Lessee of Fosdick v. Risk.. Dec. Term, 1846. IN BANK. inasmuch as the money produced by the sale was not sufficient to satisfy the entire debt secured by the mortgage, that the lien of the mortgage still continued for the satisfaction of the residue of the debt. It is admitted by the opposite counsel, that had this sale been made on an execution in favor of a judgment creditor, who was not a party to the mortgage, and upon a judgment junior thereto, that the purchaser would only have acquired the equity of redemption. But it is insisted, that as the judgment was upon the identical note secured by the mortgage, and the execution levied upon the mortgaged premises, the mortgagee being in possession, that the purchaser acquired an indefeasible title to the premises. To support the position assumed by the defendant's counsel, the case of Lessee of Ireland v. Hull, 10 Johns. Rep. 481, is cited. In this case the Supreme Court of New York decree, that where a creditor, secured by mortgage, brought his action for the debt so secured, recovered judgment and issued execution, which was levied on the mortgaged premises, and the premises sold, that the purchaser acquired nothing but the equity of redemption; the purchaser at the time of purchase having notice of the mortgage, and that it was unpaid. It must be remembered that, in the State of New York, lands, like personal chattels, are sold without appraisement; and in the case cited, property mortgaged to secure $700, was sold for $70. The Court refer to this fact and say, that it is manifest that this mode adopted by the creditor in the pursuit of his remedy, did not work any injury to the purchaser. In this State, however, lands can not be sold without appraisal, and for no less sum than two-thirds the appraised value; and this Court have decided that they must, if sold at law, be sold as if unincumbered. Baird v. Kirtland et al. 8 Ohio Rep. 21. In Ohio, then, a purchaser at sheriff's sale could not acquire even the equity of redemption of mortgaged premises, without paying the full value of the land. And it would seem that, when the mortgagee himself, by his own action, as in the present case, causes the mortgaged premises to be sold, Lessee of Fosdick v. Risk. Dec. Term, 1846. it would be the height of injustice to permit him to pocket IN BANK. the money made by such sale, and still hold on to the premises until he could extort from the purchaser a further sum to relieve the land from his own mortgage. Courts may sometimes be compelled, by some rigid rule of law, to do injustice, but we are not aware that any rule exists which will compel us to do manifest injustice in this case. In truth, should a judgment creditor direct an execution to be levied upon his own land, and should the land be sold in pursuance of such levy, we apprehend the purchaser must be protected. The creditor would be estopped from asserting any claim to the land. It is further objected by defendant's counsel, that the sheriff's deed is defective, inasmuch as it is not properly attested; and it is said the attestation is, "Sealed and delivered in presence of" the subscribing witnesses; whereas it should have been, "Signed, sealed and delivered." True, the words of the statute are, that the witnesses shall attest the "signing and sealing;" but, really, to require the strictness insisted upon by the defendant's counsel, would be going a great length; it would be taking one step more towards that point to which we seem to be progressing with railroad speed-the point of declaring all the land-titles in the State doubtful, defective, or uncertain, The same technical nicety is not required in the execution and acknowledgment of deeds as in special pleadings. If deeds are executed and acknowledged, substantially, in accordance with the statute, it is all that can be required. The signing and sealing of deeds is usually done at one and the same time, unless, perchance, the scrivener who writes them shall have attached the seal at the time of writing, and previous to the signature. In such case the sealing is adopted by the signature of him who executes the instrument. It is not customary for a man to sign on one day, and on another to make his scrawl, or attach a wafer. There is not, I presume to say, one case in a thousand in which the same person who witnesses the sealing, does not witness the signature also. And after all, it is the delivery which gives effect to the instrument. IN BANK. Dec. Term, 1846. Miller and others v. Wilson and others The Court are of opinion that had the attestation been such as defendant's counsel suppose it to have been, it would have been sufficient. But upon examination of the deed, we find that the attestation is in the proper, the most approved form. It is as follows: "Signed, sealed and delivered in presence of;" and is subscribed by two witnesses. It is true, that the deed from Risk to Huddart is merely, "Sealed and delivered," and, according to the theory of defendant's counsel, no title ever vested in Huddart. And if so, Risk stands in the situation of a man who has caused his own land to be sold on an execution in his own favor to satisfy his own debt, and would be estopped from setting up his title against the purchaser. We have no doubt, however, that the deed was sufficient, and conveyed a good title to Huddart. A new trial is ordered, the costs to abide the event of the suit. THOMAS MILLER and others vs. MARGARET WILSON and others. A voluntary conveyance by a parent to a child, made in good faith, by way of advancement, will be sustained, although the parent may have been at the time indebted; provided the property left in the parent is clearly and abundantly sufficient to satisfy all subsisting debts. To entitle a widow to dower, it is necessary that her husband should have had a legal estate of inheritance in the premises in which dower is claimed, during the coverture, or that he should have had an equitable interest in the same at the time of his death. THIS is a suit in CHANCERY, reserved in the County of FRANKLIN. The bill and amended bill in this case, are filed by Thomas Miller and others, creditors of John Wilson, deceased, against the widow, heir and personal representatives of said Wilson. It is charged that said Wilson, in his lifetime, being involved in Miller and others v. Wilson and others. debt, with a view to defraud his creditors caused certain real IN BANK. Dec. Term, estate, described in the bill, for which he had paid, or was lia1846. ble to pay, to be conveyed to his wife and children, and afterwards died greatly insolvent. The prayer of the bill is, that the real estate so fraudulently conveyed may be sold, with the other real estate of the decedent, and that the avails may be appropriated in the discharge of debts, &c. The allegations of fraud are denied in the answers of Margaret Wilson, the widow, and Ann Wilson, the only surviving heir of John Wilson. Much testimony has been taken, which it is unnecessary to recapitulate, as a more full statement of the case, and facts of the case, are given in the opinion of the Court. J. W. Andrews and P. B. Wilcox, for Complainants. Contended, that the testimony showed clearly that, at the time the property in controversy was conveyed to the heirs of John Wilson, he was largely indebted, and therefore the deed was fraudulent as to creditors, even though there was no actual fraudulent intent. They also insisted that the facts of the case warranted the Court in coming to the conclusion that it was the design of Wilson-knowing that he was in embarrassed circumstances to place a portion of his property beyond the reach of his creditors to commit actual fraud upon them; and that his retaining possession of the property himself, withholding for years the deed from record—taking, subsequently to the date of the deed to his children, a deed to himself for the same property, and making valuable improvements thereon, were among the badges of fraud which the case presented, and which authorized the interference of a Court of Chancery to set aside the conveyance. They referred the Court to the following authorities: 1 Atk. 15; 2 Atk. 600; 3 Johns. Ch. Rep. 481; Wright's Rep. 213, 214; 5 Ohio Rep. 122; 9 Pét. Rep. 204; 11 Wheat. Rep. 103; 2 Leigh's Rep. 52; 10 Mass. Rep. 462; 12 Johns. Rep. 418; 3 N. H. Rep. 304; 4 Blackf. Rep. 141. Miller and others v. Wilson and others. IN BANK. Dec. Term, 1846. T. Ewing and Swayne & Bates, for Defendants. The whole case, in our view, resolves itself into this: When the conveyance was made to his children, Wilson was in easy circumstances. He had, in any fair view of the testimony, a large excess of means over his liabilities, exclusive of the property in question. Under these circumstances he made an advancement to his two children of property worth, according to the complainant's proof, $2,000, or at most not exceeding $2,500. Some years afterwards he became involved, embarrassed and insolvent, and while in that condition died. Does the after insolvency affect the prior advancement? What does the law say on this subject? "Where a parent makes an advancement to a child, and 'honestly and fairly retains in his hands sufficient property to 'pay all his debts, such child will not be bound to refund such 'advancement for the benefit of creditors, although it should 'happen that the parent does not pay his debts which existed 'at the time of making such advancement." Van Wick v. 6 Seward, 6 Paige, 62. "I presume it cannot be seriously urged that where a parent 'makes an advancement to his child, honestly and fairly retaining in his own hands, at the same time, property suffi'cient to pay all his debts, such child will be bound to refund 'the advancement for the benefit of creditors, if it afterwards happens that the parent, either by misfortune or fraud, does 'not actually pay all his debts which existed at the time of the ' advancement." Same case, 6 Paige, 67. "To impeach a settlement made after marriage, the husband 'must be proved to have been indebted at the time, to the extent of insolvency." Lusk v. Wilkinson, 5 Vesey, 384; Sugden on Vendors, top paging, 447. This doctrine was also recognized in a late law case in Westminster Hall. Sears v. Rodgers, 3 Barn. & Adolp, 362. "The Judge was also right in deciding that the deed from 'T. Merrick to C. Merrick, was not void in law, as made in |