There can be no doubt of the sufficiency of marriage or of a promise to many as consideration for an executory promise; nor is this point ever disputed. But if a promisor or grantor is insolvent his contract or conveyance, though valid between the parties, may be invalid against creditors.
To support a conveyance made when the grantor was insolvent, such consideration as would be sufficient for an executory promise is insufficient. The law here considers the adequacy and value of what is given in exchange for the conveyance, requiring some equivalence of values. It is well settled, however, that marriage is to be treated as a valuable consideration.4 Logically, this is indefensible; consideration having the oral promise enforceable;9 and even though an oral agreement made before marriage is carried out after marriage by the execution of the agreed settlement, the transaction is regarded as no better than a gift, so far as creditors are concerned.10
2 Clark v. Pendleton, 20 Conn. 496; Blackburn v. Mann, 85 111. 222; Short v. Stotts, 68 Ind. 29; Caylor v. Roe, 99 Ind. 1, 5; Withers v. Richardson, 5 T. B. Mon. 94, 17 Am. Dec. 44; Morgan v. Yarborough, 5 La. Ann. 316; Ogden v. Ogden, 1 Bland Ch. 284; Wilbur v. Johnson, 68 Mo. 600; Barge v. Haslam, 63 Neb. 296, 88 N. W. 516; Derby v. Phelps, 2 N. H. 515. But if not to be performed within a year such promises are obnoxious to another clause of thes tatute. See infra, Sec. 501.
3 Thus a bilateral agreement to marry which includes as one of its terms a promise to make a marriage settlement, is within the statute. Chase v. Fit*, 132 Mass. 369. See also Hunt v. Hunt, 171 N. Y. 396, 64 N. E. 159, 59 L. R. A. 306, and cases on marriage settlements in the following
4 Peachey on Marriage Settlements, p. 62, J. R. Leininger Lumber Co. v. Dewey, 86 Neb. 659, 126 N. W. 87. A promise to marry also is good consideration, and if without fault on value only to the grantor is not usually held sufficient to prevent a conveyance from being fraudulent,5 and even if marriage could ever be regarded as a valuable consideration for a settlement, it seems that to be such, the agreement should have been made as part of the engagement to marry. If two people have already mutually promised to marry, the subsequent marriage is no more than the fulfilment of a legal obligation; and cannot, on principle, serve even as technical consideration, much less as such consideration as is necessary to support a conveyance by an insolvent debtor. But though it has been held in Arkansas,6 that marriage is a valuable consideration only if given or promised prior to an engagement to marry, the distinction generally taken is only between ante-nuptual settlements or agreements, and post-nuptial settlements or agreements; and any settlement or agreement for settlement made before marriage is considered as made for value. An executory promise for a settlement is, however, within the Statute of Frauds, and therefore must not only be supported by consideration, but must be in writing in order to be enforceable;7 and an oral agreement in consideration of marriage to renounce any rights in the real estate of the promisee acquired by the marriage is equally invalid.8 The fulfilment of the marriage for which a settlement was orally promised does not render either side, the marriage does not take place, the grantee's title is, nevertheless, unimpeachable. Smith v. Allen, 5 Allen, 454, 81 Am. Dec. 758; De Hier-apolia v. Reilly, 44 N. Y. App. Div. 22, 60 N. Y. S. 417, affd. in 168 N. Y. 585, 60 N. Kino. On the other hand, in Hosmer v. Tiffany, 115 N. Y. App. Div. 303, 100 N. Y. S. 797, a trustee in bankruptcy was allowed to show that a woman upon whom property had been settled in consideration of her marriage with the grantor, already had a husband living and therefore that her marriage with the grantor (the bankrupt), was no consideration.
5 See, e. g., oases holding fraudulent conveyances in consideration of promises to support the grantor - 14 Am. & Eng. Encyc. of Law (2d ed.), 246; or to give him employment, - 17 L. R. A. (N. S.) 310, or to drop a well-founded suit against him for divorce. Oppenheiner d. Collins, 115 Wis. 283, 01 N. W. 690, 60 L. R. A. 406. Cf. In re Pope 2 K. B. 169.
6 Miles v Monroe, 96 Ark. 531.
7 Montacute v. Maxwell, 1 P. Wms. 618; Lloyd v. Fulton, 91 U. S. 479, 23 L. Ed. 363; Peek v. Peek, 77 Cal. 106, 19 Pac 227, I L. R. A. 185; Moore v. Allen, 26 Col 197, 57 Pac. 698, 77 Am. St. Rep. 255; White v. Bigelow, 154 Mass. 593, 28 N. E. 904; Watkins v. Watkins, 82 N. J. Eq. 483, 89 Atl. 253; Henry v. Henry, 27 Ohio St. 121.
8 Montacute v. Maxwell, 1 P. Wms. 618; Pardue v. Ardie, 101 Miss. 884, 68 So. 769.
Whether a gift, and therefore whether such a settlement after marriage, is valid depends upon the law of fraudulent conveyances. In most juridsictions a voluntary conveyance which leaves the grantor with means sufficient in all reasonable probability to satisfy his creditors is valid.11 In these jurisdictions, therefore, if an oral ante-nuptial settlement is executed without thereby rendering the settlor insolvent, or nearly so, the transaction is valid.12 In a few jurisdictions, however, a voluntary conveyance by a debtor may be attacked by any creditor whose claim existed at the time of the settlement if the settlor subsequently becomes insolvent; although he was perfectly solvent for a time after the settlement was made.13 In such States, therefore, a post-nuptial settlement ment. In such cases the authorities from other States are in hopeless conflict, and we have not heretofore had occasion to pass upon the subject. Among those cases holding such an instrument good are - Moore v. Harrison, 26 Ind. App. 408, 59 N. E. 1077; Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328; Cooper v. Wormald, 27 Bear. 266; Argenbright v. Campbell, 3 Hen. & M. 144. To the contrary are - McAnnulty v. McAnnulty, 120 111. 26, 11 N. E. 397, 60 Am. Rep. 552; Powell v. Meyers, 23 Ky. L. Rep. 795, 64 S. W. 428; Smith v. Greer, 3 Humph, 118; Borst v. Corey, 16 Barb. 136." To the cases supporting such agreements may be added, Window v. White, 163 N. C. 29, 79 S. E. 258.
9See infra, Sec.533. The point is necessarily involved also in cases cited supra, n. 7. Cf. infra, Sec. 504, as to a similar question under another clause of the statute, where the lack of enforceability of the promise depends on the nature of the promise, whereas under the present clause it depends on the nature of the consideration.
10Re Holland,  2 Ch. 360; Warden v. Jones, 2 De G.& J. 76; London v. G. L. Anderson Brass Works (Ala), 72 So. 359; Winn v. Albert, 2 Md. Ch. 160, 6 Md. 66; Deshon v. Wood, 148 Mass. 132, 19 N. E. 1, 1 L. R. A. 518; Borst v. Corey. 15 N. Y. 505. Cf. with these decisions, cases holding that an oral, and therefore unenforceable trust, may be carried out by the trustee in spite of the objection of creditors or a trustee in bankruptcy. Bailey v. Wood, 211 Mass. 37,97 N. E. 902. See also VanSickle v. Wells, Fargo & Co., 105 Fed. 16; Martin v. Remington, 100 Wis. 540, 76 N. W. 614, 69 Am. St. Rep. 941; and cases which hold that a preference by an insolvent debtor to one having a claim valid but unenforceable because of some rule of procedure like the Statute of Limitations or the rule prohibiting a wife from suing her husband is not a fraudulent conveyance. Wright v. Wright, 103 Fed. 580; Vansickle v. Wells, Fargo & Co., 105 Fed. 16; Victor v. Swisky, 87 111. App. 583; Brook-ville Nat. Bank v. Kimble, 76 Ind. 195; City Bank v. Wright, 68 Ia. 132, 26 N. W. 35; Meredith v. Schaap (Ia.), 85 N. W. 628; First Nat. Bank v. Eich-meir, 153 Ia. 154, 133 N. W. 454; Frost v. Steele, 46 Minn. 1, 48 N. W. 413; Dayton Co. v. Sloan, 49 Neb. 622, 68 N. W. 1040; Manchester v. Tibbetts, 121 N. Y. 219, 24 N. E. 304, 18 Am. St. Rep. 816; McConnell v. Barber, 86 Hun, 360, 33 N. Y. S. 480; McAfee p. McAfee, 28 S. Car. 188, 5 S. E. 480.
11See Williston's Cas. Bankruptcy (2d ed.),p. 181 n.1.
12Ex parte Whitehead, 14 Q. B. D. 419, and see oases cited in the following notes.
13 This is the rule laid down by Chanmade in conformity with an oral ante-nuptial agreement is always open to the possibility of attack by the settlor's creditors.14 Where the interests of creditors are not concerned, it goes without saying that if an oral ante-nuptial contract is executed by an actual settlement, the settlement is irrevocable. But whether the post-nuptial reduction to writing of the prior agreement will make the transaction enforceable between the parties is the subject of some conflict. The question of a subsequent memorandum thus presented under this clause of the statute seems no different in principle from the same questions when presented under other clauses. Under the English Statute, which requires either that the "agreement ... or some memorandum or note thereof" shall be in writing, it seems clear both on principle and authority that a written memorandum made subsequently to the oral agreement will validate the contract as between the parties, though not as against third persons, from the time when it was originally made.15 But in the United States many jurisdictions, while doubtless intending to follow in the main the English model, have provided in their statutes that the contract or agreement must be in writing without adding the alternative possibility of a memorandum or note thereof. Even in statutes of this form it is not clear that a post-nuptial writing may not validate an oral ante-nuptial agreement.16 If an indivisible cellor Kent in Reade v. Linvigston, 3 Johns. Ch. 481, 8 Am. Dec. 520, and though the case is overruled now in New York, and is not law in most States, it is still followed in Alabama, Kentucky, Michigan, New Jersey, South Carolina, Virginia, West Virginia. See Williston's Cas. Bankruptcy (2d ed.), p. 173 n. 1.
14Carter v. Worthington, 82 Ala. 334, 2 So. 516; Manning v. Riley, 52 N. J. Eq. 39, 27 Atl. 810.
15Hammeraley v. DeBiel, 12 C. & F. 45. See infra, Sec. 590.
16In Frazer v. Andrews, 134 Iowa, 621, 112 N. W. 92, the court construing the Iowa statute which requires that "the contract" shall be in writing and signed by the party to be charged, held that a subsequent writing which did not recite that its purpose was to give effect to a prior oral agreement was invalid, saying, at pages 624, 625, "We have held, however, that if after the making of a parol ante-nuptial agreement the parties after marriage reduce it to writing, and in the writing recognise and put in force and give effect to the previous parol one, the written one will be given effect as an ante-nuptial, and not a post-nuptial one. See Kohl v. Frederick, 115 Iowa, 517, 88 N. W. 1055. The present case involves a somewhat different question, in that there is nothing in the writing itself which shows that it was executed to give effect to and make of writing a previous parol ante-nuptial agreecontract is made partly in consideration of marriage and partly for some other consideration, the whole contract necessarily becomes unenforceable.17