Edgell v. Lowell

Baylies, J., delivered the opinion of the Court. — As to Mor-rill’s deposition, it appears that the justice of the peace, after duly notifying the plaintiff to attend at a certain time and place to the taking of this deposition, did, on account of the sickness of the witness, adjourn the taking to another time, at the same place, of which adjournment the plaintiff’s agent had verbal notice given him by the justice, and this notice was communicated to the plaintiff, as set forth in the bill of exceptions. We are inclined to the opinion, that the justice of the peace had power to adjourn the taking of the deposition, and verbal notice, given to the adyerse party of the adjournment, was sufficient. And we also decide, that Micajah M. Lowell, having been discharged from the covenants in his deed, was rightly admitted as a witness to testify on the part of the defendant. But when we examine the charge of the county court to the jury, we find they were instructed, “ that there were two kinds of sales fraudulent as to creditors ; one where no valuable consideration was paid — other where a valuable consideration was paid, but done with intent to defraud creditors of the vendor, and that this intent must exist in the vendor and vendee both at the time of sale ; — that though Micajah might have sold the farm, with a corrupt and fraudulent intent to cheat and defraud his creditors ; yet if Gideon did not know it, and purchased with a like corrupt and fraudulent intent, it icould not be fraudulent in him. It is abundantly insisted upon throughout the charge, that the vendor and vendee must be actuated by like motives to cheat and defraud the creditors of the vendor, or the sale cannot be fraudulent as it respects the vendee. I cannot approve of this doctrine. It is however true, that if the vendee was a bona fide purchaser for a valuable consideration, without notice of any fraud in the vendor, the creditors of th'e vendor could not avoid the contract, as it respects the vendee. But if the vendee at the time had knowledge, that the vendor sold his farm to defraud his creditors, it would make the conveyance void in his hands, as to such creditors, although he had no wish to defraud them ; but purchased, because he considered the farm was cheap, and this was the only motive, that induced him to purchase, Henee I conclude, that the motives and intents of the [413] vendor and vendee, may be different, and the conveyance, as it respects the vendee, will be yoid. In the case of Bridge vs. Eggleston, 14 Mass. 250, the court say, “ It will be well to establish some precise rules, which may make this branch of litigation less troublesome, than it has hitherto been. Now as the creditor, in such cases, is obliged to prove actual fraud in the grantor, and a participation in, or knowledge of, it in the grantee, we think these two branches of his case will admit of the application of evidence to the two parties, which, although apparently inconsistent with, is by no means repugnant to, the common rules of evidence.” To prove fraud in the grantor, his conduct and his declarations before the conveyance may be the best, and often the only evidence, within the power of the creditor. He at that lime is not interested, nor can it be his design to injure those, with whom he may afterwards contract. If fraud is thus proved upon him, then the knowledge of it on the part of the grantee is to be proved ; which may be done by showing a trifling consideration, or none at all; by acts inconsistent with the bona fide ownership of the property ; by confessions of the nature of his bargain ; or by other. circumstances, tending to show a knowledge of the designs of the grantor. Without this latter evidence, the former, as to the designs of the grantor, is wholly ineffectual to defeat the purchase ; and a jury, under the direction of the court, will always be able to discriminate ; so that the purchaser will not be injured by the declarations of the grantor, unless be be proved to have been privy -to his fraudulent designs.” Ch. 32, s. 7, (Slade’s ed.) says, “ And every of the parties to such fraudulent and deceitful conveyance of goods or chattels, bond, bill, note, contract, agreement, suit, judgement, or execution, or any conveyance of houses, lands, tenements, or heredit-aments, made with like fraudulent intent, who, being privy thereto, shall justify the same to be made, had or executed, bona fide, and upon good consideration,” &c. The word, privy, as defined by- Webster, sometimes means, “ admitted to the participation of knowledge with another of a secret transaction.” This is nearly the sense in which the word is used in the statute : it means a knowledge of a secret fraudu-. lent transaction, in which he, who has the knowledge, was a party. The judgement of the county courtis reversed, and a new trial granted.