Doe on Dem. Credle v. Carrawan

Dick, J. The parties to this action of ejectment claim under the same person, and the question to be determined *424 is, which party has the best title to the land in controversy. The plaintiff claims title under a sheriffs deed, as a purchaser at an execution sale made to satisfy a debt contracted by the grantor before the execution of the deed of the defendants. The defendant’s deed was executed before the judgment was obtained on said debt, and is founded upon three considerations: 1. An agreement between the grantor and his wife, made-prior to their marriage. 2. Love and affection for the defendants, the children of his'wife. 3. Five dollars in money. The second is no consideration at all, and the third is-merely nominal, and was inserted to give effect to the deed as a bargain and sale. If its validity depends upon these ■ considerations alone, it is a voluntary conveyance, and fraudulent as to debts existing at the time of its execution ; unless the defendant can show in evidence, such a state of facts as will bring it within the exception mentioned in the Statute, Rev. Code, c. 50, s. 3. Where the right of creditors are affected, a voluntary conveyance is presumed in law to be fraudulent, and, to rebut this presumption, it is incumbent on the party claiming under such deed, to show that it was executed under such circumstances as will meet the requirements of said Statute. Black v. Saunders, 1 Jon. 67. The evidence of the defendant upon this part of the case was insufficient, and the judgment in the Court below would be affirmed, but for the error of his Honor upon another material point in the defense. The defendants offered evidence tending to explain and render more specific the consideration first stated in the deed in general terms, and to show that the agreement referred to, constituted a bona fide and valuable consideration. Such *425 evidence was clearly admissible, and it was improperly rejected: Jones v. Sasser, 1 D. and B., 452; Chesson v. Pettijohn, 6 Ire. 121; 1 Greenl. Ev. 353. The evidence offered tended to show that the. grantor formerly purchased the land in question from Benson, the trustee of the defendants; that a large part of the purchase money was still due, and that a mortgage had been taken to secure said debts; that the mortgage had existed for nearly two years and that the land was then of less value than the debts. Under these circumstances the grantor and his intended wife entered into-an agreement 1 hat the debt and mortgage should be can-celled, and for this consideration, the grantor should execute a deed to the defendants. This agreement was not a marriage settlement or marriage contract, within the meaning of the Statute, Rev. Code, c. 37, s. 24; and there was no necessity that it should be- in writing and duly registered. This parol agreement was partially executed before the marriage, by the cancellation of the debt and mortgage, and constituted a valuable consideration for the deed afterwards executed to the defendants. The arrangement was substantially a foreclosure of the mortgage, and did not unjustly affect the rights of other creditors. As the debt secured by the mortgage was greater than the value of the land, other creditors could have obtained nothing by the sale of the equity of redemption under an execution. The agreement, therefore, between the grantor and his intended wife, was not only a lawful, but a very prudent arrangement, as it relieved the grantor from a large debt, and at the same time secured the just claims of the defendants. The rights of the defendants were greatly prejudiced by the rejection of admissible and relevant evidence in the Court below, and there must be a venire de novo. Pek Cdbiam. Yen,ire de novo.