5 Vt. 382 | Vt. | 1833
The opinion of the Court was pronounced by
It appears, by the bill of exceptions, that both parties claim the land, now in dispute, under John H. Perry. The plaintiff claims by virtue of an attachment and levy; and the defendants claim by virtue of a deed from said John H. Said deed was executed January 7th, 1827, and recorded on the 9th of the same January. The plaintiff attached the land by his writ on the 30th of said January. The regularity of the plaintiff’s judgement and execution and levy are not disputed. But the defendants’ deed was upon record before the plaintiff’s attachment was put upon the land. The defendants thus appearing upon the record to have the prior title, the plain'tiff has resorted to other sources of testimony, to show himself entitled to recover, notwithstanding the defendants’ apparent prior title.
He first introduced a Mr. Baxter, whose testimony tended to show, that, after the defendants’ deed was thus upon record, and on the day the plaintiff’s attachment was ser
The plaintiff also contended, .that the deed from said John H. Perry to the defendant was fraudulent and void, and given on the eve o.f the failure of the .said John H., and given with intent to defraud his .creditors. Par this .purpose he introduced three depositions, which were objected to by the defendants, but were admitted by the Court. These depositions tend to prove, that the said John H. P.erry failed in business on the 5th day of said January, the next day after his deed to the defendants; and also tend to prove the declarations of said John H. Perry, made after the date of his deed to the defendants, which, if proper in evidence at all, do tend to show said deed fraudulent and void as against the creditors of said John H,
Whether these .depositions were correctly admitted or not, depends upon the decision of another question, whether the deed of John H. Perry to John Perry had become complete, by delivery and acceptance, when the sayings of John H. were uttered. For, surely, a man, who has conveyed land by a deed of conveyance, which has become complete, cannot defeat that conveyance by his after concessions merely. When the grantor ceases to have any interest, against which his concessions can operate, those concessions are not admissible against third persons, claiming under that title. Whether he could be called as a witness to impeach such conveyance, depends upon other circumstances. It seems by the testimony of Mr. Baxter, that the plaintiff caused a prudent enquiry about the title before he attached the land. The enquiry was made of John Perry himself. lie, instead of setting up any title in himself, said the title was in John H. Perry. The fair inference from this was, that he knew nothing about the deed from John H. to him, or thought it prudent not to set up any claim of tfile under it, until he had accepted the deed.. The title remained in John PI; and his sayings, so far as they tended to show the deed destitute of considera-
If our reasons for admitting these depositions be correct, it follows, of course, that the instructions of the Court upon this testimony, were also correct. — For the instructions were, that this deed, if executed in the absence of said John, the grantee, and not accepted by him, or any one authorized by him, when the attachment was made, would not vest the estate in the defendant against the plaintiff’s attachment, even if the deed were upon good consideration. The instructions, in case the delivery was complete and the acceptance proved, appear not unsatisfactory to the parties. They surely are not liable to objection; for if the deed was found by the jury to be fraudulent, it must be void as against the plaintiff, who was a creditor of the grantor.
Our decision, however, is urged in favor of Bela R. Per
The judgement of the County Court is affirmed.