William W. Wise & al. vs. Robert Tripp, 13 Me. 9

The action was continued nisi, and the opinion of the Court afterwards drawn up by Weston C. J. Tripp, not being tenant of the freehold, but the tenant at will of Timothy Shaw, at first relied upon this fact by way of defence ; but it having been agreed by the immediate parties, and by the counsel for Shaw, that the title should be set-tied upon its merits, as if the action were brought against Shaw, that ground of defence is waived. The question then is, whether upon the facts, the demandants are entitled to prevail against Shaw.

The parties have agreed, that the facts reported by the Judge, in the case of Shaw v. Michael Wise, 1 Fairf. 113, "are to be considered as facts, and to make a part of this case.” We do not understand, that the competency of the testimony, by which those facts were ascertained, is now open to inquiry. But if it were, we perceive no sufficient objection to the competency of Stanley. The rule that a witness shall not defeat by his testimony an instrument, to which he is a party, is confined to such as are negotiable. Worcester v. Eaton, 11 Mass. 368.

The interest of Stanley was rather to sustain the deed, he gave with general warranty to Wise; and if he gave a warranty to Shaw, his interest would be balanced. In March, 1829, Tripp possessed a valuable interest in the contract he had made with Stanley for the purchase of the land in controversy, upon which he had paid nearly two thirds of the purchase money. The legislature had previously made that interest liable to attachment. Stat. of 1829, ch. 431. It was an extension of the remedial process of the law to existing interests of a debtor, which'may have been purchased with the funds of the creditor.

It did not impair the obligation of a contract, but made it available for the fulfilment of contracts between debtor and creditor. On the eleventh of the same month of March, Tripp, the debtor, avowedly for the purpose of defeating his creditors, made over his interest in the land to Michael Wise. And in furtherance of this object, the bond he held from Stanley was given up and cancelled, and Stanley, fully apprized of what was intended, by the procurement of Tripp, conveyed to Wise, who paid nothing from his own funds, either before or after the conveyance.

Whether the attachable interest of Tripp, thus attempted to be put out of the reach of his creditors, vested in the personal contract of Stanley, or is to be regarded as real estate, the course pursued was equally fraudulent, and liable to be avoided in favor of acreditar, The law has been long settled, that every gift, grant or sale, thus fraudulently made, either of lands, or of goods and chattels, is void as to creditors. On the twenty-first of March, 1829, Sliatv, a previous creditor, attached the interest of his debtor, Tripp, arising from his contract with Stanley.

We are of opinion, that he had a right to do so; and thus to avoid and vacate the proceedings of Tripp and Wise to defraud him. Judgment being rendered in his favor, within thirty days thereafter, he caused the interest he had attached to be sold, in the manner required by law, of which he was the purchaser. He thus became by law entitled to a conveyance ftom Stanley, according to the original condition of his bond. As a remedy to enforce this right, lie might have prosecuted a bill in equity. But this coercive process is not necessary, if the contracting party will voluntarily make the conveyance without it.

In September, 1832, Stanley did convey to him, by which bis riglit was consummated. The previous title of Michael Wise, founded as it was in fraud, has no claim to he preferred to that of Shaw. Have the demandants, to whom Michael conveyed, any better title to hold the land, purged of the fraud, to which their grantor was a party ? We think not. One of them was conusant of the fraud, by which the creditors of Tripp were attempted to be defeated.

Having been present at the former trial, he knew that his grantor bad no beneficial interest in the land ; — that it had been purchased with Tripp’s money, and put into the hands of Michael Wise for fraudulent purposes. Notice to one of the demandants is equivalent to notice to both. They cannot then be regarded as bona fide purchasers. Upon the facts agreed, we are all of opinion, that the tenant is entitled to judgment.