By the Courts
Hand, P. J.
The defendant raises a preliminary objection, that the instrument, under which the plaintiff claims the property, was not delivered, and therefore not a valid contract, even between the parties. But it has been said, that if the parties to the instrument are present, and the usual for*453malites of execution take place, and the contract is to all appearance, consummated without conditions or qualifications annexed, it may be a complete and valid deed, notwithstanding it be left in the custody of the grantor. (4 Kent, 445.) It would seem that this remark, at least in a certain class of cases, is sustained by authority. (Doe v. Knight, 5 Barn. & Cres. 671. Souverbye v. Arden, 1 John. Ch. 240. Scrugham v. Wood, 15 Wend. 545. Roosevelt v. Carow, 6 Barb. 190. Doe v. Lewis, and Richards v. Lewis, 11 C. B. [2 J. Scott,] 1035.) In Doe v. Knight, however, the delivery was to a third person for the mortgagee; and in Souverbye v. Arden, it was directly to the cestuis que trust, and afterwards to the trustees. But the remarks of Bayley, J. in one case, and of Chancellor Kent in the other, seem sufficiently broad to sustain this general principle ; especially, where the object of the instrument is to make some family settlement, or provision for a child, or other relative. And the present is a case of that kind; and, besides, the father had an interest in retaining the instrument, as it contained covenants in his favor. (Scrugham v. Wood, supra.) No doubt there must be a delivery to the' grantee, or to some one for his use and benefit, to make a perfect conveyance at law; but where a deed contains stipulations on both sides, and is executed by both parties before subscribing witnesses, and no duplicate is executed, I do not think any presumption against its validity arises from the possession of one of them.
This instrument is inartificially drawn; but I think, if valid, it may be construed as a conveyance of the property of the elder McLean, subject to a condition subsequent. Although there is no proof showing when the claim arose upon which the judgment in favor of Stearns was obtained, and the conveyance was, in fact, of all the property which the father possessed, and he seemed not to be very clear whether he was indebted at the time, still I think we must for the purposes of this suit, assume that he was not indebted on the 20th September, 1849.
The question then is, whether this property was liable to the claims of subsequent creditors. The language of our present statute on this subject, differs from that of 3 Hen. 7, ch. 4, and *454also from that of the act of 1787. (2 R. S. 135, §1. 1 R. L. 75, §1. Rev. Notes, 3 R. S. 656, 2d ed. 13 Vin. 517.) By 3 H. 7, ch. 4, all deeds of gift of goods and chattels, made in trust to the use of the grantor, to defraud creditors, were void. The first section of the act for the prevention of frauds, passed February 26th, 1787, (1 R. L. 75,) enacts “ that all deeds of gift and conveyances of goods or chattels, made or to be made in trust, to the use of the person or persons making the same deed of gift or conveyance, shall be, and hereby are declared to be, void and of none effect.” In terms, this has no reference to creditors. And this may be the reason that so little reference to it has been made by the courts of this state. But our present statute upon this subject is more full. “ All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust, for the use of the person making the same, shall be void as against the creditors, existing or subsequent, of such person” (2 R. S. 135, § 1.) The statute of 3 Hen. 7, ch. 4, extended only to goods and chattels ; and its effect seems to have been almost superseded by the statute of 13 Elizabeth, ch. 5. But the section, as it now stands, not only makes gifts and conveyances, and all transfers or assignments of goods and chattels, and choses in action, in trust for the use of the donor and grantor &c., void as to existing, but also as to subsequent creditors. There has been some conflict of opinion as to the validity of a voluntary conveyance, and of those made upon a good consideration merely, as against subsequent creditors. (1 St or. Eq. Jur. §§ 361, 2, and cases there cited. 11 Wheat. 199. 8 id. 229.) But here a conveyance of personal property, in trust for the use of the party making it, is declared to be void as to the creditors he has then or may have afterwards; and without .reference to the consideration. (And see Leitch v. Hollister, 4 Comst. 211; Barney v. Griffin, 2 id. 365; Goodrich v. Downs, 6 Hill, 438 ; Mackie v. Cairns, 5 Cowen, 547; Fiedler v. Day, 2 Sandf. R. 594.) If the transfer, in this case, was of that nature, the plaintiff must fail, although the consideration in part should be deemed valuable. - And I am inclined to think this con*455tract may receive that construction, within the cases last cited ; especially, when taken in connection with the continued possession and use of the property by the father and his family. It is true, the agreement does not, in express terms, say the property shall be held in trust for him. But in consequence of the transfer, or agreement to transfer, the plaintiff agreed to support his father and mother, &c. The consideration of the transfer,-if the title passed at all, was the future support of the grantor or,.donor and his wife and children; and in case of failure, the father could have reclaimed the property, at least, as between him and the plaintiff. In addition to this, the want of a change of possession made it fraudulent, as against the creditors of the father. (2 R. S. 136, § 5. Id. 137, § 1.) If the case turned solely upon this last point, it might have been a question of fact, which had been disposed of by the courts below ; but, taken in connection with the trust, I think all the circumstances bring the case within the first section of the revised statutes which we have cited above ; and, if so, it became a question of law.
[Clinton General Term,
July 3, 1854.
Hand, Cady and C. L. Mien, Justices.]
The judgments of the county court and of the justice should be reversed.
Judgment reversed.