Caldwell v. Walker

Whitfield, J., delivered the opinion of the court. If profound legal ability were all that was needed to save an utterly bad cause, the appellant might entertain hope; but the facts in this record are beyond legal medicament, and bring the case squarely within the condemnation of McLean v. Letchford, 60 Miss., 169, and May v. Taylor, 62 Miss., 500, as appellant was duly advised at the outset by learned counsel. It is said that there has been here an ex post facto purgation of the actual fraud tainting the original conveyance, and the Oriental Bank v. Hoskins, 3 Met., 332, and Hutchings v. Sprague, 4 N. H., 469, and Thomas v. Goodwin, 12 Mass., 140, are mainly relied on to support the view. In the first case there was a “new agreement,” by reason of which the original paper stipulating for a reconveyance had become unimportant, and the whole discussion shows that it was the validity of the new agreement which protected the party. Hutchings v. Sprague is severely criticised in a later case in New Hampshire (Boardman v. Cushing, 12 N. H., 105, and in Albee v. Webster, 16 N. H., 362, 370). Hutchings v. Sprague and Thomas v. Goodwin, supra, are both said by Chief Justice Parker to hold merely that: “A sale may be fraudulent as to creditors on account of a secret trust accompanying it, but if, by a subsequent agreement, before the creditors interfere, the secret trust is discharged, and the sale is otherwise valid, the fact that the trust once existed will not operate longer to vitiate the sale, the fraud being purged.” And Mr. Bigelow says (2 Bigelow on Fraud, 408) that, where, “After the conveyance has been made, and before any steps have been taken against it by the creditor, a reconveyance is made, this is proper, and there is nothing then for the statute to operate upon;” and, concluding a review of the authorities, he says: “On the [890] whole (p. Ill) it is difficult to sustain the doctrine of purging fraud in its ordinary manifestation, and it is better to leave the parties to the unlawful transaction in the meshes of their own net.” The true view is that there is not, properly speaking, any ex post facto purgation of fraud, a doctrine which would encourage fraud and put a premium upon its perpetration. Cases which are said to illustrate that doctrine are often misunderstood, and simply hold that, where a conveyance which is voidable for fraud has been abandoned, and, bpfore the rights of third parties intervene, a new.and independent conveyance is made in good faith, it will be upheld, not because of any supposed purging of the fraud from the old, but because of the good faith and legality of the new conveyance. But, whatever the true doctrine, it has no possible application on the facts of this case. It is wholly immedicable. We see no good to be subserved by setting out at large the facts. Affirmed.