Gallman v. Perrie

SlMRALL, J.: The bill was filed by Jacob Gatman, who had recovered a, judgment against Truland, and had purchased at sheriff’s sale, blocks 39 and 45, in the town of Aberdeen, sold as Truland’s property, for the purpose of setting aside and vacating certain conveyances, as made voluntarily, and with intent to hinder, delay, and defraud creditors. The conveyances complained of were made by Truland, the judgment debtor, to T. J. Bran in, who conveyed to Margaret Perrie. The judgment was recovered after the conveyance of Truland to Branin; but the debt upon which it was founded, existed long before. The jurisdiction of a court of equity is ample, either before or after a sale, under a judgment to set aside a deed made in fraud of creditors — before the sale, in order that the creditor may realize the full value of the property by offering an unembarrassed title to bidders ; after sale, so that the clouds which obscure the title, and which, if permitted to remain, might endanger it, may be put away. The question then is one of fact, the motive and purpose,, which were the inducements to the conveyances. The judgment never was an apparent lien on the property, Truland having parted with the title [141] before tbe recovery of the judgment. In order that the complainant may succeed, he must show actual fraud, fraud in fact. The circumstances, stated in the bill, and attempted to be proved, are that Truland conveyed the land without consideration, and with a fraudulent intent, as against his creditors. It seems to be warranted by the testimony that Andrew Perrie bargained for the lands with Coopwood and Burnett, and agreed to purchase the same ; having paid part of the purchase money, he handed the balance to Truland to be delivered to Coopwood and Burnett, and a deed to be taken. The defendant, Margaret Perrie, states in her answer and cross bill, that the deed was to have been taken in the name of her father, the said Andrew, who was also the father of Truland’s wife ; but was taken in violation of confidence in his (Truland’s) name. It is made clear by the testimony that Andrew Perrie furnished all the purchase money, and that he intended the land, either for his own benefit or for his children. Truland declares in his deposition, that the land was intended for the benefit of his wife and her sister, Margaret Perrie. When Truland was assured that it was not satisfactory to his wife or her sister, that the title should remain in him, he set up no claim which would be hostile to the original purpose of his father-in-law, but transferred the title to Branin, in order that it might be conveyed to the defendant, Margaret. This security of transfer was adopted, as he swears upon the advice of counsel. The land thus received a destination in conformity to the original purposes of Andrew Perrie (one of his daughters, Mrs. Truland, having in the meantime deceased.) If the testimony is sufficient to establish these facts, it is not inequitable that the title should be placed, as originally designed by Andrew Perrie; nor could the complainant justly esteem it a hardship if he should fail to subject it to. his debt. A circumstance worthy of note in this connection, is, that the [142] judgment of the complainant was for a copartnership debt of Truland and his partner, who had been merchants, and it may be supposed that the credit was rather given to the firm than to Truland personally. At all events, the joint assets would be the primary fund for the liquidation. We think that the chancellor was well supported by the testimony in the deduction which he drew, that Truland was actuated by the motives of complying with the wishes and intentions of Andrew Perrie, in making the conveyance, rather than a fraudulent intent, to hide property really his own-from his creditor. Truland certainly placed none of his means in the land. He received the title without paying anything; it was not fraud on his creditors for him to perform the agreement on which he received it. The equity of the defendant is equally strong, whether the trust resulted in favor of Andrew Perrie, from his ' advancement of the purchase money, or whether the lands were to be held for the equal benefit of his two daughters, the defendant, Margaret and Mrs. Truland. For the conveyances were made, because the father had advanced the money, and the title placed so that the lands might be enjoyed as he desired. The title so resting, before the complainant obtained judgment, he can not complain that the transaction is in fraud of his rights. A case very similar to this was recently decided in the supreme court of Pennsylvania, a synopsis of which will be found in the August number, 1871, of the American Law Register, page 533. S. having a contract with 0., for land, the wife of F. advanced the money, and the conveyance was made to F., he agreeing to convey to S., which he did. Judgment was recovered against F., under which his interest in the land was sold ; held that the transaction was not fraudulent as to the creditors of F., and the purchaser at sheriff’s sale did not therefore, get a title as against [143] S. It is to be inferred that as F. did not pay tlie purchase money, and invested nothing in the title, his creditors had no just reason to complain, that he fulfilled his engagement to S. by transferring the title to him. The doctrine seems to be reasonable and just, and applies to this case. * Truland’s occupancy of part of the premises as a residence, was with the consent of Andrew Perrie, and in part consummation of his original plan. The house which Truland built, and which was sold and removed, went in its proceeds to pay Truland’s debts. Testimony was given of Truland’s offers and his statements to sell the lands. The conversations and admissions of parties are not always the safest testimony. They may have been misunderstood, misrecollected. Such admissions may be casual, detached, not fully expository of the act or motive. The small price of $12, at which the complainant bid off the land, indicates that neither he, nor others had confidence in the title. It is not perceived for what reason he caused a second levy and sale some time afterwards to be made under his judgment, at which he bid off the property, at about ten times that sum, unless he supposed that his first insignificant bid brought his title into doubt. We think that justice has been done, and concur with the chancellor. Decree affirmed.