4 Me. 195 | Me. | 1826
delivered the opinion of the court, at the ensuing November term, as follows.
In this case the plaintiff claims title to the locus in quo under a deed from Waterhouse to him, bearing date April 5, 1823 ; and the defendant claims title to it in virtue of the levy of his execu
The consideration of the first point leads us to the examination of some of the peculiar rights and liabilities of sureties. So far as the obligee of a bond, or promisee of a note, is concerned, the principal and sureties are each and all equally liable ; but as between or among themselves, each surety is liable only for his proportion ; and such proportion will depend on the number of sureties, in case none of them prove to be insolvent or negligent. What then is the legal relation in which one of the sureties stands to each of the others? The answer is, at the time of
The consideration of the second point renders it necessary to examine the before mentioned chapter of the 13th of Elizabeth, and ascertain the extent of its provisions, and the construction which it ought to receive. It is believed that the language of the section is broader and more comprehensive than the construction which the courts of Massachusetts have generally given to it, or than has been usually, in practice, considered as the true one, in the trial of causes in this State. This idea seems to have been
In our common actions of replevin, where questions as to the validity of the sale of chattels are daily tried ; and in real actions between creditors claiming under executions levied bn debtors’ lands, and persons claiming the same lands under the debtors’ deeds made prior to such levies, it has been the common practice to call on the person who contests the fairness and validity of the sale, to prove, in the first place, that he was a creditor of the alleged fraudulent vendor, or grantor, at .the time of sale; and this principle and practice seem to have been founded on the idea that unless this fact appeared, he could have no interest in the inquiry ; that as against him the sale was good at the time it was made ; and that he could not afterwards acquire the right to impeach such a conveyance.
The correctness of the above principle has been often doubted in some of our courts of law ; and this court is called upon, in the cause before us, to examine this question, and pronounce an opinion, whether the principle and practice above mentioned are in conformity to the language and true intent and meaning of the 5th ch, of the 13th of Elizabeth. By this statute, “ every feoff- “ ment, gift, grant, alienation, bargain, and conveyance of lands, “ tenements and hereditaments, goods and chattels or any of them” by writing or otherwise, “ that had been or afterwards should be” had or made to or for any intent or purpose — “ to delay, hinder “or defraud creditors or others of their just and lawful actions, “ suits, debts, accounts, damages, penalties, forfeitures” &c. is declared to be “clearly and utterly void, frustrate and-of “ nb effect ; any pretence, colour, feigned consideration, expressing of use, or any other matter or thing to the contrary
1. — If a conveyance is made by a man who is insolvent, upon a good and sufficient consideration advanced to him, but not bona fide ; and the purchaser is conusant of and assenting to .the fraudulent intent; it is void against creditors.
2. — A voluntary conveyance, made without consideration, by a man who is solvent, and without any fraudulent intent, is good against subsequent creditors.
4. — A voluntary conveyance made without consideration by a man insolvent, may, on that very account, be deemed fraudulent, even as against subsequent creditors; at least that circumstance is a badge or indicium of fraud or trust between the parties, which may lead to that conclusion.
5. — A voluntary conveyance, made without consideration by a man, whether insolvent or not, is void against subsequent creditors, if such conveyance was made for the purpose of defrauding them “ of their just and lawful actions, suits, debts, accounts, “ damages, penalties, forfeitures, &c.”
In all the foregoing cases, the questions of insolvency and intention are before the jury. And now having taken this review of those principles of law which relate to fraudulent conveyances, we recur to an important fact in the report of the Judge, viz. that he “ permitted the defendant to offer evidence that the “ conveyance by Waterhouse to the plaintiff, was made with the “knowledge of the plaintiff, for the purpose of putting said prop- “ erty out of the reach of the sheriff in any suit upon the bond “ aforesaid.” And upon the evidence thus introduced, which we must presume was applicable to the several facts necessary to bring the case within the 13th of Elizabeth, the jury decided that the deed was fraudulent and void, on the grounds upon which the cause was submitted to them. The fraudulent intention of putting the property out of the reach of the sheriff in any suit upon the bond, included the intention of defrauding the defendant, by preventing him from obtaining any indemnity from Waterhouse, for any loss he might sustain by being compelled to pay more than his, the defendant’s, share in consequence of his suretyship.
We conclude this opinion, which is the result of laborious investigation, by saying that we all agree that the evidence objected to was properly admitted to the jury ; and that accordingly there must be Judgment on the verdict,