Jackson ex dem. Peek v. Peek

4 Wend. 300

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Sutherland, J.

The material question in this case is, whether the deed from Christopher Peek to the defendant was a valid conveyance. It is alleged on the part of the plaintiff that it was a voluntary deed, the grantor being indebted at the time, and therefore void and inoperative. The case states, that after the testimony was closed the judge enquired whether the plaintiff’s counsel insisted that there was any fraud in fact in the conveyance to the defendant, to which they replied that they did not, but that they considered the conveyance fraudulent in law and void. The question of fraud, therefore, was not submitted to the jury, but the judge directed a verdict for the plaintiff, subject to the opinion of this court. The only enquiry then upon this branch of the case is, 1. Whether the deed was voluntary; and 2. Whether the grantor was indebted at the time.

The doctrine of voluntary conveyances has recently been very fully considered in the court of errors, in the case of Seward v. Jackson, (8 Cowen, 406,) and the distinction which had previously been supposed to exist between fraud in law and fraud in fact or actual fraud, appears to have been entirely exploded. The language of Judge Thompson, in Hindes’ lessee v. Longworth. (11 Wheaton, 213,) is cited by Chancellor Jones and Mr. Senator Spencer with marked approbation, as containing a clear and sound exposition of the law upon this subject. It is there said, “ A deed from a parent to a child for the consideration of love and affection, is not absolutely void as against creditors. It may be so under certain circumstances ; but the mere fact of being in debt to a small amount would not make the deed fraudulent. If it could be shewn that the grantor was in prosperous circumstances and unembarrassed, and that the gift to the child was a reasonable provision, according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive, not conclusive evidence of it, and may be met and rebutted by evidence on the other side.” In the case of a voluntary conveyance, therefore, as much as in any other case, the question is as to actual fraud, and is to be passed upon and decided by the jury. Mr. Senator Spencer says in express terms, p. 435, “ Strictly gpggjhng there is no such thing as fraud in law. Fraud or no fraud is and ever must be a fact. The evidence of it may be so strong as to be conclusive; but still it is evidence, and as such must be submitted to a jury. No court can draw it against the finding of a jury.” If the conveyance in question therefore were conceded to have been voluntary, the admission upon the trial that there was no fraud in fact would seem to be sufficient to establish its validity.

But the conveyance in question was not voluntary. Á voluntary conveyance is well defined, in the case already referred to, to be a deed without any valuable consideration The adequacy of the consideration does not enter into the question, and only becomes material as evidence of a fraudulent intent; but the character of purchase or voluntary is determined by the fact whether any thing valuable passed between the parties.

It appears from the testimony of Robert Wingate, that Christopher Peek, when this conveyance was executed, made a division of all his real estate, except about five acres; among his sons, conveying a separate parcel to each in severalty ; that no money was paid by either of the sons to their father; but that each son, at the time, executed and delivered to the grantor a bond, conditioned for the payment of $500, with interest, to him and wife, if demanded, or to the sisters of the obligors after the death of their parents; the interest to be paid annually to the obligee and his wife. And John W. Peek testifies, that the defendant paid the interest of the $500 bond to his father up to the time of his death in 1827. If it was not the intention or expectation of the parties that the principal of the bond should be exacted, still, considering it as a bond securing to the grantor an annuity or rent equal to its legal interest, it was a valuable consideration and would sustain the purchase. This was expressly adjudged in Jackson v. Seward, (8 Cowen, 432, 454.)

There is no evidence that Christopher Peek was indebted when he made this conveyance. It is true Mr. Van In-gen states, that on the 4th October, 1815, he issued a writ in favor of Mr. Peek'against one Peebles, and that bis charges against Mr. Peek commenced with the issuing of the writ, The conveyance it will be recollected was given on the 20th November, 1815. Another witness says, that at or about the time this conveyance was given, the grantor said he owed some money. This is all the evidence upon the subject; and it obviously amounts to nothing. It may fairly be presumed, if such presumption was necessary, that the five acres reserved by the grantor were more than sufficient to discharge the small amount which he may have then owed. As the case is now presented to the court, therefore, the conveyance from Christopher Peek to the defendant of the 20th November, 1815, must be deemed valid and effectual.

Although this is a case subject to the opinion of the court, still the court are precluded from determining, upon a view of all the facts and circumstances disclosed by the evidence, whether the transaction was in fact fraudulent or not. If the counsel for the plaintiff had not admitted that there was no actual fraud, the defendant might and probably would have insisted upon having the question of fraud submitted to and passed upon by the jury. The case cannot be considered as subject to the opinion of the court upon a point settled by the express admission of the parties ; and the effect of that admission cannot be altered by the fact that it was probably made under a misapprehension of its legal consequences.

It is not perceived how the re-conveyance of the premises in question from the defendant to Christopher Peek, his father, on the 15th of July, 1826, can aid the title of the lessors of the plaintiff. It appeared in the course of the trial that Christopher Peek, in 1820, conveyed to Christopher Y. Peek a farm embracing the premises in question; and it was suggested upon the argument that though the grantor at the time of the conveyance had no title, yet that the title subsequently acquired by him under the deed of July, 1826, would enure to the benefit of Christopher Y. Peek, his grantee. This suggestion is answered by the fact that the conveyance to Christopher Y. Peek was a quit-claim merely, without warranty. The doctrine does not apply to such a case.

Christopher Y. Peek was properly rejected as a witness on pje behalf of the plaintiffs ; he had a direct interest in the event of the suit. This action, it - will be recollected, is brought to recover possession of premises which one of the lessors of the plaintiff redeemed from a sale made under a judgment against Christopher Y. Peek, the witness. If the event of this suit should determine that Christopher Y. Peek had no 'title to the premises, the lessor of the plaintiff would have his remedy for the amount paid by him against the plaintiff in the execution, who would be entitled to recover it from the witness, the defendant in the execution. (1 R. L. 504, s. 11.)

It is unnecessary to consider the several points and exceptions raised by the defendant in the course of the trial, as he is entitled to judgment on the grounds which have been stated.

Judgment for defendant.