Esty v. Long , 41 N.H. 103 ( 1860 )

Dob, J.

The plaintiff has a good title by deed and mortgage as against Britton; but Long claims that he is a creditor of Britton, and that, as to him, the deed is fraudulent in law as containing a secret trust, and the mortgage void by reason of the neglect to render an account. The plaintiff’s claim under the deed from Brit-ton and the assignment of the mortgage, is entirely meritorious and honest; Long’s claim was created for the sole and express purpose of defeating the plaintiff’s equitable rights. The conveyance from Long to Britton, and the note and mortgage from Britton to Long were mere pre-tences, and parts of a fraudulent contrivance to enable Britton, indirectly, through Long as an agent, and in his name, to avoid a deed which he could not avoid directly in his own name. The law by which the defendants seek to make void the plaintiff's deed, is a law to secure a debtor’s property to his creditors, not to himself. The defendants would make a rule of law which is stringent only in favor of creditors against the concealment of property by debtors, operate rigorously to take away from creditors property already secured to them, and put it in Long’s hands to be fraudulently concealed. They ask a court of justice to uphold an actual fraud at the expense of a technical and constructive one, — to annul a deed fraudulent only in law, and to ratify a conspiracy fraudulent in fact.

To enable Long to set aside the deed of Britton to the plaint!ñ' and "Williams as fraudulent against creditors, it is necessary for him to show that he is a creditor. Where a creditor calls in question a conveyance made by his debtor, upon the ground of fraud, in an action between him and the grantee, the demand of the creditor must be subject to examination in order to see whether he has a right, as such, to question the validity of the conveyance. If a judgment has been obtained by him, still, as between him and the grantee who is no party to it, it will not be regarded as precluding the latter from an examination of the ground of it. The grantee may be allowed to show that it was obtained by fraud, or that the cause of action accrued under circumstances which would not give the creditor a light to impeach the conveyance. Miller v. Miller, 23 Me. 22; Alexander v. Gould, 1 Mass. 165; Upton v. Bassett, Cro. Eliz. 444; Doe v. James, 16 East 212. Long is not a creditor of Britton, so far as the rights of bond fide creditors and grantees of Britton are concerned, and he cannot dispute the plaintiff’s title.

Judgment for the 'plaintiff.