4 Day 284 | Conn. | 1810
It was formerly the practice to admit what was said by a fraudulent grantor respecting his intent to defraud his creditors prior to the conveyance, as evidence in an action against the fraudulent grantee, though he had no knowledge of it; but this practice cannot be warranted on principle; for the grantee ought not to be affected by the declarations of the grantor, unless they come to his knowledge; and though a grantor may have a fraudulent intent, this may be wholly unknown to the grantee, and the transaction may be bona fide on his part.
In this case, it was competent for Lewis Catlin to testify that he had executions against Brace, which he had levied on his body; that he and Brace went to the defendant; that Brace and the defendant went into another room; that immediately after, the defendant gave a receipt for property taken on the executions, and Brace executed a deed. These were facts which, taken in connection with the other testimony, might explain the transaction. But it was not admissible to prove the proposition of Brace to the witness, to convey to him the land on being discharged from the executions, with an un-
The other question is, whether the defendant can protect himself by the possession of fifteen years under the statute concerning the possession of lands.
It is unnecessary to consider the questiqn whether fraud will take the case out of the statute; for I apprehend, on a sound construction, it will be found neither to be embraced by the words, nor comprehended within the meaning, of the statute; and it would be a new idea to construe a statute liberally for the protection of fraud.
The statute does not enact that a naked possession of fifteen years shall vest a title in the possessor; but that no person shall make entry into any lands, but within fifi
The possession of the defendant in this case could not be adverse to the title of Brace; for Brace had no title or right of entry. The statute supposes the possessor holds adversely to some one having title and right of entry. If Brace had no such right, then the relative situation of these parties was such that the statute could not operate upon them; and it is a solecism to say, that a man acquires a title to land by an adverse possession of fifteen years against another, when he had previously acquired from him a legal title by a deed duly executed and recorded. The defendant acquired all the title of Brace the instant the deed was executed; how could he acquire any thing more by fifteen years’ possession ?
As it respects the creditors of Brace, there is no ground to pretend that the statute can operate. The plaintiff had no right of entry before the levy of his execution on the land, and he has brought his action within fifteen years from that period. He had till that time nothing but a right to proceed against Brace till he obtained an execution for his debt, and then to levy it on the land. This right to levy on the land, is not a right of entry, and cannot be within the letter or meaning of the statute ; and it is not supposable that the legislature contemplated a right of this description. When a creditor levies on the land, then a right of entry accrues; and at that time the statute begins to run against him.
But the true point of light in which this transaction is to be considered is this: The defendant, by the deed, took all the right of Brace, but he held the lands subject to the claims of his creditors, and in the nature of a
I am therefore of opinion that the charge to the jury Was correct; but that a new trial ought to be granted for the admission of improper testimony.
I am in opinion with my brother Swift, that the court erred in admitting Le-ais Catlin to testify respecting conversations with Brace, in the absence of the defendant. The declarations of one are never admitted to affect another who is not present and assenting to them, unless they accompany some act about which testimony is adduced ; and then they must be considered as explanatory only, and not as original and distinct proof.
I think, also, that the court were incorrect in the charge they delivered to the jury.
The court, in the first place, instructed the jury as to the facts necessary to constitute a fraudulent conveyance; and here they do not require that the jury should find any intent to defraud a creditor, nor even that the defendant knew that Brace was in failing circumstances. But. I have no doubt of the correctness of this part of the charge. The direct tendency of the contract was
The creditors of Brace do not claim under a new independent title; they take his title, and come in under him. The statute against fraudulent conveyances removes the deed from Brace to Catlin out of their way; as to them, therefore, Catlin went into possession without deed. The creditors must take all the consequences of the deed being void; they cannot both claim it to be void and valid j they cannot declare the deed void so as to take Brace’s former title, and at the same moment declare it good so as to avoid Catlin’s possession. But I do not admit that their possession was imperfect as against Brace himself. It had every quality required by the statute for quieting possessions. He holds the possession in his own right in opposition to Brace ; and there is no pretence that this possession was tobe delivered back in any event. .And it is no objection to the nature of this possession, that Catlin held it under a deed that was valid; though as to Brace, he, having a good valid deed, might not wish to avail himself of his possession; yet he could, if he pleased, and would not be obliged to rely on his deed.
It was said, in argument, that the taking possession was a wrong act, and a part of the fraud; and the deed
I confess I should feel some degree of concern to have it considered as settled law, that rao length of possession under a fraudulent conveyance will be a bar to the creditors of the grantor; and this to apply as a general rule to all cases, whether there were actual fraud or not.
It ought to be remarked, that the fact of fraud may, and frequently must, be proved by mere parol testimony; and this may be a fact not only fifteen, but twenty or thirty years before the trial. It ought, also, to be remarked, that this fact, when established by parol, is to overset a record title. And if no length of possession
thought that the admission or rejection of the evidence in question would not affect the event of the cause; and, on that ground, were opposed to the granting of a new trial. They were of opinion that the charge was correct.
New trial to be granted.