Magniac v. Thomson. difference, for the statute in terms comprehends that with all similar cases. It is the very case the statute intended to provide against. *385] Binney, for the defendant in error.-*There cannot be a better introduction to the defendant's argument, than a reference to Carver v. Astor, 4 Pet. 80, upon the sweeping exceptions to the charge of the circuit court, which this bill of exceptions exhibits. The whole charge is set out, and the whole is excepted to, the recommendation of this court to the contrary notwithstanding; and the proper corrective of the practice, if persisted in, would seem to be, to disregard every exception which any possible interpretation of the charge can obviate. A fair interpretation, as it is termed, does not belong to a practice which, whatever be its motive, is unjust to the court, the opposite counsel, and the cause. Nothing, however, is necessary to support this charge, but the application of common rules. What the plaintiffs' paper book calls the overpowering argument of the court upon the facts, is not a ground of exception. Whether the opinion of the court was right or wrong, it did not bind the jury. It may be difficult, in some cases, and it was impossible, in this, to say anything about the facts, without an overpowering argument against the plaintiffs' claim. So far as that claim asserted any intentional wrong in any one of the parties to the settlement, it was wholly without foundation or color. The naked question presented by the case, if question it was, was, whether an ante-nuptial marriage-settlement, a settlement in consideration of marriage, without the least suspicion by the intended wife, or her trustee, of either insolvency or debt on the part of the intended husband, was good against creditors. The facts exhibit nothing to vary the terms of this question. In the autumn of 1825, the defendant was worth from $80,000 to $90,000, without any debt, and without any responsibility, except for a respondentia contract, which resulted in no loss. In September, he made proposals of marriage and of settlement, and was accepted. On the 19th of December, the articles in question were executed, after a statement of his property, set forth in the bill of exceptions. The marriage soon afterwards took place. The defendant then completed the house upon Mr. Stockton's lot, at a cost of about $12,000, and furnished it at a cost of about $4000, and in 1829, he handed to *the trustee $5000 of good, and $4500 of doubtful property, on *386] account of the marriage-settlement; and this is all that it has produced. The plaintiffs' demand, and the only demand in existence, against the defendant, except a loan for personal expenses during his embarrassments, arose out of a contract in Canton, on the 22d of November 1825. It was a loan of $63,000, made upon a pledge of all the merchandise which that sum purchased in Canton, and $23,000 more, with the additional benefit of coming freight free to the United States, the intended market of the investment. The loan was made, without the knowledge, and against the expectation of the defendant, but in virtue of a power left behind him to meet the contingency, which occurred, of his father's ships requiring funds to fill them up; and the commercial disasters of the season not only absorbed the entire pledge, but left the defendant a debtor to the extent of the judgment in the circuit court. The peculiar feature of this debt is, therefore, that it is the residuum of a mortgage-debt, after an original pledge of the entire investiment of the money and a third more, and the specific transao Magniac v. Thomson. tion, moreover, unknown to the debtor at the time, and of course, to the intended wife. What effect such a debt would have upon a post-nuptial settlement, is a question that does not arise here. It would be a stronger case for such a settlement, than has ever been held to be insufficient. The statute 13 Eliz. does not avoid any settlement, as voluntary, but only as fraudulent. Actual fraud in such a case could not be suggested, upon the evidence; and if the law would presume it, it must do so in every imaginable case in which the settled property becomes necessary, by subsequent disaster, to pay the husband's previous debts. This proposition does not appear to be warranted by the books. [*387 The present is, however, an ante-nuptial settlement, upon the valuable consideration of marriage, the very highest consideration, as it is, in one instance, said, that is known to the law. 2 Eq. Cas. Abr. 585. It is valid against purchasers as well as creditors, purchasers even without notice, unless they have got the legal estate; for the wife is a purchaser and has equal equity. Atherly 129, 151; Roberts on Fraud. Conv. 102-3; *Reynell v. Peacock, 2 Roll. 105; Sir Ralph Bovy's Case, 1 Vent. 194; Douglass v. Ward, 1 Cases in Chan. 99; Ex parte Marsh, 1 Atk. 158; Brown v. Jones, Ibid. 190; North v. Ansell, 2 P. Wms. 618; Wheeler v. Caryl, Ambl. 121; Brown v. Carter, 5 Ves. 878; Doe v. Routledge, Cowp. 712; Nairn v. Prowse, 6 Ves. 752; East India Company v. Clavel, Prec. Ch. 377. Being such a consideration, the statute 13 Eliz. expressly excepts it from its operation. It excepts deeds upon valuable consideration, even fraudulently intended by the grantor to defeat his creditors, unless the grantee has notice or knowledge of such covin. The intended wife, and not merely her trustee, must have notice or knowledge that the bounty of the husband is intended as a fraud upon his creditors. Nothing short of this will answer. The deed, and the intended fraud, without such notice, are nothing more than in the case of an ordinary sale. Barrow v. Barrow, 2 Dick. 504; Champion v. Cotton, 17 Ves. 263; Tunno v. Trevisant, Desauss. 264; Prebble v. Boghurst, 1 Swanst. 319. The plaintiffs' counsel, while he impugned the doctrine in the circuit court, admits it here, and objects to the charge, because it goes further. He understands the judge to have charged, that something more is necessary than notice of the intended fraud; that there must be combination, concurrence, confederacy, preconcert. Supposing this not to have been explained or qualified, it means nothing more than what must exist in every such case as the plaintiff alleged this to be; one, namely, in which notice, if brought home at all, was so to a party with whom a previous negotiation was made for the deed, and who, in consummation of the treaty, accepted the deed. In such a case, all parties are actors in the fraud. The fraud is perpetrated with the aid of a party conscious of it, and assisting at its birth. If A. makes a fraudulent deed to B., C. may know of it, without combining or concurring; but if B. has notice of the fraud, before and at the time of accepting the deed, he is guilty of combination, concurrence, confederacy, and preconcert with the grantor. There is unity of action and design in both. The statute, in such a case, punishes the *grantee by a penalty. This, consequently, was good law, in reference to the case, as the plaintiff himself stated it. [*388 Magniac v. Thomson. But the court did not say, that something more than notice was necessary. They simply stated, what, in every such case, notice to the grantee must amount to. This meaning is obvious, from many parts of the charge, and particularly, from the concluding summary, in which the instruction is given to the jury. "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 thing settled, and entitled to the means of enforcing what is executory, if the transaction was bond fide, and without notice of fraud." The facts of fraud in the husband, and notice to the wife, were left to the jury. The doctrine of the court was, that both must be shown by the plaintiff; and if this is right, the main exception fails. The main points adhered to in this court by the learned counsel, admit of short answers. 1. The paper book mistakes the charge as to the furniture. The bill of exceptions must be the guide. It shows the plaintiffs' prayer to have been, for an instruction that the expenditure of $5000 in furnishing the house was per se fraudulent, which the court refused. There is no such proposition in law, as that a covenant "to furnish a house in a suitable manner, as the husband shall judge fit and proper," which is the language of the covenant, or an actual expenditure to the extent of $5000, is per se fraudulent. There must be other circumstances. These were marriage articles, rather than a consummate settlement, and chancery will so mould and control them as to effectuate the intention, annulling the excess of the execution beyond what was lawfully intended. Atherly 92, 106, 121. It is a strong proposition, to assert that an unsuitable expenditure by the husband, contrary to the express language of his covenant, shall defeat the wife's settlement for anything more than the excess, when that is made out by evidence. The court expressed an opinion, that the expenditure might be bad for the excess, when shown, and were right in refusing to say, that a given expenditure, was per se a fraud. *389] *2. The delivery of notes to the trustee, upon the eve of the plaintiffs' judgment, was good, if the settlement was so. The trustee was a creditor to a much larger amount, and the debtor had a right to prefer him. The court were right in saying, that the payment or delivery was good, unless made by the defendant with the intention of covering the property, under pretence of the articles, and so accepted by the trustee. 3. The New Jersey statute of 5th June 1820, is wholly misconceived, or rather its effect. If the deed is void, by reason of the non-registry, the real estate, upon which alone the statute has any bearing, remains the property of R. Stockton, and is liable to his creditors. The creditors of the grantor, and not the grantee, are the creditors meant by the statute. It is difficult to sustain the exception, that the judgment against Thomson is to prevail over the settlement, and defeat it, when it is only by the validity of the settlement, that Thomson can have anything in the land for the judgment to affect. It is a further mistake, to suppose, that any use in the real estate, in the settlement, was executed by the statute in the defendant. The legal estate was intended to remain in R. Stockton, for the performance of the trusts. They could not be performed without it. He was, in certain events, to lease, to receive the rents, to convey. The execution of a use in the defendant, would have been contrary to the whole scope of the articles, and Magniac v. Thomson. therefore, it is not executed. 1 Saund. on Uses, 246, 206, 208, and the authorities there cited; 1 Shep. Touch. 505. But if executed in the defendant, as to the legal estate, it could not have altered the case, as he would have thereby become a trustee for the purpose of the settlement; and, consequently, for the separate use of his wife and her children. STORY, Justice, delivered the opinion of the court.-This is a writ of error to the circuit court for the district of Pennsylvania. The original action was a feigned issue between the plaintiffs, who are creditors, and the defendant, to try the question, whether he is able to pay the debt due to them; and this depends upon the validity of certain articles of settlement, made in contemplation of a marriage between the defendant and Miss Annis Stockton, daughter of the late *Richard Stockton, Esq., stated in the case. The verdict in the court below was for the defendant; and judgment having been rendered thereon, accordingly, the present writ of error is brought to revise that judgment, upon a bill of exceptions taken to the charge of the court at the trial. [*390 The whole charge of the court is spread upon the record (a practice which this court have uniformly discountenanced, and which, we trust, a rule made at the last term will effectually suppress), and the question now is, whether that charge contains any erroneous statement of the law; for as to the comments of the court upon the evidence, it is almost unnecessary to say, after what was said by this court in Carver v. Astor, 4 Pet. 80-1, that we have nothing to do with them. In examining the charge, for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together. It is wholly inadmissible, to take up single and detached passages, and to decide upon them, without attending to the context, or without incorporating such qualifications and explanations as naturally flow from the language of other parts of the charge. In short, we are to construe the whole, as it must have been understood, both by the court and the jury, at the time when it was delivered. The material facts are as follows: The plaintiffs and the defendant were resident merchants in China; and the defendant left it, in March 1825, to visit America. In the summer of that year, he paid his addresses to Miss Stockton, then resident, with her father, in New Jersey, by whom his addresses were accepted; and in contemplation of marriage, on the 19th of December of the same year, the articles of marriage-settlement referred to were executed. They purport to be articles of agreement and covenant, between the defendant of the first part, Miss Annis Stockton, of the second part, and Richard Stockton, father and trustee of Miss Stockton, of the third part. By these articles, after reciting the intended marriage, and that Richard Stockton, the father, had promised to give a certain lot of land (described in the articles) to his daughter, upon which the defendant, Thomson, had begun to build a house, it is stated, that R. Stockton covenants, in consideration of the *said marriage, and his love and affection for his daughter, that from the time of the marriage, he will stand [*391 seised of the lot and premises, in trust to permit the defendant, and Annis his wife, to live in and occupy the same; and if they do not think proper so to do, then to let out the premises on lease, and receive the rents and profits, and pay over the same to the said Annis, during the joint lives of herself Magniac v. Thomson. and her husband (the defendant); if the defendant should survive his said wife, and have issue by her, then in trust to permit him, during his life, to inhabit and occupy the premises, if he should elect so to do, and to pay over the rents and profits to him, for the support of himself and his family, without his (the defendant's) being accountable therefor; and after his death, in trust for the child or children of the marriage, in equal shares, as tenants in common; and if no children, then upon the death of either the husband or the wife, to convey the premises to the survivor in fee-simple. By the same instrument, the defendant covenants, that if the marriage should take effect, and in consideration thereof, he will, with all convenient speed, build and furnish the house in a suitable manner, as he shall judge fit and proper, and that the erections, improvements and furniture shall be subject to and included in the trust. And further, that he will, in the space of a year from the marriage, place out, at good security, in stock or otherwise, the sum of $40,000, and hand over and assign the evidences thereof, to the trustee, who shall hold the same, in trust to receive the interest, profits and dividends thereof, for the wife, during the joint lives of herself and her husband. And if she should die before her husband, and there shonld be issue of the marriage, then in trust to receive the interest, profits and dividends, and pay the same to the husband, during his life, for the support and maintenance of himself and children, without any account, and after his death, in trust for the children of the marriage. A similar provision is made, in case of the survivorship of the wife; and if no children, then the trustee is to assign and deliver the securities and moneys remaining due to the survivor, to his or her own use. Such are the most material clauses of the marriage-articles. Before the execution of them, the defendant made out a *written statement *392] of his pecuniary circumstances, in which he states, that he owes no personal debts, except to a small amount, in the common course of business; that he is surety for his father in a respondentia bond to Messrs. Schott & Lippincott, in the penal sum of $200,000, upon which there was a pledge of goods, supposed to be sufficient to discharge the bond; and if any loss should accrue, it could not be more than $20,000, and that he considered himself worth that amount, if not more, in addition to the sum proposed to be settled. From the testimony in the case, which is stated in the charge, it appears, that the marriage was consummated; that the defendant built the house on the lot mentioned in the articles, at an expense of $13,000, and furnished it at the expense of $5000, but invested no part of.the $40,000, during the life of the trustee. It also appears, that at the time of executing the articles, he was worth about $80,000 or $90,000 in money and personal property; that his agent in China, in November and December 1825, borrowed of the plaintiffs $63,000 on the pledge and security of property of the invoice value of $86,000 and upwards, on the credit of the defendant, but entirely for the use of the defendant's father, in order to complete the cargoes of his ships, then at Canton, short of funds. The property arrived at a losing market, and the debt now due to the plaintiffs by the defendant grew out of their transactions, his father having failed on the 19th of November 1825; hut the existence of the loan, contracted with the plaintiffs, was not known to |