| Superior Court of New Hampshire | Jul 15, 1842
It is immaterial, in this case, whether the conveyance from Joseph Jones was, or was not fraudulent, as to creditors. The deed from him to Merrill was absolute, and valid as between the parties ; and although Merrill received the deed as a security, and agreed to re-convey on the payment of his debt, it does not appear that Jones had any defeasance, so that he could regain the title. If he had, the deed gave Merrill a right of entry, and possession, until the condition should be performed.
When Page took the title from Merrill, he took the conveyance as a security for what he paid, and the debt due to himself; but he had the right, as against Joseph Jones, to enter and take the profits; and this right would exist as against the creditors of Joseph Jones, until they, by an assertion of their rights, in due course of law, should defeat his title. If the conveyance from Jones 'were fraudulent, the creditors had no right of entry, but only a right to levy upon the land and defeat it. If any of them had seen fit to attach the land, and by a judgment, and the levy of an execution, had obtained a good title, because the conveyance from Jones was fraudulent as to creditors; the title thus obtained would not have related back beyond the levy of the execution, except as a security against conveyances by the debtor, or against other attachments or levies; and, of course, the creditor so levying would have had no claim to the profits anterior to that time. His attachment would only have
It is clear, then, that had Page taken the actual possession of the land, and cultivated it, he could not have been made liable for the mesne profits, nor could the creditors of Joseph Jones have taken the crops from him, however invalid his title might have been as against the creditors. They could not have attached the crops, as the property of Joseph Jones, because the conveyance was good against him until the condition should be performed, and good against every one else until defeated by due proceedings at law. And if defeated, it would not be rendered void ah initio, but only from the time of the levy of the execution. On the assumption that the conveyance was fraudulent, the right of the creditors was to take, not the crops, but the land which had been thus fraudulently conveyed. Until some of them saw fit to assert that right, the conveyance would stand good.
Page permitted Joseph Jones to occupy several years, and during that time the crops, for aught which appears, belonged to Joseph Jones, and might have been taken for his debts.
In September, 1837, an arrangement was made by which Page, with the assent of Joseph Jones, agreed to convey to the plaintiff and George Jones, upon the payment of the amount due him, and upon their entering into an agreement to maintain their parents.
George Jones subsequently released all his title to the plaintiff. The obligation which the plaintiff gave to support his parents cannot enlarge the rights of the creditors in this respect.
If, after this arrangement, the plaintiff occupied the farm, and cut the hay, in question in this case, it belonged to him, and he has the right to maintain the action.
But there is some evidence in the case, that Joseph Jones continued to reside on the farm, and has done much of the labor upon it. The terms upon which he lived and labored
The ruling of the court in relation to the title was erroneous, and may have prevented the defendant from going into an enquiry upon this subject; and if so, the verdict must be set aside,’ and the case sent to- a
New trial.
Woods, J., having been of counsel, did not sit.