Smith v. Lowell

| Superior Court of New Hampshire | Nov 15, 1832

The opinion of the court was delivered by

Richardson, C. J.

It docs not appear that either Dewey or the tenant have ever paid any thing for the land, or that the conveyance was made to Dewey before the land had been attached by the demandant. The tenant must, then, be considered as standing on the same ground upon which Chandler would have stood, if he had made no conveyance, and this suit had been brought against him.

And we are of opinion that the circumstances, that Webster was embarrassed with debts when he conveyed to Chandler,mid that he remained in. possession fourteen years after the conveyance, afforded, without explanation, at least prima fade, evidence, that the conveyance was made with intent to defraud creditors.

And it seems to us that in order to meet this prima fade evidence and show that, notwithstanding those circumstances the conveyance was bona fide and for an adequate consideration, it was not enough to prove that the deed to Chandler was made to secure some debt. The conveyance being, on the face of the deed, absolute, if it was made on account of a debt, any secret understanding between the parties, that the land should be recon-veyed, on payment of the debt, would be a secret trust that would render the conveyance void. The law does not permit debts to be secured in that manner. If the conveyance was intended only to secure the debt, that intent should have appeared in some writing made at the time. If courts should give the least countenance to the security of debts, by absolute conveyance alone, there would be no end to the embarrassments in which creditors would be involved to secure their debts.

To prove, then, that the conveyance was made merely for security of a debt, with an understanding, between Webster and Chandler, that Webster should have a re-conveyance on payment of the debt, was to prove the conveyance fraudulent and void.

And it was not enough to prove, under the circumstances, that the conveyance was made in payment of the debt, it should have been shown that the debt amounted to the fair value of the land.

It is settled that a conveyance, made to defraud creditors, is void as against those who become creditors after the conveyance. Roberts on Fraudulent Conveyances, 448 — 457; 4 Greenleaf, 195, How v. Ward; 2 Pick. 411, Damon v. Bryant.

There are cases, in which a mere voluntary conveyance may be sustained against creditors. Thus, a parent may, if not in embarrassed circumstances, make a suitable provision for a child, which will be sustained against creditors. Newland on Contracts, 383; 11 Mass. Rep. 421, Bennet v. The Bedford Bank; 3 Johns. C. R. 481, Reade v. Livingston; 2 ditto, 48—49; 5 Cowen, 67, Jackson v. Seward; 11 Wheat., 199" court="SCOTUS" date_filed="1826-02-23" href="https://app.midpage.ai/document/hindes-lessee-v-longworth-85488?utm_source=webapp" opinion_id="85488">11 Wheaton, 199; 8 Cowen, 406 3 Greenleaf, 471, Usher v. Hazeltine; 9 Mass. 390" court="Mass." date_filed="1812-10-15" href="https://app.midpage.ai/document/parker-v-proctor-6403944?utm_source=webapp" opinion_id="6403944">9 Mass. Rep. 390, Parker v. Proctor.

Rut there is nothing, in this ease, to shew that Chandler stood in any relation to Webster which could sustain a mere voluntary conveyance. Besides, Webster was in embarrassed circumstances.

We are, on the whole, of opinion that there is no legal ground for a new trial in this case.

Judgment on the verdict.