34 Me. 407 | Me. | 1852
The question of fact tried by the jury was, whether the property attached belonged to David Fisher the debtor, or his son David Fisher, jr. It was sold by the father to the son in 1832, and was attached as the property of the father in 1840, to secure a debt, which originated in 1831. A part of the consideration of the sale was to be paid in supporting the father for a limited period, and a part in the payment of his debts.
The Judge was requested to instruct the jury, “that if they should be satisfied, that it was a part of the arrangement between D. Fisher and D. Fisher, jr., that the property should be paid for in supporting the father, the purpose being in part to secure the maintenance of the father, he being indebted, the transfer would be void.”
The requested instruction does not embrace an inquiry into the effect of a conveyance merely voluntary, where there is no valuable consideration. Whether such a conveyance should be regarded as absolutely void in law, or only prima facie fraudulent and open to explanation, against prior creditors, is a question upon which the authorities are not in harmony. Reade v. Livingston, 3 Johns. Ch. 481; Hinde’s Lessee v. Longworth, 11 Wheat. 199; Seward v. Jackson, 8 Cowan, 406 ; Story’s Eq. Jur. § 354, et sequen. But the
When one sells property to create a fund for his maintenance, without reserving sufficient means to pay his existing debts, such conduct is so manifestly unjust, that he is evidently guilty of an actual fraud. Such an act would fall within the 13 Eliz. c. 5; “ the end, purpose and intent to delay, hinder or defraud creditors” would be quite apparent. But if he retains an abundance of property to discharge all his obligations, the sale could not be considered as a fraud in law. The jury must settle the question of fraud by an examination into all the facts and surrounding circumstances.
In Twyne’s case, 3 Coke, 82, it is said, that “ when a man, being greatly indebted to sundry persons, makes a gift to his son or any of his blood, without consideration but only of nature, the law intends a trust between them, scil., that the donee would, in consideration of such gift being voluntarily and freely made to him, and also in consideration of nature, relieve his father and cousin, and not see him want, who had made such gift to him,” &c. .
In Smith v. Smith, 11 N. H. 460, it is said by Parker, C. J. “ it is an attempt to secure to the grantor a support dur
The testimony elicited upo.n the cross-examination of Increase Fisher showed, that the reputation of David Blanchard for truth and veracity related to his ,not fulfilling his' agreements. The Judge could not properly exclude the testimony in chief, which was admissible as responsive to the general question, and the jury had the right to judge of it in connection with the subsequent explanation.
No objections are made .to the instructions which were given.
Exceptions overruled.