2 Johns. Ch. 35 | New York Court of Chancery | 1816
The cause having stood over for decision, the following opinion was this day delivered by
The bill is to set aside, as fraudulent,
a deed of lands, at BrooJclyn, from Comfort Sands to his brother, Robert Sands, of the date of the 21st of February, 1807. The plaintiff claims those lands as a purchaser, on executions under a judgment, and under a decree against Comfort Sands, of a date subsequent to that of the deed.
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*The defendant, Comfort Sands, though charged with fraud in making the deed, has declined answering the charge, and has suffered the bill to be taken pro confesso. But the defendant Robert Sands has come in and denied the fraud, and claims to be an innocent and bona fide purchaser for a valuable consideration.
If the deed is admitted to be fraudulent on the part of Comfort Sands, the grantor, there would be difficulty in allowing the deed to stand, even if the grantee was, as he alleges, innocent of the fraud. It was observed, in a late case
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The principle advanced by these high authorities is by no means new or uncommon. It has been laid down in the books, at different and distant periods, (Bennet v. Wade, Dick. Rep. 84. Davidson v. Russell, Dick. Rep. 761.) that fraud vitiates a deed in toto, though persons no way privy to fraud are beneficially interested in such deed. The words of Dodderidge, J., in Shepherd’s Touchstone, (p. 66. *67.) are to the same effect. “Albeit,” he says, “those to whom a deed of fraud is made knew nothing of the fraud, yet is the deed fraudulent in that case also, ks well as where they are privy to it.”
These cases, however, all proceed on the ground that the fraud of the grantor is clearly established. In the present case it would be too rigorous to deprive the grantee of his deed, however innocent he might be, upon the mere fact that the grantor suffered the bill to be taken pro confesso. This might happen from collusion with the plaintiff, or from ill will to the grantee; and though no such motive is to be suspected in this case, yet before the above principle is to be applied, I should say there ought to be more evidence of the fraud than the mere implied admission of a co-defendant who neglects or refuses to answer.
The question, then, to be considered, is, whether, from the pleadings and proofs, there appears to be satisfactory evidence of fraud, either in fact or in law, and sufficient to set aside the deed as against the plaintiff.
There are several circumstances from which actual fraud is to be inferred.
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2. There is no proof that the price was paid, or that any voucher or security was taken as evidence of the debt. The defendant, in his answer, says, that C. Sands, at the time, owed him 500 dollars, and that sum was to go in part payment, and that the residue, or 4,000 dollars, was to be paid as C. Sands should require it, either in money or in the assumption of debts of C. Sands. The debt created by the sale was, however, left in this precarious state, without any evidence in support of the verbal arrangement. We are told, also, by the answer, that small sums were paid to C. Sands in 1807, 1808, 1809, and 1810, and that in September, 1810, the defendant assumed to pay debts owing from C. Sands to the amount of 2,948 dollars; thus is the consideration said to have been paid without any interest being charged for all this protracted indulgence. No receipts were taken by the defendants for any of these payments. Both the debt and the payments were left to rest in the memory and in the mutual integrity of the parties. This assumption of the debts of C. Sands was equally frail and insecure. It was never made to the creditors themselves, but to C. Sands, by some writing at the foot of the list, and except the sum of 446 dollars and 20 cents, no part of those debts have, as yet, been paid by him ; and though he delivered to C. Sands, so late as 1812, 1149 dollars and 50 cents, for the purpose of paying a part of those debts, he does not know that the moneys have been so applied. The whole of this account of the payment of a part of the consideration (for above the sum of 1,300 dollars remains to this day without any pretence of its being paid) is lame and defective, and ought to have been supported by evidence, and not left to rest upon the allegations in the *answer. The defendant
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3. C. Sands continued in possession, and in the exercise of acts of ownership. He superintended the building of the ropewalk on the premises, between the date of the deed and May, 1807, and made the improvements within that time, at his own expense. This fact is admitted in the answer, and it is decisive evidence of ownership. C. Sands received all the rents quite down to February, 1812. The tenant says he never saw the defendant, and that he first heard of the deed in the summer of 1809, when it was mentioned to him by Lewis Sands, and, he thinks, as a secret; and he considered himself as tenant to C. Sands, until October or November, 1810, nearly four years after the date of the deed C. Sands not only received the rents, but in March, 1811, settled with the tenant, and allowed a claim of damages which the tenant had against him individually, to be deducted out of the future rents; and accepted a surrender of the old lease, and gave the tenant a new lease at a reduced rent. In short, from the date of the deed to 1812, when the title of the plaintiff accrued, C. Sands had the whole management of the property, and the whole receipt of the rents, as the apparent owner, and was reputed as such by the tenant himself. The defendant, in his answer, says, that C. Sands acted all this time as his agent; but there is no certain authority produced from which that agency flowed, nor any voucher or account exhibited as evidence of the agency, nor even any assumption of that character, prior to the autumn of 1810, when C. Sands first represented himself as acting in that capacity. These continued acts of ownership are inconsistent with the averment of a fair, bona fide sale of the *property in February, 1807, and inconsistent with the ordinary course of dealing, when no imposition is intended to be practised upon mankind.
Possession of land, and taking the profits, after an absolute conveyance, is evidence of fraud, within the statute of frauds, unless such possession be consistent with the term% and object of the deed, or the character of. it. be openly and explicitly understood. Thus in Stone v. Grubham, (2 Bulst 225.) Lord Colee observed, that if a man mortgage his land, and yet continues his possession, it is no disseisin; but if the conveyance be absolute, and a continuance in possession, it shall be judged in law fraudulent, for it has the face of fraud. So, in a modern case, Lord Loughborough (2 Vesey, jun. 292.) observed, that where there was a conveyance of
In the case of Codwise and others v. Sands, alluded to in the bill, it was held, in the Court of Errors, (4 Johns. Rep. 586. 593. 597.) that the receiving of rents and managing the estate by the vendor, after an alleged sale, and under an assumed agency from the vendee, but without any evidence of a genuine agency, other than the uncorroborated assertion of the party, was a strong indicium of fraud.
Nothing would be more destructive to fair dealing and to the rights of others, than to permit such a miserable contrivance to prevail; for all fraudulent sales could be masked in this way with the utmost facility.
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4. The circumstances attending the execution and delivery of the deed, show that it was not a bona fide sale. The deed was executed on the 21st of February, 1807; and yet on the 10th of February, C. Sands had leased one half of the land for seven years, and received two years’ rent in advance; and on the 15th, he received another year’s *rent in advanee; and on the 18th, nearly half of another year’s rent in advance, and endorsed all these anticipated payments, or rather loans, on the lease, and bound himself by covenants to make improvements on the land. This was a strange proceeding in a vendor, on the eve of selling the land for its full value to his brother, who was then absent in the country; yet the purchaser kindly throws the mantle of approbation over this conduct, while he admits that the terms of sale had been previously arranged between them. What inducement could a fair bona fide purchaser have to buy for cash, and for the full value, as he alleges, land so encumbered, and when the rents and profits, for years to come, had been anticipated? What inducement could the seller have to bind himself by personal covenants to a lessee, after he had agreed to sell the land ? The previous terms of sale must have been arranged (if ever arranged) before the date of the lease, as we may infer from the distant residence of the defendant, and the season of the year; and the lease is utterly inconsistent with any agreement for a genuine sale. This fact of the lease is alone, sufficient to give a character to the whole transaction. The deed was not delivered to the defendant himself, but to a son of C. Sands, as agent of the defendant, though the defendant admits that the son had no special authority to receive the deed, nor did he give any immediate notice of it to the defendant. This is another peculiar circumstance in the case.
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Comfort Sands was indebted, at the date of the deed, to Meyer and Grade about 2,500 dollars, and the debt of Heyer was then actually in suit at law. There was also pending in chancery the suit of Codwise and others, which terminated, afterwards, in charging C. S. personally with the sum of 2,744 dollars. When the debt of Whitney accrued does not certainly appear, but in February, 1808, he had obtained a judgment at law for 1,738 dollars and 26 cents, and under that judgment, as well as under the execution from chancery, the sale to the plaintiff was made. Comfort Sands acted as owner when Whitney’s judgment was obtained, as fully as he did at the date of the deed; and if the deed was fraudulent when it was given, it was equally so at the date of that judgment, and, I may add, equally so when the execution issued under the decree in the suit of Codwise and others. It was held in Hungerford v. Earle, (2 Vern. 261.) that a deed not at first fraudulent, may afterwards become so by being concealed, or not pursued, by which means creditors are drawn in to lend their money. If the deed to the defendant had even been voluntary, and founded only on the ties of blood, still I apprehend the better opinion to be, that it would have been void under the statute of frauds against a subsequent creditor, provided the party was indebted at the time of the settlement, and the debt not perfectly secured, or the party not in a condition to pay. (Walker v. Burrows, 1 Atk. 93. St. Amand v. Barbara, Comyn’s Rep. 255. Stephens v. Olive, 2 Bro. 90. Lush v. Wilkinson, 5 Vesey, 387. Lord Hardwicke, in Townshend v. Windham, 2 Vesey, 11.) That- C. Sands was largely indebted at the date of the deed, and those debts not duly secured, appears from the debts alluded to in the answer, and those which have been proved by the plaintiff; and that he was unable to pay, though it is doubted whether that circumstance be material, (Atherly on *Family Settlements, p. 212 to 219.) appears from the fact that most of those debts are still unpaid, and one of them was then in a state of prosecution. It is even maintained, and with much strength of argument, that a voluntary settlement is void
The only remaining point is, whether the plaintiff is not entitled to the benefit of the statute, as being a purchaser under a creditor’s judgment.
The statute of 13 Eliz., which we have adopted, is said to be declaratory of the common law, and to extend to creditors, and to all others who have any cause of action, and is to be construed liberally in suppression of fraud.
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Lord Coke says, in Twine’s. case, (3 Co. 80.) that it was so resolved by all the barons of the exchequer. So, in Tarvil v. Tipper (Latch, 222.) a bailiff who executed process was allowed to protect himself under this statute against a fraudulent gift, for it was observed, that when the statute gives the principal remedy, it gives the incident. If it protects *the creditor, it must protect his sale, and the purchaser under his judgment. The creditor, on any other construction, would be deprived of the fruit of his judgment, and the execution would be nugatory. There can be no doubt but that the plaintiff, as a purchaser under Whitney’s judgment, is entitled to all the relief that the creditor himself would have been entitled to, for he stands in his place, and is armed with his rights; and though he be a purchaser at a very low price, yet it was a fair purchase in the regular course of law, and it was owing to the unwarrantable acts of the debtor himself, in throwing a cloud over the title, that his property was thus sacrificed. It does not become the parties to the fraudulent deed to complain of the plaintiff’s cheap purchase. However it may be regretted that the property has yielded but a very small compensation to the creditors, this fact cannot interfere with the question of right. The auction price was an accidental thing, growing out of the peculiar circumstances of this case, and affects
I shall, accordingly, decree, that the deed of conveyance from Comfort • Sands to Robert Sands, in the pleadings mentioned, being made to defraud the bona fide creditors of Comfort Sands, is void as against the plaintiff; and that the plaintiff is entitled to the rents under the lease to A. G. Barbarme, of the 10th of March, 1811, &c.; and that the plaintiff pay to the said Barbarme his costs of suit; and that the defendants C. and R. Sands pay to the plaintiff those costs, as well as his costs of suit to be taxed.
Decree accordingly,
This decree was, on appeal, unanimously affirmed in the Court of Errors, April 4,1817.