35 Vt. 16 | Vt. | 1861
The trustee, on .or about the 1st January, 1861, was indebted to the principal defendant in a note for $381.44, payable in about a year thereafter. Being informed that the defendant’s creditors were about to attach it by trustee process, , he paid the note to the defendant in order to avoid being trusteed, and to aid the defendant to place the amount of the note beyond the reach of creditors. Was such payment fraudulent
It is not claimed by the plaintiffs but’that the debtor would have been justified in paying the note if it had been then due, though the motive might have been -to aid the defendant in putting it beyond the reach of creditors. In such case it would • have been doing only what he was then legally bound to do ; and the act would have been strictly mere payment. Our statute against fraudulent conveyances does not provide that payments, though “ made with the intent to avoid the right, debt or duty of another,” shall be void.
The words of the act are “all fraudulent and deceitful conveyances — all bonds, bills, notes, contracts and agreements, all suits, judgments and executions made or had to avoid any right, debt or duty of another shall be null and void. Payments of a debt are not mentioned.
Where one to whom a debt is due has the debt transferred and made nominally payable to another instead of himself, in order to avoid the trustee process, such transfer is void, and the debt is still subject to the trustee process. Thus, where a note is by agreement between the payee and maker taken up and a new note given in exchange to some other person, but in reality for the payee, the transaction is fraudulent. Such transfer or new note comes clearly within the words of the statute — “ conveyances, contracts, bills, notes.”
Such are the cases of Camp v. Scott, 14 Vt. 387, and Marsh v. Davis, 24 Vt. 363.
In this case it is urged that as the note was not due, the maker could not pay it except with the consent or agree ment of the payee, and therefore that ■ the transaction was virtually an “ agreement” within the meaning of the act.
But the “ agreement” intended by the statute must, we think, be one by which an obligation is created from one party to another, ^an obligation that might «be enforced but for the
We are aware that as a moral question there seems but little difference between paying one’s debt when not due with the intent to hinder creditors, and buying property at its full value with the like intent. In each there is a voluntary act, a fraudulent intent and a full consideration. But the purchase is within the letter of the statute, — it is both “contract” and “conveyance.”
Notwithstanding the antiquity of this statute counsel have not been able to cite any case where payment with the fraudulent intent has been held as coming within the statute. Whether payment to the creditor to aid him in concealing his property from his creditors has been regarded in legislation as an act which it was not wise in policy to prohibit, — or has been overlooked and so not included in the statute, — may perhaps be a matter of doubt. If intended to be included, we think it had better be done by legislation in express terms, than by judicial construction.
It is obvious that there is one point of difference between the debtor and others who enter into fraudulent contracts — a point which may have been considered in framing the act. Those -who enter into fraudulent contracts to aid a debtor to conceal his property are volunteers — they are under no obligation whatever to do what they engage in. The obligation of the debtor to pay his debt is originally honest and legal. In paying his debt he does what he is under* legal obligation to do at some time.
We see nothing to impeáeh the conclusion of the commissioner that the note was originally given bona fide and for full value.
The judgment of the county court is therefore affirmed.
