Winchester v. Charter

Foster, J. Three questions arising upon this bill of excep tians are insisted upon by the demandant. 1. The rule that the acts and declarations of a grantor, aftei he has divested himself of the estate, shall not be admitted to [143] impeach the title of the grantee is well settled, and not to be departed from. We think it applicable where a voluntary conveyance is impeached as fraudulent against subsequent creditors, as well as where the object was to prevent the property from going to satisfy existing debts. In Aldrich v. Earle, 13 Gray, 578, this rule was applied to a case where, as here, the husband, who was grantor, and the wife, who through the intervention of a third person had acquired the title, were both parties to the record, and pleaded jointly. See also Lynde v. McGregor, 13 Allen, 179. The husband was only a nominal party in the present case, and the judgment would affect not his title, but that of the wife. The rejection of evidence as to subsequent conveyances of personal property by the husband, and his subsequent statements that he still owned the real estate, was therefore correct. They were offered as his acts to affect the title to her estate after it vested in her, and as such were incompetent. 2. But one of the Questions in issue, and apparently the principal one, was whether the conveyance made without valuable consideration was fraudulent as to, future creditors. To be so, it must have been made with a view to contract future debts which the husband did not intend to pay, or had reasonable ground to believe that he might be unable to pay. Winchester v. Charter, 12 Allen, 611. To establish this proposition, of the grantor’s fraudulent intention in making the deed to Kennedy of August 2, 1860, his previous acts and declarations were plainly admissible. It appeared that at and before this date his sons held promissory notes against him, as security for which it was agreed that they should receive a conveyance of his personal property, as far as it would go. The demandant offered to prove that these notes did not represent genuine debts, by showing that the sons had not the means to lend their father the money for which they were claimed to have been given. Such evidence was competent for such a purpose. Stebbins v. Miller, 12 Allen, 597. And if the notes to the sons were not given for a valuable consideration, then it would appear that before the date of the convey [144] anee the validity of which was upon trial, the grantor had been engaged in creating a fictitious indebtedness, to secure which he contemplated and agreed to make a conveyance of his per sonal property. If these facts were established, they were competent evidence of a fraudulent design as to future creditors in making the deed of the real estate, because they tended to show that, before the date of the conveyance of the real estate, he was engaged in or was contemplating other fraudulent acts of a similar nature. 3. The instruction given to the jury that the subsequent payment of all the debts due when the real estate was conveyed was competent to be considered in determining whether he then intended to defraud existing creditors, was sufficiently favorable to the demandant. On the second point the exceptions are sustained.