We mean to say, that in the case put by the Court, at Law, as here, the facts going to show notice of the fraud, may be submitted to the Jury, and to this extent and no farther, we think this charge wrong.

[11.] In relation to the statements of Clayton Williams, upon a close inspection of the record, the only point determined by the Court was, that his statements could not be given in evidence to

Holmes vs. Liptrot.

prove his own agency-he being a competent witness to prove his agency. This ruling was at the request of the claimant. To this proposition the plaintiff does not object. The objection is to this remark of the Court, recited in the bill, made to the Jury, to wit: "testimony can be legally admitted for one purpose, and when so admitted, cannot be made evidence for a different pur pose, and the sayings of Clayton Williams, made after his actings in that capacity, while purchasing, cannot be admitted to prove his agency, he being a good witness for that purpose." We find no error in the ruling or the remark.

Let the judgment be reversed.

No. 46.--JAMES HOLMES, administrator, plaintiff in error, vs. JOHN LIPTROT, administrator, defendant.

[1.] Where L and T executed a marriage settlement, in contemplation of marriage, in which L, the intended wife, declared that it was her desire that all her property should be kept and assured to her separate use and enjoyment forever, and that her trustee should keep, preserve, and assure the same forever unto L, the intended wife, to her entire and free use, control and benefit, free and exempt from all debts of T, the intended husband, now -existing against him, or which shall hereafter exist; and T, the intended husband, assented and agreed thereto, in consideration of the intended mar riage, and the further consideration of one hundred dollars, received from his intended wife as a marriage portion: Held, on a bill filed by the ad ministrator of the husband, against the administrator of the wife, to compel the latter to make distribution to the representative of the husband, that the husband, by the words and clear intention of the marriage settlement, not only relinquished and abandoned his marital rights to his intended wife's separate property, during the coverture, but forever, without limitation of time; and that the administrator of the wife was entitled to retain the property, and after the payment of the wife's debts, to distribute to her children.

Bill for discovery, account, &c. in Houston. Decision by Judge STARK, at October Adjourned Term, 1849, to wit: in January, 1850.

Holmes vs. Liptrot.

This bill was filed by James Holmes, as administrator of Henry Talton, against John Liptrot, as administrator of Camilla Talton, deceased.

Camilla Talton-while the widow Liptrot-entered into an ante-nuptial settlement with Henry Talton, the material parts of which are as follows: "The said Camilla being desirous of enjoying, maintaining and keeping all and singular her lands, ne-groes, and other property, real and personal," &c. also, what "shall be received from her father's estate, at his death, in case she should then be living, separate and distinct from all the property of her said intended husband,"—" and being desirous that all her said property shall be kept and assured to her separate use and enjoyment forever; and the said Henry Talton hereby assenting and agreeing thereto, in consideration of the marriage portion aforesaid, ($100) and of said intended marriage," it was agreed that the trustee should "keep, preserve and assure the same forever unto said Camilla, and to her entire and free use, control and benefit, free and exempt from all and every liability, obligation or charge of judgments, debts, demands, or contracts, now existing, or which shall hereafter exist, against said Talton." And said Talton "covenants and agrees that he will not oppose or obstruct the said trustee in the due and proper execution of his trust, but will aid him in behalf of said Camilla." Signed by the parties and the trustee also.

Camilla died her husband surviving her. Talton afterwards died in possession of the trust property. John Liptrot administered on Camilla's estate, and J. Holmes on Talton's estate. Liptrot, in trover, had recovered the property (slaves) from Holmes, who now files this bill in right of the intestate husband-claiming his right to the sole administration, without accountability, of his deceased wife's estate.

That part of the Court's charge excepted to, is as follows: “It is the opinion of the Court, that a legal construction of this contract hinders, at once and forever, the dominion of the husband, as well as all his then present and future creditors, from any and all right to this property; and that after the payment of the debts of Camilla, and the expenses of administration, it must descend, as it ought, to her children."

Complainant requested the Court to charge, that unless the settlement made provision for the property vesting in the children

Holmes vs. Liptrot.

of said Camilla, after her death, or in some other way, made a limitation over, that the husband was entitled, after her death, to recover it, as her administrator, and his representatives are now entitled to recover from defendant, which the Court refused.

And to this, complainant's counsel also excepted, and thus the case comes up.

PoE and GILES, for plaintiff in error, cited the following authorities:

1 Kelly, 389. Rochell vs. Tompkins, 1 Strobhart's Eq. R. 114. 1 McMullan's Eq. R. 201. Allen vs. Rumph, 2 Hill's Ch. R. 1. Barkins vs. Giles, Rice's Eq. 315. Stewart vs. Stewart, 7 John. Ch. R. 229. Pickett vs. Chilton, 5 Munf. R. 467.

S. G. HUNTER and S. T. BAILEY, for defendant, cited——

Broom's Legal Maxims, 120, 198. 16 John. R. 172. 2 Black. Com, 209, 241. 8 Bacon, 274, 280. 9 John. R. 123. 3 Vesey, 246. 4 Ga. Rep. 377.

By the Court-WARNER, J. delivering the opinion.

[1.] This is a bill filed by the administrator of Henry Talton, against the administrator of Camilla Talton, for distribution of the estate of Camilla Talton, in the hands of her administrator. It appears from the record, that in the year 1834, Henry Talton and Camilla Liptrot entered into a marriage settlement. Camilla Liptrot was then the widow of Hopkins Liptrot-had one child, and was possessed of considerable property; that she intermarried with Talton, and died, leaving her husband, Henry Talton, and two children by the latter marriage, surviving her. Camilla Talton died intestate. Subsequently, Henry Talton died intestate, without having taken out administration on his wife's estate. The record also shows, that independent of the separate estate of Camilla Talton, his former wife, the estate of Henry Talton was. not sufficient, by several thousand dollars, to pay his debts.

The great question in this case is, whether the administrator of Camilla Talton can be compelled to make distribution to the administrator of Henry Talton.

VOL. VII. 36