41 N.H. 103 | N.H. | 1860
The plaintiff has a good title by deed and mortgage as against Britton; but Long claims that he is a creditor of Britton, and that, as to him, the deed is fraudulent in law as containing a secret trust, and the mortgage void by reason of the neglect to render an account. The plaintiff’s claim under the deed from Brit-ton and the assignment of the mortgage, is entirely meritorious and honest; Long’s claim was created for the sole and express purpose of defeating the plaintiff’s equitable rights. The conveyance from Long to Britton, and the note and mortgage from Britton to Long were mere pre-
To enable Long to set aside the deed of Britton to the plaint!ñ' and "Williams as fraudulent against creditors, it is necessary for him to show that he is a creditor. Where a creditor calls in question a conveyance made by his debtor, upon the ground of fraud, in an action between him and the grantee, the demand of the creditor must be subject to examination in order to see whether he has a right, as such, to question the validity of the conveyance. If a judgment has been obtained by him, still, as between him and the grantee who is no party to it, it will not be regarded as precluding the latter from an examination of the ground of it. The grantee may be allowed to show that it was obtained by fraud, or that the cause of action accrued under circumstances which would not give the creditor a light to impeach the conveyance. Miller v. Miller, 23 Me. 22; Alexander v. Gould, 1 Mass. 165; Upton v. Bassett, Cro. Eliz. 444; Doe v. James, 16 East 212. Long is not a creditor of Britton, so far as the rights of bond fide creditors and grantees of Britton are concerned, and he cannot dispute the plaintiff’s title.
Judgment for the 'plaintiff.