Davenport v. McCampbell , 56 Ky. 38 ( 1856 )

Judge Simpson

delivered the opinion of the court.

In June, 1849, R. W. Davenport conveyed to his brother, G. H. Davenport, his undivided interest, of one-eighth, in a tract of one hundred and ten acres of land, in which his mother had a life estate. The consideration recited in the deed was one dollar.

The grantor in the deed died in. 1852, leaving a considerable estate, but not sufficient to pay his debts; and that fact having been ascertained after his death, this action was then brought by some of •the creditors to set aside and annul the aforesaid deed to his brother, on the ground that it was executed without any consideration, and was fraudulent and void as to creditors.

It was proved that some of the debts which were owing- at the time of the death of the grantor, were in existence when he executed the deed : but it also appeared that he then owned a considerable estate, none of which was incumbered, and no part of which was sold by him, except that which wras embraced by the deed to his brother. There was also proof that although the consideration recited in the deed was one dollar only, the actual consideration was two hundred dollars, which had been paid, and was the full value of the grantor’s interest in the land at the time the deed was executed, subject to the life estate which had not then terminated.

1. The consideration expressed in a deed of conveyance is not always conclusive, even between the parties to the deed, and the real consideration may be proved. (Gully vs. Grubbs, 1 J. J. Marshall, 389; Hickman vs. Macurdy, 7 lb., 562; Hanson vs Buchner's devisees, 4 Dana, 255.) 2. And it is clear that when a deed is attacked as fraudulent, which expresses only a nominal consideration, and the plaintiff has the right to introduce parol testimony to contradict the recitais in the deed, that the defendant may by the same kind of testimony show what was the real consideration.

The fact that the deed purports to have been executed upon a consideration merely nominal, as well as all the other circumstances proved, tend forcibly to repel every imputation of fraud against the parties to it, in its execution by them.

But the court below, at the instance of the plaintiffs in the action, excluded all the testimony tending to show the actual consideration upon which the deed was executed, and decided that the consideration expressed in it, proved that if was voluntary and fraudulent as to the creditors of the grantor, and rendered a judgment vacating and annulling it. This decision was clearly erroneous.

Thb recital of the consideration of one dollar in a deed is not conclusive evidence, even between the parties themselves, that no other consideration passed. Such a consideration is regarded as merely nominal — not as the actual consideration upon -which the deed was executed — which consideration may be established by parol testimony. (Gully vs. Grubbs, 1 J. J. Marshall, 389; Hickman vs. Macurdy, 7 J. J. Marshall, 562; Hanson vs. Buckner's devisees, 4 Dana, 255.)

• And in a case like the present, where the validity of the deed is attempted to be impeached by third persons, for the want of a sufficient consideration to uphold it, and on the ground that it was executed with an intention to defraud creditors; where the plaintiffs have an undoubted right to introduce parol testimony to contradict any recital in the deed, or to prove the actual consideration that passed between the parties, it would be singular if the defendant should be precluded from resorting to the same kind of testimony for the purpose of sustaining the deed. Such a principle, instead of promoting, would tend *o defeat the ends of justice.

We have no doubt that the grantee in the deed had the right to prove the actual consideration upon which it was founded; and we are satisfied by the testimony adduced, that it was executed upon a full and fair consideration, and without any intention to defraud the creditors of the grantor.

Wherefore, the judgment is reversed, and cause remanded with directions to dismiss the plaintiffs’ petition.

In the appeal of Green vs. McCampbell, &c., the judgment will also have to be reversed, as the proceedings in that case depend upon those in the foregoing case of Davenport vs. McCampbell, &c.

Wherefore, the judgment in this last mentioned case is also reversed, and cause remanded for further proceedings to enforce the payment of the debt sued' for.