2 Minn. 291 | Minn. | 1858
By the Gourt
The Reply in this case admits the appointment of a Receiver, under the proceedings supplementary to execution, which are set forth in the Answer, and that the Plaintiff in such proceedings received the sum of twenty-five dollars. This sum, as appears from the Answer, was an amount found due by the examination of the Defendant Bibeau, and Yandal, from Bibeau to Vandal, on the purchase of the land specified in the Complaint by Bibeau from Yandal. The amount found due from Bibeau to Yandal on the sale of the land specified in the Complaint, and the conveyance of which the Plaintiff seeks to set aside, was ordered by the Court below to be paid over to the Plaintiff, in part satisfaction of his judment against Yandall, and was received by the Plaintiff for such purpose. The only question which
But whatever may have been the object of the Appellant in taking supplementary proceedings against Yandal, it can make no difference in (the consideration of this case. The question is with reference to what he actually did under such proceedings. It appears from the case that the District Court or the Judge thereof found a certain amount due from Bibeau to Yandal, on the purchase of the land by the former from the latter. That thereupon a receiver was appointed, to whom Yandal by order of the Court, was directed to assign this indebtedness. This was done, and the proceeds were paid over by the Deceiver to the Plaintiff and accepted by Jiim, and the [receiver discharged. Upon this state of facts, we think the Plaintiff is estopped from now setting up, that the sale from Yandal to Bibeau was fraudulent and void. There can be no doubt but that a conveyance of real estate in due form, even if made with the intent to defraud creditors is good as between the parties and privies, and can only be avoided by a creditor of the fraudulent grantor. Rev. Stat. p. 269. Sec. 1; 1 Smith’s Lead. Cases, 41; Jackson vs. Malvin 16 Johns, 189; 1 Story Eq. Jur. See 425; Jackson vs. Cadwell, 1 Cow. 622; 22 Pick. 253. And the creditor may have his election either to confirm the conveyance, or attempt to avoid it, but he cannot do both. He cannot receive a benefit under
The cases above cited, are mostly those in which one of the parties to the contract sought to avoid it on the ground of fraud. In the case at bar, the complaint charges that both parties (the vendor and vendee) acted fraudulently in effecting the sale. But it also" admits that the Plaintiff has received a benefit under the sale,‘to wit, apart of the consideration paid by Bibeau for the land. By such act, he so far affirms the sale of the land, as to be estopped from questioning its validity on the ground of fraud.
It is claimed by the Counsel for the Appellant, that the respondent having entered into a fraudulent contract, is precluded from objecting to the loss of both the purchase money and the land, in case such should be the result of this suit. But the same reasoning would equally apply in a case where one of the parties sought to avoid the contract on the ground of fraud, and yet, by the authorities referred to, it will be seen that they are not permitted to retain what has been received, and still insist that the contract is wholly void. And when a party claiming to have been defrauded'in the sale of goods, brings assumpsit, instead of trover, to recover the price of the goods, he affirms the contract and cannot set up that the sale. was void on the. ground of fraud. Ferguson vs. Carrington, 9 Barn. & Cres. 59; Brinley vs, Tibbets, 7 Green, 70; 5 Met. 49.
The judgment of the Court below must be affirmed.