Moses Guild et al. versus Horatio Leonard, 18 Pick. 511

Putnam J. delivered the opinion of the Court. The plaintiffs claim a sum of money in the defendant’s hands, being a balance arising from the sale of a right in equity to redeem certain real estate, sold as belonging to Walcott and Whipple, to satisfy two executions in favor of their creditors. The sale was made by a deputy of the defendant. The plaintiffs’ right is attempted to be maintained, under the deeds of Walcott and Whipple.

The first question to be considered is, whether the deed from Walcott to Whipple, made on the 15th of June, 1829, is, upon the facts stated in the report, to be adjudged fraudulent against creditors. It is a deed poll. It purports to have been made for the consideration of $ 500, and contains an agreement on the part of the grantee, to save the grantor harmless from the debts due from the parties (who were partners,) fi-om Bennett Whipple & Co., of Cumberland, and from the Lanesville Manufacturing Company. The case finds that the $ 500 were not paid, and that the grantee did not execute the deed.

And the deed has no habendum. The objection is, that a valid consideration has no> been proved. But the grantee accepted the deed upon the terms therein set forth ; and he would be liable in an action of assumpsit to pay the creditors of the grantor and indemify him against his liabilities, according to those terms. The law would imply such a promise and undertaking by the grantee, notwithstanding he did not execute the deed. Such a promise would be legally implied from his acceptance of the deed which contained the undertaking or stipulation of the grantee. He must take the estate accordingly. Goodwin v.

Gilbert, 9 Mass R. 510. And there are facts stated in the case, from which a jury might infer that the grantee went on and paid the debts according to the intent of the parties. The estate conveyed being subject to a mortgage, the grantee took a right in equity tr redeem the same.

The right which Whipple acquired, was conveyed to the plaintiffs in virtue of the deeds of the 23d of April, 1830, and of the 15th of January, 1831 ; but subject to the attachments made by the creditors of Walcott and Whipple before April, 1830 ; pursuant to which the two executions, issued upon judgments recovered by those creditors, have been properly levied and satisfied by the sale of the equity. But those deeds were good against the attachments which were subsequently made. And they are to be maintained upon the same grounds as are stated before as sufficient to support the deed from Walcott to Whipple.

Nothing appears in the facts reported, from, which these deeds are to be adjudged fraudulent as to creditors. They were not made to delay or defeat creditors, but to prefer some creditors over others ; which was a lawful and not a fraudulent intent. And the debts due to such preferred creditors were all paid before February, 1832, when the attachment was made by the creditors of Walcott and Whipple, for whom the defendant makes this defence.

We are all of opinion, that the plaintiffs are entitled to recover of the defendant the proceeds of the sale of the right in equity, &c. remaining in his hands, after deducting the amount of the two executions and fees described in the plaintiffs’ declaration, with interest from the 23d of March, 1832, when the plaintiffs made their demand.