Doe v. Hurd

Blackford, J. — This was an action of ejectment for certain real estate in St. Joseph county. Plea, not guilty. The cause was submitted to the Court, and judgment rendered for the defendants. On the 4th of September, 1840, Levi Dean became special bail for A. M. Hurcl, in an action of debt brought by the lessor. On the 25th of March, 1841, there was judgment against Dean in scire facias on his recognizance. On the 21st of Augu'sl, 1841, Dean’s interest in the premises in dispute was sold on an execution on said judgment to the lessor. The plaintiff relies on the sheriff’s deed under this sale. The defendants rely on a deed for the premises, executed to them by the said Levi Dean, in trust for his wife Polly Dean, on the 1st of November, 1839. The plaintiff contends that this trust-deed is not valid. [511] First .objection: The deed is voluntary, and was made to defraud creditors. At the date of the deed, the grantor was indebted only in the sum of 25 or 30 dollars, which is too small an amount to render it void, without other evidence of fraud, *at least as to subsequent creditors. Lush v. Wilkinson, 5 Ves. 384.—1 Story’s Eq. 348. Besides, there is positive evidence, introduced by the plaintiff, that no fraud was intended. The sheriff swears, that when he took the recognizance, he told Dean, in presence of his wife, what Kurd had told him, viz., that the premises in dispute were his; and neither Dean nor his wife made any answer. This fact, it is said, is evidence of fraud. In answer to this, it may be observed, that another witness of the plaintiff’s, Dean, swears that no such conversation took place. The question of fraud has been decided by the Circuit Court, and we shall not, under the circumstances, disturb their decision. Second objection: The lessor is a purchaser for a valuable consideration, without notice of the voluntary convéyance. The answer to this is, that the deed to the defendants was recorded before the sheriff’s sale. The circumstance, that the judgment was rendered before the deed was recorded, is not material. Deeds of real estate are not void for not being recorded in time, except as to bona fide purchasers for value whose deeds are first recorded. A judgment-creditor cannot be considered as such a purchaser; nor can a purchaser under the judgment hold, who has notice, by the record, of the prior conveyance. Sparks et al. v. The State Bank, May term, 1845. There is one other objection. It is, that the trust-deed is void on its face. There is nothing in this objection. A husband cannot convey land immediately to his wife, on account of the legal unity of their persons; but he may convey it to trustees for her use. 1 Shepp. Touchstone by Prest. 205, note 10. It is contended, that the words in this deed are not sufficient to create a trust for the wife. But if that be so, it cannot benefit the plaintiff. The deed, at all events, conveys the grantor’s interest in the property to the defendants, whether they are trustees or not. We consider that, under our statute,.a deed of conveyance of real estate, executed in good faith, whether for a consideration or not, passes, prima [512] facie, the interest of the grantor in the premises, and the possession thereof, to the grantee (1). A. Liston, for the plaintiff. J. L. Jernegan, for the defendants. Per Curiam. — The judgment is affirmed with costs. Footnotes [(1)] A conveyance of real estate, executed without consideration, is valid against the grantor and his heirs. Jackson d. Malin v. Garnsey, 16 Johns. R. 193.