#### BENJAMIN S. WARD and wife MARY A. N. WARD v. SHADE WOOTEN.

A makes a deed of gift to B and afterwards conveys the land to 0 in trust to secure creditors. 0 sells under the deed in trust and the purchaser goes into immediate possession, B, the donee in the deed of gift, never having been in possession of the land. JZeld, that the deed in trust is valid against the deed of gift under the statute 27 Elizabeth, as being a subsequent sale to a purchaser for valuable consideration, and the purchaser, at the trustee’s sale, gets a good title.

A limitation over to A in a deed of gift to B, is valid as a covenant to stand seized to the use of A, under the rule ut res magis mleat qucm pereai.

Civil Actiok, for the recovery of the possession of a tract of land, tried before Seymour, J., at Fall Term, 1874, of the Superior Court of GreeNE County, upon the following statement of facts agreed:

I. Joseph Rasberry, by deed bearing date June 25th, 1847, (a copy of which is attached) conveyed the lands in controversy to his son, Joseph J. A. Rasberry; that the latter died intestate and without issue on the 10th day of April, 1858.

II. That the plaintiff, Mary A. N. Ward, is the person mentioned in said deed, to be heir of said land in the event therein named.

III. That the said Joseph Rasberry, by deed on the 16th November, 1849, conveyed said land in fee to Alfred Moye, in trust for the payment of his debts.

IY. That said Moye, in performance of said deed to him, sold and conveyed said lands in fee to Benjamin Streeter and William Turnage on December 5th, 1854.

Y. That said Benjamin Streeter and William Turnage went into the immediate possession of said lands after the deed to them.

VI. That the title to said lands in fee has, by successive conveyance, come to the defendant.

*414VII. That the said Benjamin Streeter and William Tur-nage, and the persons claiming under them, including the defendant, have been in the adverse possession of said lands since the 5th day of November, 1854.

VIII. That the said Joseph Rasberry died in July, 1854.

IX. That the said Joseph J. A. Rasberry left as his heirs five brothers and five sisters, the plaintiff, Mary A. N. Ward, being one of his sisters.

X. That the plaintiff, Mary A. N. Ward, was born December 17th, 1845, and married first one Cummins, before she was twenty-one years of age; that her husband, Cum-mins, died in 1867, and she married the plaintiff, Ward, on November 3d, 1870.

If the Court shall be of opinion that the plaintiff, Mary A. N. Ward, is entitled to possession of the whole of said lands, judgment shall be given accordingly. If the Court shall be of opinion that she is entitled to one undivided tenth, judgment shall be given accordingly, and if the Court shall be of opinion that she is not entitled to possession of any part of said lands, judgment shall be given against the plaintiffs for costs.

The deed from Joseph Rasberry to Joseph J. A. Rasberry was as follows:

“ This indenture made this the 25th day of June, A. D. 1847: I, Joseph Rasberry, of Greene, and State of North Carolina, for and in consideration of the. natural affection and love which I have unto my well beloved son Joseph John Allen Rasberry, as also for divers other good causes and considerations now at this time especially moving, have given, granted and by these presents do give, grant and confirm unto said Joseph John Allen Rasbeny, all and singular, two hundred and fifty-seven acres of land, bounded as follows: [here follows a description of the land,] except my life estate in the said land, also my wife Priscilla’s life or widowhood, to the same. It is my desire, if the saidjJoseph John *415Allen Rasberry should die without a lawful heir, that my daughter Mary Ann Nancy should be heir of the said land, I, Joseph Rasberry, do freely give to my son Joseph John Allen Rasberry, his heirs and assigns forever. I, the said Joseph Rasberry,do covenant to'and with the said Joseph John Allen Rasberry in warranting and defending the right and the title of the aforesaid tract of land free and clear from the lawful claim or claims of any and all persons whatever, •unto him, his heirs and assigns forever.

In witness whereof, I have hereunto set my hand and seal the day and year above written.

Joseph Rasbekrt, [Seal.]”

The deed of trust from Joseph Rasberry to Moye, dated November 16th, 1849, was an ordinary trust for securing certain debts.

Upon the above statement of facts agreed, his Honor gave judgment that plaintiffs were entitled to recover the whole tract of land. From which judgment the defendant appealed.

Moore & Gatling, for appellants.

Keenan & Murray and F. A. Woodard, contra.

Pearson, C. J.

We concur with his Honor in the conclusion, that although the limitation over to his daughter cannot be supported as a contingent remainder, and would be void treating the deed of Joseph Rasberry a common law conveyance; still under the ut res magis valeat, &c., the Court will give effect to it as a covenant to stand seized to the use of Ms daughter, by way of a conditional limitation. We also concur with him in the conclusion that the clause of the deed “ excepting my life estate, also my wife Priscilla’s life or widowhood,” can only have the effect of saving her right to have dower in case she survived him, in like manner as if the deed had not been made, and that this saving in favor of his wife, did not prevent the estate from passing to the *416son and then to the daughter, subject to the right of dower, which the wife may even now, as against the plaintiffs, have assigned to her in ca e the plaintiffs recover, as she is still living, and there is no statute of limitations tobar dower.

But upon the facts set out in the case agreed, we are of opinion that the plaintiffs were not entitled to recover upon a point not called to the attention of his Honor and not adverted to in the argument before us.

It is this: After making this covenant to stand seized to* the use of 1ns son and daughter, the donor made a deed to, Moye in trust to secure certain creditors. Under this deed Moye sold to Streeter and Turnage for valuable consideration, who went into immediate possession, the donees not then being in possession or having had possession at any time before, so as to affect the trustee or the purchasers with notice. Battle’s Rev. chap. 50, sec. 2.

It is settled in this State that a deed in trust to sell property and pay certain creditors is supported by a valuable consideration, and is valid against creditors notwithstanding the statute 13th Elizabeth ; for the like reason we hold such a deed is valid against a prior deed of gift as being a subsequent sale to a purchaser for valuable consideration under 27th Elizabeth. If this be not so, the sale by Moye to Street- or and Turnage in 1854 was, beyond all room for doubt, a sale for valuable consideration, and there is nothing to affect them with notice.

There is error. Judgment reversed and judgment on the case agreed that the defendant go without day and recover his costs.

Per Curiam. Judgment reversed.