27 Va. 618 | Va. | 1828
delivered his opinion.
The Appellees having obtained Decrees against William Bentley, filed their Bill against him, and many persons holding personal, and others holding real property, some of them direetty, and others indirectly, under him, the object of which was to set aside the conveyances as being fraudulent as to them, and to subject the property, thereby conveyed, to the satisfaction of their claims.
.The Counsel for Colenian, who holds a part of the land in question, urged as an objection to the jurisdiction of the Court, that at the time when the Bill was filed, the Pláintifís had not a capacity to sue-Out 'Elegits on their Decrees, without taking some further preliminary step to enable them to do so, and consequently had not then a subsi’sting'lien on their debtor’s land, that not being the effect of a Judgment only per sc, but of the capacity to extend it by Elegit, and that a creditor at large, having no lien on his debtor’s land, cannot claim the aid of a Court of Equity, in order to enable him to reach it by removing impediments to his proceedings at Law. This objection, if Well founded, would lead to the dismission of the Bill as to the relief sought, in respect to all the lands mentioned in it.
The objection is founded on the decision of this Court in Eppes v. Randolph, 2 Call, 125, and a recent decision of C. J. Makshaxl, to the same effect,- in which it was held, that a judgment creditor could not overreach in Equity a bona fide conveyance of his debt- or’s land, made after the Judgment, and at a time when the capapacity to sue out an Elegit was suspended in consequence of no Execution having been sued out within ' the year-, and no election entered on the Record, or for any ether cause. These decisions proceeded upon the merits of the respective cases, and not upon the question of jurisdiction, and whether right or wrong, do not touch the case under consideration, either in respect to the question of jurisdiction, or upon its merits; for here all the Defendants were pur
However all this may be, I think it clear that at the time when this Bill was filed, the Plaintiffs had an existing capacity to sue out E/qg-ifs upon their Decrees, without any preliminary proceeding •whatever. They had taken out Executions of Fieri Facias, which had been levied, and returned in part satisfied by the sale of the property taken, without any return of Nihil as to the residue. And in such a case, it is contended, that the Plaintiff could not take out an Flcgit, without first taking out a new Execution of Fi. Fa., and having it returned Nihil, upon the ground that upon the just construction of our Statute concerning Executions, it was required that a party electing to resort to one species of Execution, could not resort to one of another description, Until he had exhausted the effect of the first, by pursuing it to a return of Nihil or Non est Inventus; and, especially, that upon the literal terms of the Statute, an Flegit could not be taken out after a Fi. Fa. or Ca. Sa. returned, unless the return was Nihil, or Non est Inventus.
This leads us to a particular examination of our Statute, the first section of which provides, that aJI “persons who have, or shall hereafter recover any debt, damages or costs, in any Court of Record, may at their election prosecute Writs of Fieri Facias, Elegit, and Capias ad Satisfaciendum, within the year, for taking the goods, lands and body of the debtor.” It then prescribes the teste and return days, and the forms of those Executions, and of their returns, The third section provides, that “ when any Writ of Execution shall issue, and the party, at whose suit the same is issued, shall afterwards desire to take out another Writ of Execution at his own proper costs and charges, the Clerk may issue the same, if the first be not returned and executed; and where, upon a Ca. Sa. the Sheriff shall return, that the Defendant is not found, the Clerk
The fourth section, enacts the' provisions of 32 Hen. 8, ch. 5, which provides, that if a tenant by Elegit be evicted, he may have Scire Vacias against the debtor, his heirs, executors and administrators, and have such Executions for the residue of his debt unpaid, as if no. Execution had theretofore issued,- enlarging- the provisions of the English Statute, in this, that whilst that only allowed a new Elegit, our's allows a new execution of any sort. The next three' sections enact the provisions of the 16th and 17th Car. 2, ch. 5, declaring, that an Extent shall not be avoided on account of the omission of any lands which were extendable. The eighth and ninth sections enacts the provisions of the 21st Jas. 1, ch. 24, authorising a new Execution against the’ lands and tenements, goods and chattels of a debtor dying in execution, except such lands’ and tenements as have been b'o na fide sold for the payment of some other creditor, and the proceeds so applied.
The thirteenth seetion enacts the provision of 29th Car. 2, ch. 3, declaring, that goods shall be bound by a Vi. Fa. only from the time of the' delivery to the Sheriff.
The twenty-eighth section provides, that á debtor in execution “may relieve' his body,- by surrendering goods to he Sold' as if taken under a Fa., provided that if they be not sufficient to pay the debt, orare subject to a lien, a new Fi. Vd. tit Ca. Sa. may issue'. These are all the provisions- which touch the question under consideration.
The' argument,- that a; party having, once made' an election to take one species of Execution, cannot afterwards' resort to another, till that elected- is- exhausted by a return of Nihil or not found, proceeds upon the idea, that such is the effect of the first section giving such election, or'the consequence of the particular provisions of the third section, according- to Which, in ¿Very case, (except one, in which a new species of Execution is allowed to be resorted to,) the former is- supposed to’ be first returned Nihil,- or not found; and- so in the twenty-eighth section,- in which a Vi. Fa. or a Ca. Sa.. but not an- Elegit, is allowed after a debtor has been discharged upon-
The Statute of Westm. 2, 13 Edw. 1, ch. 18, which gave the Elegit, is nearly in the language of ours: “When debt is recovered Or acknowledged in the King’s Court', or damages awarded, it shall be from henceforth in the election of him that sueth for such debt or damages, to have a Writ to the Sheriff Fiera Facial of the lands, (Levari Facias) 2 Inst. 395, and goods (Fi. Fa.) 2 Inst. Ibid., or that the Sheriff shall deliver to him all the chattels of the debtor, saving only his oxen and beasts of the plough, and the one-half of his land,” &c. At this time, the Writ of Ca. Sa. in the case of a private person, was only allowed in cases of trespass vi et arnriis, when the Capias in Process laid. It was afterwards extended to other cases, by allowing the Capias ad Respondendum to them.
The early constructions of the Statute of Westminister, proceeding or. the maxim that iielecllo wines est exclvslo cñterlus.” determined,, that when the creditor had elected one species of Execution, be could never resort to any other, although that elected proved ineffectual. Thus, in 20 Edw. 2, Execution, 132, it was held, that after a Ca. Sa. awarded, although it was returned “not found,” no other Execution could afterwards issue; and so in 19th H. 6th, it was held, that after an Elegit prayed and entered on the Record, the party could not resort to any orther Writ of Execution, because he had made his election; and in the early cases there are many instances of the like construction. But this rigorous, and to creditors, mischievous construction, gradually gave way to a more liberal spirit in the Courts of Justice, favoring the remedies of creditors, and in some instances, in which the contrary principle had become so fixed as to be beyond the power of the Courts, the Legislature interposed in their favor, as in the instances of the Statutes of Hen. 8, Jac. 1, and Ch. 2, incorporated into ours. And when our Statute
Considering, then, the general spirit and objects of this Statute, I cannot conceive that it was the intention of its framers to deprive creditors of remedies by Execution, which they would have had if the Statute had not been made. And even if these Statutes were considered as containing the whole Law of Executions, I should say that a right to take an Elegit after a Fi. Fa. in part satisfied, and not returned “Nihil” as to the residue, would fall within the spirit, and be sactioncd by the equity of the Statutes.
All the Defendants claiming lands directly under William Bentley, are volunteers, and the Deeds under which they claim, grossly fraudulent, and the Decree as to them correct.
The case is different as to the lands claimed by William A. Bentlev and Coleman, indirectly under him, in respect to which the facts are these: In 1796 or 1797, William Bentlev purchased of Wm. A: Cooke, upwards of eleven hundred acres of land, with an agreement that no Deed was to be made until he had given Bond and security for the purchase money. Wm. A. Bentley was then, and probably long after, an infant.
In August, 1805, Wm. A. Cocke, at the instance of Wm. Bentlev, conveyed this land to Wm. A. Bentley, who paid no valuable consideration for it to any one. Wm. Bentley had not then paid the whole purchase money, or secured it to CocJee, but after-wards paid it to him.
In 1800, James Cocke and Wm. Bentlev exchanged lands, Cocke giving him one hundred and fifty-four acres adjoining the land sold by Wm. A. Cocke to Bentley, at the price of 1,0001., and Bentley giving Cocke about eight hundred acres in Amelia, at $S 7 50 per acre. A considerable part of the difference was paid by James Cocke to JVilliam A. Bentley, by order of his father, William
In May, 1807, Wm. A. Bentley conveyed to his brother Peter E. Bentley, six hundred acres of thesé two tracts of land, by a Deed reciting that their father had purchased the lands from the Messrs. Coches, who had conveyed them to him at the instance, and by the permission of Wm. Bentley, who particularly enjoined it upon him to convey the six hundred acres to Peter E. Bentley, and this is the prily consideration stated, and no other was given by Peter E. Bentley to any one.
In July, 1813, Peter E. Bentley conveyed 'five hundred and twenty acres of this land to Coleman, for the consideration of something more than $6,000, and in October, 1815, Wm Bentley and his wife, with a view to bar her claim to' dower, conveyed the same land to Coleman by a Deed reciting that William Bentley, had purchased the land of Coche, but had not procured any conveyance to himself, or in trust, and liad given it to Peter E. Bentley and Wm. A. Bentley, his sons, to the last of whom Cocke had conveyed the land at his request, who especially enjoined it on William A. Bentley to convey to Peter E. Bentley, all that part of the land which laid above the bridge road. At this time, Coleman had paid only about three-fourths of the purchase money to Peter E. Bentley, but afterwards paid the balance, before, as he says in his Answer, he had any notice of the fraud charged upon the Bentleys, by the Plaintiffs.
At the several periods when all these transactions took place, William Bentley was largely indebted as their Guardian to the female Appellees, who, in August, 1806, chose new Guardians, and in November, 1807, instituted the suit against William Bentley for the settlement of his accounts as their Guardian, in which they obtained the Decrees (in 1S19,) which are the foundation of this suit.
In 1807, and early in 180S, Bentley conveyed the residue of his . estate, real and personal, without any valuable consideration to his other children, and in September, 1811, took the oath of an insolvent debtor. None of the Deeds, under which Coleman claims, from those of the Coches to William A. Bentley, inclusive, were duly recorded. This fact was not charged in the Bill, but being ' urged at the hearing, time was given to enquire into it, and the fact ' afterwards admitted to be so.
If the legal title to these lands had even been in William Bentley, and were claimed under him by direct conveyances from him,
Some doubt seems at one time to have existed upon the question, w^ct-her’ ^ a father or husband purchase lands in the name of his child or wife, or m his own name, causing in either case a conveyance to be made to the wife or child, the transaction could be impeached by a creditor of, or purchaser from, the husband or father, upon the ground of fraud, inasmuch as in such case there is no resulting trust for the husband or father, as in the case of a purchase by one, and a conveyance to a stranger.
In Lady George’s Case, cited Cro. Car. 550, as decided in the 10th of Car. a father having purchased in the name of his daughter, and afterwards soid to another, it was held in the King’s Bench, that unless there tuere some fraud discovered, it was not within the 27th Eliz. though there be many badges of fraud.
in Back v. Andrews, Prec. Ch. 1; 2 Vern. 120, (1689,) a father purchased copyhold, which was conveyed to himself, and his wife and daughter, and their heirs. This was held to be an advancement for the wile and daughter, and not a trust for the husband, and that a mortgage by him should not bind the lands in the lifetime of the wife and daughter.
In Fletcher v. Sedley, 2 Vern. 490, (1704,) Wright, Lord lieeper, inclined, that a lease purchased bj’’ A., and conveyed to B. in trust for A. during his life, and afterwards for C., who lived with A. as his wife, and was so reputed, was not assets of A., nor liable after his death to his creditors; for when a man purchases, he may settle as he pleases, and thought that fraudulent conveyances are made so only by the several Statutes made for that purpose.
In Proctor v. Warren, Sel. Ca. in Lord King’s time, 78, (1729,) Lord King said, that he did not know that it had ever been determined, that if a man indebted, intending to provide for his children, has an estate originally conveyed to them, it should be subject to his debts.
On these cases, which are all that I have met with tending to esfablish the proposition, that such a transaction cannot be impeached for fraud, I remark, that in Lady George’s Case, and that of Back v. Andrews, no fraud appears to have been established, and the declarations of Keeper Wright and Lord King in the other cases, were mere dicta, upon which no Judgment was founded.
The case of Stileman v. Ashdown, as it can be collected from the ' Reports of Alkyns, vol. 2, p. 477, and Ambler, p. 13, appears to
In this case the whole of the purchased lands conveyed jointly to the father and sons, was considered, so far as the creditor was concerned, as belonging to the father, but as between the father and the sons respectively, and as between the sons, as belonging to the latter, according to the conveyances. , A moiety was condemned to satisfy the Plaintiff’s demand,, not because the father was entitled by the conveyances to a moiety, for in that case the right of survivor-ship in the sons, which they insisted on, would have been preferable to the lien of the Judgment on the father’s moiety; (6 Co. Rep. 19, Lord Abergaveny’s Case,) but because considering the father as entitled to the whole, so far as the creditor was concerned, yet only a moiety could be subjected in Equity, since no more could have been reached at Law, if it had been a legal estate.
Lord Hardwicke, as reported by Jitkyns, argued that although
Thus we have against the dicta of Keeper Wright and Lord Kino, the express decision of Lord Hardwicke, in Stileman v. Ashdown, and the implied admission in Lady George’s Case, that a purchase by a father, and a conveyance to a child, may be impeached for fraud, either by a creditor of, or'purchaser from, the father. And so in Christ’s Hospital v. Budgin et ux. 2 Vern. 683, it was said,- that a purchase in the name of a wife or child after marriage, and voluntary, may, perhaps, be fraudulent as against creditors, in like manner as if the settlement was of property actually vested in the husband or father. And deplorable, indeed, would be the imbecility of the Law if it could hot reach such a case as that
The Decree was, therefore, fight also' as respects the lauds held by Ti lliam Ji. Bentley, and has properly directed the whole, and not a moiety only of the lands held subject to satisfy the demand of the Appellees, to be sold, since there were several Decrees on the same day;- each of which would have taken a moiety of the lands, if they had been extendable at Law.
' As to Coleman, I think he must be considered as' a bona Jidei purchaser, for valuable consideration, without notice of the fraud, and therefore protected against the operation of the Statute of Frauds by its proviso. And as to the lands held by him,- the only question is, -whether they are liable to the claims of Bentley’s creditors on account of the Deeds under which he claims not duly recorded. Upon the fullest consideration,. I am of opinion that they are not. So far as Colemari is Concerned, we are to consider the case as if Wikiam Jl. Bentley had given to- his father an adequate valuable consideration for the transfer of his interest in the
The President, and Judges Cabell, Coalter, and Carr concurred.