Kimball v. Hutchins

Hosmer, Ch. J. The deed of Weeks to Kimball, was without consideration, and, in the strictest sense, voluntary. It purported to have been given for the consideration of 2000 dollars, although nothing was paid or secured, and to be a mortgage collateral to a note of 2000 dollars, payable in two years, with interest, when no such note had been executed. The sum of fifteen hundred dollars, said to have been advanced; on a subsequent day, after the refusal of the deed by Kim-ball, and which, if of any effect, proved him to be an absolute purchaser of the land, was in contravention of the deed, and not admissible in evidence. Hutchins, the defendant, was a purchaser of the premises, for a valuable consideration, and bona fide ; and was qualified to take advantage of the voluntary and fraudulent deed oí Weeks to Kimball. Rob. Fraud. Con. 61. & seq. Newland 392. & seq. Sugden 432. If it be said, that this doctrine is applicable only to conveyances under the 27 Eliz. c. 4., I reply, that this statute is in affirmance of the principles of the common law. Cadogan v. Kennett, Cowp. 434. Sands & al. v. Codwise & al. 4 Johns. Rep. 596. [455] The charge to the jury was incorrect. They should have been directed, that if they found the facts stated on the motion to be true, their verdict must be for the defendant» I would advise a new trial. The other Judges were of the same opinion. New trial to be granted.