Carter v. Castleberry

5 Ala. 277 | Ala. | 1843

COLLIER, C. J.

The act of 1814, which Was cited for the defendant hr error, from Aiken’s Digest, 254, only requires that the party supposing himself aggrived by the direction or decision of any judge against him, shall tender his bill of exceptions, stating the points wherein the judge is supposed to have erred; and the judge shall be bound to sign and seal the same, and the bill of exceptions so signed and sealed, shall be made and considered a part of the record in the cause. The bill of exceptions in the present case, states the point intended to be reserved with clearness, is signed and sealed by the presiding judge, and we think conforms to the statute.

The question raised in the circuit court, and on which the opinion of this court is asked, is, can a subsequent bona fide purchaser for a valuable consideration, in an action at law, between himself and a -previous fraudulent grantee, or the assignee of the latter, be permitted to show fraud in the previous conveyance ? The second section of the act, commonly called the statute of frauds, expressly declares that every gift, grant or conveyance of lands, &c, made with the intent to delay, ’hinder or defraud creditors, or to defraud or deceive those who shall purchase the same lands, &c., shall be “clearly and utterly void.” [Aik. Dig. 207.] This section is substantially a transcript of the 13th and 27th Eliz., which so far as we have recited our statute, have been always regarded as declaratory of the common law.

Fraud is looked upon as so - polluting in its nature as to invalidate all instruments which are tainted with it; even the most solemn acts of courts of justice, if once shown to be infected by it, lose all their efficacy. It is true, that a fraudulent conveyance is binding upon the grantor, but authorities are ample to show that it may be avoided by a subsequent bona fide purchaser, although he may have notice of the previous conveyance: if he is informed of it, say the books, he knows that it is fraudulent, and of consequence void. And it is quite immaterial whether the subsequent purchaser acquire his title by a deed directly from the fraudulent grantor, or at a sale made under an execution against him. To these points, see Jackson v. Seward, 5 Cow. Rep. 67; Anderson v. Roberts, 18 Johns. Rep. 515; Evelyn v. Templar, 12 Johns. Rep. 536; Read v. Livingston, 3 Johns. Ch. Rep. 488; Roberts on Frauds, 598; See 4 Dana’s Ab. 112, 13, 14, and cases there cited; Osborne v. Moss, 7 Johns. Rep. 161; Jackson v. Mather, 7 Cow. Rep. 301; Myers v. Peck’s adm’r, 2 Ala. Rep. N. S. 648

The bill of exceptions does not show that the defendant set up a title in himself, nor was such, assumed in the argument to have been the fact; we have therefore considered the case upon the hypothesis, that he is holding under Armstrong, the grantee of Shaw. And we are unable to perceive airy reason why, if the deed could be avoided in equity, because the statute of frauds has declared it void, it is not alike void at law. The cases we have cited do not recognize any difference in this respect between the two jurisdictions, but maintain the competency of the law courts to give effect to the statute. From the view taken it results, that the judgment of the circuit court must be reversed, and the cause remanded.