William Perry vs. Nathan Hayward, 12 Cush. 344

Shaw, C. J. The whole court, after argument, are of opinion that the instructions and direction proposed to be given at Nisi Prius, in this case, were correct, and that any evidence tending to show that the conveyances of Nathan Perry to his son William were without consideration and void as against the creditors of Nathan, would have been immaterial, because the tenant was not a creditor, and had no such conveyance under a creditor of Nathan Perry as would give him any title.

In the present case, we think both parties must assume that the deed from Nathan Perry to Alden, together with a simultaneous bond of Alden to Perry, to reconvey on a condition, constituted a mortgage; that the bond was strictly á bond of defeasance, and rendered the conveyance a defeasible one, which is the definition of a mortgage. The tenant must assume this, because otherwise Nathan Perry never made any mortgage to Alden; he had no equity of redemption; William Perry of Exeter, as a creditor of Nathan, could seize and sell no equity of redemption ; and the officer’s deed to the tenant was simply a nullity.

Supposing these documents together constituted a mortgage, and left an equity of redemption in Nathan, that .equity was an assignable interest; it was the estate subject to the mortgage, and the assignment of the bond of defeasance, and afterwards his transfer of the estate by deed of quitclaim, vested the estate in the son, subject to the mortgage.

The subsequent payment by William Perry, the demandant, to Alden, of the balance due him on his mortgage, and his release, made the estate absolute in Perry; and this occurred in June, 1850, nearly a year before the sale of the equity, in 1851, under which, and the officer’s deed made in pursuance of such deed, the tenant claims title.

But, says the tenant, these conveyances of Nathan Perry to his son were made without any consideration, and so were fraudulent and void as against creditors; William Perry, of Exeter, was an execution creditor of Nathan, and had a right to avoid the voluntary and fraudulent conveyances of his debtor by taking the estate; the sheriff was an officer of the law, authorized to take the property so fraudulently conveyed, and sell it in the mode prescribed by law, execute a deed to the highest bidder, and that deed will give a good title to the purchaser.

Supposing this to be substantially a correct view of the law of debtor and creditor, the question still recurs, how can the property thus conveyed without consideration be appropriated and made available by a creditor for the satisfaction of his debt ? If the property be real estate, if it be absolute, and not a right to redeem, it must be set off at the appraisal of men, in the manner provided by law, from the debtor to the creditor, and taken and held by the latter in satisfaction of his debt.

In the case of an equity of redemption, where the es tate is subject to one or more mortgages, by statute, the exe cution creditor, by the proper officer, is authorized to cause such equity of redemption to be taken on the execution, and advertised arid sold by the officer. The reason is very obvious; the estate may be. mortgaged for only a small part of its value, or nearly or quite to its whole value, and such a sale will enable a creditor to avail himself of the difference, if there be any, between the value of the land and the incumbrances.

Setting off by metes and bounds, or by an undivided part, would be wholly inapplicable. In no other case does the law warrant a seizure and sale of real estate on execution. In any other case, the proceeding by such seizure and sale is a perfect nullity. An officer having no title in himself, his deed, if it have any operation, must operate by way of the execution of a power. In a case warranted by law, where he acts within the scope of his authority, by selling an existing equity of redemption of the debtor on execution, he executes a statute power, and the estate passes to the purchaser by force of his deed.

But if there be no such equity of redemption, he acts without authority, the statute vests in him no such power, and his deed, like that of a stranger, is a nullity. The whole proceeding is void, and the purchaser takes no title. Even if the attachment on mesne process was rightly made on the equity, if the mortgage is discharged before the execution issues, the property must be levied on as an absolute estate, and not as an equity. Freeman v. M’ Gaw, 15 Pick. 82. But it appears to us that the proper mode of regarding the attachment on mesne process is, to consider it as an attachment of the estate.

Of course, it must operate according to the nature of the debtor’s rights in it. If it be under mortgage, the attachment binds the equity" and if it.so continues till the levy of the execution, it must be treated as an equity, and levied and sold according to law; but if, in the meantime, the mortgage has been paid and discharged, or otherwise removed, it is then an estate not subject to mortgage; it is absolute, and must be set off by metes and bounds, and by appraisement.

In the present case, it appears that whatever interest Nathan Perry had in the estate, or whatever his creditors had at the time of the attachment, in consequence of any conveyance of his, fraudulent as against them, the mortgage had been paid and discharged, and the estate had become absolute either in Nathan or William Perry, before the execution was levied, so that whatever right the execution creditor had, to make that estate available to the payment of Nathan Perry’s debt to him, was a right to levy on it specifically, not to sell the supposed equity of redemption.

It was intimated and somewhat urged in the argument, that the conveyances from Nathan Perry were absolutely void; that nothing passed to him thereby, and therefore he cannot maintain this action, whether the tenant has any title or not, because every demandant must recover upon the strength of his own title. But this argument, we think, fails in its foundation.

It is not true, in legal principle, that a voluntary conveyance by a debtor, to defeat his creditors, is absolutely void ; it is void only as against creditors, therefore only voidable; and creditors only can avail themselves of it, and avoid it, by treating it in the same manner as if there had been no such conveyance. As against all other persons, it is a legal conveyance, and passes the estate to the grantee. This is too familiar a principle to require authorities.

It is admitted in this case that Nathan Perry was seized ; that he conveyed all his title to William Perry by deed in due form of law; that William had possession under it; and the only ground taken to impeach his title is, that it was void as against creditors. If we are right in our former view, that it was not legally taken by the execution creditor of Nathan Perry, and that the sale was void, then William Perry’s legal title stands unaffected by any act of any creditor of Nathan, and is therefore valid, and gives him a right to recover in this action. Judgment on the verdict for the demmdmt.