3 N.J. Eq. 143 | New York Court of Chancery | 1834
Thomas Diehl and one William Guier, in the year 1818, obtained a judgment in the supreme court of Pennsylvania, against John Page, for one thousand eight hundred and ninety-five dollars and sixty-two cents. The judgment remaining unsatisfied, and Page having afterwards acquired title to the undivided moiety of a plantation in the county of Salem, they sued out an attachment from the court of common pleas of that county, against Page, as a non-resident debtor, returnable to the term of March, 1826, and thereby attached the said property and the rents of it, in the hands of Thomas Wright and Peter Wright, the tenants and two of the defendants. Such proceedings were then had in the attachment, as that in the term of September, 1826, judgment was rendered in favor of the plaintiffs for three thousand and forty-nine dollars and twelve and a half cents, besides costs. The auditors sold- the property on the-twentieth of December,- and it was purchased by Thomas Diehl and William Guier, for one thousand nine hundred and ninety-nine dollars; upon which the auditors made them a deed.
After stating the foregoing facts, the bill proceeds to state, in substance, that Page, knowing that his interest in the premises was about to be attached by the complainants, fraudulently and without consideration, executed a deed of conveyance to one Isaac H. Booth, for all his interest; which deed bears date on the fourth day of June, that being about the time that Page obtained possession of the property under a judgment at- law.
It further charges, that Booth is a very poor man, and in the lowest walks of life: that he is not and never was possessed of any property, and earns his living by daily labor as a- journeyman comb-maker, and sometimes as a common and day laborer about the city of Philadelphia, and was -induced to lend his name by the promise of reward. That there was no money paid, nor was Booth able to pay any. That after the pretended conveyance, Page, with the knowledge of Booth, made a contract with Wright the tenant, and held himself out as the real Owner of the premises, offered to sell and mortgage them to raise money, and exercised ownership over them in as full and absolute a- manner as
William Guier having departed this life, his interest has be come vested in his sou, William Guier, and his daughter, Mary Ann, now the wife of William Kennedy, who, with Thomas Diehl, are the complainants in this suit.
The bill prays, that all the conveyances above mentioned from Pago and his assignees, may be declared fraudulent and void and be set aside, and that the tenant may come to an account for the rents, &c.
John Page, in his answer, admits the issuing of the attachment, and that the property in question was seized on and sold, but insists, that the proceedings in the attachment were irregular; that there was no legal advertisement either of the issuing of the writ, or of the sale of the property, and that the judgment and conveyance founded on it are wholly inoperative and void. He denies that the conveyance to Booth was fraudulent, and insists that it was bona fide, and that he gave a warranty deed, which he would not. have done if the said deed had been fraudulent. He answers nothing as to the pecuniary circumstances of Booth, hut says he was of respectable character and standing, a comb-maker in Philadelphia; that he was desirous of.changing his business for one of a more active nature, and knowing of this property which he, Page, had recovered in New-Jersey, he, after viewing it, proposed to purchase it, and agreed to give four thousand dollars for it, which was supposed could easily be made by a person going thereon and felling timber and wood; and. having confidence in Booth’s honesty, he sold it to hint, believing he would
Clark and; Atkinson,- in their answer, set up the same defence as Page, in relation to the attachment and the proceedings under it, insisting that they are void. They deny any knowledge of fraud as between Booth and Page, and allege, that believing the value of the property to be considerable, they purchased it of Booth by deed dated June first, 1829, for the bona fide consideration of four thousand seven hundred and fifty dollars; and to secure the payment of the same, they gave him a mortgage on the property, (for what amount is not mentioned.) That the said Booth sold the property because the rents and profits were lying dead and unproductive, and because he was unable to use the property.
Booth and wife have put in no answer, and that of Peter and Thomas Wright, the tenants, is merely formal.
Considerable testimony has been taken by the complainants, to sustain the charge of fraud as made in the bill; but it is necessary, in the first place, to take up and dispose of the first ground of defence assumed by the defendants ; that questions the right of the complainants to come into court and set up any claim whatever to the property. It insists that the judgment on which their title is founded, and the conveyance under which they held it, are- both irregular and void, and that no valid claim can be exerted under- them or- either of them. If this be so, it will be unnecessary to consider the question of fraud; for if the complainants have no title, they cannot be permitted to-impeach that of the defendants.
Taking the defendants’ evidence as admissible, there would seem to be much irregularity in the proceedings under the attachment There were two suits instituted, one of which was continued to judgment, and the other ceased soon after the return of the writ. One of them was in the name of Diehl alone, the other in the names of Ouier and Diehl. The notice of issuing the attachbieht appears to have been in- the first, and not in the
This, however, is not the question. We are not to inquire whether the judgment is erroneous and irregular, but whether it •is void, and, coming up collaterally before this court, is to be taken as a nullity. On this question there ought to be no doubt. The jurisdiction of the court which rendered the judgment was -complete. It was a general jurisdiction over the whole subject matter; and while acting within that jurisdiction, their judgments are not to be impeached, though erroneous on the face of them. The court of common pleas did not in this case, it is true, proceed according to the course of the common lawit acted under the fequisitions of a particular statute; but the principle is not thereby altered, it is not thereby degraded into a court of such inferior and limited jurisdiction, as that all its proceedings arc ■rendered void, if a single requisition of the statute be uncomplied with. Case of the Marshalsea, 10 Coke, 76. Kemper's lessee v. Kennedy et al., 5 Cranch, 173, is a strong case to show -the distinction between what is technically called in the English books a court of limited and inferior jurisdiction, and a court invested by statute with a new and general jurisdiction over any particular subject matter committed to its cognizance. The several courts of common pleas of this state, having no criminal jurisdiction by their original constitution, were by an act -of the legislature invested with power to render judgment upon inquisitions taken and found in cases of treason. In the proceeding and judgment brought up collaterally in that case, the court said, the judgment was clearly erroneous; but the court of common pleas being a court of record, and having general jurisdiction of the subject matter, its judgment could not be diregarded. It must stand until reversed.
The defendants’ counsel endeavored to maintain, that this judgment might be impeached on the ground of fraud; that it was a fraud upon the court and the party. There can be no doubt that a record may be affected and even vitiated by fraud. The cases from 12 Vesey, 324, ( White v. Hall,) and 3 Ves. and Bea. 42, (Hampson v. Hampson,) fully prove the position, if it needed proof. But in both these cases the question of fraud was distinctly raised, and the issue was upon that point. It did not come up collaterally, as in the present case. But waiving this difficulty, I am not satisfied that there is fraud in the judgment. There is no pretence that the money was not due, or that the judgment was entered for too large a sum, or that any deception was practised on the defendants. If there was any thing like fraud, it must be a legal fraud, arising by implication from the irregularity of the proceedings. This would prove too much ; for every irregularity might be considered as operating fraudulently in some sense, by depriving the party of some legal right or privilege. Nor does the fact that the attachment is a proceeding in rem, in which there is no personal notice, vary the matter. It is still nothing more than an irregularity, and must submit to be governed by the same unbending principle that governs all cases of the like nature.
The objection to the deed or conveyance, which is the next obstacle interposed against the complainants’ claim, is, that the
Upon the whole, I am satisfied that this preliminary objection is unsound, and interposes no obstacle to the investigation of the question of fraud charged against the defendants, and which is directly put in issue by the pleadings.
Was, then, the conveyance from Page to Booth, a fraudulent and covinous conveyance, designed to defeat the rights of creditors ?•
In answering this inquiry, it is proper to look first to the answer of the defendant, Page. He was interrogated specifically on this point, and his response, if direct, positive and full, is entitled to much weight. The answer of Page as to this part of the case, is very far from being satisfactory. Some of the charges in the bill are not answered at all, others arc evaded, while others again are answered according to the letter and not the spirit of the charge or interrogation. Some parts of it are argumentative and irrelevant, and taking the whole of it together, it is not entitled to that position which a plain, open and cordial answer may always claim in a court of justice. Looking at it in the most favorable light, it presents a suspicious case ; one not easy to be
It appears that Guier and Diehl, in the year 1818, recovered a judgment in the city of Philadelphia against John Page. This was revived by scire facias in 1824, and an execution issued against his goods and chattels and lands, which was returned by the sheriff “ nulla bona." In the spring of 1825, Page came into possession of the property in question, by the judgment of law. Before this, Booth and Page were acquainted. Bdoth was a tenant of Joshua Longstreth in Philadelphia, and he is stated by him in his evidence to have been poor; insomuch that he left the house he occupied without the knowledge of his landlord, and without paying the rent. Page called on Longstreth as the friend of Booth, and begged him not to. be hard with him, representing him as very poor, and without the means of supporting his family. Longstreth sued Booth, and in 1823 obtained a judgment for thirty-five dollars, and Page became his bail. In 1824 he took the benefit of the insolvent laws. By the schedule of his property and debts, as filed, it appears that his debts amounted in the whole to seventy-four dollars, and that the whole number of his creditors was three, of whom Longstreth was one; and also that he had neither real or personal property. Longstreth further testifies, that he saw Page frequently for several years afterwards, and that he always represented Booth as poor and unable to pay. These facts are undisputed. Part of them are proved by record evidence. And yet this is the man to whom Page, in June, 1825,' only a year after he took the benefit of the insolvent laws, and wdiile he was representing him so poor as to be unable to support his family, conveyed this valuable property, worth at least two thousand dollars. The very statement'is sufficient to excite surprize and suspicion. But the subsequent part of the transaction is still more surprizing. Page conveyed the property.for the sum of two thousand dollars, on the fourth of June, 1825, and took Booth’s own bond for the
How is it attempted to be explained ? Page, without answering a word as to the poverty of Booth, says, ho was a comb-maker in the city, “ of a respectable character and of reputable standing; but the business of comb-making not agreeing with his health, and being desirous of changing his business for onó of a more active nature, and knowing of this property that the defendant had recovered in New-Jersey, he proposed to purchase the same, and after going to the premises and viewing the same, he agreed to give this defendant four thousand dollars for the same, which was supposed could be easily made by a person going thereon and felling timber and wood that he had full confidence in the integrity of Booth, and believed he would be enabled to pay him by instalments, or otherwise. That Booth was not a common day laborer; that he believes the sole reason why Booth has not paid the consideration money is, that he has been prevented from going on the premises and realizing the profits to be derived therefrom by the sale of timber and wood and otherwise ; and that if Booth is now in the reduced circumstances in which the complainants represent him to be, it may be attributed to their proceedings.
Such is the account of Page himself; and in my opinion it is entirely unsatisfactory. It is difficult to believe that Page could have been so silly and ignorant of business, as to convey this property to a man not worth a cent, an artisan entirely unacquainted with the management of a farm, and rely on being
This is confirmed by the testimony of Peter Wright, who says that Page, in conversation with him soon after he got possession of the property, observed that he thought it was best for him to sell it as quick as • he could, or as soon as he could after he got possession of it, for fear his creditors would come on him .and také it from him, or words to that effect. This explains the matter more satisfactorily than the answer, and furnishes a key to the whole mystery. He also, told Thomas Wright, that if he, Page, did not sell the property, other people would sell it from him. .
In addition to this, it appears that after the alleged sale1 to. Booth, Page exercised ads of ownership over it, offered to sell it, and in all respects treated it as his own. According to the testimony of Thomas Wright, the tenant, Page called on him in the forepart of the year 1825, to let him know he had recovered a moiety of the property on which he, Wright, then lived. The other half belonged to Jemima and Rebecca Bullock. In October, 1825, Jemima Bullock and Wright called on Page, in Philadelphia, respecting the rent of the' farm. The object of calling was to fix the rent, and there was then an agreement made between them, that is to say, Jemima Bullock, Page, and Wright, for the rent; and it was fixed at four hundred and fifty dollars per annum, and was to continue till the expiration of the lease. At this interview, which was four months after the alleged sale, not a word was said- about the sale. . The tenant expected to pay half the rent to Page, as a matter of course, and the other half to the Bullocks. But again, at this meeting Page insisted on‘Jemima Bullock’s purchasing.his half of the'farm.
It is not till after the service of the attachment that- any thing is heard about the sale of the property. Then, when the tenant told him-that the farm and all the moneys due him were attached, and not before, he told the tenant he had sold the farm. He told the tenant to come to him with the rent, and he would take him to Booth, the person who had bought the farm. The tenant asked where Booth lived, but Page did not tell him. In the spring. Page and Booth came for the purpose of collecting the rent; but Page was the principal and acting man in the business, and appeared to have more interest in it than Booth.
I think the evidence shows clearly, that there was a perfect' understanding between Page and Booth,, and that the one was-in fact but the representative of the other; that the whole formula of sale was a mere cover, and designed to protect the property. ■
Page, it is true, affirms that he at no time exercised any acts of ownership over the property after the sale; nor, as the réal owner of the said premises, did he make any contract or offer of sale of the same, by mortgage or otherwise, for himself or in his own name. But this is contradicted, as has been seen, by the testimony of Thomas Wright. And if any thing more is necessary to overcome this part of the answer, it is furnished by the evidence of John Tufts; who says that about three years ago, John Page offered to sell the property to him, and made him sub
So far as Page and Booth are concerned, it is unnecessary to spend further time in investigating the testimony. It is a clear case of fraud, badly concerted and clumsily executed, and against the consequences of which it is the duty of the court to protect those having lawful rights. As to the other defendants, Clark and Atkinson, their situation is no better. If not actual parties to the fraud, they hold under a fraudulent title. They aie not bona fide purchasers for- a valuable consideration, and without notice. They have not pretended to set up any such defence. Nos could they have done it with truth; for- when- they purchased the property it was in possession of Page, and not of Booth; and possession is notice sufficient to put the party on inquiry. The answer- of- these defendants is very like that of Page, and obnoxious-to the same remarks. It shows that no money passed at the time of the purchase ; and sets up that they agreed to give
This appears to me a singular reason for the purchase, but not more so than all the proceedings in this extraordinary case. These defendants had parted with all their interest to Robert Leeds, long' before this answer put in, and yet no mention is ■made of it. They answer as though they still claimed the pro■perty, and the rents and profits of it.
Leeds has been examined as a witness. He agreed to purchase «f Champion Clark and Keziah Clark, who owned the whole of the moiety, for two thousand seven hundred dollars, and was besides to settle with an old gentleman in Philadelphia, who would, as Mr. Clark said, be very easy to be treated with. This old gentleman turned out to be John Page. Page said the bond and mortgage were transferred: and said, “ Clark, you know when the mortgage was given, and for what sum.” The principal and interest amounted to about six thousand dollars. This must have been the bond and mortgage given by Clark and Atkinson to Booth, and which had come into Page’s hands; showing still that Booth was merely the agent of Page. Page said, lie had received bonds and mortgages on the property, and had a power of attorney from another person, and that under that power he had control of the property. Of this there can be no doubt. And I think it plain from the whole case, that he has the control
It is not a pleasant duty to set aside conveyances on the ground of fraud ; but when justice requires it, it should be done without hesitation. In the case before me, I. cannot doubt; and I shall therefore order the conveyances from Page to Booth, and from Booth to Clark and Atkinson, to be set aside and annulled, as fraudulent and without consideration, and therefore void as against these complainants.
Decree accordingly.