Ingals v. Brooks, 29 Vt. 398

Ingals v. Brooks

29 Vt. 398 | Vt. | 1857

The opinion of the court was delivered by

Redfield, Ch. J.

This levy being made upon the hypothesis that the title of the land, as to these plaintiffs and Clark Brooks, was still in Israel Brooks for the purpose of paying this debt, it becomes the cardinal question in the case, whether this view of the case is sound.

In order to entitle a creditor to levy upon property of his debtor, *400after sale and conveyance of such property, It is necessary to show that he was a creditor at the time of the conveyance ordinarily, and that his debt still subsists, not only as to the debtor, but also as to the vendee or grantee of the property.

He must also show, under the statute, that the sale and conveyance was made with the purpose of defeating or delaying that class of creditors to which the plaintiff belongs.

Now, in the present case, it seems difficult to establish these propositions in favor of the plaintiffs, without giving the case a forced and unnatural construction. The case states expressly that at the time of conveyance, “ and as part consideration therefor,” “ said Clark agreed to pay all the debts of said Israel.” This shows very clearly that it was no purpose of the conveyance to defeat the plaintiffs’ claim. And it seems difficult to say there is any evidence in the case to show that there existed any such intention to delay the plaintiff in the collection of his debt as will render the conveyance inoperative under the statute as to him. It seems to have been an arrangement for the purpose of enabling the debtor, Israel Brooks, to pay off his debts at once.

But what seems to us entirely decisive of this part of the case is that the grantor, Clark Brooks, has actually paid this debt once, and the note was surrendered to him as evidence of such payment. This, so far as Clark Brooks is concerned certainly, extinguished the claim. If he had executed a bond to Leafy, one of tbe plaintiffs who held the note at that time, to pay this very note, and if the question were now before us on the facts found in this case, it would be impossible to maintain that Clark Brooks, after the surrender of the note, under the circumstances, was any longer liable upon the bond. It is not, indeed, claimed in argument even, as we understand, that he would be.

But it is claimed that Israel Brooks, having given a promise to pay what they could not get of Clark, and having suffered this judgment to go against him, the claim, as to Clark, is to be treated as existing at the time of the conveyance.

But it seems to us that the claim cannot fairly be treated as having any existence as to Clark Brooks or the property conveyed to him, and that the attempt to so treat it must he regarded as a legal fraud upon his rights under the conveyance.

*401The judgment being altogether inter alios, and in express violation of the understanding of Clark when he surrendered the claim against Leafy, one of the plaintiffs, and paid half the amount of the note in money, in agreed satisfaction of the whole, could have no effect upon the defendant Clark. He is entitled to show that the note was paid before sued, or that the judgment was, for other reasons, fraudulent as to him; Atkinson v. Allen, 12 Vt. 619.

This compromise of the note by Clark was just as effectual a bar to the claim, in law, and just as effectual a release of his undertaking to pay it at the time of the conveyance as if he had paid all the money upon it. He did then not only promise to pay all the debts of the grantor, but he has in fact paid them all except the mortgage which is not in question. And the judgment against Israel is either a subsequent debt, founded exclusively upon his promise to pay what they did not get of Clark, and which in no sense, under the circumstances, can be regarded as forming any portion of the debts which Clark was to pay ; or else the whole proceeding, so far as it is attempted to give it the appearance of a prior claim, is a fraud upon the compromise and settlement made with Clark, and the consequent surrender of the note. And in either case it will not enable the plaintiff to treat the conveyance as void, and levy upon it as the land of Israel Brooks.

Judgment reversed. Case remanded.