BANK OF THE UNITED STATES v. LEE et al., 2 F. Cas. 702

CRANCH, Chief Judge, (THRUSTON, Circuit Judge, absent,) delivered the opinion of the court: The principal question in the case is, whether the deed of the 9th of January, 1809, from R. B. Lee to E. J. Lee and others, in trust for the defendant, the wife of R. B-Lee, is valid against his subsequent creditors. The execution, due acknowledgment, and recording of that deed, as well as the deed of R. B. Lee and his wife to Ludwell Lee, of the 16th of July, 1809, and the trust-deed to Turner and others to secure Judge Washington, are admitted.

The bill avers, that if the supposed deed of the 9th of January, 1809, was ever executed, it was a voluntary and fraudulent deed; and that the considerations expressed in the deed were false. To this allegation the defendant, Mrs. Lee, answers, in substance, that her agreement to relinquish her right of dower in five thousand acres in Spotsylvania county, and to mortgage other lands in Fairfax county, which were then held by trustees for her use, to secure a debt due by her husband, was the consideration of his agreement to convey to E. J.

Lee and others, for her use, the property described in the deed of the 9th of January, 1809; and that in pursuance of that agreement the deeds were executed accordingly. This answer, being thus directly responsive to the allegations of the bill, is-evidence of a sufficient valuable consideration to support the deed of trust of the 9th-of January, 1809, under which Mrs. Lee-claims. It was not a voluntary deed, and,, therefore, it is immaterial whether Mr. K.. B. Lee was, or was not, indebted at the time-of executing it.

The relinquishment of dower is as fair and meritorious a consideration as the payment of a sum of money. The-payment of Judge Washington’s claim did not impair the validity of the deed, but operated as a release only, of a certain portion o£ the slaves therein described. The fact that the deed to Ludwell Lee, for-the five thousand acres of Spotsylvania land,, was not executed by Mrs. Lee and her husband until the 16th of July, 1809, although-the recital in the deed of trust of the 9th of January, 1809, states it to have been then executed, does not make the deed void.

Tht real consideration of a deed is always examinable; and the parties are not estopped; to show what was the true consideration.. The agreement to release the dower was a sufficient consideration to prevent the deed from being a voluntary conveyance; and the-subsequent actual release of dower made it an adequate consideration. That agreement is proved by Mrs. Lee’s answer, which is-responsive to the allegation in the bill that the deed was without consideration. The recital is, or is not, an estoppel to the parties-. to deny that the deed to Ludwell Lee was executed on the 9th of January, 1809.

If an estoppel, the recital must be taken to be true. If not an estoppel, the true consideration may be proved, namely, the agreement to release the dower; and that is proved by Mrs. Lee’s answer. If it wTas not a voluntary conveyance, it can only be impeached on the ground of fraud; and if the consideration was adequate, there can be no pretence for a charge of fraud. Nor is there sufficient evidence to charge Mrs. Lee with any fraudulent concealment of her title; or collusion with her husband to deceive the plaintiffs before, or at the time, of their lending the money to Mr.

Lee, or of their taking his deed of trust to Mr. Smith. Indeed, the bill does not charge it. It only avers that Mrs. Lee and Mr. E. J. Lee knew that the plaintiffs had lent the money to It. B. I^ee, in full faith that he was the real and unqualified owner of the property; and knew that he executed the deed to secure the payment of the money, and never communicated to the plaintiffs the existence of the deed of the 9th of January, 1809. This charge relates to a time subsequent to the execution of the deed, when neither Mrs. Lee. nor Mr. E. J. Lee, was bound to communicate any such information to the plaintiffs.

Nor can their silence, after the execution of the deed, justify a charge of fraud or collusion. The time when the money was advanced is that at which the notice is material. Lord Chancellor Thurlow in Beckett v. Cordley, 1 Brown, Ch. 358. But if the bill had charged them with a fraudulent collusion at the time of Mr. R. B. Lee’s deed of trust to Mr. Smith, their answers expressly deny concealment of the claim and knowledge of Mr. R. B. Lee’s deed to Mr. Smith, and of his intention to secure the plaintiffs by such a deed until long after it was executed. It has been contended, that the continued possession of Mr.

R. B. Lee after the execution of the deed of trust of the 9th of January, 1809, is evidence of fraud. But that possession was perfectly consistent with the use raised by the deed. As long as Mr. and Mrs. Lee continued to live together she could only enjoy the use of the furniture and slaves, jointly with him; and her possession would appear to be his possession. Her use of property, in that way, could not be evidence of fraud. The deed was a contract made in Virginia, and was executed with all the formalities necessary to make it valid there.

The title to the property was complete, and was valid between the parties wherever they might be. By removing to the District of Columbia, the title was not impaired. There is no ground lor supposing it to be necessary that the deed should be acknowledged or recorded in this District. The power, reserved by Mr. Lee, to dispose of any part of the property with the consent of the trustees, and upon substituting an equivalent, it is said, is a badge of fraud.

But it is only a general power of revocation which is a badge of fraud; whenever the consent of other independent persons is required, or an equivalent is to be substituted, there can be no objection to the power of revocation; it affords no evidence of fraud. It is objected that if the recital is to be taken as true, and if the relinquishment of dower had been made before the execution of the deed of the 9th of January, 1809, the consideration was executed, and therefore was not sufficient to sustain the deed. But this objection, I apprehend, applies only to exec-utory contracts, not to conveyances.

An executed consideration may not be sufficient to sustain an executory contract, and yet a past or executed consideration may be a sufficient consideration for a grant; which is a contract executed in praesenti—not to be executed in futuro. If the objection is applicable to this deed, it is applicable to all our conveyances; for they also say “in consideration of” so much money, “at or before the sealing and delivery of these presents, in hand paid, the receipt whereof,” the grantor “hereby acknowledges,” &e.

The money may have been paid a year before, or the consideration may be an old debt, and yet we have never heard an objection to such a consideration of a deed; and the deed under which the plaintiffs themselves claim, is given for a past or executed consideration, namely, the sum of $6,000 loaned on the day preceding the date of the deed, the receipt whereof the said R. B. Lee thereby acknowledged; and no other consideration is averred in the deed. It is objected that the use which Mr.

Lee made of the property, by disposing of some of the slaves, and mortgaging others, &c., without the consent of the trustees, or of Mi-s. Lee, and without substituting an equivalent, was inconsistent with the nature of the deed, and therefore is evidence that the deed was fraudulent. But as between Mrs. Lee and him, or those claiming under him, (as the plaintiffs do), it is no mark of fraud. It is a matter entirely between her and him, or his assigns. If he has violated the rights of Mrs.

Lee, and she chooses to acquiesce rather than quarrel with him, no third person has a right to interfere; the property was hers, and she had a right to do with it as she pleased; and, because she has submitted to some violation of her rights, it does not follow that she must relinquish what are left. We are of opinion that the deed of trust of the 9th of January, 1809, to Mr. E. J. .Lee, Mr. Maffit, and Mr. Colman, was a good and valid deed, made bona fide, and upon a valid and valuable consideration, and has not been impaired by any subsequent conduct or transactions of Mrs.

Lee, or her trustees, and that the bill must be dismissed with costs. Bill dismissed. [NOTE. On appeal to the supreme court this •decree, dismissing the plaintiffs’ bill was affirmed. The opinion of the court was delivered by Mr. Justice Catron, and, in effect, it was held that the deed of 1809, vesting the property in Mrs. Lee’s trustees, was effectual, according to the Laws of Virginia, to protect the title thereto against the subsequent creditors or purchasers from her husband. R. B.

Lee, and that their removal into the District of Columbia with the property conveyed by the trust deed did not ■effect or impair the validity of such deed of trust. Mr. Justice Baldwin dissenting. Bank of U. S. v. Lee, 13 Pet. (38 U. S.) 107.]