Waterhouse v. Benton , 5 Day 136 ( 1811 )

Edmond, J.

On the motion for a new trial, it appears, that John Walden, the eider, in 1776, conveyed the described land to Isaac Walden and John Walden, the younger ; — Wa-terhouse levied sundry executions in his favour, on the moiety of John, the younger ; and to recover this moiety, he brings this action. Jonathan Walden levied an execution in his fa-vour on Isaac Walden's moiety, and conveyed it to the defendant Benton ; on the death of John, the elder, Jonathan, as administrator of his estate, which was insolvent, sold the other moiety to the defendant, by reason of a debt previously due from John, the elder, to him ; and by virtue of these two deeds, the defendant claimed the whole of the described land.

To rebut the defendant’s claim, the plaintiff offered Ash-hel Chapman, as a witness, íójjrove that Jonathan Walden, and the defendant, before the date of his deeds to the defendant, had acknowledged, that the deed of 1776 from John, the elder, to Isaac and John, jun. was made, executed and delivered, by the advice, and at the request of Jonathan Walden. This testimony was rejected by the court; and, as I think, properly.

The deed of 1776, on the face of it, was a deed of gift, a voluntary conveyance, and carried with it notice of the nature of the conveyance to all the creditors of John, the elder, and to every one else. The advice and consent of Jonathan, did not make him a party to the deed; his consent was not necessary to the execution of it; nor could his giving or withholding his consent, alter its legal operation.— Had he advised to the execution of a deed purporting to be for a valuable consideration, it might have misled purchasers, and had a tendency to defraud creditors ; but, to advise to the giving a deed of this description, was neither unlawful nor improper ; especially, as it does not appear ',y the motion for a new trial, but that at the time of the execution of the deed, John, the rider, was solvent. The; advice, therefore. if it »'T iolhienee, in the traua'ietion, could only benefit the crani.ee?, win; paid nothing for it while they possessed it, without affecting, in the least, the rights of creditors, or pur-chusers.

The --'s-sení of Joint!’¡an io the sale is; ih‘? manner, did not discharge (he debt d:;e In him from John, Hit eider; it was no release of any claim or title he had to the land, for he had none ; it was no release of any supposed lien he might have upon it, as a creditor; because, the deed, when exeeiiw fed as advised, could not operate to defeat hi»;, or any other creditor, of their rights. If then, the deed itself, is na bar to the claims of any previous creditor, it would be strange to gay, that the consent io the execution of such a deed, and that resting in parol, might bo set up to effect that, which the deed itself did not effect.

It has been urged, that if a creditor of a man of property, advise to a voluntary conveyance to his children, or others, such conveyance puls it in Ihe power of the grantee to de» fraud purchasers, and to obtain a false credit; and that the creditor who thus advises, being accessary to the act, shall never disturb the sale ; that it would be a fraud in him. — - But this carjnot be admitted. Ail conveyances arc matter of record ; and when the record «hews the conveyance to he voluntary, both purchasers and creditors are affected with notice of the circumstances, under which the grantee holds.

The plaintiff in this action has levied his executions, with this record evidence before him, and has no right to complain ; he must have known the circumstances under which he look the land. That Jonathan had no better title to Isaac’s moiety, than he had to John's, has nothing to do with Ibis case ; he must recover, if at all, on the strength of his own tille; and for aught that appears in the motion, Jonathan, nn administrator, may yet be obliged to dispose of it for the benefit of the creditors of John, the elder.

For these reasons, I am of opinion, that the evidence war properly fejected, and that the plaintiff take nothing by hi# motion.

Aórcrnoí.!., Ch. J., Reeve, S«k, Tui mbuijl, BbaiRakd s?;;'. iíAUnvi.v, Ja., concurred.