22 F. Cas. 645 | U.S. Circuit Court for the District of District of Columbia | 1830
delivered the following opinion:
The issue, I suppose, was, whether the property was in Joseph Gales, Jr. at the time ‘of levying the fieri facias of Van Ness
The deed to H. T. Weightman was good against all the world; and transferred the legal title, so that it was no longer in Gales. That deed was not fraudulent at common law; because the possession remaining in Gales was consistent with the terms of the. deed; and it was not void under the act of 1729, c. 8, § 5, because
'When Weightman and G.ales made the deed to the plaintiff, R. Smith, (4th June, 1829,) Gales had no legal title in the goods. He had only an equity of redemption. The legal title passed from Weightman to Smith, and the possession of Gales did not make the deed void as to Weightman ; it could only be void so far as it attempted to transfer the rights of Gales, to the injury of his creditors.
As a deed from Weightman, it could only be avoided by Weightman’s creditors.
But, even supposing that the instruction of the Court was correct, and that the deed from Weightman to Smith was fraudulent as to Van Ness, by reason of the possession of Gales, yet, the legal title, and the equitable title, too, so far as the interests of the Bank of the United States were covered by the deed from Gales to Weightman, were in Weightman, and the goods were not the property of Gales at the time of levying the fieri facias.
But I am inclined to think that the instruction of the Court was wrong, in directing the jury that the deed was void as between Weightman and Smith.
It did not purport to be a joint conveyance from Weightman and Gales; but each severally conveys his own interest. The whole legal estate was in Weightman. Gales could only convey his equity of redemption ; and that would have been barred by a sale under the deed of trust from him to Weightman, without any further conveyance from Gales; so that the deed from Gales, (of the 4th of June, 1829,) was of no use but as evidence of his assent to the transfer of the trust from Weightman to Smith ; and such assent was not necessary to bar the rights of his creditors to the property thus conveyed in trust .to Weightman, and by him assigned to Smith. Therefore, as the possession of Gales could only avoid his act, and not that of Weightman, I think the Court erred in instructing the jury that the whole deed was void. If it had been a deed from Gales alone to Smith, and the possession had remained with Gales, and such possession was inconsistent with the deed, I think the instruction would have been right; because I do not think that the legislature of Maryland, in passing the Act of 1729, c. 8, § 5, intended to give validity to any deed which would have been fraudulent as to creditors, either by the common law, or by any previous statute.
For a period of more than one hundred years before the Act of 1729, the law was settled, (as appears in the case of Stone v. Grubham, 2 Bulstrode, 218,) that, “if it was an absolute conveyance,
The preamble of the fifth section of the Act of 1729, does not intimate an intention of making good any deed which would have been before void ; but the statute makes deeds void, unless acknowledged and recorded, which would have been good before, to wit, deeds where the possession, remaining with the vendor, is consistent with the deeds; for it makes absolutely void, as against creditors, all sales, mortgages, and gifts of goods and chattels, whereof the vendor, mortgagor, or donor, shall remain in possession, unless the same be by writing acknowledged and recorded.
But the case of Hambleton v. Hayward, 4 Har. & Johns. 443, decided by the Court of Appeals in Maryland, in 1819, is said to be conclusive as to the construction and effect of the Act of Maryland, 1729, c. 8, § 5. Although we have the highest respect for the decisions of that very learned and respectable court, especially in regard to the construction of the statutes of that State, yet we cannot consider ourselves bound by such decisions made subsequently to the separation of this county from that State. Congress adopted the laws of Maryland as they existed on the 27th of February, 1801. At that time no such construction had been given to that statute by the courts of Maryland. We were, therefore, left to judge for ourselves of its meaning.
In the case of Hambleton v. Hayward, the county court, consisting of Earle, C. J., and Worrell, J., was of opinion that the deed was void as to creditors, because the possession remained with-the vendor. This opinion was reversed in the Court of Appeals by Chase, C. J., and Johnson and Dorsey, J., against the opinion of Martin, J., so that there were three judges on one side and three on the other. It seems, therefore, to be a point fairly open for decision upon general principles.
The opinion of the Court of Appeals in that case is briefly stated by the Chief Justice. He says that “ at the time when the Act of 1729, passed, it was in the power of debtors to make secret conveyances of property and retain the possession; and although such possession presented grounds of suspicion against them, yet, of itself, it was not sufficient to authorize decisions against them as fraudulent.”
This was true as between the parties themselves: but if Lord Coke was right in the case of Stone v. Grubham, (2 Bulstrode, 218,) and Mr. Justice Buller, in Edwards v. Harben, (2 T. R. 595, 596,) it was not true as between the vendee and the creditor of the vendor; and had riot been for more than one hundred
The conclusion is undoubtedly correct. The retaining of the possession, when the deed is acknowledged and recorded, will not, of itself, render the deed void under the statute; but the question is, Does the statute make valid a deed which would be void by the common law ? It has no affirmative words to that effect; and there is ■ sufficient ground for the statute to operate upon without giving, it that effect. The legislature might have doubted whether absolute bills of sale, unaccompanied by possession, were absolutely void, as to creditors, and they knew that conditional bills of sale certainly were not; they therefore made them all void as to creditors, unless acknowledged and recorded; for a conditional bill of sale, where the possession was, by the common law, permitted, to remain with the vendor, was as injurious to creditors as an absolute bill. To permit a debtor to make an absolute bill of sale, and yet rfetain the possession and use of all his property, merely by acknowledging and recording the deed, would be. to give him the most certain means of effecting and protecting his fraud.
We think, therefore, that it was not the intention of the legislature to give validity to any bill of sale or deed which would otherwise be, in law, fraudulent and void.
But, being of opinion that the Court erred in instructing the jury that the deed from Weightman and Gales to B.. Smith, was entirely void by reasoii of the possession of Gales, I think a new trial ought to be granted.
Moesbll, J., however, did not agree to grant the plaintiff a new trial; and Thruston, J., being absént, and the plaintiff having taken his bill of exceptions to the instruction given to the jury, the motion for a new trial was overruled.
A writ of error was taken out, but not prosecuted; and was dismissed at January term, 1832.