Hurley v. OslerHurley v. Osler
- Reporters:
- Before:
- Servers
If the conveyance from Hurley, Sr., to the plaintiff was being attacked by the creditors of Hurley, Sr., upon the ground that it was made to defraud them, we apprehend it would be conceded such testimony was admissible and entitled to consideration. If such testimony is not admissible, then no fraudulent conveyance could be successfully impeached. The materiality or admissibility of the evidence, therefore, depends on the question whether a purchaser in good faith and for value from a fraudulent grantor can avail himself of or rely on the fraud as a defense or protection to his title or possession, in an action brought against him by the fraudulent grantee. As we shall presently see, such a purchaser may so protect him*645self, and, therefore, the testimony is both material and admissible. From its consideration (and without giving any weight to the declarations of Hurley, Sr., made after the conveyance) we arrive at the conclusion, without doubt or difficulty, that the conveyance from Hurley, Sr., to the plaintiff was without consideration and made with intent to defraud the creditors of Hurley, Sr., and that this object and purpose were known to plaintiff. It also clearly appears that Hurley, Sr., remained in possession for some time thereafter, and after removing therefrom he received the rents and profits up to the time he sold the premises to Osman Osier.
III. The testimony of Alexander Osier satisfies us he had knowledge at the time he purchased the premises that the title of record was in the plaintiff, and that he purchased knowing this fact. It is, however, apparent that he acted in good faith and supposed Hurley, Sr., would make a good title to the premises. The presumption is that Hurley, Sr., was also acting in good faith, and supposed the power of attorney gave him the requisite authority to sell the premises described in the petition, or that plaintiff would give him such authority, for certainly there is nothing showing the contrary.
Before the submission of the cause, the plaintiff dismissed so much of the petition as seeks any relief as to the premises described in the power of attorney, and there is no evidence tending to show that the plaintiff ever gave Hurley, Sr., or any one else authority to sell the residue of the premises; on *646the contrary, the plaintiff testifies he never gave such authority, and that he in no manner has ratified the act.
We have held in Gardner v. Cole, 21 Iowa, 205 (to state the point decided in the language of Dillon, J\), “that where the first conveyance originates in a fraudulent purpose and is without any consideration of value, and the grantor remains in possession, and claiming ownership sells the property as his own to a party who buys without actual notice of the prior deed and pays value, the latter purchaser may avoid the prior voluntary conveyance.” And it is also held that the recording of such conveyance is not constructive notice thereof to such subsequent purchaser. It was.held in Wolf v. Van Metre, 23 Iowa, 397, that a voluntary conveyance made in good faith cannot be avoided by a subsequent purchaser with notice. In 1 American Leading Cases, 51, it is said: “A conveyance actually fraudulent is void against a subsequent purchaser for a valuable consideration even with notice; .and a voluntary conveyance is presumptively fraudulent against a *647subsequent tona fide purchaser without notice; that is, a subsequent sale to a tona fide purchaser without notice, is evidence that a prior voluntary conveyance was fraudulent; but a voluntary conveyance (at least according to the decisions, in some of the States), is not void against a subsequent purchaser with notice.” In support of these distinctions several adjudicated cases in different states are cited. It will be seen, therefore, that there is a clear and recognized distinction between a fraudulent and voluntary conveyance made in good faith. It follows, therefore, that Wolf v. Van Metre, supra, is not decisive of the question now before us. In Barney v. Little, 15 Iowa, 527, we held, in relation to the notice im7 parted under the statute by recording of conveyances of real estate, that “ the law declares the world has notice and will not allow any individual to show that he in fact did not have notice. In other words, the presumption of notice which the law in such cases raises is conclusive and incontrovertible.” It will be seen there is no difference between actual and the notice implied from the record of the.instrument. In Gardner v. Cole, supra, there was no actual notice, therefore the point decided was properly restrained and. limited by that fact. If there is no difference between actual and constructive notice, and we have seen there is not, then the two cases cited, when considered together, are decisive of’the important question in this case. Gardner v. Cole holds that a purchaser from the fraudulent grantor without actual notice is protected, and that the constructive notice imparted by the record of the fraudulent conveyance does not affect him, and in Barney v. Little it is held that such constructive notice is conclusively presumed, and that proof contradictory of such presumption is inadmissible. That a purchaser, in good faith and for a valuable consideration, from a fraudulent grantor, with notice, is protected when sued by a fraudulent grantee, is supported by the following authorities: Recker v. Ham, 14 Mass., 136; Clapp v. Leatherbee, 18 Pick., 131; Clapp v. Terrill, 20 Pick., 249; Waller v. Cralle, 7 B. Mon., 11; Kimball v. Hutchins, 3 Conn., 450; and our attention has not been called to any reported case holding the contrary doctrine. .
*648
Aeeirmed.