Clark v. Fuller

Butler, 0. J. We have bad no hesitation in respect to the advice which should be given in this case. It is very clear upon the facts that the petitioner’s intestate, Mrs. Clark, never had any title to the note and mortgage in question, as against the creditors of E. 0. Andrew, or the respondent who represents them. It is distinctly found that the note and mortgage were made by Andrew for the fraudulent purpose of covering up the mortgaged property, and that A. L. Clark, the husband of the petitioner’s intestate, transacted the business with Andrew, without the knowledge of his wife, but with full knowledge of the fraud, and. with the intent to aid and assist in committing it. It was not the intention of the parties that the note should vest in Mrs. Clark, or be delivered to her, or be holden for her benefit, unless it became necessary in order to consummate the fraud. ' It is immaterial that Mrs. Clark did not know of the fraud, for no effect can be given to the transaction without holding A. L. Clark to have been her agent, and in that cáse the knowledge of the agent would be the knowledge of the principal. Bank of New Milford v. Town of New Milford, 36 Conn., 94. It is of no importance whether under the circumstances her acceptance of the mortgage can be presumed or not, for if she had no title to the note, the petitioner can take nothing by his petition. Nor is it important what agreement was made between Clark and Andrew as to the passing of money by the former to the latter. The import of the word “ passed” in 'the finding, taken in connection with the other facts found, is, that the money and property were delivered to Andrew colorably, and not to be retained by him as a loan ; but however this jnay be, it is sufficient, as against this representative of creditors, some of whom were creditors at the time of the transaction, that the fraudulent intent contemplated by the statute in relation to [241] fraudulent conveyances, existed, and was the governing motive of both parties to the transaction.. For these reasons we advise that the bill be dismissed. In this opinion the other judges concurred.