19 Me. 244 | Me. | 1841
This is a case where the demandants have obtained judgment in the name of the Judge of Probate, on a bond executed by their guardian, against the sureties thereon, one of whom was the grantor to the defendant of the land in controversy, and have made a levy of an execution issued on said judgment.
The demandants attempted to impeach the conveyance to the defendant as fraudulent against creditors, and the only question is on the correctness of the ruling of the Judge who presided in the trial, that the demandants were creditors at the time of the conveyance, and so at liberty to take that ground. The verdict settles the fact of a fraudulent conveyance; but whether by actual or legal fraud, does not appear, and we do not consider it material. It is insisted, that as there was no breach of the bond, consequently no cause of action arising thereon at the time of the execution and delivery of the deed to the defendant, he was not a creditor. The demandants rely upon the case, Seward, plaintiff in error, v. Jackson, 8 Cowen, 406, in which the judgment rendered for the defendant in error, reported in 5 Cowen, 67, was reversed. Other cases are cited on the same side, as analagous to the one at bar. The judgment in 5 Cowen was reversed, but it appears, that it was not in consequence of a supposed error in the court in regarding the defendant in error a creditor, — On this question the chancellor gave no opinion, but after fully considering other points in the case, thought the judgment should be reversed for error in the court on those other points. — One senator thought there were fatal errors other than the one discussed upon that point, and was of opinion, that the defendant was not a creditor ; another was in favor of reversing the former judgment, though he held him to have been a creditor ; no other member of the court of errors discussed the questions presented in the argument. The decision then of the court in the first case reported, is not to be considered as disturbed on the question now under consideration, and in the opinion of the court it is said, “ the demand in this case, fundamentally as it is expressed
We are, therefore, of the opinion, that the only instruction objected to was correct, and that there must be
Judgment on the verdict.