18 Ala. 585 | Ala. | 1851
1. The first question whicMihit\le]Q()£,* j presents for our decision, is, whether a written instrument, the ;j subscribing witness to which resides beyond tire Y. J the court, is sufficiently proved to be admitted age vi-,.¿y denee to the jury, upon proof of the signature of such witrefsu We think it was, and such was the decision of our predecessors in Thomas v. Walker, 5 Ala. 268 — see also, Mardis’ Adm’rs v. Shackelford, 4 ib. 503, and the numerous eases refered to upon this point in 3 Phil. Ev., (C. & H. notes,) 1299.
2. The deed of gift, under which the plaintiffs claim, was executed on the 14th March, 1825, and the defendant, to defeat the gift, was allowed to prove that the donor “ranaway with his property in 1828, to avoid the payment of his debts.” This proof was offered in connection with evidence that showed the donor was indebted at the time of the gift, and so continued up to the time he absconded from the State of Georgia. We cannot perceive upon what principle the court below allowed the proof that the party ranaway three years after the gift was made.
3 — 4. As this case must go back, it is necessary that we should express our opinion upon the main point argued before us, which is, whether by the haw of Georgia this deed, which was voluntary, was void as against the then existing creditor of the donor. We state the proposition thus broadly; for we do not entertain a doubt upon the. question, that the facts set forth in the bill of exceptions constitute Lett such a creditor as brings him within the protection of the 13th Eliz. c. 5; 12 Ves., (Sumner’s edit.,) 155, n. 2; Fox v. Hills, 1 Conn. R. 295; Jackson v. Myers, 18th Johns. R. 425; 2 Kent’s Com. 442, notes — see also, the cases cited in 1 Amer. Leading Cases, by Hare & Wallace, p. 57.
We are informed by the bill of exceptions that at the time of the execution of the deed under which the plaintiffs claim, the statutes of 13th and 27ih Eliz. were substantially enacted in the State of Geotgia, and that said statutes received in that State the construction placed upon them by the English courts prior to the 14th May, 1776, — and it is insisted that this gift must be governed by the law' of that State existing at the time it was made.
The decision in Doe v. Routledge, 2 Cowp. 705, which arose under the 27th Eliz., c. 4, and was made a year subsequent to the case of Cadogan v. Kennett, asserts the doctrine, that to make a voluntary settlement void against a subsequent purchaser, within the statute, it must be covinous and fraudulent; not voluntary only. It is worthy of remark, however, that the circumstances of this case did not take it wholly without the influence of the principles which should properly have governed in
We have noticed some, perhaps the most important cases in the old books, which seem to favor the doctrine as contended for by the counsel for the plaintiffs in error. We propose next to consider some which distinctly declare the true construction to be otherwise, and this has been so ably done by Lord Ellen-borough, in the case of Otley v. Manning, 9 East. R. 59, as to render a labored investigation of them unnecessary. He has collated the principal cases, from the time of the passage of the statutes of 13th and 27th Eliz., to the period of making his decision, embracing a period of more than two hundred years, and very clearly shows that the great preponderance of authority is in favor of the view which be takes, that a voluntary convej'ance was by the law to be adjudged fraudulent, upon the construction of 27th Eliz., c. 4, as against a subsequent bona, fide purchaser for a valuable consideration, although there was no fraud in fact; and this view is sustained by Colville v. Parker, Cro. Jas. 158; Prodgus v. Langham, 1 Sid. 133; White v. Hussey, Precedents in Ch. 14; Pr. Lord King, in Gardner v. Painter, Cas. Temp. King, 65, (1726); Tonkins v. Eunis, 1 Eq. Cas. Abr. 334, (1727); By Lord Hardwicke, in White v. Sansom, 3 Atk. 412, who said he hardly knew an instance where a voluntary conveyance had not been held fraudulent against a subsequent purchaser; also, in Lord Townsend v. Windham, 2 Ves., sr., 10; By Lord C. J. Wilmot, in Roe v.
In 1695, we find the English Court .of Chancery holding a voluntary settlement, made-after marriage, void as against a.subsequent purchaser for value, and the distinction is taken between creditors subsisting at the time of such settlement, and those who become such afterwards — “For the statute of 13th Eliz. makes not every voluntary conveyance, but only fraudulent conveyances, -void as against creditors; so that as to creditors it is not sufficient to say the conveyance is voluntary, but must shoio they were creditors at the time the conveyance was made, or by some other circumstance show the conveyance was made to deceive or defraud a creditor.” — Shaw v. Lady Standish et al., 2 Vern. 326. Lord Hardwicke said, in Russel v. Hammond, 1 Atk. 15, he has hardly known a case where the person conveying (by voluntary conveyance) that the settlement was not deemed fraudulent — and Lord Talbot considered it doubtful whether a voluntary settlement was good even as against a subsequent creditor. — Jones v. Marsh, Cas. Temp. L’d Talbot, 63.
Chancellor Kent, in the celebrated case of Reade v. Livingston, 3 Johns. C. Rep. 481-, after reviewing the English cases, says, “ All the cases assume the position to be -undeniable that the husband must not be indebted at the time of the settlement. They leave no possible doubt on the point.” The rule in Lord Hardwicke’s time, that a voluntary conveyance was void as against existing creditors, was so fully settled, that, in Fitzer v. Fitzer, 3 Atk. 511, that distinguished Lord Chancellor demanded of the Attorney General, “ if there was an instance to be found in that court, where a conveyance from hus*
That this was the construction placed by the English Courts of Chancery upon the 13th Eliz. c. 5, in May 1776, and both before and since that time, until within comparatively a modern date, we do not entertain a doubt, and as this statute with the English construction above ascertained, was of force in Georgia when the deed of gift was made by Hooper to Mrs. Foote, her rights must yield to the paramount claims of those, who were creditors of the donor at the time of the gift.
We are aware that this doctrine, once so well established, which forbids that a man should give away his property in defiance of the rights of honest creditors, whose debts remain unpaid, — so simple as to be fully understood by all, and so certain in its administration as effectually to close the door to every attempt at a fraudulent disposition of property to avoid the pay
In this country the boundary is less distinctly marked by those courts which have decided upon the qualification, which it seems pretty generally agreed, should obtain. But it is very manifest that the caution with which they proceed evinces a distrust of the soundness of the doctrine for which they contend.
In South Carolina the debts of the donor must be inconsiderable — current expenses for example ; and he must have ample funds over and above the property given. — Hundal v. Wilder, 4 McCord, 302.
In Connecticut it was decided, that if the grantor was in prosperous circumstances, he might make a valid gift of cfne eighth part of his real estate, though his existing creditors go forever unpaid, (Salmon v. Bennett, 1 Conn. 525,) albeit, he must be unembarrassed, and not considerably indebted, the gift, moreover, must be a reasonable provision for a child according to his state and condition in life, must comprehend but a small portion of his estate, and leave ample funds, unencumbered, for the payment of his debts.
In Massachusetts, if the grantor be deeply indebted, his existing creditors may avoid his gift. — Parkman v. Welch, 19 Pick. 231. See the American cases collected in 1 American Leading Cases, and in Van Wyck v. Seward et al., 18 Wend. 375, per
Now an exception, hedged about with so many qualifications of a vague, general and indefinite character, and which must of necessity be as uncertain in its application as its limits are undefined and indefinable, can never, in our judgment, rise to the dignity of a law. Moreover, it trenches upon that stern principle of justice and sound legal morality, which requ-i-res that we should discharge our obligations to others before we gratuitously enrich even the most cherished objects of our bounty.
“The relaxation,” says Chancellor Kent, “goes to destroy conservative principles and to commit sound, wholesome, and stern rules of law to the popular disposal and unstable judgment of jurors,” and he designates it an “ enervating infirmity.” — 2 Kent’s Com., note to pages 242-3, 6th ed.
In Miller v. Thompson, 3 Port. 206, Saffold, C. J., said: “Under a practice of this kind” (alluding to the uncertainty in giving effect to such exception,) “I think we might expect a different rule of right from each several trial, and that it would he impossible to establish anything like certainty or uniformity of title, under voluntary conveyances.” In the case last cited, this court, overruling the previous decision of Toulmin v. Buchanan’s Ex’rs., 1 Stew. 67, affirm the doctrine of Read v. Livingston, and hold that a voluntary conveyance of property by a father to his children is utterly void as against the existing creditors of the father, and such is now the well settled doctrine of this court. — Cato v. Easly, 2 Stew. 214; Moore v. Spence, 6 Ala. 506; Costillo & Keho v. Thompson, 9 ib. 937; High v. Nelms, 14 ib. 350. We have thus dwelt upon this point, not that we had any difficulty in regard to it, but because it is suggested we are following an exploded doctrine. We regret to express our fears-that with the exception of the courts of two or three States in :the Union, we struggle alone for the advocacy of this simple rale, shorn of all enervating qualifications, but believing it to be the law, and that it was so construed by the courts of England at the time designated in this bill of exceptions, we shall, nevertheless, maintain it with becoming firmness. — See O’Daniel v. Crawford, 4 Dev. 97; Kissam v. Edmundson et al., 1 Iredell’s Equity Rep. 180; Bogard v. Gardley, 4 Smedes & Mar. 302.
For the error first noticed, the judgment must; however, be reversed, and the,, cause remanded;