Swift, J,
It was formerly the practice to admit what was said by a fraudulent grantor respecting his intent to defraud his creditors prior to the conveyance, as evidence in an action against the fraudulent grantee, though he had no knowledge of it; but this practice cannot be warranted on principle; for the grantee ought not to be affected by the declarations of the grantor, unless they come to his knowledge; and though a grantor may have a fraudulent intent, this may be wholly unknown to the grantee, and the transaction may be bona fide on his part.
In this case, it was competent for Lewis Catlin to testify that he had executions against Brace, which he had levied on his body; that he and Brace went to the defendant; that Brace and the defendant went into another room; that immediately after, the defendant gave a receipt for property taken on the executions, and Brace executed a deed. These were facts which, taken in connection with the other testimony, might explain the transaction. But it was not admissible to prove the proposition of Brace to the witness, to convey to him the land on being discharged from the executions, with an un-[293]*293de'rstanding that he should answer the amount to the creditors, and on being reimbursed should reconvey the land, and ultimately do justice to Brace ; and that the witness declined, but told him perhaps the defendant, would, because, from the circumstance that Brace went immediately to the defendant and gave him a deed of the land, who thereupon executed a receipt for property taken on the executions, the jury could not be warranted to presume, or draw an inference, that Brace made to him the same proposition, and that the conveyance was executed in pursuance thereof. Though there can be little doubt that Brace made the offer to the defendant, from the circumstances proved, and it was under this impression that the court below, in the hurry of the trial, admitted the proof; yet this is mere matter of conjecture, which should never be admitted as evidence in a court of justice. A circumstance to furnish presumptive evidence against a party should be brought home to his knowledge. An offer by A. to B. to make to him a fraudulent conveyance, which he declines accepting, is no evidence that a subsequent conveyance of the same land to C. is fraudulent. The offer of Brace to the witness was a transaction between other parties, res inter alios acta, not brought home to the defendant, and he ought not to be charged by it.
The other question is, whether the defendant can protect himself by the possession of fifteen years under the statute concerning the possession of lands.
It is unnecessary to consider the questiqn whether fraud will take the case out of the statute; for I apprehend, on a sound construction, it will be found neither to be embraced by the words, nor comprehended within the meaning, of the statute; and it would be a new idea to construe a statute liberally for the protection of fraud.
The statute does not enact that a naked possession of fifteen years shall vest a title in the possessor; but that no person shall make entry into any lands, but within fifi[294]*294teen years after his right shall accrue, and in default thereof, shall be excluded from making entry. It h@s been the uniform construction here, and of a similar star tute in England., that the possession must be adverse; that the possessor must claim title in himself, and deny the title of all others; that he must be guilty of an actual disseisin.
The possession of the defendant in this case could not be adverse to the title of Brace; for Brace had no title or right of entry. The statute supposes the possessor holds adversely to some one having title and right of entry. If Brace had no such right, then the relative situation of these parties was such that the statute could not operate upon them; and it is a solecism to say, that a man acquires a title to land by an adverse possession of fifteen years against another, when he had previously acquired from him a legal title by a deed duly executed and recorded. The defendant acquired all the title of Brace the instant the deed was executed; how could he acquire any thing more by fifteen years’ possession ?
As it respects the creditors of Brace, there is no ground to pretend that the statute can operate. The plaintiff had no right of entry before the levy of his execution on the land, and he has brought his action within fifteen years from that period. He had till that time nothing but a right to proceed against Brace till he obtained an execution for his debt, and then to levy it on the land. This right to levy on the land, is not a right of entry, and cannot be within the letter or meaning of the statute ; and it is not supposable that the legislature contemplated a right of this description. When a creditor levies on the land, then a right of entry accrues; and at that time the statute begins to run against him.
But the true point of light in which this transaction is to be considered is this: The defendant, by the deed, took all the right of Brace, but he held the lands subject to the claims of his creditors, and in the nature of a [295]*295trustee for them. His possession was inconsistent with no right of Brace ; for he had none. It was inconsistent with no right of the creditors ; for they had no title to the land, or right of entry. The defendant had a lawful possession of the land, till the creditors levied upon it, Mid took it for their debts; he disseised nobody, and no one, not even the creditors, could enter upon him, or maintain trespass against him. His possession was consistent with every existing claim, and could be adverse to none, because it was lawful; and it is an undeniable position, that a lawful possession acquires no title under the statute.
I am therefore of opinion that the charge to the jury Was correct; but that a new trial ought to be granted for the admission of improper testimony.
Brainerd, Baldwin, and J. C. Smith, Js. were of the same opinion.
N. Smith, J.
I am in opinion with my brother Swift, that the court erred in admitting Le-ais Catlin to testify respecting conversations with Brace, in the absence of the defendant. The declarations of one are never admitted to affect another who is not present and assenting to them, unless they accompany some act about which testimony is adduced ; and then they must be considered as explanatory only, and not as original and distinct proof.
I think, also, that the court were incorrect in the charge they delivered to the jury.
The court, in the first place, instructed the jury as to the facts necessary to constitute a fraudulent conveyance; and here they do not require that the jury should find any intent to defraud a creditor, nor even that the defendant knew that Brace was in failing circumstances. But. I have no doubt of the correctness of this part of the charge. The direct tendency of the contract was [296]*296to defraud creditors; and this has frequently been adjudged sufficient to set aside a contract in favour of creditors, whether there was an intent to defraud them or nót.
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Swift, J,
It was formerly the practice to admit what was said by a fraudulent grantor respecting his intent to defraud his creditors prior to the conveyance, as evidence in an action against the fraudulent grantee, though he had no knowledge of it; but this practice cannot be warranted on principle; for the grantee ought not to be affected by the declarations of the grantor, unless they come to his knowledge; and though a grantor may have a fraudulent intent, this may be wholly unknown to the grantee, and the transaction may be bona fide on his part.
In this case, it was competent for Lewis Catlin to testify that he had executions against Brace, which he had levied on his body; that he and Brace went to the defendant; that Brace and the defendant went into another room; that immediately after, the defendant gave a receipt for property taken on the executions, and Brace executed a deed. These were facts which, taken in connection with the other testimony, might explain the transaction. But it was not admissible to prove the proposition of Brace to the witness, to convey to him the land on being discharged from the executions, with an un-[293]*293de'rstanding that he should answer the amount to the creditors, and on being reimbursed should reconvey the land, and ultimately do justice to Brace ; and that the witness declined, but told him perhaps the defendant, would, because, from the circumstance that Brace went immediately to the defendant and gave him a deed of the land, who thereupon executed a receipt for property taken on the executions, the jury could not be warranted to presume, or draw an inference, that Brace made to him the same proposition, and that the conveyance was executed in pursuance thereof. Though there can be little doubt that Brace made the offer to the defendant, from the circumstances proved, and it was under this impression that the court below, in the hurry of the trial, admitted the proof; yet this is mere matter of conjecture, which should never be admitted as evidence in a court of justice. A circumstance to furnish presumptive evidence against a party should be brought home to his knowledge. An offer by A. to B. to make to him a fraudulent conveyance, which he declines accepting, is no evidence that a subsequent conveyance of the same land to C. is fraudulent. The offer of Brace to the witness was a transaction between other parties, res inter alios acta, not brought home to the defendant, and he ought not to be charged by it.
The other question is, whether the defendant can protect himself by the possession of fifteen years under the statute concerning the possession of lands.
It is unnecessary to consider the questiqn whether fraud will take the case out of the statute; for I apprehend, on a sound construction, it will be found neither to be embraced by the words, nor comprehended within the meaning, of the statute; and it would be a new idea to construe a statute liberally for the protection of fraud.
The statute does not enact that a naked possession of fifteen years shall vest a title in the possessor; but that no person shall make entry into any lands, but within fifi[294]*294teen years after his right shall accrue, and in default thereof, shall be excluded from making entry. It h@s been the uniform construction here, and of a similar star tute in England., that the possession must be adverse; that the possessor must claim title in himself, and deny the title of all others; that he must be guilty of an actual disseisin.
The possession of the defendant in this case could not be adverse to the title of Brace; for Brace had no title or right of entry. The statute supposes the possessor holds adversely to some one having title and right of entry. If Brace had no such right, then the relative situation of these parties was such that the statute could not operate upon them; and it is a solecism to say, that a man acquires a title to land by an adverse possession of fifteen years against another, when he had previously acquired from him a legal title by a deed duly executed and recorded. The defendant acquired all the title of Brace the instant the deed was executed; how could he acquire any thing more by fifteen years’ possession ?
As it respects the creditors of Brace, there is no ground to pretend that the statute can operate. The plaintiff had no right of entry before the levy of his execution on the land, and he has brought his action within fifteen years from that period. He had till that time nothing but a right to proceed against Brace till he obtained an execution for his debt, and then to levy it on the land. This right to levy on the land, is not a right of entry, and cannot be within the letter or meaning of the statute ; and it is not supposable that the legislature contemplated a right of this description. When a creditor levies on the land, then a right of entry accrues; and at that time the statute begins to run against him.
But the true point of light in which this transaction is to be considered is this: The defendant, by the deed, took all the right of Brace, but he held the lands subject to the claims of his creditors, and in the nature of a [295]*295trustee for them. His possession was inconsistent with no right of Brace ; for he had none. It was inconsistent with no right of the creditors ; for they had no title to the land, or right of entry. The defendant had a lawful possession of the land, till the creditors levied upon it, Mid took it for their debts; he disseised nobody, and no one, not even the creditors, could enter upon him, or maintain trespass against him. His possession was consistent with every existing claim, and could be adverse to none, because it was lawful; and it is an undeniable position, that a lawful possession acquires no title under the statute.
I am therefore of opinion that the charge to the jury Was correct; but that a new trial ought to be granted for the admission of improper testimony.
Brainerd, Baldwin, and J. C. Smith, Js. were of the same opinion.
N. Smith, J.
I am in opinion with my brother Swift, that the court erred in admitting Le-ais Catlin to testify respecting conversations with Brace, in the absence of the defendant. The declarations of one are never admitted to affect another who is not present and assenting to them, unless they accompany some act about which testimony is adduced ; and then they must be considered as explanatory only, and not as original and distinct proof.
I think, also, that the court were incorrect in the charge they delivered to the jury.
The court, in the first place, instructed the jury as to the facts necessary to constitute a fraudulent conveyance; and here they do not require that the jury should find any intent to defraud a creditor, nor even that the defendant knew that Brace was in failing circumstances. But. I have no doubt of the correctness of this part of the charge. The direct tendency of the contract was [296]*296to defraud creditors; and this has frequently been adjudged sufficient to set aside a contract in favour of creditors, whether there was an intent to defraud them or nót. The court then instructed the jury, that where a purchaser takes possession of lands by a fraudulent conveyance, he cannot acquire a title by fifteen years’ possession under such deed; and that no length of possession under such fraudulent conveyance will be a bar to the creditors of the grantor. This opinion of the court, I think, is incorrect. The inquiry, under the statute for quieting possessions, should be, has the defendant been in possession in his own right, holding all others out, for the term of fifteen years ? And not, how did he come by such possession ? The first inquiry is authorized by the statute; the latter is altogether unauthorized.
The creditors of Brace do not claim under a new independent title; they take his title, and come in under him. The statute against fraudulent conveyances removes the deed from Brace to Catlin out of their way; as to them, therefore, Catlin went into possession without deed. The creditors must take all the consequences of the deed being void; they cannot both claim it to be void and valid j they cannot declare the deed void so as to take Brace’s former title, and at the same moment declare it good so as to avoid Catlin’s possession. But I do not admit that their possession was imperfect as against Brace himself. It had every quality required by the statute for quieting possessions. He holds the possession in his own right in opposition to Brace ; and there is no pretence that this possession was tobe delivered back in any event. .And it is no objection to the nature of this possession, that Catlin held it under a deed that was valid; though as to Brace, he, having a good valid deed, might not wish to avail himself of his possession; yet he could, if he pleased, and would not be obliged to rely on his deed.
It was said, in argument, that the taking possession was a wrong act, and a part of the fraud; and the deed [297]*297being void, the possession niust be void also. To be sure, all wrongful possessions are in themselves void, and of rib effect. It is the statute for quieting possessions which gives to them their whole operation. In that statute I look in vain for an exception in favour of wrongful possessions. What can be more wrong than to turn a man out of his lands by force, and hold him out by strong hand ? And what possession can be more void, than one thus acquired, and thus held ? And yet does any one doubt that such a possession, if held fifteen years, would secure the title ? The statute against fraudulent conveyances declares the deed void; leaving the possession which may be acquired under it, like any other wrongful possession, to the operation of the other „ statute. But if the argument I oppose would apply to any case of fraudulent conveyances, it must be to one where, there was a fraudulent intent, and not to those of mere constructive frauds, which are deemed fraudulent and void as to creditors without any intent to deceive. And the proposition advanced by the court before, does not confine the principle to cases of actual frauds; but is general in its application, and comprises every species of fraudulent conveyances. Had it been confined to eases of fraudulent intent, it could have had no application to the case before the court ; because no fraudulent intent was claimed or pretended.
I confess I should feel some degree of concern to have it considered as settled law, that rao length of possession under a fraudulent conveyance will be a bar to the creditors of the grantor; and this to apply as a general rule to all cases, whether there were actual fraud or not.
It ought to be remarked, that the fact of fraud may, and frequently must, be proved by mere parol testimony; and this may be a fact not only fifteen, but twenty or thirty years before the trial. It ought, also, to be remarked, that this fact, when established by parol, is to overset a record title. And if no length of possession [298]*298is to secure the record title against these attacks of‘parol testimony; if the durability of records, and the open ⅜ sible occupancy of lands, are to be thus set at naught by the mere parol recollection of witnesses, after the lapse of so many years, there will be no safety to our titles.
Edmond, J. concurred in this opinion on both points.
Mitchell, Ch. J. and Trumbull, J.
thought that the admission or rejection of the evidence in question would not affect the event of the cause; and, on that ground, were opposed to the granting of a new trial. They were of opinion that the charge was correct.
Reeve, J. being interested in the question, gave no ©pinion.
New trial to be granted.