Jackson ex dem. Van Alen v. Ham — 15 Johns. 261

Majority

p. 261

Jackson, ex dem. Van Alen, against C. I. Ham.

Headnote

A> >n Mío, conveyed a of land to of qualifying voter, no coniúgei%¡<í" and itg^ín 'p™sestion'fo^a t!>rt waS|, afterduring its’pen-B." reconveycJ a" judgment ^instB^'and Únder "execu? tion- Re!d> ejectment brought by the purchaser nant in possesreconveyance'" todeftaldTre" vddbyThesmtuteof f‘;ailds' nor could it be avoided by the purchaser un4cr the «seention, although1"-a purchaser for valuable con- ; for those voluntary deeds which the statute avoids as to a subsequent purchaser, must have been made with intent to deceive, the evidence of which is the voluntary conveyance coupled with a subsequent agreement to sell, which cannot lie the case where the purchase b made, •not of the party, but through the intervention of the law»

THIS was an action of ejectment which was tried befo r e Mr. J. Van Ness, at the Columbia circuit, in 1816.

The plaintiff’s lessor claimed as purchaser under an execution against Wendell C. Ham, and gave in evidence a judgment in an action for a tort in favour of D. Van Men, against W. C. Ham, for 1019 dollars and 20 cents, docketed on the 1st of November, 1815 ; an execution issued thereon, tested in October, 1815, and returnable in January term, 1816, and a deed from one of the deputies of the sheriff of Columbia to the lessor of the plaintiff, dated March 11th, 1816. The defendant was in possession of the premises contained in the deed. It appeared that the defendant, in the' spring of 1810, gave his son, Wendell C. Ham, a deed for part of the land contained in the sheriff’s deed, expressed to be for the consideration of 250 dollars, no part of which, however, was paid, and the intent of , ..... , the conveyance was to qualify his son to be an elector in that year. On the 9th of July, 1814, W. C. Ham re-conveyed to the defendant, by deed of that date, in which the consideration was stated to be 250 dollars. The re-conveyance was subsequent to the commencement of the suit in which the execution issued.

A verdict was taken for the plaintiff, subject to the opinion / of the court on a case containing the facts above stated.

p. 262

Van Buren (attorney-general) for the plaintiff, contended,

that the deed of W. C. Ham to the defendant, was a mere voluntary conveyance, and was fraudulent and void as against creditors and bona fide purchasers. He cited, Verplank v. Sterry, 13 Johns. Rep. 536 , in error, S. C. 1 Johns. Ch. Rep. 261 . 268. Doe, ex dem. Ottley, v. Manning 9 East Rep. 59—71.

E. Williams, contra, insisted,

that this was not a voluntary conveyance ; that the deed expressed a consideration of 250 dollars, acknowledged to have been received by the grantor, and which had not been disproved. The defendant ought to have shown satisfactorily, that it was a mere Voluntary conveyance.

delivered the opinion of the court. The lessor of the plaintiff claims as a purchaser under a sale made by the sheriff of Columbia county, upon ah execution founded on a judgment, docketed the 1st of Nov. 1815, against Wendell C. Ham ; and it appears that the defendant, in April, 181.0, gave a deed to Wendell for about 20 acres of his farm, for the nominal consideration of 250 dollars, but which was not paid, to make him an elector. The defendant produced a deed from Wendell to him dated in July, 1814. re-conveying the same land for the expressed consideration of 250 dollars. The judgment against Wendell was for a tort, and the suit was commenced prior to the re-convey-once.

The point is, whether the re-conveyance by Wendell to the defendant, was fraudulent and void as against the purchaser at the sheriff’s sale.

I cannot consider the deed of 1814 as a fraudulent or voluntary deed within the purview of the statute for the prevention of frauds ; nor, under the circumstances of this case, can 1 consider the lessor of the plaintiff as entitled to make the objection that it is either a fraudulent or voluntary deed.

It certainly was not made to defraud creditors; for there was no debt in existence when it was given. It was not made with the intent to defraud David Van Alen of any

p. 263

lawful action, but must be considered as the mere reconveyance of an estate conveyed for temporary purposes, and intended and expected to be reconveyed. This is to be infcrred from the fact that no consideration was paid by Wendell to his father, and from the fact, also, that the father continued in possession.

The first deed may be said to have been a fraud on the election law, but, as between the parties, it was a valid deed. In considering whether the reconveyance was fraudulent, we have a right to regard the prior deed, which we find to have been entirely gratuitous; and even if it be admitted that no consideration was given for the reconveyance, yet inasmuch as possession was never taken under tl?e first deed, and, consequently, Wendell never acquired any false credit from it, no one was deceived by it.

The lessor of the plaintiff, though certainly a purchaser for valuable consideration, could not but know that he was buying contested property, which he took for better and for worse ; and we have a right to say, that he knew that the deed from the defendant to Wendell was merely for the purpose of making him an elector, and that it had been given up. Those vbluntary deeds which may be avoided by a subsequent purchaser under the 27 Eliz. ch. 4. are such as are made with intent to deceive such purchaser; and this intent to deceive is evidenced by a voluntary conveyance, coupled with a subsequent agreement to sell again; and it is not merely the accomplishment of the deceit on the purchaser which constitutes the fraud, but the deceitful intention in the seller manifested by his proceeding to the second sale. (Roberts on Fraudulent Convey. 35. and the cases there cited.) Here the seller is passive, and the lessor of the plaintiff is not a purchaser from him, but through the intervention of the law.

Judgment for the defendant.