McConihe v. Sawyer

Gilchrist, J. The case finds that the demandant offered evidence tending to prove that the conveyances from Sawyer to the tenant were made with the view of delaying and defrauding creditors; and that the court instructed the jury, that if they were made without consideration, and with this view, they were void as to the demandant, although his debt accrued subsequent to their execution. The counsel for the tenant objects, that they cannot be considered void merely because there is evidence tending to show fraud, but that there should be direct proof of the fraud. As to this point, it is admitted that fraud is never to be presumed, but that it must be proved. But in civil cases, the quantum of evidence upon which the jury should find a fact, or an intent proved, is not so strictly defined as in criminal cases, where the jury must be convinced beyond a reasonable doubt of the guilt of the accused, before they can properly return a verdict against him. Therefore, if in a civil case there be evidence competent to be submitted to the jury, because it tends to prove a fact, the jury may find the fact upon it. If they disbelieve it, or think it too slight to justify the conclusion desired by the party, they may lay it aside. It is a matter on which they are to exercise their judgment. — 403 — Now the pd&ition of the counsel is, in substance, that if the jury should not be satisfied, beyond a reasonable doubt, of the fraudulent intent in this case, if the evidence do not directly prove the intent they should find for the tenant. But we are not aware that this strictness of proof has ever been required in civil cases, even where fraud is alleged. If the evidence be legally competent to prove the fraud, it is for the jury alone to say whether they are satisfied that the fraud existed. And their result is a final one, unless their verdict should be so decided!}? against the weight of the contradictory evidence there may be on the point, that it would become the duty of the court, from a regard to justice, to set it aside. We think evidence of this character is sufficient to warrant the finding. The counsel has not, in his argument, objected to the instruction of the court upon this subject. But a doctrine contrary to that entertained by the court, could not be maintained. That subsequent creditors may take advantage of the fraud, and avoid the conveyance, is a principle stated in Smith vs. Lowell, 6 N. H. Rep. 67, and in Paul vs. Crooker, 8 N. H. Rep. 290; and is so generally the received doctrine both in England and the United States, as to be no longer an open question. The objection that land upon which an extent had been made, was not set out by metes and bounds within the meaning of the statute, does not appear to have been taken, or examined in any reported decision of this court, but it has arisen and been decided in other courts in New England; and there are decisions upon an analogous point in the English reports. In the case of Den vs. Lord Abington, Dougl. 476, it is held that the moiety of the debtor’s lands, extended upon by a writ of elegit, must be set out by metes and bounds. And the same point is decided in Fenny vs. Masters, 1 B. & Ald. 40, upon the authority of Lord Holt, in Pullen vs. Birkbeck, Carth. 453. It does not appear, from either of these cases, how minute — 404 — the description of the lands must be, or whether monuments should be erected, and distances given. But in the form for the sheriff’s return, contained in the inquisition upon a writ of degit, as given in the appendix to Watson’s Sheriff 386, the land is described as abutting towards the east, on, &c. ; towards the north, on, &c. ; towards the west, oil, &c. ; and towards the south, on,” &c., which is no more particular a description than, and as little a setting out by metes and bounds, as the return in the present case. And a return, even less precise, stating no abuttals nor boundaries, is contained in Bingham on Executions 428. It would seem, therefore, that so strict a construction is not given to the words “ metes and bounds,” according to the English practice, as is contended for by the counsel ; and his construction of these words would require that the description of the land should be complete in itself, without reference to any other lands ; that monuments should be erected, and that the spaces between them should be measured, so that a reference to the record would always enable any person to find the land, without inquiring into the boundaries of the adjoining lands. If the description depended entirely upon the monuments, there might be some practical difficulty in finding the lands, where no reference was made to land of other persons. But certainty' in the description is all that can be desired, and land might be said to be set out by metes and bounds, by such a reference to the boundaries of other lands as would adopt them as the metes and bounds of the land in question. Such has been the practical construction of the statute in this state, and a similar construction has been sanctioned by the courts in Maine and Massachusetts. In the case of Buck vs. Hardy, 6 Greenl. 162, the premises in an extent were described as “ the westerly half of the ground floor of the store occupied by E. S., and of the cellar under the same, divided from the residue of said store by a line running from a mark on the north side of said store through the centre of the same, southerly to land of J. H.” It was objected, that the land was — 405 — not set out by metes and bounds; but the court held that it would be going too far to require that, in every levy, the exact length of each line should be set out, and the exact quantity of land, in square feet, rods, or acres ; and that if the land were described with such certainty that there could be no doubt as to its location, it was sufficient. In Boylston vs. Carver, 10 Mass. 515, where the same objection was taken, it was held that the extent was sufficient, as a reference was made in the return to deeds of the same land, upon record, in which there was a sufficient description by metes and bounds. And a levy was held to contain a proper description by metes and bounds, in Hedge vs. Drew, 12 Pick. 141, where the land was described as the “westerly half” of a dwelling house, “ with the land the westerly half of said house stands on, and the part of the garden back of the said house, the width of the house,” to a bound specified. As it is not contended that there is any difficulty in ascertaining where the twelve acre piece is situated, and as the description, therefore, is sufficiently certain for every useful purpose, the judgment of the court is, that the land is set out by metes and bounds, within the meaning of the statute. The execution was extended also upon Sawyer’s interest in the land assigned to his wife, as her dower in the estate of her former husband ; and it is said that, with regard to this, there is a variance between the declaration and the proof; the demandant having counted upon a seizin in fee, and the case showing that the only estate he could acquire, under the levy, was an estate pur auter vie. This exception should have been taken at the trial. No question of seizin arose there, nor is any stated in the case. If the objection had been then taken, it might have been obviated by an amendment. Perhaps it may be said that this exception is rightfully taken, on account of the general clause in the case, which seems to save all exceptions to the levy. But this practice, of which instances often occur, of admitting evidence subject to exceptions, without a statement of them at the — 406 — time, is, at any rate, an extremely inconvenient one. If strictly adhered to, after every objection to matters of substance has been taken and overruled, the party excepting may still defeat his opponent upon a mere matter of form, which might easily have been obviated, if attention had been drawn to it at the trial. The only result accomplished by such a course, is delay; for, if the verdict be set aside on this ground, it is only that another trial may be had, which will surely establish the right of the party to a verdict, as nothing will remain to be done but to correct a formal error. Delays on such grounds are so opposed to a proper administration of justice, that we shall not set aside a verdict upon a question not raised at the trial, and which, if it had been raised, might have been settled definitively in the court below. We, therefore, consider the question of variance waived by the course taken at the trial. Lawrence vs. Barker, 5 Wend. 301. Upon this part of the case the only question, then, is, whether the levy has given the demandant a right to the possession of the dower lands for any period of time. The appraisers, after describing it, certify that the rents and profits are worth fifty dollars per annum, and that “they have set off the whole of the above described estate by metes and bounds.” The officer returns that he has given seizin and possession of the said tracts of land and buildings, to the creditor, and he returns the execution satisfied in part, for the sum of three hundred and sixty-four dollars for the land and buildings, and fifty dollars for the rents and profits. It is evident that the officer supposed, if, indeed, he had any definite idea on the subject, that the creditor could hold the land only for one year; and it would seem that he supposed it might be held so long, at any rate, even if the life-estate of Mrs. Sawyer should determine before the end of that time. The land is appraised at the sum of fifty dollars per year, and is set off by metes and bounds. The officer has delivered seizin of it, and has returned the execution sat — 407 — isfied for the sum of fifty dollars. This entitles the demand-ant to the possession of the land for one year, if Mrs. Sawyer should so long live. We see no difference in principle between this case, and one where the land is set off’to the creditor to be held for so long a time that the annual rent would extinguish the debt, if the tenant for life should live so long. No one can complain that the creditor takes less than he might have been legally entitled to, if the extent had been properly made, for no one is injured thereby but himself. But the tenant contends that an execution cannot be extended at all upon the rents of lands and tenements, unless it appear that they cannot be divided and set off; and that this levy is entirely void, because it does not appear that these lands cannot be divided. Whether the statute of July 4th, 1829, N. H. Laws 102, (Ed. of 1830,) was intended to apply to cases of this character, where the debtor owns only an estate for life in the rents and profits of land; or whether it apply to lands which, from their local situation and character, are not susceptible of division, is the question raised by this objection. Where the debtor owns an estate in land in right of his wife, the practice in this state has been to appraise the annual value of the land, and set it off to be held by the creditor, for a specified period, so long that the debt may be satisfied from the income. And in Massachusetts it has been held, that an execution against a tenant for life may be extended either on the land or on the rents and profits. Barber vs. Root, 10 Mass. 260; Roberts vs. Whiting, 16 Mass. 186. The statute referred to provides, that when lands cannot be divided and set out by metes and bounds, the sheriff shall extend the execution upon the rents thereof, and cause the tenant to attorn; and if he refuse, the sheriff shall turn him out of possession, and give seizin of the land to the creditor, to hold until the judgment is satisfied. Now, if the tenant in this case be correct, it must appear that the land cannot be divided and set out, owing to its local situation, or the execution cannot be extended upon the rents. — 408 — There would then be no mode in which to apply the estate of the debtor in satisfaction of the judgment, unless by sacrificing the rights of all other attaching creditors. If the land be set off without any limitation of time, the judgment may be satisfied before the determination of the life-estate, from the rents and profits, bat still the creditor may hold the land as long as the estate for life continues. A subsequent attaching creditor would thus be deprived of the benefit of his attachment. This would conflict with the first section of the statute, which provides that all estate, real and personal, shall be charged with the payment of the debts of the owner. In a case like the present, then, there is no other mode in which the creditor can derive any benefit from the property of his debtor, than by an appraisal of its annual value ; and we think the demandant was entitled to the possession for one year from the date of the return upon the levari facias, provided Mrs. Sawyer lived so long; and the quantity of the estate should have been so described in the return, that the possession should not extend beyond one year from the date. The possession of the land by the tenant, subsequent to the attachment, proves nothing either way, and the evidence on that point was rightfully rejected. Nor would his possession from the date of the deed have been at all material. The question was, whether the deed were fraudulent. If so, it was fraudulent at its date, and possession under it cannot alter the case. It would have been easier, perhaps, for the demandant to satisfy the jury of the fraud, if possession had not followed the deed; but, though the want of possession might have been indicative of fraud, the fact of possession does not tend to prove that the title under which it was acquired was bona fide. Judgment on the verdict for the tract first described.