| Va. | May 17, 1888
delivered the opinion of the court.
The conclusions we have reached in this case, briefly stated, are these:
1. That the slaves mentioned in the eighth clause of the will of Pierce Perry, deceased, were bequeathed, not to Mrs. Ellen L. Rixey solely as her separate estate, but to her and her children jointly. There is nothing in the will manifesting an intention to create a separate estate in her; and the cases uniformly hold that to create a separate estate in the wife, and to exclude the husband, the intention must be clearly and unequivocally expressed, though no particular form of words is necessary. Massey v. Parker, 2 M. & K. 174; Buck v. Wroten, 24 Gratt. 250" court="Va." date_filed="1874-01-21" href="https://app.midpage.ai/document/buck-v-wroten-8481836?utm_source=webapp" opinion_id="8481836">24 Gratt. 250; 1 Min. Inst. 317, and cases cited. Hence, the case is not within
The contention of the appellees that the slaves were loaned by the testator in his life-time to the said Thomas E. Eixey, and that possession remained with the latter sufficiently long to confer upon him, under the statute, an absolute title to the slaves, is unsupported by proof. The evidence repels the idea of a loan. On the contrary, it shows a hiring of the slaves, and that bonds for the .hires were taken annually. Whether or not payment of the bonds was demanded does not, under the circumstances disclosed by the record, affect the case. The hiring is shown to have been actual and not merely colorable.
2. That Thomas E. Eixey having sold the said slaves, after the testator’s death, and received the proceeds, became liable for the amount so received to the children of Mrs. Eixey, less his interest therein, derived as aforesaid, and, therefore, that to the extent of his said indebtedness, the deed of the 6th of January, 1874, was founded upon valuable consideration, hut no further. There is no proof that a part of the consideration for the deed was the previous relinquishment by Mrs. Eixey of her right of dower in other lands of her husband, or that there was any other consideration for the deed than that above mentioned; and it is hardly necessary to say that it was incumbent on those alleging the fact to establish it, and that- the answer of Mrs. Eixey (no discovery being sought) is not evidence for that pur
3. That, the deed in question is not fraudulent in fact, and, therefore, although invalid as against the claims of the appellees, so far as the life estates reserved therein are concerned, yet it will be permitted to stand as security for the sums due by the grantor, Thomas R. Rixey, to the children of Mrs. Rixey on account of the sales of the slaves aforesaid, less the sums advanced, if any, to them respectively by the said Thomas R. Rixey in his life-time, as'to which an account must be taken by a master commissioner. This is the constant practice of courts of equity in similar cases, and, as was said by Judge Staples, speaking for the court in Henderson v. Hunton, 26 Gratt. 926" court="Va." date_filed="1875-12-09" href="https://app.midpage.ai/document/henderson-v-hunton-6805838?utm_source=webapp" opinion_id="6805838">26 Gratt. 926, the doctrine is both just and reasonable. It was also said in the same case that even where there is a fraudulent intent on the part of the grantor in a deed founded upon valuable consideration, and such intent is unknown to the grantee, the latter is not chargeable with a want of good faith, since no rule is better settled than that both parties must concur in the fraudulent intent to render the deed absolutely void.
An analogous principle was announced by Tucker, P., in Skipwith’s Ex’or v. Cunningham, 8 Leigh, 271, who said that where a deed is made for the security of various creditors, whose claims are distinct, and some of which are good and others not, the security shall not be avoided as to those creditors whose claims are valid, provided they have acted bona fide. If it were otherwise, he said, then a deed to secure ninety-nine just debts might he avoided by the fact that the hundredth was not valid.
4. That although the deed ought not to be set aside in toto, yet, as Chancellor Kent said in Boyd v. Dunlop, 1 Johns. Ch. 478" court="None" date_filed="1815-07-14" href="https://app.midpage.ai/document/boyd-v-dunlap-5550119?utm_source=webapp" opinion_id="5550119">1 Johns. Ch. 478, “ to make it subservient to the equity of the case,” a sale of the land, except the maiden land of Mrs. Rixey which was embraced in the deed, ought to be decreed, after the widow’s dower has been allotted to her, and the proceeds arising from the sale he applied, first, to the payment of the claims of the children of Mrs. Rixey, secured in the deed, to be ascertained by a commissioner as aforesaid before a sale is decreed, and the surplus, if any, to be applied as the law and the facts of the case require.
The appellee, Deitrick, however, will he required to subject the property of the principal debtor, Thomas P. Rixey, to the satisfaction of the judgment recovered by him, to the exoneration of the estate of the surety, Thomas R. Rixey, if there he any property of the principal debtor liable to the judgment within the jurisdiction of the court, and provided that course can be pursued without too great delay and without prejudice to the rights of the said appellee, the said Thomas P. Rixey being before the court as a party defendant to this suit. Horton v. Bond, 28 Gratt. 815" court="Va." date_filed="1877-08-09" href="https://app.midpage.ai/document/horton-v-bond-6806368?utm_source=webapp" opinion_id="6806368">28 Gratt. 815.
5. We are therefore of opinion to reverse the decree appealed from in so far as it is in conflict with this opinion, and to.remand the cause for further proceedings to be had in conformity therewith.
Decree reversed in part and aeeirmed in part.