Seward v. Jackson ex dem. Van Wyck

8 Cow. 406

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: December 15, 1826
• Status: Published

Opinion

Jones, .Chancellor.

The writ of error in this cause purports to be upon a special verdict in an action of ejectment. Upon looking at the record, it appears that the jury have found the whole of the evidence produced to them, with an account of what took place at the trial, and sent the entire proceedings at the circuit, in the form of a special verdict, to the supreme court for their consideration : and the first question that presents itself is, whether this record can be regarded as a special verdict, upon which this can act?

whether there be any verdiot‘

It is of the essence of a special verdict, that it should be a finding by the jury of the facts on which the court is to pronounce the -law, and not the evidence of the facts upon . , , , ... L; which it is the province of the jury to adjudicate. The jury is to receive the evidence under the direction of the judge who presides at the trial, and to find the facts in issue between the parties, according to their deliberate judgment upon that evidence. To the court it belongs to apply the law to the facts; but the court has no jurisdiction to decide upon evidence, or to enter into any question of fact that may arise in a cause. This is a cardinal rule in the law of special verdicts, which has always been observed and enforced by courts of law, and ought, in my opinion never to be relaxed. It defines the line between the jurisdiction of the court and the jury, with unerring accuracy ; and so long as it continues to prevail, and is preserved in its purity and integrity, it will keep each in its proper sphere. But should it ever be dispensed with or relaxed, the boundary between the provinces of the court and the jury will be unsettled; and the two jurisdictions which our excellent system of jurisprudence intended to keep separate and- distinct, will b,e blended' togetherand of fact which belong to the jury, be brought for decision to the court, whose province it is to settle the *]aW- The inconvenience of this innovation might not be so sensibly felt by the supreme court, as it must be by this. court; for that court has a supervisory power over the. verdicts of juries, which it exercises for the advancement of justice, and with great benefit to suitors, by setting aside the verdict of the jury when against- evidence, or otherwise erroneous and unjust; and by granting new trials; .. ... .. < ’ ,.7 ’ directing nonsuits, or otherwise; disposing oí the- matter, as merfts 0f the case may be found to require. This jue J u j risdiction cannot be exercised, without having the evidence which was. before the jury," brought before the court: and that evidence, in such cases, comes up by affidavit, or in a case made by the parties, and settled by the judge. To that court too, it belongs to render judgment upon the verdicts of the jury before the circuit judges, and to decide the questions arising upon the evidence, and upon the merits, and brought to- that court for decision; Begularly these matters are to come before that court in the form of special verdicts, bills of exceptions, or demurrers to evidence ; but as the supreme court has original jurisdiction-, and the immediate cognizance of the causes in which the points arise, a practice has, for the convenience of suitors, been introduced, and has long prevailed, to dispense with, the more regular forms, and bring the matters in dispute before the court for decision, upon "a case reserved at the trial, or made up by consent between the parties. This-practice has been' so extended, as very often to make the case a substitute, for the verdict; and the utility and conveniéncy of the substituted- case to the parties, in enabling them to combine in the- same case, for the decision of the court, all questions of law and of fact that the merits of the cause involve, and all points of evidence that could be-made by either party at the trial, has brought it into very general use in that court. The objection ' to it, is that it substitutes the court for the jury, to try the questions of fact in the cause. But as both parties consent to waive the- right to trial by jury, neither has any cause of .complaint; and all questions both of law. and fact, - being open %nd undetermined at the time the.case is made the parties are induced to -consent to a course of proceeding, which •gives to each the benefit of all the objections he makes to the demands or -defence of the other, and is equal in its •advantages and disadvantages to both. If the parties are content to abide by "the decision of the supreme court, they •repose themselves upon the case agreed upon between .•them. But if-they, contemplate ulterior measures, in given events, for the review of the judgment, they reserve the .right to turn the case into a bill of exceptions or 0 t r verdict, to enable them to bring" the questions to this court for revision. Such has been the course in this case.

it is of the gpee?aiVerdict, that it should find facts; not the evidence of iast3,

„ Practice of S. 0. in reviewing the _ decisions of juries, casa^made*3 °r

of turning iDt0 bm of exceptions or speeial verdlGt"

The record before "us disclosed the fact, that a verdict •was-taken for the plaintiff, subject to 'the opinion of supreme court, on a case to be made, with leave to either ¡party to turn it into a special verdict; and the history .of •the trial incorporated in the record, and imputed to the jury, as-the special verdict found by them, bears internal evidence of conclusive force, that it is, in fact, the case •made by the parties, with very-little more of even the form •of a special verdict, than the formal conclusion attached to it. ■ .

Formofspe111

■Can Stich.a record be received by this court l The case •which was -made-for the-supreme-court, and-is now engrafted up’on-this ¡record in the" form it now assumes, is a report •by the ¡jury of the evidence-at the tria], and not a return , to- the court , of the facts found by their verdict. In the su■preine: court, this procedure .produced no embarrassment; • for thát court having original jurisdiction of the cause, and being-substituted by consent for the jury,, had. the power to -decide-upon questions of fact,, as well, as points of law; and were at liberty to draw inferences and conclusions from the evidence disclosed in-the cause; and upon the facts ■ thus found by them, as the. just deductions from the evidence, to pronounce the law.

But this1 is.a court.of appellate jurisdiction. The facfs must appear on the record sent to us, upon which our judgment is to be given. The court possesses n3 jurisdio tion *to adjudicate upon evidence, and cannot perform the office of a jury, by drawing the conclusions of fact from the evidence given at the trial; nor is it in the power of the parties, by any consent they can give, to confer such a jurisdiction upon this court, the organization and power of r ’ . 1 which, are settled by the constitution of the state. We sit a court f°r the correction of errors in the judgments of the supreme court. We are to decide in the last resort, (as respects our state system of jurisprudence,) upon questions of law which have been adjudicated upon by that court; and in exercising such appellate jurisdiction, this court must look to the facts on which the supreme court gave their judgment. Ho regard can be paid by this court to any matters of evidence that may have been before that court. If the parties, for their own convenience, have agreed upon a case, by which they have spread before the judges of the supreme court the evidence in the cause, and submitted the question, both of fact and law, which that evidénce involved to that court, that case, when turned into a special verdict for the consideration of this court, must present the ^acts which the judges, acting as jurors, have found, and on the judgment was given, and not the evidence con-ta^ne¿ t,be case from which the facts were so found by the court. As the jury, when the special verdict is given by them, must draw their own conclusions from the evidence, and find the facts which that evidence, in their opinion, proves; so the judges of the supreme court, when the evidence is submitted to them, must form their conclusions from the evidence so submitted; and, in turning the case into a special verdict, must make that verdict consist of the facts which they find that evidence to establish, and not .the evidence contained in the case, and by which the facts are proved. It cannot be admissible for the parties to introduce the case itself into the record, as a substitute for the special verdict, which the judges, or the parties under their direction, were to form from the case.

The court of errors cannot adjudicate upon evidence, sentVpartiesias

ehouldke toned into cial verdict.

Why was not the case, in this cause, turned into a regular special verdict ? The only assignable reason is, the «difficulty of settling the facts. The parties could not agree upon them, and both parties being indisposed to appeal to the supreme court to find the facts for them, they agreed to refer the evidence to this court, for us to draw the conclusions of fact from it for ourselves. This was, in effect, avowed on the argument; but though an excuse for the parties, it is not sufficient to give us the jurisdiction, obviously intended to be conferred upon us.

If a procedure so irregular, and so subversive of all certainty, and of the settled distinctions between the jurisdiction of the court and the jury, should be allowed in this case, a precedent would be set, which must be followed in all subsequent causes. The consequence is easily foreseen. Every case made for the consideration of the supreme court, where the right is reserved to turn it into a special verdict, will be brought by the failing party to this court, upon the case itself, for re-examination; and we must assume the same jurisdiction which the supreme court possess in deciding upon it, or we cannot do justice between the parties.

. This court, then, would become, in effect, a court of original jurisdiction, deciding questions of fact upon the evidence, as well as questions of fact upon the facts; a jurisdiction which would destroy the design and usefulness of an appellate jurisdiction; and open sources of litigation which would overwhelm the court.

The rule that the jury, in a special verdict, must find facts and not evidence of facts, is well established and familiar to jurists. (Hob. 262 ; 1 Cain. Rep. 60; 1 Archb. Pr. 191; 3 T. R. 198; 1 Hen. & Munf. 236.) The finding, by a jury, of a conversion in the action of trover, is a striking instance of the application of the rule, and illustrates the principle on which it rests. A demand and refusal in that action, is evidence of a conversion; and, if unexplained, and not repelled by other testimony, it is conclusive, because the jury are to presume that the defendant has converted the goods to his own use, which he refused, on demand of the true owner, to restore; but yet «it is only evidence; and if it be found, by special verdict, that the plaintiff requested the goods of the defendant,’.-and -he refused to deliver them .up,-it is not a-finding¡upon -which the court can adjudge a:conversion. 10 Co. 57 ; Case of the Chancellor of Oxford; Hob. 187 ; Bulstr. 308; Cro. Eliz. 495; 3 Burr. 1243.)

But it is said, ¡that if the evidence gives :a violent pre- . ' ~ sumption-or the fact, or in other-words,-if the matter ap* Pearing ™ the special verdict be.such as to leaid necessarily -a conclusion, which admissible .evidence -could -repel, shall ’f>e sufficient, and supply the place- of- the "fact. .Suppose such a case to form an exception:to the general rule. Is.this such a case ?

Argument that finding create ¡T*vS lent as D’a1S verdict,

The leading question between the parties in this -cause, the trial, appears to have been, whether the deed-.of settlement -from the elder ‘Seward -to -Philander, -his son, was fraudulent and void as-against the lessor, of the -plaintiff, as-a Creditor of Seward, the -grantor? The jury say that-actual fraud had not'been shown, and they find a verdict for the defendant on the facts before them, ¡upon that point. But whether the conveyance wasfraudulent in-.law, -and void as to the-plaintiff’s claim against W. Seward, "they submit to-the court upon the matters set forth in the case. I pass by this distinction, thus made in -a court of .law, on a-question of fraudbefore a jury, between-actual fraud.and fraud in law, or constructive fraud, and proceed. to look into this record, to see. what the case,-as professed tobe uurned-into a-special verdict, does contain. It consists of fhe testimony of Benjamin Everitt,:set forth at large, an exemP**^e(* C0Py ofthe record of a judgment in-the -S. C. in favor of-the-lessor of the plaintiff against Wm. Seward, on a written guaranty by him, that a certain judgment against his-son, W..-S. jun., assigned :by him-to the lessor, ■was due-and collectable, an exemplified copy-of a.wrifc-of fi.fx., issued-on-that judgment,-and a -deed from the sheriff of Dutchess to-'the lessor for the premises in question, on a-sale=under the writ of fi. fa., as the evidence on, the part-of the ■ plaintiff-; and with, which, evidence this-spe-cial- ¡verdict -represents'.the .-plaintiff to -have :rested Pis "*cause. The defendant is - then.made -to,enter upon \his defence, which appears to consist of the following matters: He first produced a deed for the premises in tion, (prior in date to the judgment on the guaranty, but subsequent to the guaranty itself,) from W. Seward, the father to Philander Seward, the son, for the ostensible consideration of $10,000, acknowledged and recorded on the day of its date; and then offered to produce testimony to shew that W. Seward, the younger, before the assignment of the judgment against him to the lessor, owned real estate in this state, obtained by him from the lessor, on an exchange of property between them, to a greater amount in value than the amount of the. judgment so assigned and guarantied, and out of which that judgment might have been collected by the lessor; which testimony was objected to, but admitted; and is set forth at large in the verdict.

"Whether this he such a

_ etiars^of^the diet*81 T6r*

The defendant then offered, the jurors say, to prove that the deed of the premises in question, from the elder Seward to his son Philander, was made and given by the elder Seward, who was then very aged, feeble and infirm, by way of making a settlement of his property upon his children ; and without any intention to defraud his creditors; and that, on giving the deed to his son, he took back from him a bond to secure an annuity to himself and wife; and that the son, at the same time, gave bonds to his sisters, to secure .them certain sums as their portions of the estate of their father. That this testimony was objected to, hut admitted, and it is also set forth at large in the verdict.

The jurors then proceed to set forth the testimony at large, of a witness produced on the part of the plaintiff; and after stating an admission of counsel on the point of fraud, they say that actual fraud had not been shown; and they find the verdict in favor of the defendant upon the facts before them, on the question of actual fraud; but whether the conveyance was fraudulent in law, and void as to the plaintiff’s claim against-Wm. Seward, and whether *or not, upon the whole matter, the defendant was guilty of the trespass and ejectment, they say they are ignorant, and pray the advice of the court thereon.

From, this abstract of the special verdict, it will be seen that the jury, instead of deciding the general question of fraud, have attempted to divide it; and, after declaring by the verdict, that there was no actual fraud in the transaction, have referred the whole evidence before them to the court, to say whether there was any other fraud to vitiate the settlement. This proceeding of the jury appears to have been grounded upon the confession of the plaintiff’s counsel, which is inserted in the verdict, and forms part of it; and the counsel on the argument conceded that the elder Seward is not chargeable with a fraudulent intent in making the sale to his son Philander. The plaintiff in error contends that this concession, supported and confirmed by the verdict of the jury, is cdnclusive against the lessor’s right to recover; insisting that there can be no fraud without a fraudulent intent. But the defendant in error, whilst he absolves .the grantor from intentional fraud, impeaches the deed of conveyance he gave to his son, as fraudulent and void in law, against him as a creditor of the elder Seward; and insisting that he is to be regarded as a prior creditor, he objects to the settlement as fraudulent in law and void'; first, because it is voluntary ; Secondly, because it purports to be an absolute deed for valuable consideration, when no consideration was paid for it, and it was, in fact, a mere testamentary disposition, and gift or settlement on the family ; and thirdly as being void on account of the reservation of the annuity of $500 for the benefit of the grantor. On the other hand the plaintiff in error insists, that the entire question of fraud has been put at rest by the verdict; but that if it is for any purpose, open, on the distinction between fraud in law and fraud in fact, the conveyance was not .fraudulent in law, because it was not voluntary, but founded on sufficient inducements and stipulations; that the quo animo was open to inquiry, and settled by the verdict; and that '^Philander, the grantee, is to be considered a Iona fide purchaser, and for valuable consideration paid and secured.

Points of law made by counsel on each side.

These are the points presented to this court, by the parties, for adjudication; and I now ask, what facts have the jury found so as to enable us to adjudicate upon them? It is admitted that they have not found the fact • of fraud, either in the elder Seward or his son Philander. They have negatived all intention of fraud on the part of the father, and impute no such intention to the son. Is this court, then, at liberty to intend or deduce fraud, where not found by the jury, from circumstances, as an inference of law ? In the case of Meriel Littleton, (cited in 10 Coke, 56,) it was unanimously resolved, “ that forasmuch as no fraud is found by the jury, the court could not adjudge the feoffment to be fraudulent; and although the jury finds circumstances and presumption to incite the jury to find fraud, yet it was but evidence to the jury, and not any circumstance upon which the court could adjudge fraud; and the office of the jurors is, to adjudge upon the evidence concerning matters of fact, and themselves to give the verdict, and not to leave matter of evidence to the court to adjudge, which does not belong to them.”

Merid Littleton'z case, cited 1) Coke, 56.

But if, as contended upon the authority of other cases, the question whether fraud or not is a question of law for the court to decide on the facts of the case, it is material to inquire what facts this case presents to guide our decision ? The defendant in error avers the deed to be voluntary; but the plaintiff in error controverts that averment, and contends that it was founded on sufficient consideration.

Have the jury found the fact, either that it was a voluntary conveyance, or that it was founded on sufficient consideration ? They haye reported to the court the evidence before them, on the point from which the counsel for the defendant in error infer the fact that it was a voluntary deed, and,from which the jury perhaps might have drawn the same conclusion as the judges of the supreme court, acting as jurors in determining a question of fact, probably did; but it is evidence only which appears upon the record before us. The testimony in substance is, *that the father executed the deed to his son as an absolute conveyance ; and that the son, as the consideration for it, gave the father a bond in $10,000, to secure him an annuity for life; and a bond to each of his two sisters for upwards of $2,000 apiece. And the plaintiff in error has a right to say, that a jury would, On that evidence, coupled with the other circumstances of the case, find the deed to be for sufficient consideration. Besides $ the plaintiff in error insists that the son had no knowledge of the covenant or guaranty on which the judgment was obtained against the father, and is therefore to be regarded as a bona fide purchaser. The jury have reported the evidence of one witness on the point of notice; but they have not found the fact either way, whether the plaintiff in error had notice of the debt or not.

Again, it was objected to the deed, that it expresses a false consideration, and that the grantor continued in possession of the premises; and those circumstances were strongly pressed as indicia of fraud; and the objection was repelled, and the deed defended with equal confidence upon the ground that its verity, and the actual possession of the grantee under it, were supported by the testimony; yet neither the fact of the continuance of the father in possession, nor the fact of the son’s possession, nor the fact of the truth or falsehood of the consideration expressed in the deed, is found by the jury. They inform the court that Everitt, a witness, testified before them, that old Mr. Seward was feeble and infirm, and the principal part of the management of the farm devolved on Philander, the son by whom it was conducted, and who lived upon the farm with his father until his death; that Philander the son, lived with, and managed the farm under the father, from 1808. to 1818, during which period it was understood that the farm belonged to the father ; but that about the 1st of May, 1818, it was understood that the father had made over the farm to the son; and, from that time, the son had the charge of all the business of the farm, in a different way from what he had before, and acting m all things as the owner. The testimony of ^Thankful Seward, the widow, is also given, who states that the.son, after the deed, managed every thing for himself. This constitutes the whole substance of the evidence On the fact of possession; and, as regards the consideration of the deed, the widow and Ackerman are the only witnesses who testify to the terms of the settlement, or the consideration actually given by the son to the father, for the premises. Their testimony is given at large, and they state the consideration to have consisted of the bonds to the father and sisters of the grantee. But the jury draw no conclusion of their own, from the testimony of these witnesses, nor find any fact as established by it. In the language of the court, in the case cited from Coke, it was the office of the jury to adjudge upon the evidence concerning matters of fact, and to give their verdict thereon; and not to leave matters of evidence to the court to adjudge. In this verdict, the jury has left the evidence to the court, to adjudge concerning matters of fact. But we have no jurisdiction of such a subject, and cannot settle the question which that evidence presents. The same difficulty occurs in every branch of the case, with the exception only of the question of actual fraud,

The whole of the special verdict, with the exception of the documentary evidence, consists of the testimony of witnesses, reported as they gave it, If we adjudicate upon this record, we must found our judgment, so far as facts are concerned, upon the evidence of the witnesses, and not upon the finding of the jury. We must adjudge for ourselves what facts that evidence proves; and then make those facts the basis of our judgment on the question of law; and if the conclusions of fact which we draw from the evidence, should happen to differ from the conclusions drawn from it by the supreme court, we might reverse the judgment for erroneous conclusions on questions of fact, without disagreeing with them on the law applicable to the case.

But the facts established by the documents, may, perhaps, be said to be found by the jury; and it was intimated *on the argument, that these alone, rejecting all .the other matters in the special verdict as irrelevant and immaterial, were sufficient to entitle the defendant in error to judgment.

Assuming, then, that the documentary facts are sufficiently the finding of the jury, for this court to act upon, what are those facts ? To state them most favorably to the defendant in error, they are, that the defendant in error, in 1820, recovered a judgment against the elder Seward,, for about $2,700, upon his covenant or engagement, entered into and made on the 6th of November, 1817, whereby he covenanted and agreed, that a judgment against' his son, assigned by him to the defendant in error, was due and collectable; that an execution was issued on that judgment, and that the sheriff sold and conveyed the farm in question, under that execution, to the defendant in error; and that the same premises were, by deed of the 16th of April, 1818, granted and conveyed by the elder Seward to his son Philander, the plaintiff in error, and that the consideration expressed in the deed was $10,000; that it contains full covenants, and was acknowledged and recorded on the day it bears date.

Assuming the 'ocumentary its to tie well iOiind, how the case stands.

What they are.

Take these facts in connexion with the verdict of the jury, negativing the imputation of fraud in fact to the elder Seward, and can the court adjudge the deed to the plaintiff in error, to be fraudulent and void against the defendant in error, as a judgment creditor of the grantor ? If we are to be limited to these facts, there is but one of the several objections taken by the defendant in error to the validity of the deed, that can be urged ; and the foundation of that one would be, at best, but slender. The objections on the ground of the falsity of the consideration expressed in the deed, the reservation of the annuity for life to the grantor, and his continuance in possession, rest upon the testimony of the witnesses; and if that evidence is expunged, those objections must disappear.

The remaining objection is, that the deed is fraudulent in law and void, because it is a voluntary conveyance, and the defendant in error is a prior creditor of the grantor. *This objection is urged on the authority of the case of Reade v. Livingston, (2 John. Ch. Rep. 481,) as being so decisive that no evidence can be adduced to repel or explain it..

The sole objection which can be entertained is, that the deed is fraudulent in law, being voluntary, and operating against a creditor.

Suppose it to be so ; the deed must be. admitted or proved to be merely voluntary, and the party who impeaches it, to be a prior creditor of the grantor, before the rule can be applied. If the judgment of the plaintiff in error the elder Seward, is to be regarded as the debt, and not the previous covenant, he would be a subsequent and not a prior creditor; and if he is a subsequent creditor, he must, on the authority of Reade v. Livingston, show a fraudulent , J • • •' i t i i' intent on the part of the grantor, in giving the deed, or he cannot avoid it; and this court could never impute a ulent intention to this grantor, as an inference or presumption of law from the facts, against the explicit finding of the jury upon the same facts, that there was no such fraudulent intent.

Reads v. Livingston, (2 John. Ch. Rep. 481.)

But suppose the defendant in error to be, in judgment of law, a prior creditor; was the deed to the defendant in error a voluntary conveyance ?

The whole finding of the jury on this point, if the testimony of the witness is to be disregarded, consists of the naked fact of the deed itself, which appears on the face of it to be a conveyance of the premises, by the father to the son for $10,000, with full covenants.

It surely cannot be intended, that a conveyance for the consideration of $10,000 is voluntary, because it is a deed from a father to his son. A jury might possibly' be warranted, on the testimony of Everitt, and in the absence of proof of the payment of the consideration expressed to be given, in finding it a voluntary conveyance, or fraudulent and void. But a jury, without any other evidence than the deed itself, would exceed its legitimate powers in declaring it void; and this court surely could not, in such a case, adjudged it to be voluntary and fraudulent. It may be said, that the bonds of the son, proved by Ackerman, being written evidence, and speaking for themselves, are to be regarded as facts found by the jury, and not the mere evidence of the witness. Suppose them to be so; they *prove nothing of themselves, but the debts contracted thereby to the fattier and the sisters of the son. Taken in •connection with the testimony, they would appear to constitute the consideration of the conveyance from the father to the son; and the jury might, on that evidence, have so ^oun^ ^he ^aot) or probably they might have been bcrne out in such finding by the correspondence of the dates of the instruments, and the relations in which the parties stood to each other and to the transaction. But this court cannot make the intendments, and draw the inferences necessary to connect the bonds with the deeds, which a jury might; or if the court could intend that the bonds were given as the consideration of the deed, the question of fact would still remain, whether the transaction was a purchase by the son, or a gratuitous settlement by the father; and which question it was the province of the jury to answer on the evidence before them. The counsel have discussed the point upon the evidence as a litigated question; and if the court decide it, they must put their decision, to some extent at least, upon the testimony of the witnesses, and not upon the facts found by the jury.

But if the deed could be regarded, upon the facts appearing on this record, as a testamentary disposition and gift by the father to his children, would that fact be of itself conclusive, or might it not be met and rebutted by evidence on the other side, or could the court pronounce it fraudulent and void on that evidence, or must not the question of fraud be submitted to a jury ? I do not conceive it to be necessary to decide these questions in this i but I am not prepared to say that the court could, under such circumstances, adjudge the deed to be fraudulent. The case of Reade v. Livingston, was a decree of the# court chancery, and in that court the chancellor exercises the jurisdiction of a jury, as well as that of a judge. When sitting in that court, I have the jurisdiction to decide questions of fraud upon the evidence; but I should hesitate to act upon the principle, that a voluntary deed to children is absolutely void, as against creditors having debts owing to them at the time, and that no facts or circumstances *can be sufficient to repel the legal presumption of fraud; and when, in addition to my hesitation upon that point, I am called upon in a court of law, and of appellate jurisdiction, to adjudge a deed to be fraudulent without any verdict of a jury finding the fact of fraud, and against a verdict which negatives the existence of actual fraud. I cannot but distrust my powers, and am unwilling to act.

Whether a ™tary deed to one indebted absolutely6’18 and in con-]aw,Ctl°fraudnlent?

The supreme court of the United States, in the case of Hindes lessee v. Longworth, (11 Wheaton, 199,) held, that a deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against creditors; that the want of a valuable consideration is a badge of fraud; but that it is only presumptive, and not conclusive evidence of it, and may be met and repelled by other testimony. “If,” say the court in that case, “it could be shown 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 presumptive evidence arising from the want of a valuable consideration for the deed would be met and repelled.” Other combinations of circumstances might produce the same effect, in repelling this presumptive evidence of fraud. It would be the duty of this court, before it pronounced its judgment, to look at the whole case, to determine whether the deed from the father to the son was voluntary, or for consideration; and,- if voluntary, how far the other facts of the case would repel the presumption of fraud, which the character of the conveyance would create. But we cannot look into the whole of this case, because the greater part of it, and matters contained in it which the parties deem material, consist of the evidence of witnesses, and not of facts found by the jury. The supreme court was under no embarrassment from this circumstance, because they adjudicated not upon a special verdict, but upon a case made by the parties, constituting them the judges of questions of fact, as well as questions of law. The court of chancery is equally unembarrassed *in deciding questions that come before the chancellor upon pleadings and proofs; for that court equally performs the office of the jury, in determining questions of fact upon the evidence in the cause. But this court being to adjudicate upon a special verdict, must confine itself to the facts appearing by that special verdict to be found by the jury, and cannoi adjudge facts upon the evidence of witnesses, nor intend any matter which is not found by the jury.

Hinde's Les see v. Longworth, 11 Wheat. 199.

This appears to me to be the established course of the court. The rule rests upon the soundest principles, and 1 hope we shall adhere to it. I cannot usurp the powers of a jury, and form my judgment, in this court of appellate jurisdiction, upon the testimony of witnesses.

I am constrained to declare, that I cannot decide the questions of law raised by the parties for the consideration of the court, upon this special verdict. I conceive it radically and substantially defective; and its defects are, in my judgment, incurable in this court. The proper course, in such cases, appears to me to be, to reverse the judgment.

(a)

*Spencer, Senator.

A question arises respecting the two acres of land sold by Everitt, which should be first „ , „ . . . . „ . , of, before entering into the other parts or the case; because it is unconnected with them. The record of the judgment of the supreme court is not printed; but the counsel on both sides agree in stating, that the declaration contained but one demise; that it was general for 500 acres of land, without ^specifying any particular tract or parcels ;■ that, on the trial, the plaintiff claimed the farm of two hundred and twenty acres, and also the two acres adjoining, on which there was a house and garden ; and, that upon the return of the special verdict, the supreme court gave judgment generally for the ^plaintiff; and it is objected, that a clear title having been- shown in the defendant to the two the judgment so far is erroneous, at all events, and that it must be reversed in tota. Audit is admitted, that objection to the plaintiff's right of recovery for the two acres, was made and argued in the supreme court.

Two parcels veredónalíngle count and single demise,

ment,being one, though other mustbe reversed in toto. Whether judg-

This is one of those perplexing questions, which so often arise upon the mere form, of the proceedings in ejectment. The ancient rule required the description of the premises in the declaration to be so certain, that the sheriff might know, from his execution, exactly of what to deliver possession. The relaxation of that rule has opened the way to numerous and vexatious applications to correct the errors of the sheriff in delivering possession ; and the settled rule of the supreme court, where a general verdict is given for the plaintiff, is to restrict him to the taking possession of so much only as he gave evidence of his title to on the trial. (1 John. Cas. 101.) In this case the plaintiff gave evidence of title to the two acres, and the supreme court, by their judgment, have decided that title to be valid, Of course, that court cannot order a restitution of the two acres, if possession of them should be given to the plaintiff. And it is presumed, that no writ of error would lie on that refusal to award restitution, so long as the judgment remained in force to warrant the execution. The only remedy, therefore, is by a writ of error on the judgment itself. When we come to look at the record, we find that the plaintiff has recovered an indefinite quantity of land, and the difficulty arises, how, upon that record, this Court can distinguish the parcels he ought to have recovered, from those, he ought not to recover ? But this difficulty is one of the plaintiff's own making; for, according to the forms given in Bunnington’s treatise on ejectment, he might have taken a Verdict for his term in certain premises, describing them, and for the defendant as to other premises, •also describing them, and entered his judgment accordingly. The omission of the plaintiff to do this, ought not to prejudice the defendant by depriving him of all remedy to correct the alleged error. ■

Ancient certainty required in declaration in ejectment.

Buie relaxed.

Consequences

Plaintiff now takes possession according to his proof on trial.

Plaintiff mil take his vei diet for certai: described pre mises, and fc certain othe described pr< ■mises, enter verdict forth defendant.

If, then, there be error in the recovery of the two acres, is it to be corrected by a reversal of the whole judgment, or *can the judgment be reversed in part and affirmed in part? It seems to be well settled, that where the judgment is entire, it cannot be reversed for part, and affirmed for part. The authorities are collected by Mr. Archbold in bis Treatise on Practice, (1st vol. p. 236,) and the follow* ing is given by him as an illustration of the principle: « -^here an action is brought for a croft and a mes* suage in one count, and upon error it is holden that the action does not lie of a croft, the judgment must be reversed both as to the croft and the messuagefor which he cites . ° ' of authorities, most of which I have examined, an^ t^e3r sustain him. It is needless, perhaps, to say that the case there put, is the very case under consideration. The plaintiff has declared" in one count for different pieces 0f ]anc|. an(j jf he fails as to one piece, his whole judgment 7 , r > o o must be reversed. If there had been several counts in the declaration, the consequence might have been different.

An entire judgment cannot be reversed in part and affirm ed in park

Declaration in one count for different pieces of land. m tTone? The entire judgreversed. Otherwise perhaps, if several counts.

are ^en brought to the inquiry, whether the defendant, from the facts found by the special verdict, has a valid title to the twó acrés for which the plaintiff has recovered ? The counsel for the plaintiff below did not contend on the argument, that the recovery for the two acres could be sustained. Still, perhaps, it is proper to examine the question briefly. Everitt sold the two acres to Philander Seward, on his own credit, and took his bond for the pUrohase money, although William Seward subséquently J 7 ° j paid that bond. In case of Botsford v. Burr, (2 John. Ch. Rep. 409,) the late late chancellor Kent states the law applicable to the question whether a resulting trust would be raised for William Seward under such circumstances, in these words: “iTor would a subsequent advance of money to the purchaser, after the purchase is complete and ended, alter the case. It might be evidence of a new loan, or be the ground of some new agreement; but it would not attach, by relation, á trust to the original purchase; for the trust arises out of the circumstance, that the moneys of the real, not the nominal purchaser, formed, at the time, the consideration of that purchase, and became converted into the land.” There can be no doubt of the cdrrectness of that principle, and it decides this ^question; for the credit was solely to Philander Seward, and his bond was taken at the time, for the price of the land. The advance by William was subsequent, and did not enter into the Consideration for the purchase. Upon this ground, therefore, that the plaintiff has erroneously recovered two acres of land, I can not escape the conclusion, that the judgment must be reversed.

thV^wo^acres0 "

Where one .g£ Ms bond which another pays, this not raise a re-for the latter?6

Here, perhaps, I ought to stop; but, from the organization of this court, if a majority of the members should not be of thb same opinion as to the two acres, I shall be called on to give my vote on the remaining questions in the case, and I therefore proceed to consider them as briefly as possible.

• I am of opinion that Van Wyck, the lessor of the plaintiff, was a creditor .at the time of the conveyance by liam Seward to his son; and I am satisfied with the reasoning of Justice Sutherland on that point.

yan wyck a creditor,

The next, and most important question is, whether that conveyance was voluntary, or whether it was made for a valuable consideration, on a purchase by Philander ard? This question ought to have been determined the jury; but they have not passed upon it. They have found for the defendant on the question of actual fraud, and no other; and every other question is left by them to be decided by the supreme court. This court has much reason to complain of this mode of proceeding, by which the members are compelled to assume the functions of a jury, and decide questions of fact upon the testimony. The practice which prevails in the supreme court, of having cases which present questions of law and of fact, is not applicable to a .court constituted like this. A special verdict should find all the facts,- a bill of exceptions should admit them, and both should present only questions of law; and no considerations, other than that much time has been spent in the argument of this cause, and that expense and tion may be saved by deciding it on the merits presented, induce me to consent to an investigation of the facts. And if I had not come to a conclusion satisfactory to my own mind, I should deem it a duty to propose a reversal of the . , ' , ■ j f t, • i • judgment, and a venire de novo, to have a new "trial, m which the facts might be ascertained. That course is , — , - ° . . . . rendered the less necessary m the action of ejectment, because e^er Part^ ma7 bring a new suit at his pleasure, no*w^bstanding any former judgment.

whether the theVdefendant was voi-

a special veraiih°the facts; and a g^ouid tbem-

$,eversy an¿ venire * nova suggested as a remedy for a defective apecial verdict.

A voluntary conveyance is defined to be a deed without any valuable consideration. [1] In this the books all agree; and I do not understand the counsel in this case to differ resPectinS & TIie adequacy of the consideration does not enter into the question, and only becomes material4o ascera fraudulent intent. But the character of purchase or voluntary is determined by the fact, whether any thing va^ua^e passed between the parties. The execution of a bond to pay the purchase money, made in good faith, and inten<íe<lto be paid, is a valuable consideration, and makes the transaction a purchase, as much as the actual pavment „ T. . * ' , , „ _ í J oí money. If it does not, then one half of the titles to lands in this state are invalid; and it is too late to inquire whether a security for money accepted by the the grantor, is not equivalent to money. If, then, William Seward had taken from Philander Seward his bond for the payment of the purchase money, with a fair and bona fide intent, on the part of both, that it should be paid, and it was not merely colorable to conceal a fraudulent transaction, if Philander had entered into the possession of the premises, and the whole had been open, public and avowed, surely no cou^ doubt that it was a purchase. If, instead of ^“g a bond for the payment of a gross sum of money,. he had taken one to pay such an annuity as-the parties, upon a fair calculation of all contingencies, .deemed •alent to the price agreed to he paid, surely the transactions must be viewed m the.same light as if the.money were paid, or a bond for its payment had been taken. And if .securities for the payment of the purchase money ¡to himself had ¡■been taken, and he had-assigned those securities to a third person, no one-would-have,pretended that it was not a-pur-chase for .a .valuable consideration.; and whether the securities are taken, directly to .such third person, or indirectly, through the medium of an assignment, cannot vary the case. . In this plain and common sense view of the case, ■the taking of the bonds by William -Seward, for the payment of part of the purchase %ioney to his daughters, must be considered -the .same as if taken to himself, and by him given to his daughters; and therefore the transaction was upon a valuable consideration, and . a purchase to all intents and purposes.

A voluntary a°deeYwithout any valuable consideratlon.

th<^ purchase money made mdB°intended to be paid, is a valuable con-* sideration.

So a bond moneyUrChaS6

purchase” * in

valuable consideration,

The gift of the money, or the securities, to his daughters, was unquestionably ¡voluntary; and, as between them and creditors, might -be-impeached, and .they might be required to deliver them up.[1] And here, it appears to me, is root of the fallacy which has led to the calling of the sale to Philander Seward a-voluntary settlement. That sale is confounded with -the disposition made by the vendor, of the proceeds of the sale. "But with -them Philander Seward ¡had nothing.to do. Admit.that it was the intention, of the father to make provision for his daughters, and suppose, in order to effect it, he had received money for his land, lent it but, and taken securities payable to his daughters, the sale would not be affected by such an application of the securities. It would still be a purchase by the vendee ; and if, instead of the purchaser paying the money, he should himself borrbw it and execute securities to the daughters, what possible difference could it make as to his character of purchaser ? And it must be the same thing, whether he executed his bond for the consideration of the sale at once, or whether he went through the useless ceremony of paying his money and receiving it back again. The case of Jackson v. Austin, (15 John. Rep. 477,) if any decision were necessary for so plain a proposition, decides an analogous principle, that where a mortgage was given for the purchase money of land to a third person, who had advanced the money to the vendor, such mortgage was entitled to the preference given by statute to mortgages for the purchase money. Admitting, therefore, that the greater part of the price of the land was intended to be appropriated by William Seward as an advancement to his daughters, as stated by Justice Sutherland in his opinion, yet that intent cannot determine whether the conveyance to Philander Seward was a voluntary settlement or a purchase; because that advancement was subsequent to the sale, and could not and did not form any part of the consideration of the conveyance to Philander Seward. He might have sold to a *stranger with the same intent, taken the money, and invested it in stocks or private securities, and assigned those to his daughters as an advancement to them. This could not relate back, and make that sale a voluntary settlement on his daughters.

bonds to the voluntary, and imcreditors,

But if the intent is to be regarded, in order to determin'e whether this was a fraudulent deed, there is an end of the controversy; for the jury have found against such intent.

If the intent is to be regarded, the jury have found against it.

I cannot bring my mind to any other conclusion, than that this was a technical purchase and not a voluntary gift, and that there was a valuable consideration in the bonds given to the daughters. I do not inquire whether this was or was not fraudulent in fact, because that is not the question when we are determining upon the character of this deed. The deed itself was in consummation of a sale and purchase; and if the proceeds were voluntarily bestowed on his daughters, let them he called on to account for them to the creditors.

Purchase ▼and.

It appears to me that the bond to pay William Seward five hundred dollars during his life, is also a valuable consideration, as much as if it had been to pay him a sum of money which would purchase or produce such an annuity. And if it had been for a gross snm, no one would question , . .. , _ . .. n i i i the transaction being a purchase. But justice Sutherland, says, “ the annuity cannot enure by way of pecuniary sideration to the. support of the deed, because, he says, “ the annuity was in the nature of rent for the use of the farm, and cannot be considered the consideration for the conveyance?’ It certainly was not the whole consideration; but it dearly was a part of the consideration on which the conveyance was made. This is apparent on the face of the transaction; it is sworn to by James Emott, and the deed itself is assailed by the lessor of the plaintiff on that express ground. Still, if the annuity is to be regarded as rent for 4 e the use of the farm, then, according to the best authorities, that is sufficient. In the Sutton Hospital case, in 10 Coke, 34, it was held that the reservation of rent in a bargain and sale, was a sufficient consideration. This is stated by Comyn, (Dig. Bargain and Sale, B. 11,) as the settled "law; and he refers to 2 Boll. 788, and 1 Modern, 263, which fully sustain him.

Though ble [0 ac,eouat t0 creditors.

Til0 bon(t for the life an' nuiity was a valuable con-

KODu 13 ft valuable con||^inl°a chase,

But I do not wish to put my opinion on this ground; for I cannot entertain a doubt that the bond to pay $500 annually during the life of Wm. Seward, was in fact, and . - , . ’ Without any legal inference, a part of the consideration for the purchase.

Bond for an-pan of the coni sideration for the purchase.

And so the counsel for the plaintiff consider it, and, upon . , . that fact, found an objection of another kind, which is that admitting the sale to be for a valuable consideration, it is void on account of the annuity being reserved to the grant- or; and the case of Mackie and Milne v. Sedgwick and Lord, decided in this court, (5 Cowen, 547,) is relied upon to establish, 1st, that a reservation to the grantor is fraudulent against creditors, and 2d, that being fraudulent and void . , , , . ., n ° m part, the whole is void.[1] I do not see any occasion to review that decision in the present case, because in my view it is not applicable. There is no reservation here, any more than there would have been if the grantor had taken a bond to himself for the purchase money. Instead of doing so, he sold his land for a security that would yield him $500 a 7ear during life, which, according to the tables of annuity, was worth, to a man 71 years old, the purchase or princi- . ' . , . A „ f pal oí about $2600; and it amounts to the same thing as takmg a bond for that principal. If this be a reservation, then is every sale of land on a credit for the whole or a part of the purchase money, equally a reservation; and upon the authority cited, in itself fraudulent and void. This court, I apprehend, will pause long, and require the most conclusive authority before it comes to such a result.

Mackie v. Cairnes, (5 Cowen, 547,) *!’0^ tor is thiuduin^partfvoidh» doesnot

The annuity servation”°any more than a bond for the purchase mo-have been<mld

^ *hink, therefore, that this was not a voluntary conveyanee, but that there was some valuable consideration whether sufficient or not, whether the whole was not a continuance to avoid the payment of Van Wyck’s demand, are other and distinct questions depending upon a variety of facts and circumstances, and which, it is conceded on all hands, must be decided by a jury. And it is further conceded, that if it be voluntary, if there were any valuable consideration, then the jury also must pass on the question of fraud. *The jury have determined that question by their verdict for the defendant: and if there was a valuable consideration, that verdict is conclusive, and judgment s^ou^ have been rendered pursuant to it.

Conveyance to defendant voluntary. ”0t

Where there ronaíderation6 the question th/jmy.13 for

Ms^^oonduantbelow"end'

If the view already taken be correct, the case is disposed of without going into the inquiry, whether, even under a voluntary conveyance, the question of fraud is not one of fact, to be determined by the jury ? I shall not pretend to examine the authorities produced, or the reasoning offered bv the counsel on the different sides, but be content with stating my judgment in the language of the unanimous opinion of the supreme court of the United States, as delivered by justice Thompson at the last term of that court, in the case of Hinde's lessee v. Longworth, reported in 11th Wheaton, 213, and which I repeat, because according to my notes, it was not cited on the argument: “A deed from a parent to a child, for the consideration of love and tion, is not absolutely void as against creditors. It may be so under certain circumstances: but the mere fact of being 7 in debt to a small amount would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances, and unembarassed, 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 and not conclusive evidence of it, and may be met and rebutted by evidence on the other side.” The plain sound sense of this decision, and its accordance with the natural dictates of justice, will commend it to the ration of this court, no less than the exalted character of the high tribunal which pronounced it. After all the contradictions of the cases in England, and in this country, in which we find the sages of the law arrayed against each other, it is consolatory to discover a spot of ground, reared by the talents and learning of the highest American court, on which we may safely and firmly rest. It is a decision which meets directly the position of the plaintiff below, and overthrows it; for, if “ the want of a valuable consideration is only a badge of fraud, presumptive, *and not con-elusive evidence of it," then the jury must pass upon it, and having found for the defendant in this case on that question, there ought to be judgment accordingly.

Hinde's leasee v. Longworth, 11 Wheat, 213.

Conveyance from a parent consideration1 of love and afabsolutely void ^uUs'o^n^o an inquiry inffian^M<arenm~

cu^j1(‘^eegcir' will rebut the

and having fendan/° there must be judgiDgiy.

Indeed, it will be a fortunate circumstance, if the decision of this court should not only finally settle in this state, this long agitated question, but should also restore the vital principle upon which trial by jury depends.

In the present case, even upon the ground taken by the counsel for the plaintiff below, the judge who tried the cause should have been called on to decide, whether, if the jury found this a voluntary conveyance, it was not in law conclusively fraudulent ? If he had so decided, it would have been still submitted to the jury, and if they had found in accordance with the charge, the defendant might have excepted and brought up the question on a motion for a tr^a^' ^ they had found against the charge, the plaintiff never could have moved for judgment against the verdiet, but might have asked for a new trial. The plaintiff did not require the decision of the judge, in order that it might be submitted to the jury, (which, in my judgment, was the only occasion where a decision on the legal construction of the instrument could have been had,) but the whole question of fraud was left to the jury, who have found for the defendant below j for the language of the verdict will bear no other construction; and I cannot conceive how a judgment can be rendered on the alleged ground of fraud, until that verdict is removed and another obtained.

^ a 9 should have the^circuit* whether, if the ly, it was not fraudulent7

This view will reconcile the language of many cases, which speak of fraud in law and fraud in fact. Strictly sPeaking, 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.

How cases fraud inTaw iw fact may reconciled.

J am of opinion, therefore, that the judgment of the su- . “ ° preme court is erroneous as respects the two acres of land; that being entire and on one count, it cannot be affirmed in part, and therefore must be reversed wholly. I am further *of opinion, that the conveyance of Wm. Seward to Philander Seward, was made for some valuable consideration, and was not voluntary; and that, therefore, it was a question of fact for the jury to say whether it was with a fraudulent intent. And I am still further of opinion, that it was voluntary, it was not conclusive evidence of fraud, and was still to be submitted to the jury; and that the jury having found for the defendant, it was erroneous to render judgment against him.

in the case. Summary of conclusions on different points

J am therefore of opinion: that the judgment of the su- , ,. , J ° preme court should be reversed.

Judgment below should be reversed.

Stebbins, Senator,

(after stating the facts.) It is contended that the conveyance of Wm. Seward to his son lander being partly voluntary, is wholly void as against Van Wyck, although the jury, by the special verdict, find that there is no actual fraud, and acquit the parties of any fraudulent intent.

The case of Reade and Livingston, (3John. Ch. Rep. 492,) a leading one in our courts upon this subject, and relied upon by the supreme court in their opinion in this cause, has been assailed by the counsel for the plaintiff in error; but leaving the doctrine of that case untouched, in my opinion the judgment of the supreme court in this cause, ought to be reversed. The doctrine of that case is, that “ a voluntary settlement made by a person indebted at the time, is presumed to be fraudulent in respect to such debts, and no circumstances will repel the presumption of fraud; but that as to subsequent debts, there is no such necessary legal presumption ; and there must be proof of fraud in fact; and the indebtedness at the time, though not amounting to insolvency, must be such as to warrant that conclusion.” (id. 501, 502.)

Reade v. Livingston, 3 John. Ch. Rep. 492.

That this distinction does’ not exist is settled by this and many other cases; (12 John. Rep. 536 ; 4 Cowen 603;) and there would seem to be some reason for presuming, that a voluntary conveyance was made to defraud existing creditors ; but I can see none for presuming that such a conveyance was intended to defraud persons afterwards to become creditors.

*1 think Van Wyck was not a creditor at the time of the conveyance by William Seward. He, at that time, held an unbroken covenant, carrying no evidence of indebtedness on its face, and which might or might not give him a right of action thereafter, depending upon the contingency of his collecting the judgment out of the property of William Seward, jun. He would not have been considered a creditor under the English bankrupt laws or our insolvent laws, (3 Term. Rep. 435; 8 id. 386; 1, John. Cas. 73; 9 John. Rep. 127;) ’ and I see no ’ reason why the rule should be different under the statute of frauds- If he was a creditor ™ this case, he would have been equally so, had he held an unbroken- cbvénant of warranty of lands; and the consequence' would be,- that no person- could make a settlement' Upon his children with’safety, so long as an outstanding covenant of warranty remained against him. That the statute of frauds protects “ others ” than creditors,, is granted but' there' must be" actual fraud. The- legal' presumption óf fraud arising from indebtedness, does not'seem to be interposed by the courts in favor of any but creditors, at the time of the conveyance;- Van Wyck, as a subsequent cre¿¡jf;0r js undoubtedly entitled to- the" protection of the statute; but he must sh'ów actual fraud. Jackson v. Myers, (18 John. 425,) was a case of apparent actual .fraud; and the court say that the facts leave no- doubt on* their mind, that- the conveyance was made “ for the pUrpose of placing the property beyond the reach of any judgment or execution1 which- Morsé might obtain in the action then- pending.”'

Van Wyck dRor”^ tho of th*

He was a subsequent credisuch, must fraud, actual

In Wilcox v. Fitch, (20 John. 472,) also the plaintiff had an action pending.

In the case under consideration, there was not only no action pending at the time of the conveyance, but" no right of action existed in Ván Wyck; and his covenant was not such as to afford ány evidence of indebtedness.

The claim for the" two acre lot, being abandoned by the counsel, and considering Van Wyck as becoming a creditor of William Seward, subsequent to the conveyance by him to his son Philander, which conveyance is found by the verdict to be untainted with actual fraud, in my opinion, Van *'Wy'ck is not entitled to recover the premises in question", and the judgment of the supreme court ought to be reversed.

Allen, Senator.

.It was admitted on the trial of this cause by the counsel for the plaintiff below, that actual fraud had not been shown in the eonvéyancé from- Williain to Philander Seward; and that the defendant below was entitled to a verdict in his favor - upon that point,, and that he" should be considered as having obtained such verdiet, reserving to" the plaintiff below the question, whether the conveyance was fraudulent in law. Indeed, the jury say expressly in the special verdict, that actual fraud has-not been shown; and find in favor of the defendant-below upon that question.

What is admit-by the verdict,

But the" plaintiff below contends, that upon the- whole matter, he is entitled to judgment,, because the conveyance was- fraudulent in law,- and void under the 2d- section" of the act of the 26th- of February, 1787, (sess. 10, oh. 4,) which is the same as the statute 13th Eliz. o. 5; and the supreme court, upon that principle, gave judgment for him-.

pl£¡?^ below contends for; cour6 below decided,

The ques-

Two questions have, therefore, been presented for consideration of this court: 1. Was Yan' Wyck a creditor within the statute; and 2, if sb, was the conveyance fraudulent as against him ?

In the view I have taken of the subject, it has been necéssary to examine only the second question. Mr. Justice Sutherland; in giving the opinion of the supreme court, held that the conveyance was voluntary, and therefore not valid against a prior creditor; and this opinion- is grounded upon the decision of chancellor Kent in Reade v. Livingston, (3 John. Ch. Rep. 481.) Ópiniohs coming from such a source, press upon the mind with great weight, and are entitled to the highest respect and consideration. But being in a court where the law is finally to be settled, and considering the-importance of the principle, I have examined the authorities cited in that case, and some others, and have come to the conclusion, that the legal presumption there laid down as the doctrine of the courts, is not warranted by a’just interpretation of the statute; and that the English decisions previous to the 19th of April, 1775, do not so conclusively *and satisfactorily settle the principle, that it ought to be held binding upon this court as common law authority. The chancellor held, in that case, that the intent with which a voluntary conveyance is made, is not material as regards prior creditors, but that it is fraudulent and void per se. His language is, “ if the party be indebted át the time of a voluntary settlement, it is presumed to be fraudulent- in réspect to such debts; and no circumstances will permit those debts to be affected by the settlement, r j > °r rePe^ ^e ^eSa^ presumption of fraud; that the presumption of law does not depend upon, the amount of the debts, • or tpe extent of the property in settlement, or the circumstances of the partyand in making a distinction between prior and subsequent debts, he observes, that “ the fraud in the voluntary settlement, is an inference Of law, and ought to be so as far as concerned existing debts; but as to subsequent debts, there is no such necessary legal presumption ; and there must be proof of fraud in factthus making a distinction between fraud in law and fraud in factx as arising upon the statute.

Necessary to ®eCa™¿‘e qu^! tion only; viz. conveyance Y^audulent

Reade v. Livingston, 3 John. Ch. Rep. 481.

But what are we to understand by the expressions, “ legal presumptions of fraud,” “ fraud is an inference of law,” &e., &c., when we are looking for the construction of a statute made for the prevention of frauds ? Fraud, by the common law, is a deceit in the conveyance of lands or chattels, to the injury of another person; and involves the intent of the wrong doer. A., intending to defraud B., sells him a horse, and affirms him to be sound, when he knows the contrary. Here are two propositions ; and when they are connected, the* fraud follows as a conclusion of law from both. How then does the law presume or infer fraud ? Directly it does not. But it may presume and infer facts; and if the facts it infers are necessary to make the fraud, then the fraud follows as a like conclusion. It is the judgment of law, on facts and intents. If there be a loan of money, and more than seven per cent, taken for interest, the law will presume an intent to evade the statute; for without that fact, there would be no usury. The statute 13 Eliz. avoids conveyances made with intent and purpose t0 ¿efraud. *How, it must either be proved directly that such was the intent and purpose of the conveyance, or the fact must be presumed. If presumed, how does the law prevent that presumption from being repelled ? Bepelling the presumption, is only disproving the fact which has been presumed.

If the legal presumption is to be held conclusive, I confess I do not see how fraud, as contemplated by the statute, "is involved in the question; for, on that principle, every prior debt is a lien on the debtor’s estate, against all conveyances, however meritorious or honest, if made without a valuable consideration; and is as perfect in effect, as "if the prior creditor had a mortgage or judgment on the property conveyed. But it is conceded by the same authority, that subsequent creditors would be required to go so far as would be sufficient to raise reasonable evidence of a fraudulent intent; so that as to prior creditors, the conveyance would be conclusive and fraudulent per se, and the presumption could not be repelled by any circumstances. But as to subsequent creditors, it would be only prima fade evidence, and the intent and purposes of the grantor might be inquired into. That most of the authorities before Lord Hardwicke, make no such distinction, "I think cannot be doubted. > They go upon the ground that the voluntary conveyance is of itself presumptive, but not conclusive evidence of a fraudulent intent. And how could they go beyond this ? The voluntary conveyance is not proof positive of such intent; because it may have been made honestly; and when the conveyance and the fact of prior indebtedness come out in proof together, it is then a reasonable presumption it was made to defraud creditors.

If we take the statute and examine its plain and simple language, unembarrassed by conflicting constructions, it is difficult to perceive the ground of such a distinction.

The 2d section of the act, (1 N. R. L. 75,) recites, that for the avoiding and abolishing of all feigned, covinous and fraudulent feoffments, gifts, grants, alienations, conveyances, &e„ &e.. which have been, and are devised and contrived ' ' . ' of malice, fraud, covin, collusion or guile to the end, purpose and intent to delay, hinder or defraud creditors and others of ^"their just and lawful actions, suits, debts, &c., &c., and then enacts that all conveyances made for any intent or purpose before declared and expressed, shall be void. What language can be stronger, to show that the intent and purpose of the grantor are material in all cases under the act ? It speaks only of those conveyances which are devised and contrived of malice, fraud, covin, collusion, &c., &c.,- to the end, purpose and intent' to defraud creditors ; using every common law term-, that could well be-found to- express the corrupt purpose and intent- of the-wrong doer. And the 4th- section, which- makes-- the conveyance penal, and subjects the parties to- a forfeiture',, shows' the sense of the legislature,, and Lord- Mansfield,, in Doe v. Routledge, (Cowper, 710,)' cites this part of the staf-ute, to show that- a- voluntary settlement,, as such-, was not covinous and fraudulent.

1being indebted j^ry8 convey-an?e> tkis. 13 not conclusive, though pro¿enro oi° fraud as to creditors.

And the presumption is less strong in respect to creditors on debts contracted after the conveyance.

It- must therefore-be obvious, if we look at- the statute-only, that- the intent and purpose of the parties are no-more the- subjebt of inquiry when the conveyance is made to defraud creditors whose debts aré contracted subsequent-to it, than- they are when- made' to defraud prior creditors. It may not be so- common an occurrence' for a man to dis-' pose of his property for the purpose of contracting future-debts-he never means- to pay,, as it- is- to- dispose of it to' avoid* debts already made. But- that- men might- do so to' avoid the payment of future debts, was foreseen by the legislature; and that they have done it,- cannot be disputed. It is admitted-, that in- that case the intent and purpose may be inquired into. If so, why not in the other ? It does appear to me, that the only real difference is in the weigh t-of evidence or proof.- If a man puts away his property while he- is in debt, it is strong evidence of an intent to defraud his creditors. If he does it when not- in debt, but With a view to making future debts he never means to pay, it is evidence of a- fraudulent intent,, but comparatively weak; and- in either case, the evidence is made stronger- or weaker aebording to circumstances. These are as various as-the different situations-, actions and- devices of men. They depend on the solvency or insolvency of the debtor, the amount of property conveyed, the amount of the debts, the time and manner of conveyance fand the person or persons to whom- the conveyance is made; and they are to be considered and determined by courts of equity and juries. But on the contrary principle, there is no inquiry into any circumstances. A debt of five dollars is as conclusive evidence of fraud- as five thousand.

It was said on the argument, that the doctrine of legal fraud had its origin at that period, when the courts were inclined to take the power from the jury. But another suggestion, that-it,is the offspring of the court of chancery, I believe the true one. There the chancellor determines both the law and the fact; and the purpose and intent of the conveyance are before him, as before a jury in the courts of law. When a conveyance had once been adjudged fraudulent upon a given state of facts, .those facts, as well as the law, became a precedent for a succeeding chancellor; and bound the judgment by the force of analogy, upon the question of intent and purpose, as well as law. And when an analogous state of facts in the courts of law, has been referred to a jury, and the jury has said there was no fraud, the sayings of equity judges have been resorted to for legal presumptions, independent of intentional fraud; and hence the .modern distinction between fraud in law, and fraud in fact..

It becomes, then, an important question, whether, when a voluntary conveyance, made upon the consideration of blood and affection, is impeached on the ground of its being fraudulent as against creditors, and, on a trial at law the jury has declared in a special verdict that the conveyance was not made with the intent and purpose expressed in the statute, the court can, notwithstanding the verdict, pronounce upon the record, that the conveyance is fraudulent and .void?

-Is the conveyance only prima facie evidence of fraud; or is it conclusive, and not to be repelled ?

Twyne's Case, (3 Co. 80,) is a leading one on the subject of fraudulent conveyances, and arose a few years after the statute. Several points were resolved by the court, and all of them clearly adopted as evidence of the fraudulent intent. It was said the gift had the . signs and marks of fraud, because it was general, without exception, of his apparel, or *any thing of necessity; that the donor continued in possession of the chattels, and used them as his own; and that it was made in secret and pending.the .writ; and that there was a trust between the parties,.&o., &c. All these were the circumstances drawn from the case, and the .. , , . , _ evidence by which the court determined the transaction to be fraudulent.

Sagitary v. Hide, (2 Vern. 44,) was a case in chancery. The plaintiff was a creditor by bond to J.-S., who settled ^.g reaj egtate on yg wife f0r life, remainder to one Middleton, with power of revocation; and Middleton sold to the defendant, Hide, who had part of the purchase money in his hands, out of which the plaintiff sought to be satisfied his debt. For the plaintiff, it was insisted that the settlement was fraudulent, and that the estate ought to be assets. But it was said by the court, that every voluntary conveyance is not, therefore, fraudulent; but a voluntary conveyance, if there was a reasonable cause for the making of it, may be good and valid, even against a creditor.

Sagitary v. Hile, 2 Vern. 44

And in Sir Ralph Bovy's case, (1 Vent. 193,) it was said by the court, if there had been no precedent agreement to make the settlement, so that it had been a voluntary conveyance, though every such an one carries an evidence of fraud, yet it is not, upon that account only, always to be rec^one<^ fraudulent, or to be avoided by a purchaser upon a valuable consideration. It is to be observed, that this a case °f a subsequent purchaser, under the 27 El. c. 4, and the courts have construed this statute more strongly iQ favor of purchasers, than that of 13 El. in favor of creditors. (Walker v. Burrows, 1 Atk. 93; Lord Townsend v. Windham, 2 Ves. Sen. 1, 10.) And the same distinction down in Lord Teynham v. Mullins, (1 Mod. 119.) Hale, Ch. J., and Twisden, J., there, said the settlement was not fraudulent, and that a deed might be voluntary, yet not fraudulent; otherwise most of the settlements in England would be avoided. That was a case under the 13 Eliz. (1 Mod. 119, Leach’s ed. note a.)

Ralph Bovy’s case, 1 Ventr. 193.

The 21 El always con-strongly vor of purthe3™ el*1 in favor of ereditors. Walker v. Burrows, 1 Atk. 93. Ld. Townsend Windham, 2 Ves. Sen. 1, 10. Ld. teynham v. Mullins, 1 Mod. 119, Leach’s ed.

In Lavender v. Blackstone, (2 Lev. 146,) one ground the court took as an evidence of fraud, was the continuance in ^'possession by Pudsy, who had made the settlement; and Hale, Oh. J., said every such conveyance, prima facie, shall be deemed fraudulent against a purchaser.

Lavender v. Blackstone, 2 Lev. 146.

But circumstances may alter the case; and in the Hast India Company v. Clavell, (Gilb. Eq. Rep. 37,) it is obvious, that the lord chancellor grounds his opinion upon the pose and character of the settlement; for he observed, “it was a reasonable, just and honest provision, and no color of fraud in it.” (Id. 39.)

East India Co. v. Clavell, Gibb. Eq. Rep. 37.

It is admitted by Lord Ellenborough, in Doe v. Manning, (9 East, 63, 64,) in discussing the same subject in relation to subsequent purchasers, that in several of the cases which arose nearest to the time of passing the statute, the judges seem to have thought that a voluntary settlement was only prima facie fraudulent against a purchaser, according to the language of Sir Ralph Bovy's case ; and he cites, to the same effect, Jenkins v. Kemishe, (Hardres, 398, and 1 Lev. 146 ;) Garth v. Mois, (1 Keb. 486;) and in Style, 446, he says, “ It is stated to have been said, on a trial at bar, (Lord Bolle being then chief justice,) that a voluntary conveyance upon consideration of natural affection, hath no badge of fraud, unless he who makes it be indebted at the time, or in treaty for the sale of the lands. And in addition to these printed cases, Sir Bobert Eyre, then chief justice of O. B., according to a manuscript note formerly belonging to Mr. Justice Cline, in a case of Standon v. Charlwood, tried before him at the London sittings, after Trinity term, 1732, laid it down that a voluntary settlement, made upon marriage, by Sir Bichard Anderson, was not fraudulent because voluntary; but the question was, whether it was not made with an intent to defraud; and the jury so found it.” He then introduces several ancient cases, which he supposes establish a contrary principle. The earliest case, he says, in which this is distinctly laid down, is Woodie's case, cited by Tanfield in Colville v. Parker, (Cro. Jac. 158,) where it was adjudged, “ that, an assignment of a lease of lands by one quasi in jointure to his wife, he taking the profits, and afterwards selling it without notice, was within the statute; though not made in trust to be revoked, nor with any clause of revocation ; because it *was a voluntary conveyanee at first, and shall be intended fraudulent at the beginning.” It will be recollected, that this was the language of Tanfield, upon evidence to the jury, on an information, in Which it cannot he supposed that-a fraud in law would be conclusive upon the defendant. It does not appear to me, from this note, that the distinction was so clearly-taken 'in Woodid-s case as was supposed. The expression, that it shall “ be intended fraudulent at the beginning,” is satisfied with the idea, -that it shall be presumed to be so, until the contrary appears. ¡Nor do "I perceive, -on a careful examination of the other cases, that the contrary principle is ■so clearly established. They are Prodgers v. Langham, (1 Sid. 133;) White v. Hussey, (Precedents in Chan. 14;) Gardiner v. Painter, (Cas. temp. King. C., p. 65;) and Tonkins v. Ennis, (1 Eq. Cases Abr. 334.)

Doe v. Maning, 9 East, 59, 63, 4 and tincases there cited,

Cases eited 9 East, 66, 1.

In examining the cases decided by Lord Hardwieke, it is manifest that he often regards the -conveyance -and the circumstances as evidence of fraud; and when it is considered he was determining facts -as well as law, it is sometimes -difficult to understand, whether he takes the facts and circumstances as evidence of the fraudulent intent, and thus adjudges the conveyance void; or considers that the law makes it void without regard to circumstances. I will notice -them in the order of time in which they arose.

Of the cases decided by Ld. Hardwieke.

In Russell v. Hammond, (1 Atk. 15,) which was the case of a prior creditor, "he said, “ the question is, whether this shall prevail against the creditors of German and Hammond, as a-good settlement, It depends upon circumstances; and every case varies in that respect. There are many opinions that every voluntary settlement is not fraudulent.- What the judges -mean is, that-a settlement being voluntary, is not, for that reason, fraudulent; but is evidence of fraud only. (Bovy’s Case, 1 Vent. 193. Lord Teynham v. Mullins, 1 Mod. 119.) Though! have hardly known-a case where the person conveying was indebted at the-time of the conveyance, that has not been deemed fraudulent. There are, to be sure, cases of voluntary settlements that are not fraudulent; and those are, where the person making it is not-indebted *at the time. Subsequent debts will not shake such settlement.” But, he.said, in the last settlement there-was a plain badge of fraud; .and he goes on to state-what the badge of fraud was.

Russell v. Hammond, 1 Atk. 13, 15.

Were there no- other decisions of Lord Hardwicke, I should have doubt whether, in this case; he intended to go * * * - beyond the doctrine of the cases cited by him. After noticing the opinion of former judges, that the voluntary settlement was evidence' of fraud only, he' says, he had hardly known a case, where the person- conveying was indebted at the time, that not been' deemed fraudulent. I should understand him to' mean, that indebtedness at the time of the Conveyance, was so' strong' an evidence of fraud in itself,, that if had been sufficient, in almost all the cases, to defeat the conveyance; and' it seems plain, that in determining the last settlement in the case to be fraudulent, he did so upon the evidence and badges of fraud.

Stileman v. Ashdown, (2 Atk. 477,) Middlecomb v. Marlow, (2 Atk. 519,) Fitzer v. Fitzer, (2 Atk. 511,) and Walker v Burrows, (1 Atk. 93,) were cases of subsequent credi- , . ’ n -rr i • i -i . „ A . tors; and Hora Hardwicke determined from the circumstances, whether the conveyances- were fraudulent or not. They are not material" to the point in discussion, except so far as in his observations he- makes a distinction between prior and subsequent creditors. In Fiber v. Fiber, in answer to a question put by himself to the' counsel, he says, it is certain that every conveyance of the husband that is-voluntary, and for his own benefit, is fraudulent against creditors. If it is to be inferred, from this general remark, that-prior indebtedness was, in his mind, a conclusive presumption, the same inference may be applied to subsequent' indebtedness; for he speaks, without distinction, of every conveyance purely voluntary. And in Walker v. Burrows, after reciting the language of the' act, he says, unless the conveyance was made for the purpose expressed in’ the statute, it would not be void; for there was no proof that the father was indebted at the time, or" soon- after, so as to" collect from- thence the intention to be fraudulent.

Stileman v. Ashdown, 2 Atk. 477, Middlecomb v. Marlow, ibid. 519, Fitzer v. Fitzer, id 511, and Walker v Burrows, 1 Atk. 93.

*In Brown v. Jones, (1 Atk. 188,)-and Wheeler v. Caryl, (Ambl. 121,) his- attention was drawn principally to the question, whether the consideration was- sufficient to - r port the settlement; and in- White v. Sansom, (3 Atk. 410;) whether the debt accrued- before or after the settlement. Beaumont v. Thorp, (1 Vesey, Sen. 27,) was the case of a prior creditor, and being merely voluntary, and not made in pursuance of any marriage articles, the settlement was held fraudulent.

Brown v. Jones, 1 Atk. 188. Wheeler v. Caryl, Ambl. 121. White v. Sansom, 3 Atk. 410.

In the case of Lord Townsend v. Windham, (2 Ves. Sen. 1, 10,) which I believed is the last in point of time but one, I think it must be admitted, he goes the full length of the doctrine, that the legal presumption is conclusive; for he said he knew of no case on the 13 El., where a man, indebted at the time, made a mere voluntary conveyance to a child without consideration, and died indebted, but that it should be considered a part of his estate for the benefit of his creditors.

Beaumont v. Thorp, 1 Ves. Sen. 27.

Ld. Townsend v. Wind-ham, 2 Ves. Gen. 1, 10.

But it seems to me, that the doctrine of Lord Hardwicke has not been fully adhered to by subsequent judges; and that Lord Mansfield, in particular, if he did not wholly disregard it, followed the ancient principle, as more agreeable to the spirit and language of the statute.

Cases before other judges than Hard-wicks.

In Stephens v. Olive, (2 Bro. Ch. Rep. 92,) the master of the rolls held, that although the settlor was indebted at the time, yet if the debt was secured by a mortgage, the settlement was valid; and in George v. Milbank, (9 Vesey, 193,) Lord Eldon admits, that if a settlement contains a provision for the payment of debts then- existing, it will be good against a subsequent creditor, coming to impeach the settlement. But if a prior indebtedness was a conclusive presumption of fraud, and a subsequent creditor could be let in by showing that fact, how, I would ask, does a mortgage or a provision for the debt, affect the principle, except on the ground that they exclude the idea of intentional fraud ?

Stevens v. Olive, 2 Bro. C. C. 90, 92.

George v. Milbank, 9 Ves. 191, 3.

In Lush v. Wilkinson, (5 Vesey, 384,) a subsequent creditor came to impeach the settlement by proving prior debts, and the master of the rolls said, that proof of a single debt would not do; that every man must be indebted for the common bills of his house, though he pays them every week; that *it depended upon this: whether he was in insolvent circumstances at the time. This language has been considered a loose dictum; but whether authority or not, It shows a disposition to escape from that construction which made every debt, great or small, and under any circumstances, conclusive evidence of fraud.

Lush v. Wilkinson, 5 Ves. 384.

The cases of Cadogan v. Kennett, (Cowp. 432,) and Doe v. Routledge, (Cowp. 705,) decided by Lord Mansfield, are, in my judgment, strongly opposed to the doctrine of Lord Hardwieke, The first was the case of a marriage settlement ; and the defendant was a creditor at the time of the settlement. Lord Mansfield, in speaking of the statute, says, w such a construction is not to be made in support of creditors, as will make third persons sufferers. Therefore, the statute does not militate against any transaction bona fide, and where there is no imagination of fraud; and so is the common law. The statute 27 El. c. 4,” he says, “ does not go to voluntary conveyances, merely as being voluntary, but to such as are fraudulent. A fair voluntary conveyance may be good against creditors, notwithstanding its being voluntary. The circumstance of a man being indebted at the time of his making a voluntary conveyance, is an argument of fraud. The question, therefore, in every case is, whether the act done is a bona fide transaction, or whether it is a trick and contrivance to defeat creditors.” In the second Case, he says, “ the statute does not say, a voluntary settlement shall be void; but that a fraudulent settlement shall be void. There is no part of the act of parliament which affects voluntary settlements, eo nomine, unless they are fraudulent.” One circumstance, he says, should always be attended to; whether the person was indebted at the time he made the settlement: if he was, it is a strong badge of fraud. It will not be presumed Lord Mansfield was unacquainted with the doctrines of the courts in his time. He speaks of them himself, in this very case, and says, K a custom has prevailed and leant extremely, to construe voluntary settlements fraudulent against creditors; but, if the circumstances of the transaction show it was not fraudulent at the time, it is not within the meaning of the statutes." Language so decided, bearing so directly upon *the question, and coming from so high authority, must be entitled to great weight.

Cadogan v. Kennett, Cowp. 432. Doe v. Routledge, id. 705.

But other judges, since those decisions, have spoken, in a different language. In Nunn v. Wilsmore, (8 D. & E. 528,) lord Kenyon speaks of the deed as being either actually fraudulent or voluntary, from which the law infers fraud ; and in Doe v. Martyr, (4 B. & P. 832,) Doe v. Manning, (9 East, 59,) Buckle v. Mitchell, (18 Vesey, 100,) and Hill v. The Bishop of Exeter, (2 Taunt. 82,). which arose upon the 27th EL, the voluntary conveyance was held fraudulent, upon the presumption of law. But it is evident the judges adhered to the rule with reluctance, and found themselves bound to conform to it, on the ground that, the safety of too many estates depended upon it.

Nunn v. Wilsmore, 8 T. R, 521, 528.

Doe v. Martyr, 4 B. & P. 332. Doe v. Manning, 9 East, 59, Buckle v. Mitchell, 18 Ves. 100, Hill v. The Bishop of Exeter, 2 Taunt. 69, 82.

It may be well now to notice the view that has been taken of this subject, by some of our own judges, previous to the decision in this cause.

American authorities.

New York.

In Jackson v. Brush, (20 John. Rep. 5,) a verdict was taken, subject to the opinion of the court on a case. The deed set up by the plaintiff, and on which his claim, rested, was held to be without any consideration; and Mr. Justice Yates in giving the opinion of the court, adjudged it fraudulent from the circumstances. He declared it to be, without consideration, and made with intent to defraud creditors, and void by the statute. In The Manhattan Co. v. Osgood, (15 John. Rep. 167, 8,) he said the law was well, settled, that if a party execute a voluntary conveyance, indebtedness at that time was evidence of fraud. And in Verplank v. Sterry, (12 John. Rep. 554, et seq.) decided in this court, Mr. Justice Spencer has gone into the subject, and forcibly com-batted the modern doctrine of the English courts upon, the 27 EL He observed, that lord Ellenborough, in Doe v. Manning, did not present, the opinion of lord Mansfield in Doe v. Boutledge, in the strong point of view it merited ; and on examining the construction which had been given to the 13 El,, he said, it is perfectly well settled, that to impeach a voluntary settlement, made on a meritorious consideration, it is necessary that the seller should not only be indebted, hut should be insolvent, *or in doubtful circumstances at the time. The 13 El. was intended to prevent the conveyance of property, with a design to defraud creditors} and in Sands v. Hildreth, (14 John, 498,) I understand mm to mean, that the fraud contemplated by the statute is always a matter of fact, intent and purpose. And in Jackson v. Ham, (15 John. 263,) 'he says, the voluntary deeds which may be avoided by a subsequent purchaser under the 27 El. are such as are made with intent to deceive such purchaser ; and this intent to deceive is evidenced by a vol untary conveyance coupled with a subsequent agreement to sell again.

Jackson v. Brush, 20 John. Rep. 5.

Manhattan Co. v. Osgood, 15 John. Rep. 167, 8.

Verplank v. Sterry, 12 John. Rep. 636, 554.

Sands v. Hildreth, 14 John. Rep. 498.

Jackson v. Ham, 15 John. 263.

The subject has been discussed in several of the state courts, and in some of them, the point has been expressly decided. Salmon v. Bennett, (1 Day’s Con. Rep. N. S. 525,) was a ease in the supreme court of errors of Connecticut. Chancellor Kent, in Beade v. Livingston, admits that it lays down a rule somewhat different from that which he had deduced from the English cases. The deed in question was from the father to the son, in consideration of natural affection. It was adjudged that a distinction existed, in the case of a voluntary conveyance, between the children of the grantor and strangers; and that mere indebtedness at that time, would not, in all cases, render a voluntary conveyance void as to creditors, when it was a provision for a child, and the deed was supported by the court against a prior creditor.

Connecticut

Salmon v. Bennett, 1 Con. Rep. N. S. 525.

The case of Bennett v. Bedford Bank, (11 Tyng, 421,) arose in Massachusetts. It was there decided, that as there was no fraud in fact, the deed was good against a subsequent creditor, and all but such as were creditors at the time. But the question of prior indebtedness was not directly before the court. Iu Parker v. Proctor, (9 Mass. Rep. 390,) the same principle is recognized ; and in Harrison v The Trustees of Phillips Academy, (12 Mass. Rep. 462,) the question was, whether the grantee participated in the fraudulent intent of the grantor, to defraud his creditors. Parker, Gh. J., said, there was not conclusive evidence of that fact; and fraud was not to be presumed in a court of law.

Massachusetts;

Bennett v. Bedford Bank, 11 Mass. Rep. 421.

Parker v. Proctor, 9 Mass. Rep. 390.

Harrison v. Trustees of Phillips Academy, 12 Mass. Rep. 462.

In South Carolina, the law appears tó be settled, that a voluntary conveyance upon a meritorious consideration *is only prima facie evidence of fraud, and may be repelled by circumstances. Thus, in Hamilton v. Greenwood, (1 Bay. Rep. 173,) .a settlement of several negroes was made by the husband on the wife, he at the same time having other personal property to a considerable amount. Afterwards, he mortgaged one of the negroes to the defendant, to secure a debt he owed previous to the settlement. The court said the transaction depended wholly upon the intent with which it was done; that fraud or not fraud, was a matter very proper for the consideration of a jury; that to say no voluntary deed, made for the support and advancement of a part of a man’s family, was good, because a man happened to be embarrassed at the time, would be carrying the matter much farther than the principles of law or justice would warrant; that a fair voluntary conveyance might be good against creditors, notwithstanding it was voluntary; that the circumstance of a man’s being indebted at the timé, might be argument of fraud. So in Teasdale v. Reaborne, (2 Bay. 546,) and Taylor v. Heriot, (4 Desauss. 232.) The same doctrine appears to be settled in North Carolina and Kentucky. * Smith v. Niel, (1 Hawks, 341,) it is held that fraud or not fraud under the statute, is a question of fact and not of law. (Trotter v. Howard, 1 Hawks, 320, S. P. and see Gilpin v. Davis, 2 Bibb, 416.) Taylor v. Eubank, (3 Marshall 239, 241,) is in point that the question of fraud, where the settlor is indebted at the time, must go to the jury.

South Carolina.

Hamilton v. BayTmf’ 1

Teasdale Reaborne, 2 Bay. 546. Taylor v. Heroit, 4 Desauss 232. North Carolina and Kentucky.

Smith v. Niel, 1 Haws’ N. C. Rep. 341. Trotter v. Howard, id. 320.

The case of Alexander v. Deneale, (2 Munf. Rep. 342.) de1 ' ^ ^ termined by the supreme court of appeals of Virginia, was c¡tec[ py the counsel for the defendant in error, as establishíng a contrary doctrine; but I think not. The only question was, whether the vendor of chattels, retaining the possession after an absolute sale, rendered it fraudulent and void per se as to creditors? The court held it to be so aecorc^ng to modern decisions.

Gilpin v. Davis, 2 Bibbs Kent. Rep. 416.

Taylor v. Eubanks, 3 Marsh. Kent, Rep. 239. Virginia.

Alexander v. Deneale, 2. Munf. 341, 2. United States.

Hinde's lessee v. Longworth, (11 Wheat. 211,) came before suPreme Court of the United States, on error *to the circuit court of Ohio. It was the case of. a prior creditor;; and judge Thompson, in giving the opinion of the court upon the exceptions taken in the court below, says, the evidence offered by the plaintiff to repel the presumption of fraud, was improperly rejected by the court; that a deed from a Daren t to a child, for the consideration of love and affection, * . ... • . ' is not absolutely void as against creditors; that it may so under certain circumstances ; but that the mere fact of being in debt to a small amount, would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances, and unembarrassed; and that the gift was a reasonable provision according to his state and condition in life, and having enough for the payment of the grantor’s debts; that the want of a valuable consideration may be a badge of fraud, but not conclusive, and may be repelled by evidence. He also observed, “ it is said that a voluntary deed is void only as to antecedent and not subsequent creditors, unless made with a fraudulent intent; and this appears to be the doctrine of this court as laid down in Sexton v. Wheaton, (8 Wheaton’s Rep. 242,) after a review of the leading authorities on this question. ” It does not strike me that the judge, by this observation, means to say that the doctrine of the court goes so far as to make void all voluntary conveyances, merely upon the ground of prior indebtedness; for he says afterwards, in the same page, that the accounts might be looked to for the purpose of showing that Doyle, the elder, was in debt at the date of the deed; but whether to an extent which would avoid the deed, must depend on circumstances which are not to be inquired into by the court. And I would ask, whether what is noticed here, as the doctrine of the court in Sexton v. Wheaton, is not rather to be looked upon as a passing admission of the chief justice in that cause, that such was the modern doctrine in England ? for it appears to me that the point did not necessarily come before him in that cause. The grantor there was not indebted at the time of the conveyance; and the principal inquiry of the *chief justice was, whether there was sufficient evidence of fraud to impeach the settlement in favor of a subsequent creditor. He refers to the principal authorities cited by chancellor Kent in Reade v. Livingston, and remarks generally, that “ in construing the statute 13 Eliz. the courts have considered every conveyance not made on consideration, deemed valuable in law, as void against previous creditors; that with respect to subsequent-creditors, the application of the statute appear-to have admitted of some .doubt. ”

Hinde's lessee v. Longworth 11 Wheat. 211.

Another principle arising upon the statute had been fluctuating in our courts, until it was finally settled by the supreme court in Bissel v. Hopkins, (3 Cowen, 106.) This . o 1 V was, whether possession of goods continuing in the vendor after sale, was conclusive, or only prima fade evidence of fraud as to creditors. It was there settled, .after an examination of the principal authorities, that it is only a presumption, and may be explained, agreeably to the doctrine of lord Mansfield, in Cadogan v. Kennett, and contrary to the modern "English doctrine, as laid down in Edwards v. Harben, (2 T. R. 587.)

New York, Bissel v. Hopkins, 3 Cowen, 166.

If we are to adopt a legal presumption as conclusive in one case, arising upon the statute, why not in another ? I do not see why possession in the vendor of a chattel, is not as conclusive evidence of fraud, as a voluntary conveyance made upon the meritorious consideration of blood and affection. The delivery of possession, is considered the •very perfection of the sale of chattels; without which, a secret trust between the parties would be a most effectual means of fraud.

From this view of the law, imperfect as it is, I think the following conclusions may fairly be drawn: That the ancient decisions are nearly uniform in construing the voluntary conveyance as only prima fade evidence of fraud; that this doctrine is supported by the great authority of lord Mansfield; that the legal presumption is conclusive, is to be deduced from the decisions of lord Hardwicke; that some pf his successors have followed him, and others have materially narrowed his ground; that among the *state authorities in this country, with the exception of pqp own, there is a striking preponderance in favor'of the ancient doctrine. Do the English decisions, then, previous to the 19th of April, 1775, settle the question in favor of the conclusive presumption, with so much clearness and certainty, that this court is bound by them, as by common law authority, in construing an act of the legislature, passed m 1787? In my judgment they do not; but there is, oq the other side of the question, great weight of authority, supported by the obvious meaning and spirit of the act.

Summary of «(inclusions.

Believing, therefore, as I do, that there is no settled authority that binds this court upon the question, and that the judgment of the supreme court is incorrect, being founded upon a principle of legal fraud, which entirely disregards the intent and purpose of the conveyance, I am constrained to dissent from it, as inconsistent with the declared and manifest intention of the legislature. And were it necessary for the court to lay down a general rule, giving a true and rational construction to the act, Ishouldsay, that a volun tary conveyance in consideration of blood and affection, by one indebted n't the time, was prima facie only, and not conclusive evidence of fraud.

A voluntary conveyance by a debtor, in consideration of blood and affection, is prima facie only, and not conclusive evidence of fraud.

But Ido not consider the deed in this case as purely voluntary. It is, in good sense, a deed, in part upon a meritorious, and in part upon a valuable consideration. The sum of ten thousand dollars, expressed in the deed, may be considered the fair value of the farm. The grantee, on receiving the deed, executes a bond to the grantor, to se cure an annuity of five hundred dollars during his life, and bonds to the daughters of the grantor, for $4452 50, payable in six months after his death. Admitting that the annuity, which was regularly paid for four years, is to be considered only as a fair equivalent for the rents and profits of the farm, upon what principle is the consideration not to be deemed valuable, as far as the bonds to the daughters go ? It cannot be necessary, to make a consideration valuable, that money should be paid down. Security, or sufficient personal responsibility, would amount to the same thing. Blackstone, in giving the requisites of a valuable ^consideration, (2 Bl. Com. 443,) reckons marriage, money, work done, or other reciprocal contracts.

But the deed in question is not purely voluntary. It is part on a meritorious, and part on a valuable consideration.

What is a valuable consideration.

Philander Seward, when he gave these bonds, was perfectly solvent. He had an estate worth ten thousand dollars, and there is no evidence of any other charge upon it, except these bonds and the annuity. In my judgment, it is not the same thing as if the father had parcelled out the estate among his children, reserving an annuity from each in proportion. In that case, if the deed should fail, each child would lose an individual portion, and have nothing. Here the daughters get the purchase money to the amount Gf ¿be bonds, and lose nothing ; but the grantee loses the whole farm and pays the bonds besides. I know of no principle upon which these bonds can be avoided. To say the obligor will not be able to pay them, makes nothing against the argument.

not’ however, rely upon this view of the case. I take the broader ground on which I set out. I am aware that the policy of permitting the voluntary conveyance to be only prima facie evidence of fraud, has been questioned. ^, , , . . , it has been said, it would be embarrassing, if not dangerous £0 the rights of creditors, and prove an inlet to fraud. If it were really so, and the law has not gone far enough for the support of creditors, it belongs to the legislature, and not the courts to extend it. But how would the principle be embarrassing, and prevent the detection of fraud? When the creditor comes to impeach the deed, he is supported, in the very outset, by the presumption that it is fraudulent; and this presumption he can fortify and strengthen, by every fact and circumstance that has a tendency to show the fraud ; and all this must be repelled by evidence so clear and irresistible, as to leave no doubt of the fairness and honesty of the transaction; and where there is actual fraud, such as in my view comes within the act, I believe the rights of the creditor will be safe before a jury. It is true, there might be cases where injustice would be done to a creditor, and so it must be in all human institutions. But would not the other rule sometimes ^produce an evil ? I think it would; and that the case before us is evidence of it. When William Seward transferred and guaranteed to Van Wyck the judgment against William Seward, junior, it could not reasonably be supposed, that the property which had been conveyed to the latter by Van Wyck, would not be amply sufficient to meet that judgment. By that conveyance, William Seward, junior, became the owner of 2800 acres of land in the counties of Essex and Warren, valued in the conveyance at $11,200; and 188 acres in the county of Oneida; at $1800, besides the other property; and it was baffling human foresight that all these lands would produce, at sheriff’s sale, only about $574. Under these impressions of perfect safety, and before executions had been issued against the property of William Seward, junior, the old man, near the close of his life, sets down, in good faith and honesty, to divide his property among his children, upon the principles of equal and exact beneficence. In that settlement, the son, in equal good faith, enters into bonds to pay his sisters their shares. But it turns out eventually, that by the silent operation of a principle of fraud in law, without any fault on their part, this settlement, with its attendant contracts and stipulations, is to be torn from its foundations. It does appear to me, the evil is not so trivial as to be disregarded:

Of the policy of the rule r^deed ’of^a settlor only prima facie fraudulent E^aínst credi-

I am accordingly of opinion, that the judgment of the supreme court ought to be reversed.

The Court concurring in the result of these opinions, except Mallory, Senator,

anee, l.

The judgment of the supreme court was reversed.

After an opinion so full and clear upon a special verdict, which was insufficient to raise the intended questions of law, it will, I am persuaded, not be deemed obtrusive by the profession, if I insert here the abstract of a case lately decided in the exchequer chamber of England, showing what will bring the verdict within, perhaps, the extreme outline of sufficiency:

Monkhouse, Wright and Fairbairn v. Hay and others, assignees of Matthews, a bankrupt, 8 Price, 256.

The action in the king’s bench, (Hay and others, assignee, &c., v. Fairbairn, 2 B. & A. 193,) was to recover, as money had and received, the proceeds of the sale of a ship assigned to the defendants below, by the bankrupt before his bankruptcy, for the purpose of being sold, in order to pay a debt due to to them. The action was founded on the statute 21 Jac. 1, ch. 19, sec. 11, which, it will be recollected, makes a very important part of the English bankrupt system; declaring, that if, at the time any one becomes bankrupt, „he shall, by the consent and permission of the true owner and proprietary, have in his possession, order or disposition, any goods or chattels whereof he shall be reputed owner, the commissioners may treat it, in all respects, as the bankrupt’s property in possession. In other words, it shall be deemed his property. Vid. t Pickering’s ed., statutes at large, 281. The defendants below, having sold and converted the ship, pledged by the bankrupt, into cash, the consequence was, they were liable in this action to his assignees, should the latter bring themselves within the statute. This was the only question in relation to which the frame of the verdict was contested. This case was, originally, like the principal one; a verdict subject to the opinion of the court, on a case to be turned into a special verdict. In doing this, on the point of reputed ownership, the jury were made to find, that the act of bankruptcy was in December, 1815j and, June 19th, 1816, the plaintiffs be. low were appointed assignees: that in November, 1815, the bankrupt assigned the ship, registered in his name, but then at sea, in trust to sell herir» May (then) next, if the debt was not paid in the mean time. In the deed of assignment, the bankrupt covenanted to insure the ship in trust fot the defendants below; and it was agreed, moreover, “that in the mean time, and until the said ship should be sold under the trusts of 'the deed, the bankrupt should be permitted peaceably and quietly to have, hold and enjoy the same, and to receive and take the gains and profits thereof for bis own use and benefit, without the lawful let, &c.” That the registry was duly changed, so as to stand in the name of Fairbairn, one of the defendants below, before May, 1816, when the commission of bankruptcy issued. That the bankrupt, at the time of the assignment, had possession of the ship then at sea, under the command of a captain appointed by him; and he continued, from that time until the first of June, 1816, to exercise all acts of ownership, by appointing successive captains, employing and chartering the ship on different voyages, and receiving the freight from January to April, 1816; that during that time, he, from time to time, repaired and insured the ship at his own expense, but she was navigated under a certificate of registry granted to Fair-bairn on the 31st of January, 1816; that the defendants below had never interfered in any way with the ship, till June 1st, 1816, when they took possession, and afterwards sold her; the clear proceeds amounting to £585.

The avowed object of the writ of error was to bring under review the cases of Robinson v. M'Donnell, (5 M. & S. 228,) and Hay v. Fairbairn, (2 B. & A. 193,) on a question as to the effect of the registry acts on the Slat. 21 Jac. 1, c. 19, s. 11; but with that we have nothing to do.

Farlce, for the plaintiffs in error, in addition to the question upon the merits, raised one of form as to the special verdict. He said, the finding of the jury in that verdict was not sufficient, as to the fact of the reputed ownership, to entitle the defendants in error to recover: and that, therefore, as that was a question for the jury, and they had not determined it, there ought to be a venire de novo awarded. The reputed ownership was rather a question of fact than of law, as was said by Eyre, O. J., in Lingham v. Biggs, to have been “ well observed by Mr. Justice Buller, in Walker v. Burnell, that questions on the 21 Jac. have much more of fact than of law in them.” Had the jury found a fact, to which no other fact found were opposed, the court might then decide on the law as applicable; but where, as here, the jury find conflicting evidence of ownership, and do not strike the balance between them, the court cannot do it. The effect of finding that the ship was registered anew in the name of Fairbairn, must be to negative reputed' ownership in the bankrupt, or it would be of no effect at all, which would be no finding on that material part of the case. Ifj as in Fraser v. Marsh, (2 Campb. 517.) a ship were let for years, the jury would be bound to decide in whom the reputed ownership was, at the time of the bankruptcy; and they are equally hound to do so in the present case where it might depend on particular circumstances, as the custom of a port, and many others. Unless, therefore, the case should go hack to the jury, to draw some conclusion, he submitted no judgment could be given on this record; and in, Muller v. Moss, (1 M. & S. 335,) Lord Ellenborough distinctly said, that reputed ownership was a fact that ought to have been found,

Tindal, contra, insisted that the point upon the form of the verdict was not sustainable, for in all the cases on this subject,'the question has been considered to be one mixed both of fact and law; and it has been left to the court to decide whether, under all the facts stated, a reputed ownership was in the bankrupt or not. If the jury had found the reputed ownership to be in him, ne question would have been left for the court. It is the conflict in the mind, of the jury, which makes if necessary for the court-to determine the question, upon the facts found to-have been proved in the case; for otherwise, cadet. questio. Therefore, taking the special verdict as it now stands, there is enough to enable the court to decide that the defendants in error are entitled to recover in the action which they have brought; but if that objection ware-persisted in, the defendants in error might insist on their judgment

The court, by Dalias, O. J., said “sufficient facts are stated on this record, to refer to the court the consideration of the question of law, whether the trader had such" apparent ownership as, comes within the mischief intended, to be remedied by the' statute of James ? And it appears to ns, that the conclusion to be drawn in point of law is, that the bankrupt had such reputed ownership,” &o.

Judgment affirmed.

The marginal note on the above poinfln the case, as given by the reporter, is, “If a special verdict, on a mixed question ofihet and law, find facts from whioh the court can draw clear conclusions, it is no objection to the verdict, that the jury have not themselves'drawn such conclusions, and stated them as facts in the case.”

A voluntary conveyance is good between the parties, and only void as to creditors who are thereby delayed, hindered or defrauded. Chamberlyne v. Temple, 2 Randolph, 384.

They may be avoided by creditors holding pre-existing debts, but are good against debts accruing subsequent to the date of the deed, unless there be some extraneous evidence of fraud in them. Crosby v. Ross' adm’rs., 3 J. J. Marsh, 290.

A voluntary conveyance, or a conveyance in fraud of the law, is not a nullity, but binds parties and privies. Randall v. Phillips, 3 Mason, 378.

A voluntary settlement, by a person not in debt, cannot be impeached by a subsequent creditor, unless made with a view to ftiture indebtedness, or attended with some other circumstances of fraud. But it is void, if made by a person indebted, as to subsequent creditors. Iley v. Niswanger, 1 McCord’s Ch. Re.p 521.

But the debt must be sufficient to raise a reasonable presumption of fraudulent intent, and beyond one’s current expenses. Ib. Am. Ch. Dig., vol. 2, pp. 29, 30, Nos. 294, 295, 306, 307, 308

When a voluntary settlement in favor of children, will be set aside as -fraudulent, as against an existing creditor. Cato v. Early, 2 Stewart, 214. ¿voluntary deed, by a father, of his personal, property to-his children by a -former marriage, held, to be good. Lightfoot v. Colgin, 5 Munf. 42. Of several voluntary deeds, the first must prevail. Maine v. Dickenson, 2 Desau. 191.

See Waterman’s Am. Ch. Dig., vol 2, tit. Deeds.

A conveyance, without any valuable consideration, and purely voluntary, in secret trust for the.use of the grantor’s wife and children, is fraudulent in law, and void as to .creditors who were.such, before, .and at the execution of such conveyance. It is not necessary that a creditor, in order to set aside such Conveyancó, should show the grantor to have been insolvent at the'time of its execution. It is sufficient that-he is considerably indebted to the creditor, and that no other property appears sufficient to satisfy such debt, other than thaiicontaiuedin the-conyeyance. Jones v. Sluby, 5 Har. & Johns. 312; Am. Ch. Dig, vol. 2, p. 21, No. 275.

See Waterman’s Am. Ch. Dig., vol. 1, tit. Debtor and. Creditor,