12 N.H. 248 | Superior Court of New Hampshire | 1841
The plaintiffs introduced evidence that E. W. Fenner, prior to the 25th of Jan., 1835, was the owner of the premises in question ; that, being in 1833, and up to the 1st of May. 1837, indebted to them, as one of the firm of Fenner & Wiggin, they on that day caused the premises to be attached, recovered judgment and sold the equity of redemption on their execution, admitting that the premises were duly mortgaged, on the 25th of Jan. 1835, to Smith & Jenness. These proceedings show a title in the plaintiffs, against E. W. Fenner, and against all other persons except those claiming under the mortgage, or some person who can show a title from E. W. Fenner prior to the attachment.
The defendant does not claim under the mortgage, but he attempted to set up a title from E. W. Fenner, and produced a deed, executed previous to the attachment, which, if made bona fide, and upon a sufficient consideration, conveyed to him the title of E. W. Fenner, subject to the mortgage.
The simple question which this case presents is, whether the proof of the execution and delivery of this deed he prima facie evidence of a title against the plaintiffs, until rebutted by proof tending to show that it is invalid against these creditors, from want of sufficient consideration, or from fraud; or whether it was incumbent on the defendant, in order to support his title against the plaintiffs’ levy, to show that the conveyance to him was upon a sufficient consideration, by some evidence other than that of the deed itself. If a sufficient consideration were shown, the good faith might be presumed.
A voluntary deed is one made without any consideration, and such a deed is presumed to be fraudulent as against existing creditors. 3 Johns. Ch. R. 500, Reade vs. Livingston; 8 N. H. Rep. 37, Parsons vs. McKnight; 8 N. H. Rep. 48, Carlisle vs. Rich; Cruise's Dig. 221; 2 Hilliard's Abr. 421, pl. 16; 6 N. H. Rep. 69; (11 N. H. Rep. 465, Smith vs. Smith.) If there be any thing to rebut the presumption, it must be shown by the grantee. “No man has such a
The question may be stated, then, in other words, whether a deed which purports to be executed upon a pecuniary consideration, and contains an acknowledgment of the receipt of it, furnishes, of itself, evidence that such consideration was in fact received, or whether, as against existing creditors, it is not to be regarded as a mere voluntary conveyance, and presumed to be fraudulent until some evidence is offered of the consideration upon which it was executed. There is no doubt that the clause acknowledging the receipt of a consideration furnishes evidence, against the grantor, that the consideration specified has been paid — and this receipt being under seal, and part of the deed itself, cannot be contradicted by him for the purpose of defeating the instrument. 4 N. H. Rep. 229, Morse vs. Shattuck.
But for all other purposes the effect of this clause, even between the parties, is that of a mere receipt, which may be contradicted ; and it furnishes the grantee, therefore, only prima facie evidence of the consideration upon which the deed is founded. Thus it may be shown, that the actual consideration was more than that expressed, (8 Conn. R. 304, Belden vs. Seymour;) or less, (4 N. H. Rep. 229;) or that it was iron, instead of money, (16 Wend. R. 460, McCrea vs. Purmort;) or that nothing was paid, (14 Johns. R. 210, Shephard vs. Little; 20 Johns. R. 338. Bowen vs. Bell;) and of course that nothing was contracted to be paid. A deed may be a voluntary deed, notwithstanding it purports to be made upon a sufficient consideration.
Upon what principle is it that this mere receipt, which may thus be contradicted and controlled between the parties, is even prima facie evidence of the payment of a consideration, against a third person, who shows & prima facie title, by a levy on the land which belonged to his debtor, and who is no party to the deed, has in no way admitted its validity,
The execution of the deed must be proved, whoever is the party contesting it. Being proved, it contains the admission of the grantor, in writing, that a consideration has been paid, and this furnishes evidence of that fact against him. It contains no admission of the creditors, when used against them. But it is invalid against them, without some evidence that it is founded upon a consideration.
Is the admission of the grantor, then, evidence against the creditor to show that fact ? If it be so, it must be either because the admission is under seal, or because it is contained in the deed itself.
A verbal admission or declaration of the grantor, that there was a consideration which had been paid, would be good evidence as against him, to establish that fact, but not against third persons. 1 Pick. R. 245, Braintree vs. Hingham. And so of a mere receipt, or any other writing, disconnected from the deed. 6 Cowen's R. 617, 623, Jackson vs. Richards. We are not aware of any rule by which a seal can add to the authenticity of the receipt, or give it the character of competent evidence against parties having no connection with it. 16 Wend. R. 474. It would still be hearsay evidence, or rather res inter alios acta. 3 Stark. Ev. 1300; 1 Phil. Ev. (Ed. 1820) 173—Cowen & Hill's Ed. 229, et seq., and notes 432, 435. The actual payment of the money, or other thing mentioned in it, must still be proved.
And we are of opinion that the fact that this receipt is contained in the deed, does not add to its character, as evi
If the deed, and the admission contained in it, were held to be prima facie evidence of a consideration, we should hold that this prima facie evidence was sufficiently rebutted by showing that the plaintiffs were existing creditors. 2 Hill. Abr. 421.
Whether this clause of the deed might not be evidence after the death of the grantor, as an entry, or written acknowledgment, by him, against his interest; and whether the presumption of fraud may be rebutted, and the deed avail, if it appear that it was executed as an advancement to a child, and the grantor was solvent at the time, and long afterwards, we need not consider.
In Briggs vs. French, 2 Mason’s R. 252, cited for the defendant, the question arose in a different manner, and upon a different state of facts. In Foster vs. Hall, (12 Pick. R. 89,) it does not appear from the report that the defendants were existing creditors at the time of the conveyance. Their attachment was made subsequently ; and no evidence appears to have been offered to show when their debts accrued, or any attempt to maintain any rights for them, other than as subsequent creditors, who must show the fraud. Clapp vs. Tirrell, 20 Pick. 247, was an action by a subsequent pur
As against existing creditors, it seems to us not even to attain to that degree. It appears to stand on no better ground than a conveyance to trustees for the benefit of creditors. 5 Mass. R. 151, 152, Widgery vs. Haskell; 10 Pick. R. 413, Russell vs. Woodward. Fraudulent deeds always express a consideration. If the deed is bona fide, the grantee knows what the consideration was, and where to find the evidence of it. The subscribing witnesses often have no knowledge respecting it.. If no one but the grantor has the knowledge, he may be made a witness by the grantee. If the liability on the covenants in the deed is no greater than the debt, his interest is balanced ; and he is usually quite as favorably disposed towards the grantee, as towards a creditor proceeding for the recovery of his demand. If there may be a hardship sometimes upon a bona fide grantee, who is compelled to maintain his title against a creditor, there would be, quite as often, a greater hardship upon creditors, if they were compelled to disprove the existence of a consideration, merely because their fraudulent debtor had admitted that he had received one.
Judgment on the verdict.