Webster v. Campbell , 83 Mass. 313 ( 1861 )

Dewey, J.

In thle manner in which this case is now presented to us, we think the exceptions must be sustained. The deed of William F. Osgood to Atis Osgood, and the deed of the latter to Savory T. Burbank, do not on their face show that Atis Osgood had only an instantaneous seisin in the premises, and that on the third day of August 1853, he had not such a title or interest therein as might be attached and held by his creditors against a fraudulent grantee of his. The fact that the two deeds bear the same date does riot necessarily establish them,as one transaction. It may be a strong circumstance, and certainly great effect was given to it in the case of Holbrook v. Finney, 4 Mass. 566. But this question of instantaneous seisin, and the question whether Atis Osgood was in fact a mere conduit for passing the title, must depend upon all the facts and circumstances of the case. Such evidence was introduced, and effect given to it by this court, in the cases of Chickering v. Lovejoy, 13 Mass. 51, and Haynes v. Jones, 5 Met. 292. In each of those cases the evidence tended to establish that the seisin was only instantaneous, the transactions in all their parts being in good faith, and in furtherance of honest purposes; and in each case the court held that the two deeds were to be considered as parts of one contract, and that the interest of the grantee in the first deed was not subject to attachment.

On the face of these deeds, they appear to have been executed at different places. The tenant offered to show by evidence that such was the fact, and that the deed to Atis Osgood was executed at Lowell, and the deed to Burbank was executed at Hook-sett in New Hampshire, a distance of thirty miles. The case put by the tenant assumes that Atis Osgood was a purchaser for a valuable consideration, and that he, having acquired a valid title, transferred the same to Burbank by a deed which was fraudulent as against his creditors.

On the future trial, these and other questions, as to which the parties are at issue, will be fully open to proper inquiry.

Exceptions sustained.