Henry Brackett and Wife vs. Wait and Moulton, 6 Vt. 411

The opinion of the court was pronounced by Williams, Ch. J. — 'This cause has heretofore been before this court. In 1831 a trial was had before a jury, and the county court decided that a conveyance made to a child for the consideration of love and affection, by a person indebted at the time, was void against his existing creditors. On exceptions the cause came before this court at their term held in this county in 1832. After a full argument and examination of all the authorities, the judgment of the county court was reversed.

All the questions then made and decided, are to be considered as settled, and we shall not therefore, enter into an examination of the authorities which have been cited at this time upon that subject. Where a case comes before this court, whatever points are made, considered and decided, are treated as the law applicable to that case, while it remains in controversy, and to all others similar, unless the court should require a further investigation, the law should be found to be different, and the decision overruled.

The statute of 27 Elizabeth, was considered as not adopted and not necessary or applicable under our recording system. Our present statute is amply sufficient to protect purchasers or others by avoiding all conveyances made with intent to avoidw the right, debt, or duty of another. All the cases in relation to the effect of the statute of 27 Elizabeth on voluntary conveyances, as to the after purchasers, for valuable consideration, are irrelevant to the present inquiry.

Whether the term, good consideration, intends a consideration founded on natural affection only, or whether it is to be considered as equivalent to the term valuable consideration, whether a conveyance may be void as to after purchasers, and not as to creditors, is of no importance, and does not affect the question under consideration.

In this case also, when it was formerly before this court, it was decided that a voluntary conveyance made for love and affection, was not per se fraudulent as to existing creditors, that if the estate granted was not an undue provision for a child, and did not so far impair the means of the grantor, as to create a presumption of fraud and to be necessarily injurious to creditors at the time, or, in other words, if the gift was not unreasonable, considering the circumstances of the grantor; if he was not at the time greatly embarrassed, but retained ample funds, unincumbered, for the payment of his debts, and had no fraudulent intent, such gift or conveyance would be sustained.

This case is not to be distinguished from that because there was a difference in the estimate made by the witnesses of the amount of debts due from the grantor, and in the value of the property which he owned, provided the difference was not so great as to show that the conveyance in its immediate effect, was depriving the grantor of the means of satisfying his creditors. The estimate of both the debts and property might vary according to the time to which the attention of the witnesses were called, and would be very likely to- vary from the circumstances mentioned in the argument.

The debts may have been estimated, after he purchased the raw material for carrying on the factory that year, and the material itself not taken into the account in estimating his property. The effect ■of the deed from the administrators of Ford to M. Wait, was also considered when the cause was before us two years since. If that deed either established or. confirmed the defendant’s title, a new trial would not then have been granted.

The questions which have been raised at this time and which have not heretofore been decided by the coprt, are 1st, as to the evidence of the notice to the defendant of the plaintiffs’ deed. The instructions which the defendant claimed should have keen ffiven to the jury, are set forth, in the third particular of his request to the court.

This request appears to be more in the nature of argument than a request, and scarcely presents a. point on which the court could have fixed. -They however adverted to the evidence, and directed the jury, that if it was believed, it was sufficient to prove that defendant had notice of the plaintiffs’ deed. It is difficult to lay down any general rule upon this subject, and every case will have to depend upon the proof applicable to the case.

The expressions which have been made use of by the judges and chancellors, were not intended to lay down any general rule applicable to all cases, but were made with a view to the cases before them. To give effect to a deed of a prior date unrecorded, against a deed recorded, there is no doubt but that it must be proved, that the second grantee had notice of the execution, contents and existence of the prior deed. That the defendant had this notice was abundantly proved, by the testimony of the witnesses.

He evidently did not consider that he was purchasing a title or taking a mortgage, when there had been no previous conveyance. When his' mortgage was executed he was not present, but the deed to the plaintiff, was the subject of conversation. The first information which the defendant had of the mortgage to him, was accompanied with notice of the existence of the plaintiffs’ deed, and he accepted of the mortgage, not, because he was unacquainted with the deed to the plaintiff, but because he considered it as inoperative.

If he had notice of the execution, contents, and existence of the deed, he took his conveyance, risking the consequence of its proving to be effective, and is not to be protected from the effect of this notice, because he formed an inaccurate opinion in relation to its validity. 2. It has been contended there was no delivery of the deed to the plaintiffs by Ford. But, aside of the presumption that every one accepts that which is for his benefit, the evidence as detailed in the case proved a delivery beyond all controversy. A delivery may be to the party himself, or even to a stranger for his benefit.

A deed of gift to a wife during cover-ture, if accepted by her husband, is accepted by her, and her refusal apart from her husband, can be of no consequence. As the jury were charged upon this point, there can be no doubt that the facts in evidence, if believed, proved eveiy thing necessary to make a perfect and complete delivery of the deed in question. _ _ 3. It has been made a question, whether the evidence that Mr. Ford was in poor health, hypochondriacle, and subject at times to depression of spirits, ought to have been admitted.

If this testimony was intended to qualify his admissions or declarations made at the time he was out of health, or to show that they ought not on this account, to be received as full evidence of the facts admitted, it was unquestionably proper evidence. Admissions against the interest of the party making, are received, because it is not supposed that a person will admit any facts against his interest, unless they are true.

But they are only evidence of facts liable to be explained or even contradicted ; and the conversations of a man in relation to his property, when in a state of gloom and despondency, would undoubtedly be influenced by his state of mind; There is however another very substantial reason why the objection is not entitled to any consideration. The evidence which this testimony was introduced to rebut, was wholly improper and inadmissible. The solvency or insolvency of Mr. Ford was a fact to be proved by the usual and ordinary evidence. .

His declarations to that effect were not the proper evidence of the fact, but having been received without objection, it was proper-' to qualify them, to show what was the state of his mind when' they were made. 4. Evidence of the declarations of- Ford at the time of his executing the deed to Wait the defendant was offered and rejected, and it is now claimed that it was admissible as part-of the res gesta. But it was not a part of any transaction, to which the plaintiffs were a party. This was a transaction between Mr. Ford and the defendant, Wait. The plaintiffs were not present, nor were they any party to it.

It they had any estate or right in the land, it was complete before this. The deed at this time was in the possession of Mr. Ford. If it had not been delivered to and accepted by the plaintiffs, Ford' might convey to the defendant and his title would be complete by the mortgage deed there executed. The evidence could1 not be received to show that the deed had nof been delivered to the plaintiffs- The defendants were bound to prove that-^act ^ other evidence, and if the deed had been delivered, the title had passed from Mr.

Ford, and his declarations could not be received in evidence to destroy the title which he had conveye(h TRis evidence therefore was properly rejected. 5. The defendants were not entitled to the decision and sharge as mentioned in their fifth request to the court. The request supposed a fact, not in proof, to wit, that the grantor remained in possession. The object of recording is for the purpose of giving notice. Deeds may, and frequently do lay unrecorded for years, and no one is injured thereby. This may afford evidence of neglect, but is far from being evidence of fraud in all cases.

The grantor remaining in possession, if unexplained, may be evidence of fraud. The charge to the jury was satisfactory on this* point and contained all that was necessary to be said on the subject. The court were under no obligations to suppose a state of facts not in evidence, and then state how the law would be under a different case than the one before them.

The existence of the lease to Fitts and his possession under it was a sufficient reason why the plaintiffs did not take possession'during the life of the grantor; and the circumstances of the deed having been unrecorded for only two months, did not afford any presumption either of a fraud or reconveyance from the plaintiffs to Ford. 6. The defendants contended that the deed to the plaintiffs was upon a consideration different from the consideration expressed.

If there was any consideration either valuable or good, it would support the deed, as between the immediate parties thereto, and it is not very usual in deeds which are really executed for love and affection, which is termed a good consideration, to express pecuniary consideration in the deed. This consideration of love and affection is frequently inferred from the situation of the parties, whether it is expressed or not.

If the deed was executed upon either of these considerations, as has been remarked, it was good between the parties, and though one was expressed in the deed and another was the true consideration, it was not on that account fraudulent, however that may have been evidence of such an intent.

The defendant in his argument to the jury, was entitled to, and undoubtedly availed himself of every argument and inference arising either from the manner of its execution, the fact of a pecuniary consideration being expressed when a good consideration was the only one intended, the delivery and the manner of it, the place where it was kept, the fact of the grantor having the custody and possession of the deed, and all the circumstances attending it, as evidence of actual fraud, or that the deed never was delivered.

But we cannot consider that expressing a pecuniary consideration in a deed executed as an advancement, makes the deed fraudulent.. A sum is sometimes inserted as a consideration of deeds executed for that purpose, to show the amount of the advancement. It has been argued in this case, and it frequently is argued, that the charge should have been in some particular words, that, some other principle of law should be laid down, or that it should have been expressed in different language.

Unless the court charge incorrectly on the points arising in the case and to which their attention was directed, it is not a ground for granting a new trial or reversing' the judgment, that they do not state some other principle of law not arising from the facts to which their attentoin was not called, more especially if they were not reminded of their omission at the time, or because they did not adopt some other words or’ form of expression. 7.

The charge of the court on the -question whether the plaintiffs’ deed was to be considered as fraudulent, has also been objected to, and presents an important and the most important question in the case. The court was requested to give particular instructions involving not only the considerations of the points decided in this case before, but also of other particulars, in which it is contended this case is distinguishable from the one as before presented to the court.

It is obvious, as has already been observed, that a mere difference in the amount of the debts and .property, if not so great as to break in upon the principles established by that decision, would not be any criterion to distinguish this case from the one then presented.

The principle which was then, and now recognized, is this, that a voluntary conveyance made for the consideration of love and affection (which is to be distinguished from a conveyance purely voluntary or made for no consideration, and which would undoubtedly be adjudged void against ere ditors,) is not to be avoided by the creditors of the grantor if he was not greatly indebted at the time, and the conveyance under ordinary circumstances, and the events which are to be expected in the common and ordinary course ot business, would not impair the security which his creditors had a fight to look to, for payment of their esPecially ^ retained, in his hands ample funds and means for satisfying all the claims of his creditors. g this it is not to be understood, that a man in debt, although his property may exceed the amount of his debts, is at liberty to settle upon his sons and daughters property to any amount, retaining a bare sufficiency for the payment of his debts, at an estimated or appraised value.

Or that he may make such settlements, being in debt to a large amount, and having a large amount of property on hand, if in the usual course of business, a change in the market, a depression in the prices of the goods which he usually sells, a rise in the price of the raw material if he is a manufacturer, and similar fluctuations and changes which all kinds of business are subject to, he could not meet his debts with the property left, or the credit which he could fairly and honestly obtain on the security of that property.

There are events as well as the dealings and dispensations of Providence, the prospect that his labors might be interrupted by death, which every prudent man in business should ever contemplate, and should not so incumber or lessen his property by provisions for his children, that on the happening of those events his creditors would be injured.

The manner, however, in which his estate would be settled, whether by a prudent or honest administrator or otherwise; whether it would be swallowed up by unjust and improper claims; whether a proper or improper allowance should be made by the court of probate to his widow ; and whether the expense of settling the estate would be great or small, could not be guarded against and would rarely enter into the consideration of a man of wealth in giving portions to his daughters on their marriage, or setting up his children in business.

He should consider, however, that his business might be stopped, and retain sufficient to satisfy his creditors if that should be the case. But it was correctly observed by the judge who delivered the opinion of the court when this cause was before us heretofore, and by tire judge who charged the jury at the last trial, that a man could not anticipate, nor was he under obligation to anticipate in making provisions for a daughter, that all his property might be swept away at once by- a flood.

It must be admitted, however, •that the charge of the court on this part of the case, in answer to the request of the defendant, at first view, would seem hardly reconcilable with the foregoing principles recognized by the ¡court. The rule apparently laid down by the county court as a naked proposition of law, without reference to the facts could not be supported, inasmuch as it would seem to carry the idea, that if a man retained abare sufficiency at appraisal to pay his debts, he might convey all the residue of his property to his children, as a voluntary gift.

But when the charge is taken in connexion with the facts as stated in the bill, and as applicable to the evidence then before the jury, to wit, that the property of Mr. Ford was worth from forty-eight to fifty-one thousand dollars, and that his debts would not exceed, twenty-five thousand dollars, one half of which was secured on his real estate, and that the property destroyed was more than enough to satisfy all his debts, the jury could not have been misled, nor could they have been warranted in inferring that the grant or deed was fraudulent, or that the circumstances of Mr.

Ford were such as to warrant any presumption of a fraudulent intent in him in making the deed to the plaintiffs.

The means of his creditors to coerce a payment of their claims, were not impaired by this grant, they were as ample as before, nor did the conveyance either embarrass the grantor or materially lessen his ability to pay or fulfil his engagements ; and if the jury had been called on to decide the case as suggested by the judge, a day or two before the flood, they would not have hesitated in saying that the conveyance was upon a good consideration, and did not tend to avoid, delay or hinder any of his creditors.

Considering it in this view, the charge of the court does not militate with the principles of law as established by the court. We should not then do justice to set aside this verdict for the purpose of having a charge given to the jury, stating the principles of law more clearly and particularly as we think the jury were not misdirected or misled in the views which they must have taken of the case. The judgment of the county court is therefore affirmed.