an interest in lands, must appear in writing. Hence, however CH. 32. clear the evidence was, the devisor meant to give in lieu of Art. 10. dower, for instance, it was to no purpose if his meaning was not expressed in writing. But now a different construction of the statute is given; and we may prove the existence of a contract in these cases, by proving facts, the existence whereof cannot be accounted for, on other grounds than the existence of a certain contract or agreement. Thus A makes an absolute deed of black-acre to B. But A says it was a mortgage. B denies this. A offers to prove, by C and D, who heard the bargain, this fact. But they are not admissible witnesses to the terms of it, as it respects land. The statute holds it unsafe to trust to the recollection of the witnesses to the very terms of the contract, and hence rejects them. But A can prove certain facts in the case to exist, where there is no such danger of mistakes or mis-recollections, which facts clearly prove a contract must have existed, and the precise terms of it to a common intent; and the court sees these facts could not have existed, unless there had been such a conveyance of black-acre as A alleged there was. This he may do on the modern construction of the statute. He therefore proves by witnesses, that when he gave this absolute deed to B, B held against A a bond for $500, that B has retained that bond for seven years, and annually received the interest on it from A. That A, with B's privity and consent, has remained in possession of black-acre the whole time, and has never been called on to pay any rent to B. That A has repaired and paid the taxes as on his own estate; also received the profits from year to year, as of his own lands. Thus it is proved that A and B have invariably acted exactly as mortgager and mortgagee always do act; and most unnaturally, if B has been all the time absolute owner of this black-acre. Now these facts prove the deed was a mortgage. This manner of proving the fact, the deed was a mortgage, by proving these facts by parol evidence, is correct, as such facts are usually proved by such evidence. And all such evidence is properly admissible on A's bill in equity, (the usual course to redeem ;) and chancery treats B as trustee. Facts are thus proved, which prove the very terms of the contract 9. So if the party to be charged confesses in writing, as in his plea, his answer, &c. the exact terms of the contract set up by the party claiming the benefit of it. This also takes the case out of the statute on its modern construction, for the court sees the contract is proved without relying on the witnesses for proving the terms of it, and without danger of mistakes or perjuries. This seems to be a liberal and fair construction of such statutes; but I doubt the conclusion an able CH. 32. judge has drawn from it, namely: that any fact which shews Art. 10. the testator's intention, though dehors the will, may be proved to get at his meaning and true construction of it, provided the fact stands well with the will; for this any fact, though it may tend to shew the testator's intention, yet it may have no relation to the terms of the devise or bequest set up or claimed. Whereas every fact proved in the above case, (and in every case in which properly admitted to be proved,) was of a nature not to exist if the terms of the contract, the mortgage contract set up had never existed. Lofft 342, 3 Dallas 415. 12 Mass. R. 26, Hills v. Elliot. See tary in the Index. $ 10. One will not be aided who comes to demand the performance of an illegal contract, but will be where he comes to annul it. And in the last case the law will relieve him, though particeps criminis, but see Worcester v. Eaton. A promise to pay another's debt must be wholly in writing under the English statute of frauds (in force in Rhode Island.) It cannot be added to or varied, nor so far explained by parol testimony as to affect the import of the writing. $ 11. Trust estates to defraud creditors &c. may be proved by parol &c. Held, 1. The principle that a trust estate canSugden 461, not legally exist without a declaration in writing, signed by 480. See the the person holding the legal estate, does not apply to secret word volun- trusts and confidences, created for the purposes of defeating or delaying creditors, which may always be proved by parol; and when so proved will defeat the formal transactions which may have heen adopted for such purposes by the parties: 2. Where a mortgagee makes a deed of assignment on the back of the mortgage deed, or by a separate instrument referring to it, the assignee is put in the place of the mortgagee to all intents and purposes, unless a different intent is apparent from the contract: 3. Usury must be pleaded in an action on a specialty between the original parties: but 4. In a real action a purchaser may avoid a prior conveyance from the grantor, by giving usury in evidence on the general issue of nul disseisin : 5. Where a mortgagee assigned her interest in the mortgaged premises for money lent her, and verbally promised to repay the money and interest, except the assignee received the same from the mortgaged premises; held, she was trustee of the assignee to the amount of the monies so promised. As to the purchaser he may not be apprised of the usury till it is too late to plead it, and when he offers to prove it, the adverse party may have time to rebut such evidence. 3 Johns. R. 399, 422, Bailey & al. v. Ogden, cited 12. The form of the note in writing required by the statute of frauds, is not material; but it is material this note contain the substance of the agreement with reasonable certainty, so that the contract may be understood from the writing itself, 13 Johns. R. 297.-14 Do. 15.-1 Johns. Ch. R. 273.-11 East 142. 1 Phil. Evid. and without recourse to extraneous or parol evidence; and it must be signed by the party to be charged or by his agent. Hence, if A sell goods to B, and in his book of jobs enters B's name as the purchaser, and the terms of the sale are read to B's agent, making the purchase, who owns the entry is correct, this is not such note, not being so signed: 2. There may be a constructive delivery of the goods sold, and effectual, but then the acts done to be equal to an actual delivery, must be such as to leave no doubt of the party's intentions: 3. Where the vendor agreed with the vendee as to the storage of the goods, and a delivery by him of the export entry to the vendee's agent; held, not a constructive delivery so as to change the property. See Whitwell v. Wyer & al., 11 Mass. R. 6. CH. 32. Art. 11. 253, 256, § 13. An entire contract part void by the statute, is void for 8 Johns. R. the whole. As a parol contract to pay the plt. for an ease- Crawford v. ment, a right of way over his land, (alone valid) also for a dis- Morrill. tinct piece of land (as to this invalid.) Held, the whole contract was void. Like principle, 1 Phil. Evid. 359, cites 2 Ventr. 224; and 7 D. & E. 201, Chater v. Bukett; 3 Taun. 282. ART. 11. What a fraudulent conveyance to defeat creditors. This respects personal estate as well as real; voluntary deeds relate to both. Frauds in conveying and in contracts to convey lands, and interest in and concerning them will be more fully considered under the heads of conveyances of, and contracts to convey lands &c. A few further cases may be stated here, though such conveyances and contracts to convey are more generally the grounds of real or land actions, yet by no means always so; but in many instances they are the grounds of assumpsit, as already appears. The price of lands conveyed if not paid, is usually recovered in assumpsit, where not claimed on a deed, and in this action the statute of frauds as to lands is often in question. v. Bedford 1. If one be not embarrassed, his conveyance of his pro- 11 Mass. R. perty for love and affection, is good against after creditors, 421, Bennet and as to them is not fraudulent, and the jury may find he was Bank-Bac. not in embarrassed circumstances when he conveyed. And a Abr. Agreevoluntary conveyance of property; that is, for love and affec- ments C. Sundry cases. tion only, is good against all persons but such as were credi-Eq. Ca. tors at the time, and so against such if the grantor retain suffi- Abr. 19, 28. cient property, and especially lands, to pay his debts, and also keeps his credit good, and there being no evidence of secresy or of trust, in the conveyance or about the time of it. § 2. A like principal recognised, as against one a creditor 12 Mass. R. before the conveyance; and held, that by our statute of 375, Jenny v. Alden jr.frauds, lands cannot be vested in interest by way of trust in Eq. Ca. Abr. 19, 28.-Pr. Ch. 200.-1 Vern. 210, 220, 363. CH. 32. One not grantee in the deed, where "there is no declaration of Art. 11. trust in writing, neither is there a resulting trust by implication of law," where "there is nothing in the deed which surmises a trust, or an interest in any person other than the grantee." No trust can be proved by parol. "The policy as well as the express provisions of our law being, that no title to real estate shall exist, except by deed or record." 12 Mass, R. 104, 111, Northampton Bank v. Whiting. Ambrose v. Ambrose, 1 P. W. 323- s. 6. 11 Mass. R. 342, Boyd v. Stone.- 99.Pr. Ch. 526.-Bac. Abr. Agreements, letter C. See art. 12. 12 Mass. 277, Cushman. 3 Johns. R. 528 § 3. Same principle as to resulting trusts was recognised in this case; and observed, as to the case of A's buying land with B's money, it must be "understood to be in cases where the parol evidence is not inconsistent with the deed." In which case it is held, if the purchase money be in fact A's, yet if in the deed it is said to be B's, there can be no resulting trust to A. But as B, after A's death, executed a declaration of trust, this took it out of the statute of frauds. § 4. If the parties, A and B, really agree verbally on a mortgage, but A conveys absolutely to B, and he make a verbal promise, that on a day named, he will make a defeasance, so that A's deed to B shall operate as a mortgage, this verbal promise is void by the statute of frauds, as it directly affects an interest in lands: but 2. Where chancery will decree a specific performance generally, the injured party in a court of law may recover damages for breach of promise or contract: 3. Chancery will not aid where such a mere verbal promise is broken, being no more fraudulent than any other breach of trust or promise. Quære, as to the second rule are some exceptions. 5. Assumpsit for money had and received, and also a Frasier v. special count. The deft. contracted in writing to convey 3 D. & E. 683. lands to the plt. on the payment of a sum of money within a Dougl. 694-time named. At its expiration the plt. offered to borrow the money and pay it, if the deft. desired it; and he dissuaded the 4 Cranch R. plt. from hiring it, saying he might pay at any time, and no 239.--Eq. Ca. advantage should be taken &c. Afterwards the plt. tendered Abr. 19, 20, the money and the deft. refused also to give the deed. Judgment against the plt. ; he did not do what was equivalent to a seasonable tender of the money, he only offered to borrow the money. The disingenuous conduct of the deft. did not vary the law of the case. 21. 12 Mass. R. 456, Harrison & al. . Trustees of Phillips Academy.--Mass. Stat. June 23, 1802. See art. 2, Good ale r. Nich ols; Sutton v. Lord. § 6. Question as to a fraudulent conveyance; the material points decided were: 1. If the grantor in a deed of lands has fraudulent intentions to delay and defeat his creditors, yet the deed is valid if the grantee in it be honest, and acts fairly: 2. If A make a deed of land to B for his security as creditor, without his knowledge, and get it recorded, the deed is inoperative till B accepts it, and when he accepts it the same is in fact delivered, and if then he make a bond of defeasance to A to reconvey to A, on his paying what he justly owes to B, this is a good defeasance, and A's said deed to B is never any thing but a mortgage, a fair security: 3. If A keep the said bond in his pocket, not registered, that is the law's fault, not B's, if he do nothing to prevent its being recorded: 4. A may give the bond back to B, and let his title become absolute to so much of the estate as will honestly pay his debt. The facts in this case occupy many pages. Every deed is inoperative till both parties agree to it, on the principles of the common law; and on those principles the honest grantee is not to be prejudiced by the fraudulent intentions of the grantor. Cн. 32. Art. 11. & P. 238.- 7. An agreement void by the statute of frauds, made 11 Mass. R. valid by the after acts of the parties. As where A and B 6, 11.-2 Bos. contracted for the sale of twenty-five hogsheads of rum, and See ch. 11, a. their contract was void by that statute; but was nine days af- 7, s 1. terwards made valid, by payment of part, and delivery, &c.; and the last transactions were viewed as the only bargain, because the only one of which there was legal evidence. 302, 303. 8. Fraud, in point of law. A sells goods to B, by an 1 Cranch absolute bill of sale by deed. If possession do not accompa- Hamilton v. 309, 317, ny and follow it, the sale is fraudulent as to creditors. This Russell.-3 want of possession is not mere evidence of fraud, but is a Cranch 89.fact, per se, that makes the sale fraudulent in point of law. 2 Hen. & M. (See the distinction taken in Waite v. Hudson, above, a. 4, s. 10, as to the statutes of James and of Elizabeth.) In this case the deed of the slave was absolute, and the vendor retained possession unexplained, and exercised ownership. See a. 13, s. 13, 16. Perhaps the best rule. Riddle.-1 289. See § 9. Fraud consists in intention, and that intention is a fact 5 Cranch that must be averred in a plea, pleading fraud. But this court 351, Moss v. has decided that the offence is not in the intention, but in the Wash. 177.attempt to smuggle goods, without paying the duties. Not a 2 Hen. & M. fraud to mortgage property for future advances; 3 Cranch 73, Adams. AdThe mortgage was to secure the mortgagee, as to his future endorsements of the mortgagor's notes, at a certain fraud was bank. Held not fraudulent as to creditors generally. But in this case the consideration was good, and admitted no fraud was intended. 92. § 10. On a view of the various cases on this subject of fraud, the material circumstance is the intention; the view or design to defeat creditors. Therefore, if A has goods, and owes to his creditors large sums, and I take a bill of sale and possession of his goods, with a design to defeat his creditors, all is void, as the delivery of his goods to me, can never make such a transaction valid. So on the other hand, if his bill of sale be fair and bonâ fide, though he remain in possession of the goods, my title is valid. The few cases in which it is ams, there understood. |