Grey, Y. C.
(orally).
The complainants base their case substantially upon two points—first, that there never was any delivery whatever of this deed to Willig, or to' anyone for him, by Hildebrand, the grantor, and secondly, that if there was a delivery, it was upon an express trust that Willig should reconvey to Mrs. Hildebrand, which was defeated by the accident that he died before it was carried into effect.
[254]*254Thera is no question that there was such a deed executed, and its operation and effect, as appears on its face, would have been, upon delivery, to pass the title to Willig in fee-simple. There is very little denial of the mode in which the deed was executed, and substantially none as to the manner in which it came to be put upon record. In the point as to the actual delivery of the deed by Hildebrand to Willig, the evidence of an actual physical transaction- of tire deed from Mr. Hildebrand to Mr. Willig in the lifetime of the parties is somewhat obscure. It is, however, shown, by the weight of the evidence, that there was an agreement between Hildebrand and Willig that such a deed should be made, and that Willig had ■ expressed to Hildebrand a willingness on his part to accept such a deed, and that, in accordance with that understanding between Willig and Hildebrand, the latter instructed Mr. Stratton to draw the deed and to have it recorded. It was drawn and executed under that agreement. Hildebrand instructed Stratton to get the deed back again after it was recorded, and when Stratton had obtained it from the clerk, after record, he sent it to Hildebrand. Willig, when spoken to by' Stratton about the deed, said Hildebrand would attend to it.
On the question of the delivery of the deed, an actual physical passing of the paper is the usual mode observed in order to operate in law a delivery, but it is not necessary that there should be such an actual physical transmission of the deed. So, also, there may be situations where there is an actual passing of the paper which do not operate in law to effect a delivery. It is always a question, not of the actual thing doné, but of the intent and mind of the acting parties in doing the thing. It may be that a man may be in an office, where he executes a deed, and he may walk out of the office and say nothing, leave the deed behind him, and a grantee may walk into the office and pick up the deed, and put it upon record, and the subsequent transactions may show that it was a bona fide conveyance, and that the delivery was effected at the time tire grantee, by the assent of the parties, took the deed, because subsequent transactions may show ■that that was the intent of the parties. In such a case no word [255]*255was spoken, no act of delivery took place; the deed was simply left in one place by the grantor and picked up by the grantee. If subsequently he paid the consideration money, and received possession, it is perfectly obvious that it was the intent of the parties that the deed should be delivered. See the discussion of a delivery in Terhune v. Oldis, 17 Stew. Eq. 150.
What was the intent of Mr. Hildebrand and the intent of Mr. Willig in this transaction ? The evidence satisfies me that Willig agreed that Hildebrand should make such a deed to him, and therefore the action upon the part of Hildebrand thereafter must be considered to have been with relation to the preceding agreement between him and Willig. Hildebrand not only executed such a deed, but, in addition to executing it and very well understanding what the deed would accomplish, he sent it to the clerk’s office for record, and he thereby proclaimed to the world that he had made a deed to Henry Willig conveying the premises in question.
Mere registration of a deed, as the uninvited act of a scrivener, or even of a party to it, without the assent ox agreement of the other party, ought not of itself to be held to be conclusive evidence of a delivery of it. But registration by agreement and instruction of the parties'is forceful evidence of the delivery of the deed, for it is proclamation to the world that the conveyance has, in fact, been made.
All the circumstances of this case precedent to, attendant upon and subsequent to the act of registration show that it was done by the grantor, with the assent of the grantee, and that the grantor thereafter recognized the fact that the deed had passed title.
The bill of complaint itself recognized that the deed had, in fact, been delivered, for it narrates that, under the agreement with Willig, Hildebrand and wife “conveyed all the hereinbefore described premises unto said Willig in fee-simple.” This could only have been done by delivery of the deed.
The next question is, for what purpose and intent was the deed made? Complainants insist that the title was passed to Willig under an agreement between Willig and Hildebrand, as [256]*256follows: Mrs. Hildebrand owned one property, and Mr. Hildebrand owned that conveyed to Willig, which immediately ( adjoined Mrs. Hildebrand’s tract. The complainants’ claim is that the deed made to Willig was, by agreement between Hildebrand and Willig, made for the purpose of having Willig reconvey the premises now in dispute to Mrs. Hildebrand, in order that the two properties might be joined into one holding.
The defendants resist this claim, contending that it is an attempt to enforce an express trust, for the conveyance of lands, not evidenced by any writing. This is, I think, sufficiently answered by the reply that the statute of frauds will not be enforced in equity when the eff ect of its application will be to operate a fraud. If there was, in fact, such a parol trust, the performance of which was defeated by the accident that Willig died before performance, the aid of a court of equity might be asked, if not to compel the steps necessary to complete the gift in favor of a wife, then at least to restore to the representatives of the donor the property which had never been paid for.
It is therefore proper to examine the evidence to ascertain what, in fact, was the agreement between Hildebrand and Willig touching this conveyance, and whether there is any equity in the complainants entitling them to the relief they ask.
The evidence offered on the part of the complainants in support of this claim is wholly the proof of statements made by Mr. Hildebrand to his wife and daughter, here repeated by them. They are parties in the cause, testifying in their own interest. Mr. Stratton, the scrivener who drew the deed, is a witness. He received no declaration from Mr. Hildebrand that there was any such agreement. No instructions to prepare a deed from Willig to Mrs. Hildebrand appear to have been given. In the countryside, where this form of conveying the title of the husband’s property to the wife is a common occurrence, it is almost invariably the custom to draw the two conveyances—from the husband to the third party, and from’him to the wife—and to execute both deeds at the same time. The same officer usually prepares both deeds. It is remarkable, if there was a purpose that Willig should reconvey, that something of it was not mentioned by the grantor, intimating that it was intended that a [257]*257second deed should be made. No disclosure of such á purpose appears in this case.
Another circumstance makes doubtful the claim that there was an agreement that Willig should reconvey. Hildebrand’s deed to- Willig was made on the 21st day of January, 1901.
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Grey, Y. C.
(orally).
The complainants base their case substantially upon two points—first, that there never was any delivery whatever of this deed to Willig, or to' anyone for him, by Hildebrand, the grantor, and secondly, that if there was a delivery, it was upon an express trust that Willig should reconvey to Mrs. Hildebrand, which was defeated by the accident that he died before it was carried into effect.
[254]*254Thera is no question that there was such a deed executed, and its operation and effect, as appears on its face, would have been, upon delivery, to pass the title to Willig in fee-simple. There is very little denial of the mode in which the deed was executed, and substantially none as to the manner in which it came to be put upon record. In the point as to the actual delivery of the deed by Hildebrand to Willig, the evidence of an actual physical transaction- of tire deed from Mr. Hildebrand to Mr. Willig in the lifetime of the parties is somewhat obscure. It is, however, shown, by the weight of the evidence, that there was an agreement between Hildebrand and Willig that such a deed should be made, and that Willig had ■ expressed to Hildebrand a willingness on his part to accept such a deed, and that, in accordance with that understanding between Willig and Hildebrand, the latter instructed Mr. Stratton to draw the deed and to have it recorded. It was drawn and executed under that agreement. Hildebrand instructed Stratton to get the deed back again after it was recorded, and when Stratton had obtained it from the clerk, after record, he sent it to Hildebrand. Willig, when spoken to by' Stratton about the deed, said Hildebrand would attend to it.
On the question of the delivery of the deed, an actual physical passing of the paper is the usual mode observed in order to operate in law a delivery, but it is not necessary that there should be such an actual physical transmission of the deed. So, also, there may be situations where there is an actual passing of the paper which do not operate in law to effect a delivery. It is always a question, not of the actual thing doné, but of the intent and mind of the acting parties in doing the thing. It may be that a man may be in an office, where he executes a deed, and he may walk out of the office and say nothing, leave the deed behind him, and a grantee may walk into the office and pick up the deed, and put it upon record, and the subsequent transactions may show that it was a bona fide conveyance, and that the delivery was effected at the time tire grantee, by the assent of the parties, took the deed, because subsequent transactions may show ■that that was the intent of the parties. In such a case no word [255]*255was spoken, no act of delivery took place; the deed was simply left in one place by the grantor and picked up by the grantee. If subsequently he paid the consideration money, and received possession, it is perfectly obvious that it was the intent of the parties that the deed should be delivered. See the discussion of a delivery in Terhune v. Oldis, 17 Stew. Eq. 150.
What was the intent of Mr. Hildebrand and the intent of Mr. Willig in this transaction ? The evidence satisfies me that Willig agreed that Hildebrand should make such a deed to him, and therefore the action upon the part of Hildebrand thereafter must be considered to have been with relation to the preceding agreement between him and Willig. Hildebrand not only executed such a deed, but, in addition to executing it and very well understanding what the deed would accomplish, he sent it to the clerk’s office for record, and he thereby proclaimed to the world that he had made a deed to Henry Willig conveying the premises in question.
Mere registration of a deed, as the uninvited act of a scrivener, or even of a party to it, without the assent ox agreement of the other party, ought not of itself to be held to be conclusive evidence of a delivery of it. But registration by agreement and instruction of the parties'is forceful evidence of the delivery of the deed, for it is proclamation to the world that the conveyance has, in fact, been made.
All the circumstances of this case precedent to, attendant upon and subsequent to the act of registration show that it was done by the grantor, with the assent of the grantee, and that the grantor thereafter recognized the fact that the deed had passed title.
The bill of complaint itself recognized that the deed had, in fact, been delivered, for it narrates that, under the agreement with Willig, Hildebrand and wife “conveyed all the hereinbefore described premises unto said Willig in fee-simple.” This could only have been done by delivery of the deed.
The next question is, for what purpose and intent was the deed made? Complainants insist that the title was passed to Willig under an agreement between Willig and Hildebrand, as [256]*256follows: Mrs. Hildebrand owned one property, and Mr. Hildebrand owned that conveyed to Willig, which immediately ( adjoined Mrs. Hildebrand’s tract. The complainants’ claim is that the deed made to Willig was, by agreement between Hildebrand and Willig, made for the purpose of having Willig reconvey the premises now in dispute to Mrs. Hildebrand, in order that the two properties might be joined into one holding.
The defendants resist this claim, contending that it is an attempt to enforce an express trust, for the conveyance of lands, not evidenced by any writing. This is, I think, sufficiently answered by the reply that the statute of frauds will not be enforced in equity when the eff ect of its application will be to operate a fraud. If there was, in fact, such a parol trust, the performance of which was defeated by the accident that Willig died before performance, the aid of a court of equity might be asked, if not to compel the steps necessary to complete the gift in favor of a wife, then at least to restore to the representatives of the donor the property which had never been paid for.
It is therefore proper to examine the evidence to ascertain what, in fact, was the agreement between Hildebrand and Willig touching this conveyance, and whether there is any equity in the complainants entitling them to the relief they ask.
The evidence offered on the part of the complainants in support of this claim is wholly the proof of statements made by Mr. Hildebrand to his wife and daughter, here repeated by them. They are parties in the cause, testifying in their own interest. Mr. Stratton, the scrivener who drew the deed, is a witness. He received no declaration from Mr. Hildebrand that there was any such agreement. No instructions to prepare a deed from Willig to Mrs. Hildebrand appear to have been given. In the countryside, where this form of conveying the title of the husband’s property to the wife is a common occurrence, it is almost invariably the custom to draw the two conveyances—from the husband to the third party, and from’him to the wife—and to execute both deeds at the same time. The same officer usually prepares both deeds. It is remarkable, if there was a purpose that Willig should reconvey, that something of it was not mentioned by the grantor, intimating that it was intended that a [257]*257second deed should be made. No disclosure of such á purpose appears in this case.
Another circumstance makes doubtful the claim that there was an agreement that Willig should reconvey. Hildebrand’s deed to- Willig was made on the 21st day of January, 1901. ' It is claimed that Willig’s death prevented the completion of the plan of' a reconveyance by him to Mrs. Hildebrand. Willig’s death occurred in the month of September, 1901. During a period of eight months intervening between the making of the deed and Willig’s death there is no proof whatever of any request, suggestion or claim that Willig should reconvey.
There is no explanation here given in evidence which satisfactorily shows that there was any definite agreement of any kind by which Willig obligated himself or agreed that he would reconvey to Mrs. Hildebrand. No other testimony is offered in support of that contention than the statements of Mrs. Hildebrand and her children, who are interested in supporting that claim.
In the view which I take of this case, however, I do not think the legal effect of the transaction would he affected whether there was an intent to reconvey the property to the wife or not. I am unable to avoid the force of the testimony of Mr. Millard F. Du Bois, narrating the explanation given to him by Mr. Hildebrand of the purpose and intent of this conveyance. After Mr. Willig’s death, and when parties interested were applying to Mr. Du Bois, the surrogate, for letters of administration upon his estate, Mr. Hildebrand-had the conversation with Mr. Du Bois regarding which the latter testifies. The conversation took place in September or October, 1901. At this time eight months had elapsed since Mr. Hildebrand conveyed the property to Mr. Willig. No steps had been taken to declare any trust in the property or to reconvey to Mrs. Hildebrand. In the meantime Willig had died. Hildebrand was Willig’s father-in-law, and took an interest in the settlement of his estate. The relations between Hildebrand and Willig had been friendly. There was nothing improbable that there should have been an understanding between them that Willig should hold the premises for [258]*258the benefit or at the option and command of Hildebrand. It was under these circumstances that Hildebrand explained the transaction to- Mr. Du Bois, who was then surrogate of the county-of Gloucester. Mr. Du Bois was asked to relate the conversation he had with Mr. Hildebrand. He testified as follows:
“After I had granted the letters of administration to Mr. Bundens, Mr. Hildebrand said to me, ‘Now, when will the administrator transfer back to me my property?’ I said, ‘What property?’ I knew nothing of any property that lie held. ‘Well,’ he s-aid, ‘My property.’ I said, ‘You will have to explain to me what your property is.’ He said, T might as well tell you the whole thing, because you will have to know it.’ He said, T went into the glass business at Swedesboro and I did not want to make any of my property liable for any misfortune that might happen to the firm, and I made it. over to- Henry Willig, my son-in-law,’ and he said, ‘Now I want it back.’ I said I didn’t see how he was going to get it back. The administrator had no authority to transfer his property back to him. The only way I see that it could be done is by an order of the court. I stated there were debts the son-in-law was bound for, and I didn’t see any other way except to get an. order of the court to sell lands to pay debts. ‘Well,’ he said. ‘X am up against it then-.’ He said, ‘I-t seems kind a hard that I have got to pay to get my property back.’ I told him ‘the administrator had no authority to transfer back any property.’ ”
,This testimony is given by an intelligent and wholly disinterested witness. It is entirely undisputed and unexplained. It is consistent with all the documentary proofs and with the actions of both Hildebrand and Willig with relation to this conveyance. It explains Willig’s remark to- Stratton that Hildebrand would look after the matter, or words to that effect. The action of Hildebrand in recording the deed and getting it returned to Mm, and his retention of possession of the premises, go to- show that.Ms statement to Mr. Du Bois is the true explanation of the transaction.
The weight and credibility of the evidence- clearly support this view. The result is a showing that Mr. Hildebrand made the .deed in question when he was about to- enter into a new business undertaking, which might involve him in financial misfortune. He did not want his property to- he liable to be applied to- satisfy such apprehended liabilities, and to avoid them he conveyed it to Willig. Willig died still holding the title to it. This hill is filed by Hildebrand-’s heirs-at-law to compel Willig’s heirs-at-law to reconvey it.
[259]*259The conveyance was made with the intent to hinder and defraud possible creditors of Mr. Hildebrand. It is within .the operation of the statute of frauds, and this court will not give its aid to those who stand in the place of the wrong-doer to be relieved from the legal effect of such a conveyance.
It has been argued here that it does not appear that the apprehended financial misfortune did actually happen, and that there' was, in fact, no actual hindering of Hildebrand’s creditors. Conveyances made with intent to hinder and defraud creditors are declared to be void by the statute whether they succeed in defrauding ox not.
Courts of equity will not entertain propositions of this character. They say to all persons who desire to make conveyances with intent to defraud either present or possible future creditors: “You make such conveyances at your own risk; you cannot induce the courts to relieve you from the consequences of your fraudulent acts. It is no ground for relief that, although you intend to cheat creditors if occasion should require, the expected occasion did not happen, and your preparation to defraud creditors was therefore unnecessary.”
The bill of complaint must be dismissed, with costs.