McKnight v. Morgan ( 1848 )

Harris, J.

It is to be assumed in this case, that the bill of sale, under which the defendant claims the property in question, was made with the intent to defraud creditors. Such a conveyance is expressly declared by statute to be void, as against the persons so defrauded. This was so at common law, and the person receiving the property under such a fraudulent conveyance might be charged with the amount of the property, after the death of the fraudulent vendor, as executor of his own wrong. Before the revised statutes, this was the only remedy of the creditor, in such a case. The administrator had no right of action against the fraudulent vendee, for the reason that, though the transfer was void as against creditors, it was good as against the party himself and his personal representatives. (Osborn v. Moss, 7 John. 161.) But by the revised statutes, (2 R. S. 449, § 17,) the remedy which the creditor had before against the fraudulent vendee, as executor of his own wrong, is transferred to the personal representative of the vendor, who may now maintain an action against him as a wrong-doer, “ for the value of any property or effects so taken or received, and for all damages caused by his acts to the estate of the deceased.” The fraudulent vendee is, by this statute, declared to be “ responsible as a wrong-doer.” The transaction, as against the personal representative, who for this purpose is to be regarded as a trustee, acting for the benefit of the creditors, is utterly void. An action may, therefore, I think, be maintained, as well for the wrongful taking, as for the unjust detention, of the property. The defendant is in all respects to be treated as a trespasser, and cannot avail himself of the conveyance to justify the taking of the property, any more than he can to justify the detention thereof.

The case is analogous to that of a fraudulent purchase of goods. The fraud avoids the contract of sale, so that it works no change of property. As well the original interference of the fraudulent purchaser, as any subsequent acts of ownership on his part, are considered as an unlawful or tortious taking. At first it was doubted whether the vendor, in such a case, could maintain trespass or replevin in the cepit, which is strictly concurrent with trespass. But it is now well settled that the party defrauded may maintain trover or replevin in the detinet, or trespass or replevin in the cepit, at his election. (Cary v. Hotailing, 1 Hill, 311.)

It is true that it would not lie with the fraudulent vendor to allege the fraud, as a ground of avoiding the transfer. But an act may be void as to one person, or for one purpose, which as to another person, or for another purpose, cannot be impeached. Thus, in the case of goods obtained by means of false representations, the vendor may, at his election, charge the purchaser with the price, or treat him as a trespasser; while the vendee has no right to set up the fraud, to avoid his liability as a purchaser. So, here, the administrator might, at his election, treat the transfer fraudulently made by his intestate as being void as against creditors, and therefore furnishing no protection to the defendant in taking the property, while as against the intestate himself, the bill of sale would have operated as a complete defence. The statute referred to, however, only gives to the personal representative a right of action for the value of the property taken or received by the fraudulent vendee; so that, were there no other provision of law on the subject, the remedy in such a case would be confined to the action of trover or trespass. But, by the second section of the statute relating to the action of replevin, (2 R. S. 522,) it is provided that “ whenever by any statute executors or other persons suing in the right of another, are authorized to maintain actions of trespass for any personal property wrongfully taken, such persons may maintain actions of replevin for such property.” If, therefore, I am right in the conclusion that the administrator might have maintained trespass, upon the facts stated in this case, it follows that replevin for the wrongful taking may also be sustained. Otherwise I do not see how replevin in any form would lie. I am of opinion, therefore, the plaintiff is right in his form of action, and that the nonsuit should be set aside.

Watson, J., concurred.