2 Blackf. 421 | Ind. | 1831
The material facts in this case as disclosed by the bill, answer, exhibits,and depositions, are these:—One Thomas Coulter, late of the town of Vincennes, in the county of Knox, some time in the year 1826, departed this life intestate, leaving, surviving him, one son, John Coulter, and three daughters, that is, Matilda, married to John Pitcher, Rosantte, married to Christian Graeter, and Ellen, married to Manual Rue, the above defendants. The intestate, in his life-time, became indebted as fol
In the year 1817, the intestate was much indebted and wholly insolvent, but was the owner by legal title and possessor of a house and lot on the corner of second and Vigo streets, in the town of Vincennes, being half of lot No. 81, and a part of lot No. 80, worth at that time 400 or 500 dollars; and on the 8th day of February, 1817, he conveyed by deed in fee-simple with warranty to his children, John, Matilda, Rosantle and Ellen Coulter, four of the above defendants, the aforesaid house and lot and the part of lot No. 80, for and in consideration of 5 dollars and natural love and affection. He continued to use and occupy the property as his own, and enter it on the list of the tax assessor, and pay tax thereon as his own, until in the year 1823, when the whole was sold by the tax collector for the taxes and costs for the year 1823, amounting to the sum of 4 dollars; and was for that sum purchased by John Pitcher, one of the defendants and a son-in-law of the intestate, who received a tax collector’s deed or certificate therefor. Pitcher occupied the house with theintestate,his father-in-law,atthetime ofthesale and purchase, and they continue,d so to occupy it together until the intestate’s death, and Pitcher has ever since continued to occupy it. The intestate died totally insolvent, leaving no personal property whatever, nor any real estate excepting the house and lot and part of a lot aforesaid, so deeded and conveyed to his children and sold for taxes as aforesaid, and no letters of administration
The first objection raised is, that the complainants are not judgment creditors. It is the general doctrine, certainly, that to reach the equitable interest of the debtor in real estate by a suit in chancery, the creditor should first obtain a judgment at law, and to reach personal property, both a judgment and execution must be shown. Brinkerhoff v. Brown, 4 Johns. Ch. Rep. 671.—1 Har. Chan. 116.—1 Vern. 398.—1 P. Will. 445.-3 Litt. Rep. 12. One exception Lto this rule is, where the debtor is deceased. Thompson et al. v. Brown et al. 4 Johns. Ch. Rep. 619.—Sweny et al. v. Ferguson, May term, 1828. And, again, Chief Justice Marshall, in the case of Russell v. Clark’s Executors, 7 Cranch, 89, says “that.if a claim is to be satisfied out of a fund, which is accessible only by the aid of a Court of chancery, application may be made, in the first instance, to that Court, which will not require that the claim should be first established in a Court of law.” This principle forms a second exception to the general rule; and this case comes within both these exceptions. The complainants in this case come in as creditors of the intestate, showing that they have no complete remedy at law, and charging that the conveyance of the intestate to his children, as to them, is fraudulent and void, and that the tax-title to Pitcher is not only illegal, but also fraudulent and therefore void. They pray to have these conveyances set aside and rendered null and void, and that general and proper relief be granted them in the premises. The writings obligatory, judgment, and accounts, are all exhibited and satisfactorily established.
The deed of the intestate to his children was clearly a voluntary conveyance, and no principle is better settled than the doctrine, that voluntary settlements made by a man indebted and in insolvent circumstances, are fraudulent and void against creditors, particularly so, if made with a fraudulent intent or with a view to after pecuniary difficulties. Reade v. Livingston, 3 Johns. Ch. Rep. 481.—Bayard v. Hoffman, 4 Johns. Ch.
The next consideration is the tax-title of Pitcher. It may, perhaps, be necessary in the outset to premise, that whenever any authority is given to any person or officer by law, whereby the estates or interests of other persons may be forfeited and lost, such authority must be strictly pursued in every instance. Yancey v. Hopkins, 1 Munford, 419. In the case of Ronkendorff v. Taylor’s lessee, 4 Peters, 349, it is decided, that in these ex parte sales, such as the sale of land for taxes, great strictness is required. Every substantial requisite of the law must be complied with. No presumption can be raised in behalf of the collector to cure any radical defect in his proceedings; and the proof of regularity devolves upon the person who claims under the collector’s sale. The sale, in this case, was made under the provisions of the revenue act of 1818, and the only proof offered to establish that the requisites' of the act were complied with, is the deed of the collector. If it be admitted that the averments and statements in the collector’s title, like those in the deed of a sheriff, are to be taken for true until the contrary is proven, yet there is not a sufficiency of evidence in this case produced, to satisfy the Court that the substantial requisites were complied with. These requisitions are plainly delineated in the act, and those wishing to establish the validity of the
Pitcher, in his answer, admits the writings obligatory exhibited to be genuine, but alleges they must have been paid and ■ relies on the lapse of time for proof. That after a lapse of 20 years, without a promise to pay, payment may be presumed, is correct; but no such presumption can apply in this case, the intestate having acknowledged the debt and promised payment within three years of the time of his death, as appears by the depositions.
From these views of the case, the Court thinks that the conveyance from the intestate to his children is fraudulent and void as to creditors, and that Pitcher's tax-title is illegal and conveys no title, and that the complainants have equity and are entitled to relief.
It is decreed, that the conveyance of the intestate, and the tax-title of Pitcher, be set aside, &c.; that the lots be sold, &c.; and that the commissioner report, &c.
Reed et al. v. Carter, May term, 1834, post.