Mr. Justice Johnson
delivered the-opinion of the Court.
, The suit below was ejectment, and the defendant in this Court recovered under a title derived from asaleby. the marshal of this District. The mar-, shal’s deed conveys the life estate of Wheaton in the lands in question. And the plaintiff below proved the title in the defendant’s wife, under conveyances executed after marriage.
The defence set up was a conveyance executed by Wheaton, to a trustee, for the sole and separate use of his wife, and her heirs, and the deed purports to have been executed in consideration, of, and to carry into effect, an original intention in the parties, that the conveyances tó his wife should enure to the same uses, although the conveyances in law operate otherwise. But .there is no other evidence of this fact than what is contained in the deed, and it was executed but two days before the judgment. At the -trial, .two bills of-exception were taken ; the first of which brings up the question, whether a sale by the marshal, after* the return day of the writ, was legal. The Court charged that it was, provided the levy was made before the return day. And on this point the Court can only express its surprise that any doubt could be entertained. The Court below were unquestionably right, in this instruction. The .purchaser depends on the judgment, the levy, and the deed.- °A11 other questions aré between the parties to the judgment and the marshal. Whether the marshal sells before or after the return, whether he makes a correct return, or any return at a]l, to the Writ, is immaterial to the purchaser, provided the writ was duly issued, and the levy made before the return.
The second bill of exception§Jbrings up the question, whether the deed, to Caldwell, in trust for Mrs. Wheaton,^was not fraudulent and void as against : creditors. In ordinary cases, a voluntary conveyance of a man to the use of.his wife, when circumstanced as Wheaton was, would unquestionably be void. But it is contended that, in this instance, a Court of Equity would have decreed Wheaton to make the conveyance he did execute, and, therefore, it Was not a voluntary, conveyance. That there are cases in which the Court would lend its aid to protect the acquisitions of a wife from the creditors of a husbaud, may well be admitted ; but on this, case it is enough to observe, that if the husband may, upon his own recital, make out such a case, there would no longer exist any difficulty in evading the rights of creditors. Yet this Court is not satisfied that the Court below has given an instruction that comports with the law of the case.
The instruction of the Court, given on motion of the plaintiff below, is, that the deed was void in law, “if it was made by the said Joseph Wheatoc without a valuable consideration therefor, or was made by him with intent to defeat, delay, or defraud his creditors.” Had the conjunction and been substituted in this, instruction for or, it would have been ehtirely unimpeachable.; but as it now reads, it must mean, that even had a valuable consideration been paid, if the. deed was made with intent to defeat creditors, it vyas void. We know of no law which avoids a deed where a valuable (by which, to a general intent, must also be understood adequate) consideration is paid, and the change of property be bona .fide, or such as it professes to be. Of such a contract it cannot be predicated that it is with intent to defeat or defraud creditors, sincej although the property itself no longer remains subject to the judgment, a substitute is furnished by. which that judgment may be satisfied. Nor is it any impeachment of such a deed that it is made to the use of the family. of the maker. The trustee, in that, case, becomes the benefactor, and not the husband. It is not a. provision made by him for his family, but by another.
Although, from, any thing that appears in this cause, this Court can see no ground on which the jury could have found otherwise than they did, yet if the instruction was erroneous, and to the prejudice of the defendant below, as this Court cannot estimate its influence on the minds of the jury, the judgment must be reversed.
Judgment reversed.