1 Gratt. 347 | Va. | 1845
delivered the opinion of the court.
The court is of opinion that the deed of marriage settlement in the proceedings mentioned, under which the appellees claim title to the slaves in controversy, was not duly admitted to record, under the provisions of the act of the general assembly, which must govern this case, passed in the year 1748, (5 Hen. Stat. at large, § 1, 4, p. 408, 409, 410;) the same having been admitted to record upon proof thereof in court by two witnesses only j whereas the said statute required proof by three witnesses at the least. By the express declaration of the 4th section of said act, all such deeds are rendered void as to all creditors and subsequent purchasers, (meaning subsequent purchasers without notice,) unless acknowledged or proved, and recorded according to the directions of that act. The statute clearly embraces all deeds of marriage settlement, whether executed after or in contemplation of the marriage ; and whether the property thereby settled, be the property of the wife, or of the husband. Its policy was to protect creditors and purchasers who might otherwise be injured by secret deeds of marriage settlement; and its comprehensive terms, “all creditors and subsequent purchasers,” as well as its spirit, embrace all persons who would have valid claims, in either character, to or against the property, if such deed had never been made.
The interesting question involved in this case, arose, and was decided in Pierce v. Turner, 5 Crauch 162, by a majority of the supreme court. It was also discussed by some of the judges of this court, in Land v. Jeffries, 5 Rand. 211. It was unnecessary, however, to decide it, the case being determined on another ground; and therefore judge Cabell, in his opinion printed in the appendix of the 5th volume of Randolph, did not consider the question. Judges Carr and Coalter concurred with the supreme court in their construction of the act of 1748. Judge Brooke, deciding the cause on other grounds, expressed a general approval of Pierce v. Turner. Judge Green, in one of the ablest opinions over delivered by that learned judge, controverted the correctness of that decision; and judge Cabell, as he announced from the bench during the argument of this case, then concurred with judge Green. We have then the decision of this court in Anderson v. Anderson, 2 Call 198, determining the question in one way, and the obiter opinions of some of the judges in Land v. Jeffries, giving to the statute a different construction. If the question had arisen in Land v. Jeffries, and a majority of the court had decided it in conformity with the decision in Pierce v. Turner, I should have felt myself bound by it. But mere opinions of judges upon questions not arising or adjudicated in the case before them, to whatever respect they may be justly entitled, are not considered as binding authority in any case. Much less could they be so considered when, as upon this question, they conflict with a previous decision of this court. The question must be determined upon our own construction of the law. After the able
I entirely concur in the opinion delivered by judge Baldxoin for the court; and should not make a remark in the case, but to explain what I said of the case of Pierce v. Turner, 5 Cranch 162, in my opinion in the case of Land v. Jeffries, 5 Rand. 211. I was so satisfied that the case of Pierce v. Turner had no application to that case, that I did not think it necessary to examine it; and it being a case of the highest authority, I said I approved it. Nor do I think now, that the case of Pierce v. Turner could throw any light on the case of Land v. Jeffries. In that case, the supreme court took a different view from that taken in the opinion delivered by judge Baldxoin; and employed itself in fixing the meaning of the words in the act of assembly, “and all creditors and purchasers”—and decided that they applied to the creditors of the grantor; and not to the creditors of the grantee.
It seems to have escaped the court, that the deed of marriage settlement not being recorded according to the provisions of the act of assembly, it was a nullity as regarded all persons except the husband and wife. That as to the creditors of the husband, not having actual notice, it was as if it had never been made; and did not intercept his marital rights to the personal property of the wife.
This court took another view of the case just decided; and came to a different conclusion from that of the supreme court. In this case, the deed not being recorded, as regarded the purchaser, without actual notice, of the slaves, there was neither grantor nor grantee; there was
sat in this cause at the commencement of the argument, but became unwell whilst it was in progress, and therefore did not unite in making the decision ; but he was present when the opinion of the court was delivered, and stated that he had concurred in opinion on the point with judge Green in the case of Land v. Jeffries; and that he approved the opinion of the court delivered in this case.