Smith v. Kehr. ing debts, may be void as to subsequent creditors, if it be shown, by facts and circumstances, that the deed was made with an actual intent to defraud subsequent creditors: Woodson v. Poole, 19 Mo. 340; Potter v. McDowell, 31 Mo. 62; Pratt v. Curtis, 6 Bankr. Reg. 139; Solomon v. Bennett, 1 Conn. 525; Duhure & Co. v. Young, 3 Bush (Ky). 350; Holmes v. Penney, 3 Kay and J. 90; Sexton v. Wheaton, 8 Wheat. 250; Hindes, Lessee v. Longworth, 11 Wheat. 211; 1 American Leading Cases, 1; Mattingly v. Nye, 8 Wallace 370; Story Eq. sec. 355, et seq. 3. Where a post-nuptial settlement is made in consideration of relinquishment of dower, and of maintenance, especially where the wife's trustee joins in the covenants, that the wife will, in consideration of the settlement made, relinquish all claims to dower in her husband's estate, and will contract no debts on his account, etc., such a settlement is for a valuable consideration, and will be upheld in law, and cannot be assailed in equity by the husband's creditors, unless the amount so settled on the wife is unreasonable or excessive: Worrall v. Jacob, 3 Merriv. 268; Stephens v. Olive, 2 Bro. Ch. R. 75; Clancy's Rights of Married Women, 358; Compton v. Collison, 2 Bro. Ch. R. 304; Hale v. Plummer, 6 Ind. 123; Harvey v. Alexander, 1 Rand. 219; Wiley v. Gray, 36 Miss. 510; Bullard v. Briggs, 7 Pick. 536; Harrison v. Carrol, 11 Leigh. 484; Hargraves v. Meary, 2 Hill. Ch. 226; 35 Penn. St. 357; Story Eq. sec. 1,427 et seq.; Mad. Ch. 275, 387. The deed of settlement as originally drawn and executed was, in legal contemplation, for a valuable consideration, and if the second agreement had not rescinded all provisions of the first, except the grant of the separate estate, that grant would remain valid. But, unfortunately for Mrs. Meyer the last agreement withdrew all of the consideration which was "valuable" as contra-distinguished from "voluntary." After the last agreement there, was no covenant Smith v. Kehr. to relinquish dower, etc.; all covenants on the part of herself and trustee were expressly rescinded. The grant thus existed as if made for love and affection merely. The legal inference from "condonation" (concerning which, see 2 Cox Ch. Ca. 99; 2 Wend. 422; 3 Paige, 483; 9 Cal. 479; 9 Wallace, 752; 1 Sm. & Giff. 501; 3 Barn. & Ad. 743) does not arise in the case, because the intention of the parties is clearly expressed in writing, and is therefore not left open for inference. The case of Walker v. Walker, 9 Wall. 751, does not apply to this case. 4. When a deed is void as to existing creditors and is therefore set aside, all the creditors, prior and subsequent, share in the fund pro rata. Magawly's Trust, 5 De Gex & Smales, 1; Richardson v. Smallwood, Jacob Rep. 552-558; Savage v. Murphy, 34 N. Y. 508; Isley v. Nisewanger, Harper, 295; Robinson v. Stewart, 10 N. Y. (6 Selden), 189; Thompson v. Dougherty, 12 Serg. & R. 448, 455, 458; 3 Dev. 12-14; 1 Iredell, 32-38; 1 Am. Lead. Cases, 45; Norton v. Norton, 5 Cush. 529; 4 Dev. 197-204; 3 Johns. Ch. 481499; 2 Ves. 10; 3 Drewry, 419–424. "It has been suggested that under the peculiar facts and circumstances of this case, Martin Meyer has a homestead right to $1,000 out of the surplus. The doctrine held in Clark v. Potter, 13 Gray, 21, and recognized in White v. Rice, 5 Allen, 73, favors the suggestion of counsel. Recently, in the case of Cox v. Wilder, ante, the circuit judge held that where a deed executed by husband and wife was set aside as fraudulent, it being designed to defraud creditors, neither the homestead nor dower right was lost, but the husband's right to a homestead and the wife's right to dower remain just as if the fraudulent or void deed had never been made. Taking the doctrine in the two Massachusetts cases and the views of the circuit judge, and applying them to this case, it seems that this result follows, viz: That Meyer, so far as the Klein deed is concerned, re Smith v. Kehr. tained a homestead right to the surplus as against his assignee in bankruptcy; but as the deed of settlement is valid as between the husband and wife, this homestead right passed to her. Hence the decree will be that the deed of trust to Kehr be declared null and void, as to Meyer's creditors; that Kehr be perpetually enjoined from delivering a deed under the sale made by him as trustee, and that out of the funds derived from the sale of the property in question, there be paid, first, the expenses of said sale; second, to the creditor secured by the deed to Klein, the amount of the debt due to him; third, to Mrs. Meyer $1,000; fourth, the costs of this suit; and that the residue of the fund be held by the assignee, to be divided pro rata among all the creditors of the bankrupt's estate under the orders of the district court in bankruptcy. On the appeal from the foregoing decree the case was argued by N. Myers, for Mrs. Meyer. John Ford Smith, for the assignee. Slayback & Haussler, for Vogler. DILLON, Circuit Judge.-In the summer and fall of 1867, when the articles of separation and reconciliation were made, Meyer, the bankrupt, was engaged in business. The articles of separation and of reconciliation were only a few weeks apart, and there does not seem to have been in the meantime any change in the property or pecuniary situation of Mr. Meyer. He confessedly owed at that time to Mr. Klein $2,180, secured by deed of trust on his homestead property; and to Vogler the sum of $7,126, not secured, and which together amounted to $9,306. His assets were uncertain beyond his homestead property, worth Smith . Kehr. about $12,000, and his interest in two other lots, worth $300. The evidence as to his personalty and credits does not satisfy me that they exceeded the estimate of the district court, which was $5,000. The debts to Klein and to Vogler have never been paid; and after the allowance of $1,000 for the homestead right, the estate of the bankrupt, consisting chiefly of the homestead property, will not much more than equal the amount due on debts which antedated, in their creation, this settlement upon Mrs. Meyer. And the main question now made is whether Mrs. Meyer has a right, as against creditors, to have paid to her out of the proceeds of the sale of the homestead property the amount of the notes which were given for her benefit by her husband, and secured by a deed of trust on the homestead property. She claims that this is a valid lien upon the property in her favor, and that it should be recognized and enforced as such. I have grave doubts whether a man in business, with assets not exceeding, if, indeed, they equal, $17,000 or $18,000, and who is shown to be in debt over $9,000, can, as against existing creditors, even if there be no actual intention to defraud them, make a settlement of $7,000 upon his wife, which will stand in a contest by her with creditors who were such at the time, and where the alternative is that if the settlement or provision in favor of the wife is sustained the creditors must suffer. But I am of opinion, with the district court, that the effect of the reconciliation and of the articles then executed, was to make the notes and deed of trust in favor of the wife substantially a voluntary settlement or conveyance, and not one for value. If this is so, then it is clear that it cannot be upheld to the prejudice of creditors then existing. Conscious of the inability to sustain the transaction in favor of the wife, unless the agreement to pay her the $5,000 can be made to rest Smith v. Kehr. upon a valuable consideration, her counsel has labored with great ingenuity to show that such a consideration existed. But what value did she give that can uphold the promise in her favor as against the husband's creditors? The promise, by the husband to pay her $5,000, was for her maintenance apart from him and in consideration of her release of dower, &c. All the promises were executory. She returns, and the parties rescind every portion of the articles of separation except that by which he agrees to pay her in the future $5,000—and it is this sum that she now seeks to be allowed, as against creditors of the husband existing at the time. I fail to see any value that a court of equity, which looks at substance, can regard in a controversy between the wife and creditors of her husband. It is argued that the promise of the husband was valid when made, and if so that it cannot be rendered bad by matter afterwards arising. But when the parties in a few weeks rescinded the whole agreement, except in the particular named, when all that the wife had promised as a consideration for the husband's promise had been cancelled, how can equity say that here is a consideration to the husband which as against his creditors will sustain a transaction otherwise fraudulent in contemplation of law? This question is so satisfactorily presented in the opinion of the district judge, with whose views respecting the case in its various aspects I concur, that I consider it to be quite unnecessary to dwell longer upon it. The husband fled the country and abandoned his wife, leaving her, however, in the actual possession of the homestead property. The assignee concedes that if the husband claimed it, he would be entitled to the $1,000 homestead exemption, but insists that the wife cannot claim it, or that it cannot be allowed to her. It is evident, both from the statute and its policy, that its provisions are intended for the benefit of the family, and, under the circumstances, I |