Gibson v. Seymour, 4 Vt. 518

Gibson v. Seymour

4 Vt. 518 | Vt. | 1832

Williams, J.,

delivered the opinion of the Court. The jury have found, that the deed under which plaintiff claims was npf *522fraudulent. The plaintiff has the older title, and must, therefore, recover, unless from the facts stated the jury should have been instructed that the deed was fraudulent in law. We cannot see any facts in the case which would have warranted the court in giving such instructions to the jury, or which required a charge in any way different from the one given. It appears, that the plaintiff executed a jail bond for Bartholomew, the grantor; and that Bartholomew was indebted to him, and probably the deed was executed upon these considerations alone. But if there was a further consideration, viz. an engagement by the plaintiff to assist Bartholomew in extinguishing the incumbrances, which were then on the land, and also in extricating himself from other debts and embarrassments, the deed would not on that account be void, if there was no fraudulent intent. It is conceded by the defendant’s council that an absolute deed, intended merely as security for future advances, is inoperative as against the creditors of the grantor. This court have decided in the case of Williams and Putnam vs. Parish et al. in Orange county, March, 1831,thata deed absolute on the face, though intended as a security to indemnify the grantee for becoming bail for the grantor,is not, on that account, void. These principles are decisive of the present case. There was an indebtedness from Bartholomew to the plaintiff, and the plaintiff incurred a liability on signing the jail bond,for which he had an undoubted right to an indemnity. These constituted a good consideration for the deed, and entitled the plaintiff to a verdict. If the plaintiff cannot hold the land, as a security for any further sum due to him from Bartholomew, this can be decided when the defendant asks to redeem the mortgage. Then all the claims, which the plaintiff has, and which are legal incumbrances on the land as against the defendants, can be ascertained.

Starr & Judge Phelps, for plaintiff. Seymour, for defendant.

It may be remarked, however, that an agreement between the plaintiff and Bartholomew, that the plaintiff should pay the incum-brances, which were then on the land, and hold the same as surety therefor, cannot be liable to any objection. Without any such agreement, the plaintiff, if he paid off the incumbrances, to avail himself of the benefit of bis deed from Bartholomew, would have had an equitable lien on the land until he was reimbursed in the sums he paid therefor.

The judgement of the county court is affirmed.