Everett v. Read

3 N.H. 55 | Superior Court of New Hampshire | 1824

Richardson, C. J.

By the common law, and the statutes of 13 Eliz. cap. 5, and 27 Eliz. cap. 4, which have been adopted here as part of our common law, every disposition of a man’s estate, not made bona fide, and for a valuable consideration, is absolutely void with respect to his creditors. Cowper 434—Rob on Fraud. Con 1, note, 596 and 595—1 Ventris 257—Moor 396, Watson's case.—3 Coke 80, Twyne's case—Moor 638, S. C.—5 Coke 60, Gooch's case. And creditors, in pursuing the remedies which the law gives them, to obtain satisfaction of their debts, may treat every such disposition as a mere nullity.

In Bethel vs. Stanhope, (Croke Eliz 810,) which was a scire facias against Stanhope, as executor of Francis Vaughan, upon a judgment against the testator, the defendant pleaded, that he had noassels. But it was found, that (he testator, being possessed of divers goods, made a gift of them to his daughter, with intent to defraud liis creditors ; but they remained in his possession till his death, and then came to the hands of the executor ; and afterwards the daughter took them away. —It was held, that the gift was void : that the daughter was a trespasser, in taking the goods ; and that they were assets in the hands of the executor.

In Edwards vs. Harben, (2 D & E. 587.) where a vendee, after the death of the vendor, took possession of goods which he had fraudulently purchased, it was held, that the vendee was liable, as executor de son tort, The same doctrine is recognized in the case of Hawes vs. Loader, Yelv. 196.—Cro. James 270.

In Drinkwater vs. Drinkwater, (4 Mass. Rep. 354,) it was held, that an administrator, having obtained license to sell the real estate of his intestate, for the payment of debts, might, sell land, which the intestate had fraudulently conveyed.

in Martin vs. Root et al. (17 Mass Rep. 222,) the case was, that Simon Lamer] conveyed to Root cl a. a farm, and at the same time furnished them with the means to remove certain incumbrances upon it : the object of the transaction was to keep the farm out of the reach of Laraed's creditors. Root et a. gave Lamed a note for $5072,43 ; and Lamed, at the same time, gave a promise in writing, that the note should never he collected. Lamed died insolvent; and his administrator brought an action on the note, and recovered : the court being of opinion, that the agreement that the note should not be collected, was void, in respect to creditors.

This last case is directly in point ; and we have no doubt, that any disposition of property, with intent to defraud creditors, must be deemed altogether void, as respects creditors, in whatever shape the creditors may choose to question its validity. The only way, in which the creditors can try ¡he question of fraud in this instance, seems to be in a suit, in the name of the administrator.

Mew trial granted.