| N.Y. Sup. Ct. | Jan 15, 1821
delivered the opinion of the Court. The question arising in this cause is, whether the deeds from Adsit to Myers, were made with intent to delay, hinder, or
But, it is contended, that as Morse, the plaintiff in the execution against Adsit, had no debt or demand against him, at the time the conveyance was executed to the defendant, but merely an action in maleficio pending, the deeds from Adsit to the defendant cannot be considered fraudulent, within the purview of the statute for the prevention of frauds. The opinion of a majority of the Court, in Mountford v. Ranie, (Keb. 99. Roberts on Fraud. Conv. 455.) was, that a conveyance may be fraudulent, although the plaintiff had only become a creditor by the escape of a prisoner, although the bond on which the judgment was obtained, was long subsequent to the conveyance. In Luckner v. Freeman, (1 Eq. Cas. Abr. 149.) though the Court upheld a conveyance intended to secure the payment of honest creditors, made before the trial of a cause founded in maleficio, yet the plaintiff, in the suit, was let in upon the surplus, after the debts were paid. In Cowper, 434, Lord Mansfield said, the statutes of 13 and 27 Eliz. could not receive too liberal a construction, or be too much extended in suppression of fraud; and it is now perfectly well settled, that every kind of fraud is equally cognizable at law, as in equity. In Twyne's case, (3 Co. Rep. 82.) it is said to have been resolved by all the barons, “ that the statute of 13 Eliz. c. 5. extends not only to creditors, bid to all others who had cause of action, or suit, or any penalty or forfeiture." In the case of Jackson v. Ham, (15 Johns. Rep. 262.) it never was intended to decide this question. The Chief Justice, in delivering the opinion of the Court in that case, says, “ that the deed from Wendell C. Ham to his father, was not made with intent to defraud Van Alen of his lawful action, but must be considered as the mere reconveyance of an estate, conveyed for temporary purposes, and intended and expected to be reconveyed; and that, in considering whether the
On a review of the cases, and considering the broad expressions in the statute, (1 N. R. L. 75.) that conveyances to “ defraud creditors and others, of their just and lawfulactions, damages, and demands,” are void, 1 think it is competent for the lessor of the plaintiff, who purchased under the execution of Morse v. Adsit, to object, that the deeds relied on by the defendant are fraudulent and void, on the ground that the action of Morse v. Adsit, although founded in male-ficio, is within the spirit, words, and meaning of the statute, and, consequently, that the plaintiff is entitled to judgment.
Judgment for the plaintiff.
In Fox v. Hills, (1 Day’s Conn. Rep.295.) the Supreme Cburtof Errors of Connecticut, (in 1815,) were of opinion, that such a conveyance was fraudulent and void at common law; and four of the Judges were of opinion, that it was void within the statute of that state against fraudulent conveyances, the language of which is different, and not so broad as our statute, which is Copied from the English statute, 13 Eliz. ch. 5.