1 Rand. 219 | Va. | 1822
December 6th.
delivered the opinion of the court.
The appellant, a judgment creditor of William T. Alexander, for a debt contracted in April, 1802, prefer-
The deeds will be separately examined.
First. As to the deed of 10th October, 1802. The considerations expressed in the deed are “ natural love and affection,” and “ one dollar.”
The counsel for the appellant, considering this deed as voluntary on the face of it, contended that proof of valuable consideration was inadmissible, as being inconsistent with the deed. But the court is of opinion, that the question whether evidence inconsistent with the deed can bo admitted, does not arise in this cause. This is not the case of a deed purporting to be for good consideration only. It is, in express terms, for valuable as well as for good consideration. It is true that the valuable consideration expressed, is only one dollar: But, one dollar, viewed as a consideration, is as much a valuable consideration, as a million of dollars. The real question is, whether a deed, purporting to be for “ love and affection,” and for “ one dollar,” and assailed as being fraudulent as to creditors, can be supported by evidence shewing that in addition to the one dollar expressed, full value was received by the grantor. This question may be simplified by supposing the deed to have been between the same parties, and for the same purposes$ and that the only consi=
But it is objected, that the said John Taliaferro, a witness relied on by the appellees, for the purpose of estabfishing the consideration, is incompetent on the score of interest. If this objection be intended to apply to him as a necessary party to the cause, in his character of trustee, it is clearly unsustainable. There can be no question that a naked trustee is a competent witness. It may also be remarked, as a general principle, that courts, at present, receive objections to witnesses with great caution as they relate to their competency 3 and that they incline to refer them to their credibility. It is alledged, however, that the objections in this case are too strong to be overcome ; for, that he has a direct interest in the cause, because of the rent of 600k per annum, which, by the deed aforesaid, he became bound to pay $ that the bill gave him notice that the deed was charged with fraud ; that all payments made by him, since the bill, were made in his own wrong, and that he is liable to a decree therefor in this suit: That the rent, in case the deed shall be set aside, ought to be subjected to the claims of creditors, the court does not deem necessary to affirm or deny. But, if Taliaferro shall have actually paid the rents, either to Alexander or to his assignees, the court is of opinion, that the ■said Taliaferro ought not, under the circumstances of this case, to be made liable therefor. The institution of the suit, or the fifing the bill impeaching the deed of fraud, but containing no prayer that he should not pay the rent over, was not of itself sufficient to justify him in withholding the rent from those to whom he had contracted to pay it. All the parties interested in the rent were before the court; and if the appellant wished to injoin the rent in the hands of Taliaferro, the court of chancery was always open to him to apply for an order to that effect. For aught that appears to this court, the appellant might have
John Taliaferro, being thus decided to be a competent witness, is he credible ? This is a question which the court is not disposed to argue. We doubt not that the counsel for the appellant, in the freedom and severity of his remarks on this topic, was urged by a sense of duty to his client, and actuated by a strong conviction that he was supported by the record. The view, however, which we have taken of the circumstances touching this point, is very different from that which presented itself to the appellant’s counsel. We have examined the record patiently and minutely, and we have not seen that John Taliaferro has done any thing that considering the relation in which he stood to the parties, he ought not to have done. We perceive nothing that is calculated to cast a shade on his character j nothing to impeach his conduct as a man, or his credit as a witness.
- The court is of opinion, that the testimony in the cause shows that Alexander received valuable consideration, full and adequate, for all the property conveyed by the deed of the 10th of October, 1802 ; and that that deed, therefore, stands discharged from every imputation of fraud.
But it is alledged, that the said deed has not been recorded within the time required by law, and that therefore, although not fraudulent, it is void as to creditors. The deed is an exhibit in the cause. It bears date the 16th December, 1804, and it appears by the certificate of the clerk that it was not proved till the 5th day of September, 1805. It does not appear, that the witnesses proved this deed otherwise than in the usual form $ it does not appear, that they proved it otherwise, than as a deed sealed and delivered on the day on which it bears date. Looking no farther than to the certificate of the clerk, we should be bound to say that it was not proved and recorded within the time required by law. But it is averred by the appellees, that the deed, although dated on the 16th day of December, 1804, was not, in fact, sealed and delivered till April or May, 1805; and they have taken depositions to prove the fact. It is contended, however, for the appellant, that whatever may have been the time of the sealing and delivery, yet if the deed bears date more than eight months before the time of proving it, and flic
The court is of opinion, that the deed of the 10th Oct. 1803, was executed, bona fide, for full, adequate and valuable consideration, and stands discharged from every imputation of fraud. The court is farther of opinion,
3 Term Reports, 474.
2 Call, 125.
4 Mun. 251.
2 Inst. 674.
Comyn's Dig. 2 vol. p. 66, 67, referring to Savel’s Re. 91 ; 1 Leo. 183, 2 Leo. 122, and Ow. 138.