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CH. 32.
Art. 13.

New. on Con. 389-2 Atk.

R. 69.-2 Vern. 261, Hungerford v. Earle.

New. on Con.

8.-4 Desaus.

Ch. R. 264,

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 601-1 Ch 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. 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. 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.

Pledger v.
Davis, admr.

New.on Con.
393, 398.

3 Co. 83,
Brown v.
Jones.-1
Atk. 188.

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 position, are Cro. J. 158; 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.

148.

CH. 32.

Art. 13.

2 Desaus.

-1 Atk. 266.

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. appear the other way, but thinks they were decided on differ--2 Lev. 105. ent grounds; as 1 Vern. 467. The deft. purchased with no- -1 Vent. tice of the lease, and took collateral security; 1 Lev. 150, 193, Bradish 237, Jenkins v. Keymis, was a consideration paid. NewNew-. Gibbs.-3 Johns. Ch. R. 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 Greenhow v. 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.

Coults.-See

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 accepts― the 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.

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

R. 337, 344,
cial
Sturtevant v.
Ballard.-3
Caines' R.
182.-2
Caines' Ca.
in E. 301.

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 spereasons, 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.

There is none if A mort

§ 17. Evidence of fraud or not. gage 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

ser of a note made by one Brooks who was insolvent; the endorsement was made on a blank piece of paper; see Sumner v. Parsons, Russel v. Langstaff, Pillans & Rose v. Van Merop & al., Collins v. Emett, in other chapters. The endorsement was viewed as a letter of credit to Brooks. By the Virginia act the maker of a note, if solvent, must be sued before recourse is had to the endorser, and if the maker be insolvent, the jury decides if a suit against him would produce the money; Lee v. Love, 1 Call 497; Johnson v. Ronald, 4 Munford 77, as to the word promise &c.

§ 21. The rule, caveat emptor, in equity, though it holds as to visible defects in property, it does not as to the fraudulent concealment of them by the vendor, Sugden's Vendors &c. 221, 230, and cases cited. The purchaser must notice the quality of the land or a way over it; Oldfield v. Round, 5 Ves. jr. 508, 509. As to defective description, Calverly v. Williams, 1 Ves. jr. 210, 213; Shirley v. Davies, 6 Ves. jr. 678. False or fraudulent descriptions by the vendor, the purchaser may in law and equity rescind the contract; Fenton v. Brown, 14 Ves. jr. 144; Grant v. Munt, Coop. 175; not if he knew it was false; Dyer v. Hargrave, 10 Ves. jr. 505; Mayo v. Purul, 3 Munf. 243.

CH. 33.

Art. 1.

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ART. 1. General principles.

party, Ch.

281.-1 Vent.

§ 1. Though freight is often secured by covenant or charter- See Charterparty, and is recovered in action of covenant, yet often also it 103.-Imp. is recovered in assumpsit, either indebitatus assumpsit or quan- M. P. 276, tum meruit. It is first material to consider what freight is, 100-1 Esp. and when due. As the cases may be very numerous, and the 113. principles on which they all rest are but few and plain, the subject will be best understood by attending to the principles on which freight becomes due and is recoverable. The safety 1 Esp. 113. of the ship is the mother of freight, " and where no freight is earned by the ship, the mariners have no title to wages."

Freight is the hire of a ship, or part of one, for conveying Insurance on goods from one port to another; or is the sum agreed on by Ch. 40, a. 16. Freight, see the owner and the merchant for the use of the vessel, and is a lien on the goods. On a general principle an owner of a

CH. 33. Art. 1.

Imp. M. P. 279, 280.

vessel has an action of assumpsit against any person who (without deed) uses her, or transports his goods in her; but the general principle is controlled in some cases by certain established rules. These are:

First. If a merchant hires a ship, and do not fully load her, without his consent the master cannot take in other goods, without accounting to him for the freight.

$2. Second. Though the merchant do not load the full quantity of goods agreed on, yet he shall pay the whole freight; and if he load more, yet he shall pay for the excess.

§ 3. Third. If a time be appointed, and either the ship be not ready to take in, or the merchant to put on board, the parties are at liberty and have a remedy by action for the detriment.

4. Fourth. If a part be on board, and some misfortune prevent the merchant sending the whole in time, the master may contract with another and have freight, as damages for the time they were on board longer than limited. On the other hand, if the vessel be not ready, the merchant may ship the remainder of his goods on board another vessel, and recover damages against the master for the rest.

5. Fifth. If a ship be freighted out and in, (or out and home) there is no freight due till the whole voyage is performed, if therefore the ship perish coming home, the whole freight is lost; so if captured, unless due from the captors &c.

$6. Sixth. The master shall take no freight for any goods lost by shipwreck, plundered by pirates, or taken by the enemy, unless the ship and goods be redeemed. In which case he shall be paid his freight to the place where he was taken, upon contributing to the redemption.

7. Seventh. The master shall be paid his freight for the goods saved from shipwreck, and in case he cannot get a vessel to carry them to the place where they were bound, he shall be paid in proportion to the part of the voyage already gone; this must mean if the merchant receive his goods. And if the master have another ship ready to carry the goods to their place Abbot 196, of destination, and the owner of them takes them himself, yet the master shall have his full freight, for then the master is ready to do as the circumstances require.

200.

4 Mass. R.

672, Pearce v. Phillips.

4 Mass. R. 692, 702, Gilchrist v. Ward.

The plt. carried money for the deft. to India, on half profits, in lieu of freight and commissions. Part of the goods were lost. There was a profit on the part not lost, and no profit on the whole taken together. The court decided that the ship owner was not entitled to any of the profits on the goods not lost, as the whole adventure was to be considered.

In this case it appeared that specie was shipped on a voyage from the United States to Sumatra, and back to Europe, the owners of the ship to have half profits in lieu of freight; at Sumatra the property of the owners and shipper was invested in

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