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Magniac v. Thomson.

authorizes either party to take the cause to the supreme court for revision, we have given an opinion explicitly, so that the law may be fairly settled. We conclude, then, with instructing you, that a settlement made before marriage, makes the intended wife a purchaser; if agreed to be made, she is a creditor, and protected in the enjoyment of the the thing settled, and entitled to the means of enforcing what is executory, if the transaction was bona fide and without notice or fraud. The plaintiffs have made an objection to the operation of this deed for the want of evidence of delivery; this is a question for you to decide; the evidence is sufficient to prove it, if you believe the witnesses; the building and furnishing the house are facts tending very strongly to prove the delivery in a satisfactory manner; the law on this subject is well settled by the supreme court, in Carver v. Astor, 4 Pet. 23, 28, 82; you will apply it to this case.

"It has been said, that the contract of settlement has been abandoned; it is not to be presumed, and we think, the facts given in evidence do not amount to it; every act contemplated to be done by either party, has been performed, except making up the investment; the omission to complete it, is not, in itself, sufficient, to authorize you to find, that the whole contract has been rescinded; so far as it has been executed, it is not open to any presumption of the kind, and the allegation of abandonment seems to be inconsistent with the charge of alleged fraudulent intention to defraud the plaintiffs. You may find, if you are satisfied with the fact, that the payment of the balance of the $40,000 has been waived by consent of the parties, but this can have no effect on the investment actually made. The non-delivery of the securities for the $9500, till near the time when *judgment was *373] rendered in New Jersey, and the omission to record the marriagearticles, have been relied on in aid of the presumption of abandonment; but under the circumstances of the case, we do not think they conduce to prove it (the case last referred to seems to settle this point, 4 Pet. 24, 98–9), and nothing appears from which an inference can be drawn, that Mrs. Thomson, for whose benefit this contract was made, has done or consented to any act which could impair her rights under it; the omissions of her trustee to enforce the payment of the money, or to record the deed, cannot be deemed a waiver by her. If the trustee had done any acts inconsistent with the agreement, it could not affect the legal validity of her rights, and the acts of a parent will not be construed to be so, unless clearly intended. 4 Pet. 93, 95. "The court have been requested to charge you, that in point of law, the covenant on the part of Mr. Richard Stockton to stand seised to uses, operated as an immediate conveyance to his daughter, before marriage, and that by the marriage, Thomson became the owner of the furniture, in his own right, and had the exclusive use of the house and lot, unincumbered with the trusts of the agreement. By the covenant contained in that agreement, Mr. Stockton was not to stand seised to the use of his daughter, till after the marriage; if it is the understanding of the plaintiffs' counsel, that there is any evidence of any other covenant than this, we are unable to perceive it. The deposition of Captain Stockton is positive, that his father did not convey, but covenanted to stand seised of said lot (prout deed); this does not even conduce to prove there was any deed, independent of the marriage-articles, and evidently refers to it, which the court instruct and charge you, as matter of law, does not operate, by the statute of uses,

Magniac v. Thomson.

27 Hen. VIII., to pass the legal estate to the lot, or any other property referred to in the agreement, to Mrs. Thomson or the defendant. It remained in Richard Stockton, during his lifetime, devolved, by his death, on his heir-at-law, Captain Stockton, and now remains in him, on a trust executory; it never was, and is not now, one executed by that statute. It is unnecessary to explain to you the reasons of this opinion, as it would perplex your consideration of the case, with a dry detail of abstruse *principles, neither amusing or instructing to any persons, except those whose professional or judicial duty may lead them to the investigation; as a sheer question of law, you will probably nct be disposed to investigate it for yourselves.

[*374

"The court are also requested to charge you on three other points of law. 1. That the expenditure of $5000 in furnishing the house is per se fraudulent on creditors; we think not; furniture is part of the marriage-contract, to be provided by Thomson in a suitable manner, as he should think fit. He had a discretion which he might exercise in a reasonable manner, according to their station and associations in life, proportioned to the kind of house and extent of income; the trustee or wife could not, in law or equity, compel Thomson to furnish it extravagantly or at useless and wanton expense, and if he should do it, voluntarily, it would not be within the true spirit and meaning of the marriage-articles, and might be deemed a legal fraud on creditors as to the excess. But before we can say that it is a fraud in law, to expend $5000 in furnishing a house costing $13,000, and the establishment to be supported by the income of an investment of $40,000 in productive funds, we must be satisfied, that it is, at the first blush, an extravagant and unwarranted expenditure under all the circumstances in evidence, and to an extent indicating some fraudulent or other motive unconnected with the fair execution of the contract, of which we are not satisfied; and therefore, cannot charge you as requested by the plaintiff's counsel, there being no clear abuse of the discretion confided by the contract to Mr. Thomson. A less expenditure on both house and furniture would have been more prudent and discreet, in the situation of the parties in 1826, when the house was finished; something could have been saved for investment, if less expense had been incurred, and $8000 or $10,000 been made productive. Had this been done, there could have been little ground of complaint by a creditor; but as to him, it was immaterial how the money was expended; his only concern was, in the amount, not the objects, of the expenditure, so that they were according to the terms of the agreement; whether a given sum was applied to one object or the other, or fairly proportioned *among them, affected only the parties, not creditors.

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"2. We are next asked to charge you, that the delivery of the notes to Captain Stockton, in September 1829, was a fraud; if it was done in order to comply, in part, with the agreement, it was not so; if it was colorable, made with the intention of covering and concealing so much, under pretence of the marriage-articles, for Thomson's use, and so received by the trustee, it was legally fraudulent as to creditors, but if delivered with such intention, and not so accepted, then Captain Stockton might not only fairly apply it to the trust fund, but was bound to do so. Though it may have been done on the eve of the judgment confessed in New Jersey, that would make no difference, it being to carry into effect the agreement of December

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Magniac v. Thomson.

1825; had it been to make a new settlement, after marriage, if it was in consideration of a portion or property, it would not have been fraudulent per se; and the time which intervenes between the making provision for a wife, and the contracting the debt or obtaining a judgment against the husband, is not a matter which per se makes it a fraud; it may or may not be suspicious, and connected with other circumstances as evidence of it. 4 Wheat. 506-8.

"The remaining point on which the charge of the court is requested, is, that the marriage-agreement is void, because not recorded within the time required by the law of New Jersey for recording deeds. The covenant to stand seised to the uses declared, would come within this law, if the uses were executed by the statute, so as to make it an actual conveyance or deed passing the legal estate, but being executory, it is only a covenant giving an equitable estate to those for whom the trust was created and continues, and not a deed. But considering it as a deed, the want of recording does not make it void as between the parties, though it would become void as to the creditors (perhaps) and purchasers from Richard Stockton without notice; but the omission to record it is no fraud on plaintiff, and cannot affect him; not being void as between the parties, it gives to John R. Thomson no other estate or interest but such as arises from the trust; he cannot be entitled to any legal estate or interest under it, incompatible with

the nature and terms and objects of the trust; our instruction, *there

*376] fore, is, that the marriage-contract is not void for want of being

recorded in time.

"The principles of law which have been thus expounded to you as the guides to your verdict, are all which are deemed by the court or counsel to be applicable to the merits of this case, or necessary to be understood, in order to decide it correctly; they form what, in our judgment, is the pre-existing law of the case, and have been extracted from judicial decisions which afford to our minds conclusive evidence of their wisdom and justice. The rules laid down are not new ones, either here or in that country which is the source of our jurisprudence, and to whose judicial tribunals the wisest and best judges will look, without any fear of foreign influence; to some, with veneration, and to all, with respect, as the expositors of the same common law which originated there, and, adopted in this country, is the source of national pride to both, as a system equally distinguished for its wisdom and public benefits. It has not been thought necessary to cite to you all the particular cases in which judges have established these principles, or refer you to the time of their application, as the nature of the cases decided may have led to their development; this is more proper in courts of error, or in deciding, in others, questions referred solely to the court. The course pursued saves you much time, and relieves your minds from much perplexity; it does not produce an injury to the parties; it saves you from a comparison between the character of the courts and judges who may have given judgments or opinions, settling and declaring the rules of the common law or the construction of statutes. Whether we have, in forming our judgment as to the law of this case, drawn from the old and pure fountains of jurisprudence, or the muddy rivulets which flow from them, need only be decided by that tribunal to whom none appeal without full confidence that it will in justice give such judgment as will correct all the

Magniac v. Thomson.

errors of inferior courts. You will not be willing to confide more in your own judgment, to correct any mistakes which this court may have committed in the instructions they have given you, than in that of the supreme court, to whom either party may submit this cause. Let our judgment be what it may, as to the law, it can do harm to no one, without their sanction; with *their approbation, a safe rule of titles and property will be established; your judgment might not lead to one so sound or permanent. Much [*377 of what you have heard, has been repeated from the adjudications of that court, much from those of England, their judges and chancellors, whose judgments, decrees and opinions have been carefully reviewed and approved by the pure and eminent jurists who have presided in our own courts. If, in following the path which they have pursued in the administration of justice, this court looks abroad, as well as at home, for light and knowledge to guide our course of legal investigation, it has been, and will continue to be, done, without the fear of being misled by example, or the self-reproach of adopting in our, or inculcating in your, minds, principles unsound in law, or dangerous in their moral tendency."

The case was argued by C. J. Ingersoll, for the plaintiffs in error; and by Binney, for the defendant.

The counsel for the plaintiffs made the following assignment of errors: The charge of the court instructed the jury, that under the circumstances in evidence, the law is against the plaintiffs; that the marriage-settlement in question would be valid, unless all the parties thereto were guilty of fraud; that marriage is a sufficient consideration for settlement; and left to the jury nothing to find by their verdict, but whether the defendant's wife and father were equally guilty with the defendant in the alleged contrivance to defeat the plaintiffs; arguing, as the charge does throughout that the verdict should be for the defendant. He also submitted, in argument, the following points of law.

1. The settlement covenants that the grantor should furnish the house in a suitable manner, as he should judge suitable and proper. As he proved insolvent, and unable to comply with the other terms of the settlement, it was contended for the plaintiffs, that $5000 was a fraudulent investment in furniture; on which the jury were to pass their *verdict. The court rejected this view, assumed to determine that the sum was proper, and would not permit the jury to pass upon it.

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2. The settlement covenants that the grantor would, in the space of one year from the time of the marriage, place out on good security, in stock or otherwise, the sum of $40,000, and hand over the evidences thereof to the trustee. This covenant was never fulfilled. But some years afterwards, when the trustee was dead, on the eve of the judgment confessed by the grantor in New Jersey, he passed over two promissory notes for $9500, together, to the son of the trustee, in performance, as was said, of the settlement in part. This was contended for the plaintiffs to be fraudulent, and as such to be passed upon by the jury. The court overruled this position, and charged, that unless the notes were both delivered by the grantor and accepted by Robert Stockton, with fraudulent intentions, the transfer is good.

3. As the deed of settlement was not registered, till after the plaintiffs'

Magniac v. Thomson.

judgment in Jersey against the defendant, it was insisted for the plaintiffs, that pursuant to the express provision of the statute of New Jersey, in that case, the prior judgment prevails over the subsequent settlement. The statute of uses, 27 Eliz., c. 10, annexes the possession to the use; the lot and house held by Richard Stockton, in trust for his daughter, became her property, which the husband reduced into his possession; and the plaintiffs' judgment binds it, notwithstanding the subsequent marriage-settlement. This was also overruled by the court.

Ingersoll contended :-The plaintiffs are prior creditors. There was no contract for a marriage-settlement, until a month after the defendant, through his agent, contracted the debt in question to the plaintiffs. The property settled is enough to pay the debt; so that the marriage-settlement is the only hindrance, and the question is, whether it is an insuperable legal impediment? The philosophy of the law on this subject is simple hon*379] esty to give *every one his own. The English common law, which is our law, differs from the law of all the rest of the civilized world, in identifying the wife with the husband. A married woman can own nothing, can lose nothing, can hardly be guilty of a misdemeanor, if, by construction of law, it may be imputed to her husband; whereas, in the countries of the civil law, marriage is like a commercial partnership, a firm in which the interests of husband and wife are the same, respecting the jointstock or property. In the great families of England, says Lord MANSFIELD, it has been found convenient to establish marriage-settlements, which luxury and chancery have entrenched behind the principles of the civil law, usurping the free empire of the common law. So long ago as the year 1570, the statute 13 Eliz. indicates a primitive and proper repugnance to such a contrivance, and endeavors to reinstate the common law, impaired by marriagesettlements and other frandulent conveyances: for which it enacts not only annihilation, but punishment. In defiance, however, of this resistance of the common law, and the statute law, which is but declaratory of the common law, the English chancellors, who were always interested parties, have built up a system of encroachment and exclusiveness, ill suited to American manners, fortunes and institutions. The state of New Jersey, by an act of assembly, re-enacted the statute of Elizabeth, which itself was but declaratory of the common law, and though American judges are deplorably prone to follow blindly in the ruts of British precedent, yet we may, at least, claim it as the settled law of this court, that we are to be governed by English law before the American revolution, and not to follow them in all the enormities which they are chargeable with since. Cathcart v. Robinson, 5 Pet. 264. The case of Campion v. Campion, 17 Ves. 262, may be mentioned as one of those usurped decisions of the modern English chancery, which it is to be hoped do not give the law to this country.

The present is the case of a man in trade, with immense outstanding debts and liabilities, without a particle of real estate, or even of personal, but in mere speculation, who, *immediately after the marriage, *380] declared his inability to settle the property promised by the marriage-settlement, who has not, and never had, any goods, stocks, credits, property or estate of any kind, nothing to pledge, even if he wanted to borrow, who pleads utter insolvency, who settled, on his marriage, the very

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