Den v. Gaston, 25 N.J.L. 615

Et.mkk, J.

The lessors of the plaintiff claimed title to the premises in dispute, under a deed made by the marshal of the district of New Jersey, by virtue of a judgment against Dr. Peter I. Stryker and Henry Yanderveere, in the Circuit Court of the United States, November 11, 1831, andan award of execution thereon upon scire facias, April 1,1840. The defendants claimed under a deed made by the sheriff of the county of Somerset, by virtue of a judgment against Stryker, signed in the Court of Common Pleas of the said county, January 13, 1840, and an execution thereon the same day. It was therefore agreed, that if the last named execution was duly recorded before it was put into the hands of the sheriff, and the judgment and execution were valid and bona tide, the title of the defendants must prevail.

The original fi. fa. was produced, which was marked on the back in the handwriting of the clerk, “recorded January 30, 1840,” and a certified copy of the record was also produced, at the end of which was entered, “ Received and recorded, January 18, 1840.” Mr. Mann, being produced as a witness for the plaintiff, testified that he was clerk at the time, and made the record, and said, “ I have no uniform practice as to recording executions. If I was in a hurry I- made a short entry, and recorded them at length after they were returned. I consider the certificate on the execution no certain evidence that it was recorded on that day. I would not be willing to swear that the execution was recorded before it went into the hands of the sheriff.” The judge charged the jury on this point as follows : “ The plaintiff insists the execution was not recorded when placed in the hands of the sheriff. This was fatal, if so. The writ has the clerk’s certificate that it was recorded on the day it was issued. This is grima facie evidence of the fact, and throws on the plaintiff the burden of proving the contrary. This, I think, he has not done ; we cannot avoid titles upon a possible, or even prob able ground, on which to' guess an official certificate is untrue.” This part of the charge being excepted to, it is now insisted that it was erroneous. It was, however, in accordance with the opinion given in this court when this case was here before, and wé think was correct. The law makes the recording of the execution before it was put into the hands of the sheriff the official' duty of the clerk, and the case therefore, comes' within the presumption omnia rite esse acta. Kinnersley v. Orpe, Doug. 56, is very much in point. It was- there held that the certificate of the enrolment of a case, on the margin thereof, was sufficient evidence of the enrolment without the production of an office copy. The mere statement of the officer, that he sometimes put the writ in the sheriff’s hands before he recorded it, and could not swear that he recorded this writ before doing so, was not sufficient to overcome the evidence of the certificate itself. The danger of allowing titles to be thus invalidated is too obvious to require comment.

'It being alleged, on the part of the plaintiff, that the judgment under which defendants claimed was absolutely void, and was fraudulent as against the creditors of Hr Stryker, and therefore void as against those claiming un der the marshal’s deed, the judge charged in. substance, that if the acts proved were done in good faith, and not to defraud creditors, but to secure the eventful payment of an honest debt, they were not fraudulent in law; the want of regularity or legality of these proceedings did not necessarily make them fraudulent or void. This part of the charge being also excepted to, it is now insisted that it was erroneous, and that the facts proved show that the proceedings were in law fraudulent and void.

Dr. Stryker and another person, it appeal's, were the executors of John Henry, who died in 1825, leaving an infant daughter, named Mary Elizabeth; and they were also appointed by the will her guardians. The will directed seven thousand dollars to be set apart and appropriated to the maintenance and education of the infant, the interest to be paid to the widow until she attained the age of six years, after which the executors were to retain the interest of said sum in their own hands, and appropriate the same, or so much as might be necessary, to the maintenance and education of said daughter, until she should attain the age of twenty-one years, at which time the principal and unexpended interest were to be paid to her. All the residue of the estate was also bequeathed to the said daughter after the death of her mother. The widow died within ten years after the death of her husband. The executors named in the will proved it, and took upon themselves the burden of its execution. 3STo inventory was proved or filed, but there was evidence to show that the personal estate, amounting to about nineteen thousand dollars, went into the hands of Dr. Stryker, who was the grandfather of the daughter. The executors never formally accepted the guardianship or gave bond, as required by the statute.

At the date of the judgment in the Court of Common Pleas, it being found tliat Dr. Strylcer was much embar rassed in his circumstances, and that the large judgment obtained against him in the Circuit Court was liable tc be enforced, letters of guardianship of the person and property of Mary Elizabeth Henry were granted by the Orphans Court of the eounty of Somerset to Thomas Tai mage, January 13, 1840, and on the same day Dr. Strykei executed a bond to him, as such guardian, in the penal sum of twenty thousand dollars, conditioned for the payment of ten thousand dollars on demand, accompanied by a warrant of attorney to confess judgment, by virtue of which the judgment in question was entered and «mention issued. The judgment, even if liable to be reversed or set aside as irregular, cannot be impeached in this proceeding, except for fraud. That the sum of ten thousand dollars was then in the hands of Dr. Stryker, for which he was then or at some future time bound to account to Mary Elizabeth Henry, or to some person in case of her death, as a part of the «state of John Henry, deceased, must be assumed to have been proven to the satisfaction of the jury. It being established by the verdict that the real object of the bond and judgment was to secure this money, and not to delay or hinder creditors, the only question now is whether they must be regarded as merely voluntary, and therefore a fraud in law.

'On the part, of the plaintiff, it was insisted in this court that the Orphans Court had no jurisdiction to appoint Thomas Talmage guardian of the minor; that the legacy to her. was hot yet due, and that the bond and judgment were therefore without consideration, and for that reason fraudulent and void, as against the purchasers at the marshal’s sale. That the Orphans Court might legally have appointed a guardian upon the petition of the minor, who had attained the age of fourteen, if the testamentary guardians were regularly removed for not having given the bond required by law, or for any other sufficient cause, cannot be doubted, and was not denied by the counsel of the plaintiff. If the court did in fact make the appointment without having first removed the testamentary guardians in a formal manner, as to which nothing appears, and which we cannot presume, it would not follow that the letter of guardianship was void, and could be so treated in this collateral proceeding. It was regular on its face, and was issued by a court having jurisdiction by proper proceedings to commit the guardianship of the minor to such person as she should choose, and whilst it remains in force must be presumed to have been regularly issued. But it is not important, for the decision of the present question, whether Mr. Talmage was or was not the legal guardian of Miss Henry. He assumed to act as such, and Hi’. Stryker having given to him a bond, which recited that he was the guardian, neither of them could afterwards dispute the fact. Mr. Talmage took the bond and judgment for the benefit of the minor, or whoever might become entitled to the money, and held whatever he collected on it as trustee for them. If the money was really due or to become due, there was no fraud in this. It is too well settled to require a reference to authorities, that a debtor in failing circumstances may prefer any of his creditors, by paying the money justly owing, or by a judgment or other security, whether the day of payment originally agreed on has or has not arrived.

There was considerable discussion, on the argument, whether the legacy to Miss Henry was a vested or contingent legacy. But this is wholly immaterial. If it he admitted that Dr. Stryker could not divest himself of liability to such person as might become entitled to the money in case she had died before she was twenty-one, by a payment of the money to her or to any other person for her use, such a payment would have boon no fraud, if made fairly with no fraudulently purpose. The other creditors had no rigb l to complain of this. They had no greater right to be paid or secured than Miss Henry, or those who might have succeeded her. The transactions, so. much complained of, amounted to no more than the setting apart of so much of the property in Hr. Stryker’s hands as should be sufficient to meet a just liability, a liability, too, having strong claims to the protection of the law.

The judge stated in his charge, that, as the widow died in 1834, all the estate vested in the infant, as sole heir of her father; and this was excepted to as an erroneous construction of the will. It is not material to inquire whether it was correct or not. At the time the bond was executed, Miss Henry had, at the least, a contingent right to all the estate, if she arrived at the age of twenty-one. She was the heir expectant, and if she died before she was twenty-one, the money was payable to some one representing her or her father. The payment or security of the money to Talmage, as her guardian, was for the benefit of whoever might be entitled in case of her death. Thus to pay or secure it was no fraud ; and whether the judge was right or wrong as to the construction of the will, since upon the only point material to the question, namely the fraud, the charge was correct, there is no error prejudicial to- the plaintiff, of which he can take advantage on this exception.

The judgment must be affirmed.

For affirmance — The Chancellor, the Chief Justice, Judges Elmer, Haines, Huyler, Ogden, Ryerson, Risley, Valentine, Vredenburgh and Wills.

For reversal — Hone.

Cited in Clapp v. Ely, 3 Dutch. 598,

Case Details

Case Name: Den v. Gaston

Court Name: Supreme Court of New Jersey

Date Published: Mar 15, 1856

Citation: 25 N.J.L. 615

Court Abbreviation: N.J.