CH. 32. who took possession. Held, B's title was good. The goods Art. 13. were put up to sale, and the sheriff gave the bill of sale: the jury in this case were directed to inquire, "if B had purchased the goods with a view to defeat any execution, by any crediitors of A." Se also Barrow v. Paxton, Ch. 32, a. 4, s 7. Also Lady Lambert's case. Shep. Touch. 67; Stone v. Grubham, Cadogan v. Kennet, and Haselington v. Gill, above. These are all the cases in which possession has been retained by the vendor after conveyance, and that held good against creditors and subsequent purchasers, as affirmed in a note, 2 Bos. & P. 60. On the other side, see not only Edwards v. Harben; Bamford v. Baron; Hamilton v. Russell, &c. above: but also Paget v Perchard, 1 Esp. 205; Wordall v. Smith, 1 Camp. 333, and Rice v. Sargent, and several cases cited in this; Ryall v. Roll, a. 1, s. 11.

1 Atk. 167,

8. A assigns goods to B, with condition, he is not to take Ryall v. Roll. possession till forfeited. This is fraudulent, as here is no modified interest in B, or any special purpose, as above, for A's continued possession; such a possession is not consistent with the deed. And Burnet J. in 1 Atk. 167, referring to Ryall v. Roll, a. 1, s. 11, said, "there is no distinction whether the sale be absolute or conditional. Courts of equity and juries are to consider upon the whole evidence, whether the conveyance was made with a view to defraud or not." As to goods, possession is viewed as evidence of ownership; not so as to lands; New. on Con. 377. The mortgagee of goods is viewed as the true owner, and ought to have actual possession; but then an exception, as of goods at sea &c. See the cases Brown v. Strathcote, Ch. 44, a. 3, s. 6; Rolleston v. Hibbert, Ch. 44, a. 3, s. 7; Gardner v. Dutch, Ch. 171, a. 1, s. 15; Bourne v. Dodson, 1 Atk. 153, 157; 2 Vesey 272; Atkinson v. Maling, Ch. 32, a. 3, s. 3. A bond assigned must be delivered, except legally held by a third person, I Atk. 176; 1 Bro. C. C. 125. But book debts assigned, notice is enough, as they cannot be delivered; 1 Atk. 176; nor can fixtures be; 1 Atk. 172.

6 Ves. 387.Gilb. R. 37.

§ 9. A debtor may prefer one or more creditors. See the cases, English, and American. Insolvency, Ch. 39, Estwick v. Cailland. Ch. 32, a. 1, s. 34, and 8 D. & E. 528; 5 D. & E. 528; 5 D. & E. 238: Holdberd v. Anderson, Ch. 32, a. 1, s. 27; 4 East 1; 1 Burr. 478, 481; Linto v. Bartlett, Ch. 32, a. 1, s. 33; Divon v. Watts, a. 1; Hague v. Roleston Ch. 168, a. 1, s. 5; Harmon v. Fisher, Ch. 32, a. 1, s. 33; Cowp. 629; See number 10 &c.

10. One insolvent cannot make voluntary conveyances, or New. on Con. 384, 385, 386.-3 Co. 81.-4 Cruise 398, Lush v. Wilkinson.-Stileman v. Ashdown, 2 Atk. 477.-Walker v. Burrows, 1 Atk. 98.-Fryer v. Flood, 1 Bro. C. C. 160.-8 Ves. jr. 195, 200.-Crisp v. Pratt, Cro. Car. 548, 551.-Lilly v. Osborne, 3 P. W. 298. Buying in trust for the insolvent's family, 2 Ch. Ca. 26.-1 P. W. 608; same as a voluntary settlement, 2 Vern. 67, 120, Bush v. Andrews, id. 683.-Fletcher v. Sidley, 2 Vern. 490.-Proctor v. Warren, See Ch. Ca. 78.-2 Ves. 11, Townsend v. Wyndham.-1 Ventr. 194.-1 Atk.

211.-2 Br.

Wilkinson.

384, Lush v. Ves. jr. 199. 1 Ves. jr. 148.3 Br.

C. C. 627.

4

Id. 270.— 4 Dall. 304,

305.-4 East 207.-8 D. &

assignees, v.

Skin. 555.

2 Vern. 284.

settlement, that is for love and affection. There are many cases CH. 32. to these points, English and American. As 1 Vesey 27; 2 Ve- Art. 13. sey 11; Amb. 121, Parker v. Proctor &c. ante; reasoning in Cadogan v. Kennett 5 Vesey 387; New. on Con. 383, 115.-2 Atk. 390, 387. On the 13th El. it must be proved the person 493.-2 Vern. making a voluntary conveyance, was indebted at the time, and C. C. 90, 149. so as not to leave enough to pay all his debts, or to make him--5 Vesey jr. self insolvent; 1 Atk. 93; 2 Bro. C. C. 90; 5 Vesey 384. It is well observed that every man must be indebted more or less, even if he pays his bills weekly. Hence the word indebted in the 13th El. must mean something more; and what better rule can there be, than a voluntary conveyance to a wife or child, which leaves the debtor, making it insolvent, that is, unable to pay his creditors; as then, he must make his voluntary conveyance, knowing all this; so with intent to E. 521, 531, defraud or delay them. If not indebted, natural love and af- Nunn & al. fection alone, is a good consideration against creditors. This Wilsmore, must mean when he remains clearly able to pay them, as then exr.-Salk. there is no fraud, no mala fides. The true principle is laid 1, 421down by lord Hardwicke, who said, "if there be a voluntary 1 Atk. 275.— conveyance of real estate or chattel interest, by one not in- 3 Ves. 478.debted at the time, though he afterwards becomes indebted, Amb. 313 if that conveyance was for a child, and no particular evidence or badge of fraud, to deceive or defraud subsequent creditors, that will be good; but if any marks of fraud, collusion, or intent to deceive subsequent creditors appear, that will make it void." The same principles hold, as to after purchasers, and all acts for the suppression of fraud must be liberally construed; and though the grantor be not in debt, yet if he conveys evidently to cheat subsequent creditors or purchasers and so to defraud them, his case must be within these statutes 13 & 27 El.; but not every voluntary settlement, conveyance, or gift, even by one in debt, can be void, as the richest man must always owe some debts-small family bills, at least. Therefore, it was held in Lush v. Wilkinson, necessary to impeach a settlement on the wife after marriage, under 13 El. the husband must be proved to have been indebted at the time, and to the extent of insolvency. "It must depend on this whether he was in solvent circumstances at the time." Held a voluntary settlement valid, all the creditors, at the time it was made, being satisfied. The bankrupt laws out of the case, a debtor may assign all his effects for the benefit of particular creditors," per Lord Kenyon. He also said "I admit that if this were a voluntary deed, the law says it is fraudulent. It was for a valuable consideration, and not voluntary." And "courts will not weigh the consideration in very nice scales, if it be an honest transaction;"" very small consider

CH. 32.
Art. 13.

New. on Con. 389-2 Atk.

601-1 Ch

R. 69.-2
Vern. 261,

Hungerford

v. Earle.

ations have been holden sufficient to give validity to a deed," where fair and honest, &c. 1 Ch. Ca. 105; 2 Lev. 105; 2 Wils. 356, 358, Roe v. Milton; 2 P. W.245, 255, Johnson v. Legard; Sugden 469, Fairfield v. Birch, id.

§ 11. Deeds avoided by the 13 Eliz., are also void against after creditors. This position must be viewed in connexion with the last, that is, the debtor must be insolvent; then perhaps a voluntary conveyance may be deemed to have respect to them, and made with an intent to defraud them. But suppose before they become creditors, he becomes rich, and is so when they trust him; but before he pays them he is again insolvent; can they possibly have recourse to the first insolvency? According to our decisions, one becoming a creditor after the voluntary conveyance is made and known, has no right to complain of it. See Adams v. Adams, Parker v. Proctor, &c. above. And these are the best decisions. There may however be an exception, as where the deed is unrecorded and unknown to him, or actually made with a design to affect after creditors. The 13 El. extends also to forfeitures. New. on Con. 12. Contracts in fraud of purchasers, 27 El. ch. 4. 391 to 408 recited at large, Ch. 109, and there explained in part; as al2 Eq. Ca. Abr. 677 to so our own statutes of the same kind. See Doe v. Routledge; 689-Gran- Newstead v. Searle; Twyne's case, as it shows how 27 El. ville Lib.10,c. varied the common law, as to an after purchaser.

8.-4 Desaus.
Ch. R. 264,
Pledger v.
Davis, admr.

By that

law, as to him, a fraudulent deed was valid; as when it was made, it was no injury or fraud to him. Gooche's case, and sundry others, English and American; and the result thereof there stated. In applying the 27 El. it will be observed, that that act was passed, when scarcely any deeds were recorded: hence, might start up at any time to overreach fair purchasers for valuable consideration. But as nearly all our American deeds are recorded, an after purchaser cannot be deceived in regard to real estate. A part of this act has never been practised upon in the United States, that part which works a forfeiture of a year's value, and six months imprisonment. Nor does the act affect any conveyance made bona fide, and for a good consideration. The great question is, when is a voluntary conveyance void against a subsequent purchaser, for a valuable consideration? By the English authorities, every such conveyance is, though he has notice of it. It has been held that the words in this act, other good consideration, mean valuable consideration, and this must mean, as said in Doe v. Routledge, a real adequate consideration, or the act is all nonsense; for otherwise a family settlement, fairly made by a rich man, not in debt, might be overturned by an after conveyance, even for love and affection, or for a single dollar.

But when it is said that by English cases, every voluntary conveyance is void against an after purchaser, though he have notice of it; it is to be observed that several conveyances called voluntary were in fact for valuable considerations, in other family provisions &c.; as 1 Ch. Ca. 99, Douglass v. Waad & al. and so valid. The cases cited to prove the general po158; Pr. Ch. 13; 1 Atk. 264; Townsend v. Windham, above; 2 Vesey 10; Sid. 133; 1 Ch. Ca. 216; 5 Co. 60, 61; 1 Eq. Ca. Abr. 334; 2 Bro. C. C.

sition, are Cro. J.

148.

СH. 32.

Art. 13.

2 Desaus.

Newland (398) affirms, he can find no case in which any Oxley v. Lee, but a valuable consideration will support a conveyance, against Ch. R. 269.a purchaser for a valuable consideration; but admits cases 1 Ch. R. 275. -2 Lev. 105.

--1 Atk. 266.

Johns. Ch. R.

Greenhow v.

Coults.-See

appear the other way, but thinks they were decided on different grounds; as 1 Vern. 467. The deft. purchased with notice of the lease, and took collateral security; 1 Lev. 150, 193, Bradish 237, Jenkins v. Keymis, was a consideration paid. New- . Gibbs.-3 stead v. Searles, see Ch. 109, a. 9, Doe v. Routledge, id. So 550-4 Hen. 2 Wils. 356, Hamerton v. Mitton, was also such considera- & Mun. 486, tion. 1 Mod. 119, and sundry cases there cited. And the valuable consideration may arise after the voluntary deed is 18 Ves. jr. 92. made, 1 Sid. 133; 3 Lev. 387, as by the marriage being 1 Ch Ca. had, or by a second conveyance; as if A fraudulently convey R. 450, Wato B, and B, for a valuable consideration, convey to C, and ters v. Travis. A convey (having entered) to D, for a valuable considera--18 Ves. 84. tion; C shall hold the estate. See also Sutton v. Lord, a. 2, s. 2, and Goodale v. Nichols, a.2, s. 1; same principle, Kirk v. Clark, Pr. Ch. 275, as to power of revocation.

So a bona fide purchaser, for a valuable consideration, prevails against one by contract, in equity, if there be no notice. of the previous contract to sell, and before it is executed, and such bona fide purchaser will hold the estate. It is not settled how far the consideration of marriage extends in a settlement, if to collaterals.

105.-9 Johns.

Merritt & al.

§ 13. One party signs and the other accepts, how binding. 2 Caines' R. A contract is, by the statute of frauds, required to be in 120, Roget v. writing, and acts are to be done by both parties; and he, who is to perform a principal part, signs, and the other acceptsthe contract binds both.

$ 14. Parol promise to make good, short measures of land, Kirby 23, is void. As where a piece of land was sold, supposed to Bradley v. contain sixty acres, and described by metes and bounds in Blodget. the deed; and a parol promise at the time of the sale was made, that the seller would satisfy the purchaser for any deficiency, short of sixty acres. Held void by the statute.

15. A parol contract in part executed, will be carried in- 2 Day's Ca. to effect, though for the sale of lands. As by the purchaser's 225, Downey

v. Hotchkiss.

CH. 32. Art. 13.

1 Caines' R.
45.-9 Johns.
R. 337, 344,

Sturtevant v.
Ballard.-3
Caines' R.
182.-2

Caines' Ca. in E. 301.

paying part of the purchase money, and making repairsEnough it appear in evidence the contract was in writing.

16. A voluntary sale of goods, with an agreement in the deed, or out of it, that the vendor may keep possession, is void as against creditors, except in special cases, and for special reasons, to be shown and approved by the court. A, by a regular bill of sale sold to B, August 29, 1810, certain articles, the tools of his trade, for a sum of money B paid A, and A was to use them three months; C got judgment against A, August 2, 1810, and took out a scire facias and delivered it to the officer, Nov. 28, 1810, who seized said articles, then in A's actual possession, and sold them to satisfy C's execution. Held, the sale to B, not accompanied with actual delivery, was fraudulent and void as against C, a judgment creditor. A shewed the tools as his to the officer.

17. Evidence of fraud or not. There is none if A mortgage his land, and then contract to convey it to me free of incumbrance &c. in four years, on my paying him a sum named, though he do not mention the mortgage, because he may discharge the mortgage in time so to convey; decided in assumpsit for money had and received to recover back the monies paid A, being but a part of said sum ; 9 Johns. R. 126, 127, Greenby v. Cheevers.

$18. Nor is there any evidence of fraud where a person fairly buys the debtor's property, where an execution against him has long slept in the officer's hands. As where in New York a fi. fa. issued April 14, 1810, against A and delivered to the sheriff, and in April 1811, B bought a cow of A, bona fide, without any intent to defeat the execution, which lay dormant in the officer's hands till May 25, 1811, when he seized and sold the cow. Held, as there was no evidence of an actual levy on the goods of A, the sale of the cow to B was valid, and not rendered fraudulent by the execution. This case tends to prove the execution is not a fixed lien on the debtor's personal estate till actually seized &c.

19. Error to the Circuit Court in the District of Columbia setting in Alexandria, under Virginia law; and held, that if a magistrate has received a deed of trust from an insolvent debtor, and this deed was fraudulent in law as to creditors, the magistrate cannot sit in the discharge of this debtor, and when it is so obtained, it is void. Decided on a state of facts in the nature of a special verdict agreed on by the parties; 5 Cranch 363, 368, Slacum v. Simms & al.

§ 20. The statute of Virginia requires only that the promise be in writing; but the English statute requires that the agreement be in writing, 5 Cranch 142, 154, Violett v. Patton; see Agreement. An action by the endorsee against the endor