Samuel Gunn et al. versus George Butler, 18 Pick. 248

Shaw C. J. delivered the opinion of the Court. The instrument upon which the question arises, between these parties, is a very peculiar one. It was contended on the part of the tenant, who claims under the levy of an execution, on which the estate was set off, in 1821, as the property of Gideon Gunn, that supposing the deed from Gideon to Calvin to be valid, and to have been duly delivered, still Gideon had' such an estate in the land as to justify the levy.

This claim is founded on that clause in the indenture, in which it was slip ulated, that the covenants of Calvin should constitute a charge and lien on the land. Whether the clause would be sufficient to create such lien or charge, or whether it would be deemed a declaration of trust to hold for the benefit of all those entitled to beneficial interests in the performance of those covenants, to be enforced in equity, it is not now necessary to decide ; the Court are of opinion, that under that deed, Gideon had no legal estate capable of being levied upon by execution.

The most that can be made of the clause in question is, that it was a mortgage back by Calvin, conditioned for the performance of his covenants. It does not appear that Gideon, the father, ever entered for condition broken, or gave notice to hold for condition broken, or otherwise treated the estate as a mortgage. Then the question is, whether, as against creditors, this conveyance from Gideon to hi? son was valid. There are, in the provisions of the indenture, circumstances creating a strong suspicion of fraud on creditors, if he was then in debt.

He speaks of it as a final settlement of his estate, and yet there being nothing said of the disposal of the $ 1200, it leaves room to believe, that the consideration was merely nominal, and not intended to be paid. It has the appearance of being a final disposal of the whole of his property, and most of the stipulations of Calvin are for future provisions for the grantee himself and those dependent on him.

Still, however, as it purports to be made on a.pecuniary consideration, and contains -erous stipulations on the part of the grantee, it cannot be said to be a voluntary conveyance, to be pronounced fraudulent against creditors as matter of law. But if it be true, as it '« now stated, that no consideration was in fact paid, that it was a conveyance of the whole of the grantor’s estate, that he was indebted at the time, and that the conveyance had a tendency to defraud and defeat or hinder the creditors, a jury should be instructed, upon finding these facts, to find the deed fraudulent against creditors.

It was stated, as a consideration tending to rebut the presumption of fraudulent intent as against creditors, that, by the terms of the contract, Calvin stipulated to pay his father’s debts, at his decease. This argument fails m several respects ; first, it is only to pay his father’s debts out of his, the father’s personal property ; there was no provision for the payment of his debts in his lifetime, and the creditors would at least be delayed and hindered in the recovery of their debts.

Besides, the rights of creditors are not to be affected by a mere executory contract of the debtor with a third person, to pay the debts for him. This stipulation does not essentially alter the character of the transaction. This case stands clear of the question, often much discussed, upon fradulent conveyances, and the effect and construction of the statutes of 13 and 27 Eliz., whether a voluntary settlement will be held void, as well against a creditor of the grantor, becoming a creditor after a conveyance, as against one who was a creditor at the time.

In this case, the debt for which the estate was levied on was a debt originating in a bond to the judge of probate, given long before the conveyance of Gideon Gunn to his son Calvin ; against such a creditor, i voluntary conveyance must be held fraudulent and void. The Court are of opinion, that as the validity of the deed depends upon the question, whether it was given without valuable consideration, or intended to defeat or hinder creditors, and as this is a mixed question of fact and law, it ought to go to a jury, upon a new trial, under instructions in point of law, as hereinbefore stated.

The delivery of the deed under which the demandants claim, having been tried and found for them, on the former trial, the verdict is set aside on the terms that, on the new trial, the tenant will not contest, but will admit that fact. Mew trial granted.