1. In Virginia, a party cannot avail himself of the defense of
usury without averring and proving it, and he is required to pay
the principal of his debt.
2. Where a party at the time of contracting a debt executed to
secure the payment thereof a deed of trust of lands to which he had
a perfect record title, and a third party subsequently makes claim
that he lead, at the date of the deed, a title to them,
that the trustee and cestui qui trust
be considered as purchasers, and if they had no notice of such
claim, the lands are subject to sale to satisfy the debt. If the
sale yields a surplus, the rights of such third party thereto will
be the same as they were to the land.
3. A post-nuptial contract, made upon sufficient consideration,
and wholly or partially executed, will be sustained in equity.
4. By the common law, if the husband and wife sell and convey
her lands, the money which he receives therefor, without any
reservation of rights on her part, will belong to him.
Philip Kesner, of Washington County, Virginia, an adjudicated
bankrupt, surrendered real estate, viz.:
"One-half interest in 150 8/100 acres of land lying in
Washington County, Virginia, near Cedarville, with improvements
"Life estate in the other one-half of the above tract,
"The other half of this tract belongs to the petitioner's
Afterwards, on the 6th of August, 1873, by leave of the court he
filed an amended schedule, varying the description of his land,
"All the petitioner's interest in a tract of 150 8/100 acres of
land lying in Washington County, Virginia, near Cedarville,
conveyed to petitioner by George Dutton, in consideration chiefly
of his wife's lands, near Lyon's Gap, in Smyth County. "
Page 98 U. S. 51
"If his wife's claim to one-half is sustained, then he
surrenders his petitioner's life interest in that half."
"Petitioner's wife claims one-half of this land: value of the
whole tract $2,400"
"If his wife sustains her claim of one-half, will be 1,200"
"Value of life-interest 800"
Kesner's assignee advertised the land, but Jane B. Kesner, his
wife, filed her bill, and a temporary injunction was awarded
forbidding the sale.
She claims that the whole land is her own property, and that
there was a contract between her and her husband, not reduced to
writing, by which she was to claim no interest in his property, and
he none in hers; that an arrangement between one Thomas T. Hull,
one George Dutton, and her husband by which Dutton was to get
Hull's land, Hull hers, and her husband Dutton's, was made, to
which she assented, with the distinct understanding between her
husband and herself, and in the belief, that she would have in the
Cedarville land (the land surrendered by Philip Kesner) the same
rights she had in her own land; that she was one of the three
children of John Davis, who died intestate, leaving real estate at
Lyon's Gap, which was divided, and one-third of it assigned to
Kesner and wife, one-third to Moffett and wife, and one-third to
Porterfield and wife; that Moffett and wife sold their third to
Kesner and wife, who conveyed the two-thirds thus acquired to
Hull's executor, by their deed, duly executed and acknowledged, May
26, 1852, and recorded 24th August, 1853; that the deed to the
Cedarville land was made by Dutton and wife to Philip Kesner alone,
on the 25th of January, 1851, and recorded Aug. 6, 1853; that the
purchase money paid to Moffett and wife was derived from the sale
of certain slaves which the complainant received as part of her
The bill further alleges that Philip Kesner executed a deed of
trust conveying the Cedarville farm, Jan. 29, 1862, to one Bekem,
to secure the payment of a promissory note of even date therewith
for $2,000, borrowed money, payable two years thereafter to one
Greenway; that the money borrowed consisted of Virginia and North
Carolina notes, which were
Page 98 U. S. 52
greatly depreciated; that said debt is not a lien on the land,
and that if it be set up as such, it should only be at its "scaled
The deed of said Kesner and wife to Hull's executor was
acknowledged by her before two justices of the peace of the county,
who state in their certificate that she was by them examined
privily and apart from her husband, and that the deed having been
fully explained to her, she acknowledged the same to be her act,
and declared that she had voluntarily executed the same, and did
not wish to retract it.
The remaining facts are stated in the opinion of the Court.
The bill makes Trigg, the assignee in bankruptcy, Greenway, and
other persons parties. The grounds therein set up for relief are
denied by the answers. Upon final hearing, the bill was dismissed,
and the complainant appealed to this Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The bill, so far as it relates to the debt claimed to be owing
to the estate of John C. Greenway, deceased, secured by the deed of
trust to Bekem, cannot be sustained, for several reasons. It is
silent as to the objection of usury. In Virginia, a party cannot
avail himself of this defense without averring and proving it, and
in such case he is required by statute to pay the principal of the
debt. Brown v. Toell's Adm'r,
5 Rand. (Va.) 543;
Harnsbarger v. Kinney,
6 Gratt. (Va.) 287.
It is asserted that the consideration of the note was a loan of
Virginia and North Carolina bank notes; that at the time of the
transaction they were largely depreciated; that the value of the
consideration should be fixed by scaling this currency; and that
the amount to be paid on the note should be reduced accordingly.
But upon looking into the record, we find no evidence whatever upon
the subject. The depreciation may have been more or less, or there
may have been none. We cannot, as is suggested, take judicial
notice of the facts, whatever they may have been. We must take the
record as it is, and we cannot look beyond it.
Page 98 U. S. 53
No notice of any infirmity in the title of Kesner to the
premises is brought home either to the trustee or to the cestui
and it is denied by the latter. Like a mortgagee,
they are regarded as purchasers, and in this case they must be
considered as such, bona fide
and without notice of the
adverse rights of the appellant, if any she have. Wickham &
Goshorn v. Lewis, Morton, & Co.,
13 Gratt. (Va.) 427;
Evans v. Greenhouse,
15 id. 516. This part of the case may
therefore be laid out of view. The premises in question are clearly
liable for the amount secured by the deed of trust. The position of
the judgment creditors is different. They were not purchasers, and
they can take by virtue of the liens of their judgments only what
Kesner was entitled to. 15 Gratt., supra.
It remains to consider the claim of the appellant touching the
premises in controversy. It is clear that she inherited from her
father one-third of Lyon's Gap farm, and received, as a distributee
of the estate of her father and mother, several slaves; that she
and Kesner bought another third of the farm from her sister, Mrs.
Moffett, and took from Asbury, the attorney of her sister and her
sister's husband, a bond for the execution of a deed. The purchase
money was procured by the sale of slaves which came to Kesner by
the appellant. On the 26th of May, 1852, the appellant and her
husband, Kesner, conveyed the two-thirds of the Lyon's Gap farm to
Sheffy, as executor of Hull. On the 25th of January, 1851, Dutton
and wife conveyed to Kesner alone the Cedarville farm, which is the
property in controversy. The transaction was an exchange of lands.
$600 was paid to Dutton as the difference in value of the two
tracts. Kesner raised the money in the same way as that before
mentioned. The appellant is neither named nor referred to in the
deed to her husband. On the 29th of January, 1862, Kesner alone
executed the trust deed to Bekem. It embraced the entire Cedarville
property. The tract contained about a hundred and fifty acres. In
his first inventory in bankruptcy, Kesner gave in half of this
farm, and his life interest in the other half, which was stated to
belong to his wife. In an amended schedule subsequently filed, he
gave in all his interest in the entire tract, which, he alleged,
was conveyed to him
Page 98 U. S. 54
chiefly in consideration of the deed to Sheffy of his wife's
lands near Lyon's Gap. He stated that she claimed one-half of the
tract, and that if her claim were sustained, then he surrendered
his life interest in that half.
The whole tract must be sold to satisfy the debt secured by the
deed of trust. If there should be any surplus, the appellant's
rights will be the same with respect to that fund that they were as
to the land. Jones v. Lackland,
2 Gratt. (Va.) 81;
Graham v. Dickens,
3 Barb. (N.Y.) Ch. 1; Olcott v.
17 Wall. 44.
If there were no valid contract between the appellant and her
husband, as claimed, the slaves -- by the law of Virginia being
chattels -- were the absolute property of the latter, and at his
death would have been assets in the hands of his personal
representative. So by the common law, if the husband and wife sell
and convey her land, and he receives the consideration money
without any reservation of rights on her part, the money belongs to
him. Hamlin v. Jones,
20 Wis. 536; Schouler, Domestic
Relations, 120. No question is raised as to the statute of frauds,
and we need not, therefore, consider that subject. It is now well
settled that a post-nuptial contract made upon sufficient
consideration, and wholly or partly executed, will be sustained in
equity. Gosden v. Tucker's Heirs,
6 Munf. (Va.) 1;
Livingston v. Livingston,
2 Johns. (N.Y.) Ch. 537;
Bullard v. Briggs,
7 Pick. (Mass.) 533; 2 Kent Com. 139;
Cord, Married Women, secs. 36, 37. The counsel on both sides have
argued the case upon the hypothesis that the contract set out in
the bill, if made, was valid. The contention between them is only
as to the sufficiency of the proof of its existence. Our further
examination of the case will be upon this basis, and our remarks
will be confined to that subject.
The alleged contract is thus set out in the bill. Speaking of
her marriage to Kesner, the appellant says:
"It was then agreed, and has always since been agreed and
understood between herself and her husband, that she was to take no
interest in his property, and he was to take no interest in hers.
On their marriage, they settled on a farm owned by Mr. Kesner
Page 98 U. S. 55
this County of Washington, and in pursuance of this agreement
she relinquished her rights in this land."
With reference to the conveyance by herself and Kesner to
Sheffy, executor of Hull, and the conveyance by Dutton and wife to
Kesner, she says:
"Your oratrix being assured this was an exchange of land, and
that she would thereby acquire an interest in this land exchanged
for her land, assented to it. Your oratrix never would have
consented to a sale of her land for money, or to any arrangement
which would have deprived her of her inheritance in her land, and
have her fee simple converted into a mere dower right. With this
distinct understanding between her husband and herself, and
believing she would have in the Cedarville land the same rights she
had in her own land, she assented to this arrangement. But being a
and ignorant of business, she entrusted the
whole management of her business to her husband."
She claims one-half of the land free from her husband's tenancy
by the curtesy, and the reversion of one-half of the residue at her
While Kesner, in his schedule, speaks of his wife's means as
having chiefly paid for the property in question, he is wholly
silent as to any contract between them. She claims three-quarters,
while his concession is only to the extent of one-half, and he does
not put that admission upon any ground of right growing out of a
contract. They seem not to have understood her claim alike. His
deposition was subsequently taken, but he was asked no question
upon the subject. In Dutton's deposition, this question was asked:
"Was the trade and exchange intended to preserve to Jane Kesner the
same rights in the Cedarville land which she hand in the Lvon's Gap
land?" -- Ans.
"This was my understanding of it." From
whom or in what way he got his understanding is not disclosed.
James C. Porterfield, who married the sister of the appellant,
was present at her marriage to Kesner, and had known them both
thirty years, testified fully as to the means which came to Kesner
in right of his wife. He was asked no question and said nothing as
to any contract between them. Mrs. Porterfield, the sister, also
testified. At the close of her deposition, this question and answer
are found: "After the trade for the
Page 98 U. S. 56
Cedarville land, did you hear Mrs. Kesner claiming it as her
land?" -- Ans.
"I don't recollect hearing her claim it as
There is no other testimony in the record bearing in any wise
upon the subject. It is perhaps not a violent presumption that the
appellant knew in 1852 that Dutton and wife conveyed the land to
her husband alone, and that she knew he treated it as exclusively
his in 1862 by conveying it, without her concurrence, to Bekem in
trust to secure the debt to Greenway. It does not appear that she
set up any special claim, or alleged the contract set up in her
bill, until Kesner went into bankruptcy in 1873. But irrespective
of those deeds, it is too clear to admit of doubt that the contract
set forth in the bill is wholly unsustained by the proofs in the
record. See Harris's Ex'rs v. Barnett,
3 Gratt. (Va.)