Denton v. Perry

The opinion of the Court was pronounced by Hutchinson, C. J. It appears, by the bill of exceptions, that both parties claim the land, now in dispute, under John H. Perry. The plaintiff claims by virtue of an attachment and levy; and the defendants claim by virtue of a deed from said John H. Said deed was executed January 7th, 1827, and recorded on the 9th of the same January. The plaintiff attached the land by his writ on the 30th of said January. The regularity of the plaintiff’s judgement and execution and levy are not disputed. But the defendants’ deed was upon record before the plaintiff’s attachment was put upon the land. The defendants thus appearing upon the record to have the prior title, the plain'tiff has resorted to other sources of testimony, to show himself entitled to recover, notwithstanding the defendants’ apparent prior title. He first introduced a Mr. Baxter, whose testimony tended to show, that, after the defendants’ deed was thus upon record, and on the day the plaintiff’s attachment was ser [388] ved’ the defendant was asked who owned said land ? and his reply was, .that it was owned by said John H. Perry.— Upon this testimony, the plaintiff’s counsel contended, that the deed was not so accepted by .the defendant as to vest the title in him, when the plaintiff’s writ was served, which created his lien upon the land. The plaintiff also contended, .that the deed from said John H. Perry to the defendant was fraudulent and void, and given on the eve o.f the failure of the .said John H., and given with intent to defraud his .creditors. Par this .purpose he introduced three depositions, which were objected to by the defendants, but were admitted by the Court. These depositions tend to prove, that the said John H. P.erry failed in business on the 5th day of said January, the next day after his deed to the defendants; and also tend to prove the declarations of said John H. Perry, made after the date of his deed to the defendants, which, if proper in evidence at all, do tend to show said deed fraudulent and void as against the creditors of said John H, Whether these .depositions were correctly admitted or not, depends upon the decision of another question, whether the deed of John H. Perry to John Perry had become complete, by delivery and acceptance, when the sayings of John H. were uttered. For, surely, a man, who has conveyed land by a deed of conveyance, which has become complete, cannot defeat that conveyance by his after concessions merely. When the grantor ceases to have any interest, against which his concessions can operate, those concessions are not admissible against third persons, claiming under that title. Whether he could be called as a witness to impeach such conveyance, depends upon other circumstances. It seems by the testimony of Mr. Baxter, that the plaintiff caused a prudent enquiry about the title before he attached the land. The enquiry was made of John Perry himself. lie, instead of setting up any title in himself, said the title was in John H. Perry. The fair inference from this was, that he knew nothing about the deed from John H. to him, or thought it prudent not to set up any claim of tfile under it, until he had accepted the deed.. The title remained in John PI; and his sayings, so far as they tended to show the deed destitute of considera389 lion, or otherwise void, were correctly admitted in evidencfe, to show the deed void as against creditors. This testimony of Mr. Baxter, if believed, excludes all that presumption of acceptance, spoken of in argument. But it is urged, in argument, that Hiram R. Perry acted as agent for his father in accepting this deed. It seems he carried the deed from the grantor to the Town Clerk’s office. But whose agent does this prove him to be ? Not that of John, without additional proof of an appointment for that purpose ; or an acceptance by John, which acceptance, to avail in this case, must have been prior to the plaintiff’s attaching the land. If the deed was under the control of John H., Hiram must be presumed to carry it as his agent. Besides, Hiram’s testimony was put into the case by the defendants ; and he says nothing about his being, or acting as agent for the defendant, John Perry. His silence, when it was the interest of the defendants to prove such agency, affords a strong presumption, that none such existed. These depositions were correctly admitted, at the time when they were admitted, without waiting till the defendants had introduced the deposition of John H. Perry.— Other convincing testimony of a prior acceptance by an*agent with full authority to contract and receive the deed for the defendant, John Perry, might do away the effect of these depositions. But there is no such proof in the case. If our reasons for admitting these depositions be correct, it follows, of course, that the instructions of the Court upon this testimony, were also correct. — For the instructions were, that this deed, if executed in the absence of said John, the grantee, and not accepted by him, or any one authorized by him, when the attachment was made, would not vest the estate in the defendant against the plaintiff’s attachment, even if the deed were upon good consideration. The instructions, in case the delivery was complete and the acceptance proved, appear not unsatisfactory to the parties. They surely are not liable to objection; for if the deed was found by the jury to be fraudulent, it must be void as against the plaintiff, who was a creditor of the grantor. Our decision, however, is urged in favor of Bela R. Per [390] ry, one of the defendants, on the ground of his being a Bo-na, jide purchaser, without knowledge of the sayings of said John H. Perry; and we are called upon to presume all this from the existence of the deed merely. There are two reasons against admitting this presumption. — 1st, The service of the plaintiff’s writ of attachment, and leaving a copy with the Town Clerk, were sufficient notice, that the plaintiff intended to hold this land against the deed to John : Hence Bela must expect, when he receives a deed from John, to meet whatever testimony the plaintiff might produce to support his lien against that deed. — 2d, Tho’ Bela’s deed would, of itself, be sufficient as against his grantor, when he would hold against an attaching creditor, whose attachment was upon record, he ought at least to show a good and Bona fide consideration for his deed. The judgement of the County Court is affirmed.