1 Ohio 321 | Ohio | 1824
Lead Opinion
The complainant claims title under a sale upon execution, founded on a judgment rendered at law, in action of covenant commenced by attachment. This judgment can not be here controverted. It is conclusive that Ephraim Starr owed him the debt, for which it is rendered at the time stated in the proceedings, and places him in the attitude of a creditor, entitled to contest the fairness of the title which the defendant set up to the land in dispute.
This title is a deed of conveyance from Ephraim Starr to Truman Starr, dated May 1, 1817. The deed is produced, and upon inspection, it appears to have been acknowledged by Ephraim Starr upon the 10th of September, 1817, and by his wife upon the 17th of September, 1818 — the wife’s name and signature being
The defendants all insist that the first deed was executed in May, 1817, to secure the debts due from Ephraim *Starr to Truman Starr and G-iles Griswold. The date of the deed corresponds with this statement, and the court being satisfied that there was but one deed, and that this is it, the right of the defendants, Truman Starr and Giles Griswold, depend upon the validity of this deed.
The court agree with the defendants’ counsel, that the redolivery of the deed did not reconvey the title. That redeliverv is of no other importance than as one of many circumstances elucidating the character of the transaction. The deed is absolute and indefeasible ; the consideration for which it was given, must have arisen at the time of its execution. If given in payment of an existing debt, there must have been an agreement that the debt should be extinguished. If the debt subsisted, and was really due, after the deed was made, there was no consideration.
It is distinctly admitted by all the parties, that the debt was not extinguished, but remained due between them. Truman Starr presented himself a petitioning creditor for account of this very debt. Giles Griswold did the same with respect to his. Roth made affidavit that his debt was due to him, which could not be the case, if it had been paid by the conveyance of the land in question. Ephraim Starr, in his answer, distinctly states that it was in September, 1818, that the notes, evidences of the debt, were given up and canceled upon the delivery of the pretended second deed. Truman Starr states the same thing. The avowed object of making the alleged second deed was to discharge this debt, which Ephraim felt a moral obligation to pay.
The deed, if operative at all, was operative from May, 1817. At that time, and until September, 1818, the parties to it show that it was without consideration. And being so, the grantee held the title in trust for the grantor. It was not recorded, and there
The suggestion in the answer that Truman gave up the deed to become a petitioning creditor, is in every view of it most lame -and impotent. If the transaction had been in good faith, the execution of the deed extinguished the debt. The redelivery, or giving it up, could not revive the debt, ^unless there was a eon-•tract that it should do so. Such a contract would, have vested an interest in Ephraim which he was bound to put in his schedule for the benefit of his creditors. Nothing of this kind was done. If the debt was paid by making the deed, Truman Starr was guilty of both fraud and perjury in presenting himself a petitioning creditor. If the debt was revived by agreement when the deed was given up, Ephraim Starr was guilty of perjury, and fraud too, in not assigning it for his creditors’ benefit. But if the conveyance was voluntary, upon no secret trust distinctly expressed, the conduct of the parties is more consistent than it could be upon any other supposition.
The circumstance that Ephraim Starr, the grantor, continued •to exorcise control over the property, and sell and dispose of it, receiving the purchase money, and making conveyances, is an additional badge of trust and fraud. It does not essentially change the character of this part of the transaction, that Ephraim acted under a power of attorney from Truman. That power was created at the time of the conveyance, and continued unrevoked after the return of the deed to Ephraim. Like the deed itself, it was kept a secret until it became necessary to use it to enable Ephraim to enjoy the benefit of the land.
It is another strong and unfavorable circumstance that the deed, ■though unrecorded, was permitted to remain for so great a length of time, in the hands of the grantor; and was a second time brought out, not at the request of the grantee, but upon the motion of the grantor, and the consideration got up, that of a debt discharged by the proceedings under the insolvent law, upon the petition of the grantee.
All the principal facts of the case unite in convincing a majority of the court, that the deed was originally made voluntarily and without consideration, and that the object was to cover the land from creditors, and save it, that it might be enjoyed by the
*Griles Griswold is in no better situation than Truman Starr. His title rests upon the same deed, which was never operative. And although he was no party to the original transactions, yet he acquired no interest in the lands until the conveyance was made to him. He could not enforce the parol trust in Truman Starr, if there were no doubt of its existence. And his deed is made since the land was attached, and since a right was commenced in the complainant. Both deeds must be decreed fraudulent and void.
Dissenting Opinion
dissenting opinion:
I dissent from the opinion of the court in this case, principally, because the defendants, Truman Starr and Giles Griswold, have expressly denied the fraud imputed to them, and their answers have not been contradicted by a single witness.
They were creditors to Ephraim Starr, for money lent, to a greater amount than the estimated value of the land, and whatever might have been the fraudulent views of Ephraim Starr, or the imposition practiced by him, on his creditors, these defendants are not infected by it. Fraud must be proved; it can not be presumed. The facts from which unfavorable inferences might be drawn, against these defendants, appear to‘ be satisfactorily explained. They may all be true, and they perfectly innocent. On such grounds, I can not agree that the complainant, who is an after creditor, has a right to wrest from tl^em their tabula in naufragio, and effect, for his own exclusive benefit, the same object, which he alleges is a fraud in them. Their equity, to say the least of it, is as strong as that of the complainant. It is prior in point of time, and they have the law on their side. Equity being equal, the law prevails. Prior est in tempore, potior est injure.
The deed first executed, and delivered by Ephraim to Truman,was for a valuable consideration. It was made before his application for the benefit of the insolvent laws of New York, and when he was at liberty to prefer one creditor to another. The execution and delivery of this deed vested the legal title in the
The redelivory of the deed to Ephraim did not divest the grantee of his title, or render the conveyance void, and the fraud that might have been practiced afterward, on the bankrupt laws of New York, could not relate back, so as to avoid a conveyance previously made, in good faith, and for a valuable consideration.
The second deed may be considered as a nullity, because there was no interest in the grantor that could be conveyed by it, and I can not discover how tho validity of the first deed can be affected by the subsequent conduct of the parties, in relation to third persons, who had no interest or concern in the transaction.
