Crafts v. Ford , 21 Me. 414 ( 1842 )

The opinion of the Court was drawn up by

Whitman C. J.

— The plaintiff claims under a levy, on the estate demanded, as the property of Henry Ford, Jr. and one Morse. Before the levy the estate had been conveyed, by said Henry, Jr. to one Bean, under whom the tenant claims to oc- ' cupy the same. It appears, that the cause of action, on which the plaintiff’s judgment was recovered, was originally evidenced by two notes of hand, given by the said Henry, Jr. and said Morse, bearing date, the one in 1832, and the other in 1834; and the deed to Bean was made in the year following. The notes were originally given to the plaintiff and one Per-ham ; but suits were instituted on them by the present plaintiff alone. How he came by the right to recover the judgment in his own name alone does not appear; nor is it material that it should. It is sufficient that it stands so recovered. The plaintiff was, therefore, a creditor at the time of the conveyance to Bean; and, as such, had a right to set up fraud to obviate its effect upon his levy. The proof on tiro part of the plaintiff was such, that the jury found the conveyance to have been fraudulent as against creditors.

The deed upon which the tenant relies having thus been found to be fraudulent, as against the plaintiff, is, as to him and; his levy, to be treated as a nullity. Bean and his tenant, the defendant, may, therefore perhaps, be regarded as strangers, and as such having no right to question the regularity of the levy. Buck v. Hardy, 6 Greenl. 162. However this may be, according to the case of Herring & al. v. Polley, 8 Mass. R. 113, they are precluded from taking the ground relied upon. A levy is a statutory mode of conveyance ; and in this case it may be likened to a conveyance by two persons jointly of real estate, of which one only is the owner, in which case the conveyance would be effectual to pass the estate of the one owning it.

It was objected at the trial, that the levy was defective by reason of an error in the boundary set forth; but in the argument of the case reserved this ground was not insisted on.

It was further objected, as it appeared, that the consideration originally paid for the land, when purchased by Henry, Jr. was paid by Henry, Sen. the tenant, that, far as it affected his rights, under the conveyance to Bean, the same could not be regarded as fraudulent. But no explanation of that transaction appears, from which an inference can be made, that the money paid by him was not Henry, Jun’s or due to him, or not intended as an advancement, Henry, Jr. being his son, or as a gratuity. We cannot therefore consider this objection as of any weight. And, moreover, it does not appear, that, in the conveyance to Bean, any reservation was inserted for the benefit of the tenant. He has, therefore, no ground upon which he can be sustained against the claim of the plaintiff.

Judgment on the verdict.