Cleland v. Taylor

By the Court, Green, P. J. A question somewhat analogous to this has been discussed [205] in' the case of Fuller vs. Parrish, decided at the present term of this .Court. The right of the plaintiff to have the deed from "Way to Livermore set aside in the Court of Chancery, if made for the purpose of hindering, delaying or defrauding the plaintiff, is not questioned, but it is claimed that in a court of law, the fraud cannot be shown for the purpose of avoiding the deed. On this point the defendant’s counsel refers to Jacksonus. Hills, 8 Cow. 292, &c.; Osterhout vs. Shoemaker, 3 Hill. 516; Worcester vs. Eaton, 11 Mass. 375, and the People vs. Livingston, 8 Barb. S. C. 253. None of these are cases of a creditor seeking to recover land purchased by him on execution which had been fraudulently conveyed. On the other hand, the cases of Jackson vs. Myers, 18 J. R. 425; Jackson vs. Parker, 9 Cow. 73; Jackson us. Timmerman, 7 Wend. 436, and same vs. same, 12 Wend. 299, are in every essential particular like the present case, and in all of them the evidence of the fraud was received without objection, or held to be admissible by the Court in ejectment. In Stephens vs. Sinclair, 1 Hill, 143, the action was ejectment by a judgment creditor, who had purchased the land demanded, at the' sheriff’s sale. On the trial, the defendant showed a conveyance from the debtor before the judgment became a lien upon the property. The plaintiff thereupon offered proof to show that the deed to the defendant was made for the purpose of defrauding creditors. This evidence was rejected.by the Circuit Judge, who thereupon nonsuited the plaintiff. Exceptions were taken, and a motion made in the Supreme Court to set aside the nonsuit and grant a new trial on the bill of exceptions. That Court said, “ most clearly the learned Judge erred in rejecting the plaintiff’s testimony.” It does not appear, however, that the evidence was rejected by the Circuit Judge upon the supposition that it was not competent to show the fraud in a court of law to avoid the deed, but the inference seems to be that such was not the ground upon which the proof was rejected. In the case of Jackson vs. [206] Burgott, 10 J. R. 457, Ch. J. Kent says, “ Courts of law have concurrent jurisdiction in all cases of fraud. Fraud will invalidate in a court of law as well as in a court of equity, an,d annul every contract and conveyance infected with it.” It is said that a conveyance intended to defraud creditors is not void, but voidable only at the instance of such creditor. In ssome respects this is so. As between the parties to the deed, it conveys the legal title, which is good also as against the creditor, until he pursues his remedy as such credit&r} and acquires a lien upon or an interest in the land. When he has done this, the deed is void as to him, and may be treated by him in the prosecution of his remedies as creditor, as absolutely void in law as well as in equity. The statute makes no distinction, (R. S. p. 328.) The case of Fox vs. Willis, 1 Mann. Mich. R. 325, is not an authority for a contrary doctrine. In that case, the creditor had not, by any process against the land, avoided the deed fraudulently made by the creditor. Instead of seizing the land by legal process, he took a mortgage from the debtor upon the land, and the Court held that the debtor had no title, and could not, therefore, execute a valid mortgage. Under our present statute, the title may be as effectually settled between the parties in an actibn of ejectment as by a bill in Chancery. Subdivision 7 of sec. 29, chap. 108 of the R. S., p. 491, declares that the verdict shall specify the estate or right which shall have been established on the trial; by the plaintiff in whose favor it shall be rendered, whether such estate be in fee, or for his own life, or for the life of another, stating.such lives, or whether it be a term for years or otherwise, and specifying the duration of such terms. Sec. 35 of the same chapter, (p. 492,) provides that “ every judgment in the action of ejectment rendered upon a verdict, shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through or under such party, by title accruing after the [207] ‘ commencement of such action,” subject to certain exceptions in favor of minors, persons insane or imprisoned, and married women, &c. Thus it appears that the essential rights of the parties may be fully and definitely established, and a fraudulent deed as fully and effectually set aside in an action of ejectment by a court of law, as upon bill in a court of equity. In view also of the statutory modifications of the law of evidence now in force, by 'which the parties may compel each other to testify, when necessary, it seéms difficult to-discover any good reason why a court of law should not exercise jurisdiction in cases of fraud like the present. More especially does it 'seem appropriate when the question -of ‘fraudulent intent, in all cases arising under the státuté of frauds, is made by statute a question of fact and not of law, to decide which a juiy is evidently the most fit tribunal. (R. S., chap. 82, § 4, p. 329.) Let it be certified to the Circuit Court for the County of Jackson, as the opinion of this Court, that the plaintiff in this action should have been permitted, on the trial of this cause, to have given the evidence offered for the purpose of showing that the deed, read in evidence by the defendant, from Uriah B. Way to Fidus Livermore, conveying the premises in question, was given upon a fraudulent consideration, or with the intent to hinder, delay and defraud the plaintiff bf his lawful suits-and demands, and that the motion to set aside the nonsuit in this case ought to be granted.