Haven v. Richardson

5 N.H. 113

• Court: Superior Court of New Hampshire
• Decided: January 15, 1830
• Status: Published

Opinion

The opinion of the court was delivered by

Richardson, C. J.

A new trial is claimed by the tenant in this case, on several grounds.

1st, Because the deed of assignment is, on the face of it, fraudulent and void.

2d, Because it is too loose and uncertain, to convey the demanded premises.

3d, Because the circumstances, which the deed itself discloses, and the secrecy, with which the deed was made, were not submitted to the jury as evidence of fraud.

4th, Because no adequate consideration for the conveyance was shown.

5th, Because evidence of the execution of the deed by persons who were not parties to it, when recorded, was admitted.

We shall, in the first place, consider the circumstances apparent upon the face of the instrument, which are supposed to furnish conclusive evidence of fraud.

These circumstances are the want of a schedule of the property conveyed ; an assignment of all the property of the grantor without any estimate of its value ; the reservation to the grantor of the surplus that may remain after paying all the debts ; the stipulation for a release of the debts of those, who became parties to the instrument, and the preference given to the creditors of the estate of the testator.

In order to determine how far these circumstances are conclusive evidence of fraud, it is necessary to understand correctly the nature of such an assignment, and the nature of the stipulations, which have been holden to vitiate such a conveyance.

It is now too well settled to be questioned, that a debtor may assign all his property to pay the debt of a single creditor, or the debts of a particular set of creditors, and the conveyance be held valid. Indeed, it would be very strange, if this could not be done, in a state where a debtor may sell all his property and appropriate the proceeds of the sale to the payment of a single debt, and where a creditor may, by process of attachment, seize all the property of his debtor and apply it to the payment of his own debt, to The exclusion of all other creditors. But an assignment of this kind must be made with good faith, for the purpose of paying debts, and without any intent to lock it up from other creditors for the benefit of the assignor. If there be any reservation of any part of the interest in the property assigned, to the use of the assignor, unless it be the surplus after all the debts are paid, or if the assignor reserves to himself a power to revoke the conveyance, or change the trusts by giving a preference to other creditors at a future time, such reservations render the whole conveyance void. 6 Cowen, 288; 5 D. & E. 238; 5 Cowen, 548; 2 Pick. 129; 2 Johns. Ch. Rep. 565; 14 ditto, 458.

The question is,in these cases, whether the assignment be made in good faith for the purpose of paying debts, or whether it be only a covenous assignment for fraudulent purposes. The reservations we have just mentioned are held to be conclusive evidence of a fraudulent purpose. But the better opinion seems to be, that no one of the circumstances on which the tenant’s counsel relies to show the conveyance fraudulent on the face of it, is sufficient for that purpose.

On what ground it could ever have been supposed, that the want of a schedule of the property was conclusive evidence of a fraudulent purpose in the assignment, it is not easy to imagine. Yet some of the judges, in the case of Burd v. Smith, 4 Dallas, 76, seemed to have viewed the want of a schedule in this light. But there was in that case a reservation to the debtor of the shares of those creditors who did not assent to the assignment, which clearly rendered the conveyance void ; and the case is understood by Tilghman, C. J. to have been decided upon that ground in Wilt v. Franklin, 1 Binney, 515, in which case it was decided that the want of a schedule is not conclusive evidence of fraud, and Mr. Justice Story has expressed his unqualified approbation of this decision. 4 Mason, 220.

With respect to the circumstance, that there was no estimate of the value of the property assigned, it may be remarked, that there is a wide difference between the case where a man makes an absolute sale of all his property to another without any estimate of its value, and the case where a man assigns all his property to another for the purpose of paying his debts without such an eslimate. Such a sale would be so unusual, so much out of the common course of business, and would show such a want of that care and attention, which men are accustomed to use in a real sale, as to excite great suspicions, if the vendor were in debt. There are few men, who would be willing to fix a price which they would take for all their property, without some estimate of its value. And probably still fewer would be found willing to pay the price so affixed and take the property.

But when a man assigns all his property on trust to pay his debts, an estimate of the value is of much less importance; All the assignor wants in such a case, and all the creditors can expect, is, that the fair value of the property should be applied to the payment of the debts ; and that value is best ascertained by a sale of the property. And we are of opinion, that the circumstance of there being no estimate of the value of the property, can rarely in any case of this kind, furnish any evidence whatever of fraud ; much less conclusive evidence.

With respect to the circumstances, that the ultimate surplus is reserved to the debtor, and that there is a stipulation in the deed of assignment for a release by those who become parties to it, it is so satisfactorily shown by Mr. Justice Story, 4 Mason, 222 — 231, that these circumstances are not conclusive evidence of fraud, it is only necessary to say, that we entirely concur in the opinions he has expressed on these points.

There is a preference given in the assignment in this case, to the creditors of the estate of Reuben Shapley. Whether the estate of the testator, after Mrs. Shapley had given bonds to pay the debts and legacies, became so absolutely her property, that it could not have been taken to satisfy an execution, obtained against her as executrix, it is unnecessary now to settle. 16 Mass. Rep. 172, Thompson v. Brown; 4 Pick. 97, Stebbins v. Smith; 5 ditto, 337, Clark v. Tufts. Because it does not appear that the executrix had any estate of her own, except what she took under the will, and it was perfectly equitable and just, that the estate she thus took should be applied first to pay the debts of the testator.

And on the whole, we see nothing upon the face of the instrument of assignment in this case, which can he adjudged to render it fraudulent and void.

But it is said that the circumstance which the deed itself discloses, and the secrecy with which the deed was made, ought to have been submitted to the jury as evidence of fraud. The complaint of the tenant, involved in this point, is not, as we understand it, that the circumstances of the case were not all submitted to the jury, but that the jury were not told, that the circumstances were sufficient to sustain the charge of fraud. All the evidence in the case was, in fact, submitted to the jury, and the only ground of complaint that seems to exist, ⅛, that the jury were not told that the evidence was sufficient to prove the fraud, instead of being directed to con-eider whether the conveyance was more general, or made with greater secrecy than was necessary to carry the object honestly into effect.

We are not accustomed to express, in our directions and instructions to juries, any opinion upon the weight of the evidence, but to submit that matter entirely to the determination of the jury, to whom the determination belongs. But as the objection now raised is that the court did not express to the jury such an opinion, we have no hesitation in stating at this time, our views in relation to the weight of the evidence, and the opinion which we think must have been given, had it been proper that the court should have expressed any opinion at all upon the subject.

It was very evident from the case stated, there were large claims against the estate of the testator, and that Mrs. Shapley was deeply involved in debt. It seems to us that, under the circumstances, an assignment like the one made in this case was not only just and proper, but on the whole, advantageous to the creditors of the estate and to Mrs. Shapley. If the two sets of creditors had been left to collect their debts by the ordinary process of law, it is very clear that, such was the situation of the property, a conflict must have arisen immediately among them, which might have consumed a great part of the estate, before it could have been finally terminated.

It also appears that the assignment was made with the advice of some of the principal creditors to the estate of the testator. And there is no pretence, that suitable and responsible trustees were not selected.

These are circumstances which seem to us to be entitled to great weight in favor of the honesty and fairness of the assignment.

And what is there in this case to be put into the opposite scale against these circumstances ? Why, it is said that the indentures were made in secret. But secrecy is not of itself evidence of fraud. It, is likely to accompany fraud, and may give force to other evidence, under particular circumstances. But under the circumstances of this case, if a fair distribution of the property among the creditors, according to the merits of their claims, with aa little expense as possible, was fit and proper, it was clearly fit and proper that the transaction should be kept secret until the property was placed in the hands of the trustees, because the making of it public sooner would have been likely to produce all the mischief the assignment was intended to prevent. It therefore seems to us that secrecy was, under the circumstances, no evidence of a fraudulent purpose.

The facts, that all the property over which Mrs. Shap-ley had any control was assigned, and assigned in secret, might, under some circumstances, be strong evidence of fraud. There is, however, a wide difference, as we have before remarked, between the case, where a man who is in debt, sells in secret all his property to another, and the case where a man who is so situated, assigns all his property to others, in trust for his creditors. It is very questionable whether, when the deed of assignment contains a stipulation for a release by the creditors, the conveyance is not on the face of it fraudulent, unless all the properly of the debtor is assigned. 4 Mason, 228; 5 Johns. Ch. Rep. 332. And we are clearly of opinion, that; under the circumstances of this case, the fact that all the property was assigned, is not in its nature calculated to throw the slightest suspicion upon the fairness of the transaction.

And after a most attentive and careful examination of the case, we are free to confess, that we see nothing in relation to the assignment, which could, in our opinion, have warranted a jury in finding the transaction fraudulent.

Another ground, on which the tenant claims a new tri* al, is, that the assignment is in terms too loose and uncertain, to pass the demanded premises. But it is well settled, that in all grants made by individuals in their own right, a general description is sufficient. Perkins, sec. 114 ⅞ Cro. Eliz. 476, Ewer v. Hayden; and ibid. 905, Moyl v. Ewer; 11 Johns. 36, Jackson v. De Lancey; 13 ditto, 97, Jackson v. Rasevelt; 6 Cowen, 720; 5 Mass. Rep. 51 ; Shep. Touch. 215—217.

A general description is enough, if the thing granted can be ascertained. Here it can be ascertained, of what land Reuben Shapley died seized, and what land had been conveyed by his executrix.

But it is said in behalf of the tenant, that no adequate consideration for the assignment was shown by the de-mandants, and a new trial is claimed on this ground. It is not pretended that the covenants of the trustees were not a good consideration. The only color for a new trial on this ground, which we can imagine, is, that it is possible Mrs. Shapley may not have been in fact insolvent, and that she may have conveyed all her property to trustees merely to delay her creditors, and then the conveyance must be adjudged fraudulent and void. It certainly possible, that such may have been the object. But what is there in the case, that renders it in the slightest degree probable, that such was the object of the assignment ? We see nothing. Mrs. Shapley was deeply in debt. This is stated in the case. She was advised by creditors to make the conveyance. She conveyed all the property, with some trifling exceptions. She selected trustees above all objection. These circumstances render it highly improbable, that delay was the object. Had there been evidence raising any suspicion of such an object, it might have been proper to call upon the demandants to show the value of the property, and that it was not sufficient to pay the debts, in order to repel such a suspicion. But until some evidence was produced to raise a suspicion of fraud, they do not seem to os to have had any occasion to show the value of the property conveyed, it was enough for the de-mandants, lo show that there were debts to a large amount to he paid ; that a legal assignment of the property had been made to pay the debts ; and that many of the creditors had assented to the assignment. If the amount of property conveyed so greatly exceeded the amount of the debts as to raise any presumption of a fraudulent intent, it was the business of the tenant to show it. Fraud is not to be presumed.

But it is said, that evidence of the execution of the indenture by creditors, after it was recorded, ought not to have been admitted, because the instrument must be adjudged valid, or not, according to the facts existing when it was executed. This objection seems to be raised upon a misapprehension of the nature of the transaction. There were debts to be paid, and the. assignment was made to pay the debts of those creditors, who should, within sixty days, assent to the terms of the conveyance. The creditors had that time, by the express terms of the instrument, to elect whether to become parties or not. The indenture, as an instrument of conveyance, was complete, the moment it was executed by Mrs. Shapley and the trustees. Had all the creditors refused to accept the terms proposed by the indenture, the trusts would have fallen to the ground, and then the conveyance could not have been adjudged valid against creditors. But if any creditor assented, the conveyance must stand, till the debt of such creditor was satisfied. It was Only necessary, that some creditors should assent before any attachment of the property assigned was made by other creditors. No authority is cited, to show that it was necessary that the creditors should assent before the deed was recorded. No such authority is to be found. And we do not perceive any reason, why they should become parties to the instrument before it is recorded ; and we think it is sufficient to sustain this con» veyance, that creditors to a large amount had actually become parties to the indenture, before the demanded premises were attached by the tenant in this case.

And, on the whole, we are of opinion that there must be

Judgment on the verdict.