Jackson v. Garnsey

16 Johns. 189 | N.Y. Sup. Ct. | 1819

Spencer, Ch. J. delivered the opinion of the Court.

It has been argued, 1. That the deed created a resulting trust in favour of the grantor, as the consideration money was his.

2. That it was a mortgage, as the grantor was to receive back the land, and the objects for which it was given have been effected.

3. That the mortgagor having been permitted to remain in possession ever since 1793, the debt is to be deemed as paid.

4. That the outstanding title of Dorman may he set up to defeat a recovery.

The deed under which the lessor of the plaintiff claims, though purporting to be dated on the 10th of August, 1793, as would seem from some of the testimony, was actually delivered about 14 or 16 years before the trial. I do not, however, consider the time of the execution of the deed to be material, as there was no objection to the plaintiff’s recovery, on the ground that there had been an adverse posses-g¡on< Notwithstanding the peculiar features of this case, and the probable hardship on the defendant, as the heir of a person once seised, I am compelled to say, that I perceive no legal objections to the plaintiff’s recovery.

There is nothing in the case to render this a resulting trust in favour of the grantor. The deed may have been, and probably was, executed for the purpose of defrauding a creditor of the grantor, and without any other consideration than one merely colourable; yet, as between the parties, the deed, if merely voluntary, under the expectation that it would be surrendered back, or that a reconveyance would be made, was binding on the parties, and their representatives. The statute of the 27th Eliz. ch. 4. has received but one construction in this respect. The party making a voluntary conveyance, and those claiming under him, are as much bound, as if the most valuable consideration had been given, for that statute has interposed only in favour of purchasers for valuable consideration. As between the parties, they are expressly excluded from its operation, and are left as they stood at the common law; and before the statute, the heir could never set up his title against the voluntary alienee of his ancestor, nor call upon him for contribution, where both were amenable to the creditors of the ancestor as tertenants; nor will courts of equity assist the party making a voluntary conveyance, or his representative claiming as such, by setting them aside. (Roberts on Fraudulent Conveyances, 646, 647. 7 Johns. Rep. 161. 1 N. R. L. 75.)

The case furnishes no pretence to consider the deed from Amos Garnsey to the lessor, as a mortgage, and it is useless to discuss the point.

If it was competent to the defendant to set up an outstanding title, in his defence, Dorman’s is no title. He claims under a judgment obtained against the defendant for a demand, in which the ancestor had no concern, and for which he was not responsible; and the judgment could operate only on the estate of the defendant. He had no interest in the premises, beyond a naked possession, and nothing but his possessory interest could be sold; the sale, therefore, could not affect, or defeat the title of the lessor derived from the ancestor.

Judgment for the plaintiff.