Solomon Clapp versus James W. Leatherbee, 18 Pick. 131

Wilde J. delivered the opinion of the Court. This case comes before us on an exception to the charge of the judge to the jury, and also on a motion to set aside the verdict, because it is not sustained by the evidence. The jury were in structed, that if it was proved to their satisfaction, that the assignment to Tirrell was made without consideration, and for the purpose of defrauding Cushing, they should find the issues for the demandant.

The counsel for the tenant contends, that this instruction was erroneous, because Cushing was not a creditor of New-comb, and could not be defrauded by the assignment of the mortgage to Tirrell. On the other hand, the counsel for the demandant insists, that a mere voluntary conveyance without consideration, is, in law, deemed fraudulent as against subsequent bonâ fide purchasers for a valuable consideration. And this position is fully main tained by the English authorities. Previously to the case of Otley v.

Manning, 9 East, 59, this point was involved m no/ a little doubt by conflicting decisions, which are very fully reviewed and considered by Lord Ellenborough, and in conclusion he remarks : “ Thus stand the authorities on both sides of the question, and the weight, number and uniformity of those which establish the point contended for on behalf of the plaintiff, do, in our opinion, very much preponderate.” The same doctrine is contended for by the demandant in the present case ; so that the decision in Otley v. Manning is directly in point, and fully sustains the position taken on behalf of the demandant.

It was there decided, that a voluntary settlement of lands made in consideration of natural love and affection, is void as against a subsequent purchaser for a valuable consideration, though with notice of the prior settlement, and although the settler was not indebted at the time, and no fraud in fact was intended ; for the law, it was held, would presume fraud, upon the construction of the St. 27 Eliz. c. 4, without admitting such presumption to be contradicted ; and that a different construction would have so narrowed the operation of the statute, as to leave the persons meant to be protected by it subject to almost all the mischiefs intended to be guarded against.

And “ certainly,” says Lord Ellenborough, “ it is more fit, on the whole, that a voluntary grantee should be disappointed, than that a fair purchaser should be defrauded.” But although the construction of the statute respecting con veyances merely voluntary, is thus settled in England, we do not decide the case on this point ; because we are of opinion, that the assignment of the mortgage to Tirrell was not merely voluntary, but fraudulent ; and if so, then it is clearly void, according to all the authorities ; for in most, if not all the cases, in which it has been held that a voluntary conveyance may be good against a subsequent purchaser for a valuable consideration, the first conveyance was not merely voluntary, but was founded on a good or a valuable consideration. 8uch are the cases noticed by Lord Mansfield, in Cadogan v.

Kennett, Cowp. 434, and in Doe v. Routledge, Cowp. 7; 5. These cases are generally founded on voluntary family settlements, made bond fide, and, as Lord Mansfield expresses it, without any imagination of fraud. But all the cases admit, that if there is any fraud in a voluntary conveyance, or it is merely colorable, it can never be set up against a subsequent purchaser for a valuable consideration. Now it is clear from the evidence, that the assignment of the mortgage to Tirrell was colorable, covenous and fraudulent.

There is not the slightest evidence to show that it was intended as a gift, but merely to enable Newcomb more easily and effectually to avoid the judgment which Cushing might recover against him in the action then pending. This was a fraudulent and iniquitous purpose, and the assignment was void as against Cushing, both by the principles of the common law, and by the St. 13 Eliz. c. 5. It has been argued that Cushing was not a creditor, and, therefore, the assignment was not fraudulent under the statute. But this position cannot be maintained.

The statute declares void all feigned, covenous and fraudulent conveyances, made with the intent to delay, hinder or defraud creditors, or others, of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs ; not only to the let or hindrance of the due course of law and justice, but also to the overthrow of all true and plain dealing. This assignment then was clearly fraudulent, feigned, and covenous, and is therefore void as to subsequent purchasers, by the clear construction of the St. 27 Eliz. c. 4.

It has been argued, that the demandant is not a purchaser within this statute, because it relates only to real estate, and that mortgages are made personal property by the St. 1788, c. 51, § 1; but the statute only provides, that mortgages on real estate shall be assets in the- hands of executors and administrators as personal estate, and shall not descend to the heirs.

But'although it is thus to be treated as personal estate, it is clearly real estate, because in a court of law the mortgagee is considered as the owner of the land, and by the same section, the administrator or executor may bring a real action to recover seisin or possession. Again, it is denied, that a purchaser from an executor or administrator is within the St. 27 Eliz.; but we can perceive no difference between the rights of such a purchaser, and of one who had purchased of the testator or intestate ; and Burrel's case, 6 Co. 72, is decisive on this point.

It is there laid down, “ that if the father makes a lease, by fraud and covin, of his land, to defraud others to whom he shall demise or sell it, (as all fraudulent leases should be so intended,) and before the father sells or demises it he dies ; and the son knowing, or not knowing, of the said lease, sells the land on good consideration ; in that case, the vendee shall avoid that lease by the said act; for, inasmuch as it is intended and presumed in law, that every fraudulent lease is made to the intent generally to defraud purchasers, farmers, &c., within this generality every particular purchaser, farmer, &c. is included ; and the said act is very well penned, for the words of the act are general; and it is not necessary that he who sells the land should make the former fraudulent estate or incumbrance ; but be the estate, &c. fraudulent ut supra, whoever sells (makes) it the purchaser shall avoid such fraudulent estate, &c.” Upon these grounds we are of opinion, that the instruction to the jury was correct; and it is manifest that the evidence fully sustains the verdict.

The non-production of the note secured by the mortgage could only avail the tenant as evidence of payment; and as that ground of defence was not set up at the trial, the objection comes too late. Nor can the other objection to the verdict as to the second issue, prevail ; for admitting that there was no evidence that the assignment to Tirrell was fraudulent against creditors, still the verdict is substantially, though not literally, correct.

The part of the issue as to creditors was immaterial, for as the jury were justified in finding that the assignment was void as against subsequent purchasers, the other part of the issue becomes unimportant. Upon the whole matter, therefore, we are of opinion,- that the demandant is entitled to judgment.