Garden v. Derrickson

Gilpin, C. J. Isabella Garden executed and delivered to her son,Francis R. Garden,her bond or obligation, dated June, 7th, 1858, for the payment of $7,100, with interest, the payment of the principal being subject to some special provisions not necessary to be stated. Afterward, by two deeds, she conveyed her real estate, in part to her daughter,Mary A. 0. Derrickson in fee simple, and the residue to trustees for the benefit of her son William A. Garden and his children. These conveyances were wholly voluntary, being in consideration only of natural love and affection. Since the death of Mrs. Garden a judgment has been recovered on the bond against her administrator; and such proceedings have been had as are necessary under the statute to make the judgment a lien upon real estate of the decedent. Had she remained seized of the real estate in question until her death it would,without controversy, have been subject to the judgment. The question then is whether her conveyance of the real estate in her lifetime, without any valuable consideration, defeated the judgment. It is not disputed that had the bond on which the judgment was recovered been an ordinary debt,contracted for a valuable consideration,the conveyance of the real estate would, as against such debt be void; or rather the land would stand charged, in the hands of the grantees, with its payment. But it is insisted for the defendants that the bond itself was voluntary and that a court of equity will not aid a volunteer. [392] My view of the bond is this. It is a perfect legal instrument under seal; it is not a defective instrument, such as needs the aid of a court of equity to make it perfect. The aid required is the removal of an obstacle to its enforcement presented by the conveyances. The seal imports a consideration; by which is meant not merely that the seal is prima facie evidence of a consideration, but that it gives to the instrument, in the absence of fraud, the effect of a bond executed for a consideration. Whether it were given in fact for a consideration or not,it creates a perfect obligation, both at law and in equity, which is enforceable as a debt against the obligor and against all volunteers claiming under her. Such a bond can be impeached only on the ground of fraud. I am of opinion, therefore, that the real estate remains in the hands of the grantees, charged with the judgment. A decree was entered for the sale of the real estate and for the payment of the judgment out of the proceeds.