Robinson v. Holt

Fowler, J. By the statute of 13 Elizabeth, chapter 5, made perpetual by 29 Elizabeth, chapter 5, and adopted as part of the common law in this State, “ for avoiding feigned, covenous and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments and executions, as well of lands, tenements and hereditaments, as of goods, chattels, wares and merchandize, which feoffments, &c., have been devised of malice, fraud, covin, collusion or guile, to the end, purpose and intent to delay, hinder or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, &c., not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing,” &c., it was declared and enacted in the second section, “that all and every feoffment, gift, grant, alienation and conveyance, and all and every bond, suit, judgment and execution, to or for any intent or purpose before declared and expressed, shall be from henceforth deemed and taken,” as against such creditors and others, and their representatives, “ to be utterly void and of none effect.” The act contained a proviso in the sixth section, excepting from its operation transactions upon a good consideration and bona fide. The finding of the jury in the present case, that it was the intention of the debtor, when he gave the plaintiff his mortgage, thereby to put his property in such a position as to defraud, hinder or delay his creditors, and that this intention was known to the plaintiff when he took the mortgage, brings the conveyance under which the plaintiff claims to recover within the express prohibition of the statute, and excludes the plaintiff from all benefit of the proviso thereto, in accordance with repeated decisions of our own courts, since he who purchases or takes a mortgage of property, with knowledge of the fraudulent design of the vendor or mortgagor thereby to defeat, hinder or delay his creditors, is, in law, charged with a participa [562] tion in the fraud, although he may pay a full consideration, and take immediate and open possession. "When the purchaser or mortgagee makes the purchase or takes the mortgage, with knowledge of such fraudulent intent on the part of the vendor or mortgagor, the transaction cannot be said to be bona fide, however full and valuable the consideration may be. Twyne’s Case, 3 Coke 80, and authorities ; S. C. 1 Smith L. C. 35-80, where the principal authorities, English and American, are collected; Coburn v. Pickering, 3 N. H. 315; Parker v. Patten, 4 N. H. 176; Trask v. Bowers, 4 N. H. 309; Smith v. Lovell, 6 N. H. 67; Paul v. Crooker, 8 N. H. 288; French v. Hall, 9 N. H. 137; Page v. Carpenter, 10 N. H. 77; Clark v. Morse, 10 N. H. 236; North v. Crowell, 11 N. H. 251; Smith v. Smith, 11 N. H. 459; McConihe v. Sawyer, 12 N. H. 396; Blake v. White, 13 N. H. 267; Seavey v. Dearborn, 19 N. H. 351; Blodgett v. Webster, 24 N. H. 91; Kimball v. Thompson, 4 Cush. 441; Bridge v. Egglestone, 14 Mass. 245. The question, predicated upon the finding of the jury, that the plaintiff allowed the hay mortgaged to him to be so mixed with the hay of the debtor that the defendant, upon making reasonable inquiry, as he did, was unable to distinguish one from the other, is entirely superseded by holding the plaintiff’s moi’tgage void under the finding of the jury upon the other branch of the case. Still, it seems to us entirely clear, that, had the plaintiff’s mortgage been valid, the defendant did all he was bound to do under the circumstances, and would have been justified in selling the plaintiff’s hay if any such had been intermingled with the debtor’s. He permitted the hay mortgaged to him by the debtor to become so mixed with the hay of the debtor that the defendant, after making every reasonable inquiry and effort, was unable to,distinguish what was the debtor’s and what had been mortgaged to the plaintiff The plaintiff gave no notice of his claim, and did not offer to identify or point out any portion of the hay as his own. The [563] intermingling- was by tbe fault or neglect of tbe- plaintiff in the first instance, and so intimate tbat upon diligent inquiry tbe defendant could not distinguish tbe bay of the plaintiff from tbat of tbe debtor. Tbe plaintiff neglected to identify bis property, and omitted even to give notice of any claim. A portion of the bay belonged to tbe debtor, and this tbe defendant bad a right to attach and sell upon tbe writ and execution against him. With this bay the plaintiff bad negligently and carelessly permitted bis bay to become so intermingled as to be undistinguisbable from it. On general principles, therefore, tbe mass of bay became tbe property of the debtor, as between tbe plaintiff and an officer attaching tbe same upon a writ and execution against tbat debtor. The doctrine of tbe confusion of goods has been often discussed, and may be considered as clearly and distinctly settled. If tbe goods of several intermingled can be easily distinguished and separated, no change of property takes place, and each party may lay claim to his own. If tbe goods are of tbe same nature and value, although not) capable of an actual separation by identifying each particular, if the portion of each owner is known, and a division can be made of equal proportionate value, as in tbe case of a mixture of corn, coffee, tea, wine, or other article of tbe same kind and quality, then each may claim bis. aliquot part; but if the mixture is undistinguishable, because a new ingredient is formed, not capable of a just appreciation and division according to tbe original rights of each, or if tbe articles mixed are of different values or quantities, and tbe original values or quantities cannot determined, tbe party who occasions, or through whose* fault or neglect occurs tbe wrongful mixture, must bear tbe whole loss. Lupton v. White, 15 Ves. 432; 2 Black. Com. 405; Hart v. Ten Eyck, 2 Johns. Ch. 62, 513; 1 Story Eq., secs. 468, 623; Story Ag., secs. 205, 333; 2 Kent Com. 364, 365; Story Bail., sec. 40; Bond v. Ward, [564] 7 Mass. 123; Shumway v. Rutter, 8 Pick. 443; Dane Abr., ch. 76, art. 3, sec. 15; Armory v. Delamirie, 1 Str. 505; Panton v. Panton, cited 15 Ves. 439; White v. Lady Lincoln, 8 Ves. 363; Chadworth v. Edwards, 8 Ves. 46; Newman v. Payne, 2 Ves. Jr. 203; Ryder v. Hathaway, 21 Pick. 298; Lewis v. Whittemore, 5 N. H. 364; Seavey v. Dearborn, 19 N. H. 351; Walcott v. Keith, 22 N. H. 196; Wilson v. Lane, 33 N. H. 446; Gilman v. Hill, 36 N. H. 311. As the plaintiff’s mortgage was void from its inception, as against the creditor for whom the defendant acted, and, if it had not been,'the plaintiff’s hav was so interminvled with that of the debtor as Jaffiajrffijsfmguishable from it, the exceptions taken to the verdict in the court below must be overruled, and the judgment rendered upon it affirmed. Kxceptions overruled.