| Ky. Ct. App. | May 11, 1842
delivered, the Opinion of the Court.
In May, 1837, George R. 'Love, upon no other consideration than love and affection, conveyed his real estate to his three infant children, who were living with him;- and in June following, on the same consideration, com Veyed to them his slaves and other personal property, and both deeds were duly recorded in June of the same year, In October following, he borrowed money from Lewis and executed a mortgage to him for one of the slaves to secure the re-payment thereof. Before and after the mortgage, he remained in possession of all the property and exercised ownership over it, selling, renting and hiring, and applying the profits to his own use, as :ha had done before the conveyance to his childrep, untjl one Mejri
The Chancellor, upon the hearing, dismissed the complainant’s bill, and he has brought the case to this Court. The bill was dismissed by the Chancellor on the ground that there was no evidence other than the confessions of Love, that he was indebted at the time when the deeds of gift were made to his children, and that these confessions were made after the deeds were made, and were not evidence against them; and that the conveyance thus made was not fraudulent and void as against the complainant a subsequent, creditor.
The Chancellor seems to have overlooked the deposi^on Wm. Mitchell, who states that some time in February, 1837, as well as he recollects, Love told him or spoke it in his presence, that he loas very much indebted. jje was speaking to a man to whom he was indebted, and r , ° 7 stated to him that he need not sue Mm, that he had made over hisqoroperty to his children, but would pay him. Though the statement that he had made over his property was untrue, it shows that 'the plan had then taken root . . . . 7 . 7 in his mind, and the object to be-accomplished by it, and the statement was made that he had made it over to deter cre<Titor from sueing. In corroboration of the evidence of this witness, is the evidence of several others, proving by his confessions after the deeds were made, which are at least competent against himself, the fraumotive which prompted the execution of the deeds, which taken in connection with the facts that the deeds embraced all his property, that they were made to cbildren lender years, who were living with him, and that he continued as before in possession, selling, renting and hiring, and applying the proceeds to his own use, and exercising every other act of ownership over it, leaves no rational doubt upon the mind, that they were not made
But the complainant does not stand in the condition of a general creditor, but as mortgagee, occupies the more favorable attitude of a purchaser for valuable consideration, to the extent of the sum secured: Roberts on Fraudulent Conveyances, 373, and the authorities cited.
As a purchaser, the mere fact that the deeds are voluntary, render them at least prima facie fraudulent and void as to him: 27ih Stat. of Elizabeth, (1 John. Chy. Rep-. 261;) Sterry and wife vs Ardew and others and the authorities there referred to; same case, 12 John. Chy. Rep. 536, and the authorities ref erred to; Robertson Fr audu. lent Conveyances, 62, and Seq. and the authorities there referred to.
But when, as in this case, it is obvious that they were made, not as an advancement, but with a fraudulent motive and -intent, they are unquestionably void as to him. Nor does it matter that the deeds were recorded or that the complainant had constructive notice of their execution prior to his purchase: Sngden on Vendors, 620; Burton’s Lien of Real Property, 79 and the authorities before referred to. And though they were recorded, he most likely never had actual notice of their existence, and if he had, notice of the\ deeds was notice that they were voluntary, and may also have been attended with notice^ that they were fraudulent, and consequently void.
Decree reversed and cause remanded, that, a decree may be rendered in favor of the complainant below.