Jackson ex dem' Wilber v. Brownell , 3 Cai. Cas. 222 ( 1805 )

Per curiam, delivered by

Livingston, j.

Were it certain that the jury proceeded on the ground of Richmond’s demand being fictitious, we should not disturb their finding. The probability, however, is, that they acted under a belief of Richmond’s having promised, or that there was an understanding between the parties, that, in the disposal of his property, favor should be shewn to Brownell and his family. This would hare been in conformity with that part of the direction of the learned judge, who tried the cause, which is supposed to be incorrect. Whether it were so or not, will now be examined. Such understanding, with respect to personal property, it is conceded, would have been fraudulent; but it may well be doubted, whether the considerations, which govern cases of this kind, apply to real estates. These arrangements between debtor and creditor* are not deemed fraudulent, hecause of any illegality in the transaction, as it regards the parties themselvesl but on account of their tendency to deceive, and impose on third persons. It were a cruel policy in any cod? of laws, to interdict every species of favor to ⅞⅞ unfortunate debtor, under the penalty of vacating all securi» ties taken on those terms. On the contrary, a creditor may be as indulgent, and shew what favor he pleases, as the Price obtaining security, on land, for a doubtful debt: care must only be taken, that there be no secret -understanding constituting a trust in the creditor, in derogation or con_ trovention of the ostensible alienation, or the transfer will be deemed a cover, by which other creditors will not be prejudiced 5 or, in other words, a change of estate will not, under such circumstances, be considered as having taken place. But nothing of this kind occurred here. It is not de» nied that the land passed, by the sheriff’s deed to Richmond., nor pretended that he holds it in trust for Brownell, or any of his family, but only that he had no right to obtain judg-mcnt, on a promise to permit them to remain in possession, on terms of particular favor. In this promise, I perceive nothing illegal. If Richmond's debt were in danger, and he could not obtain judgment on his own terms, he must sub» mit to those of his debtor, who., in giving a new security, had a right to make the best bargain he could, so that others were not defrauded, What was to have prevented. Richmond's taking a mortgage for his debt, on this very property, payable on the death of Brownell, and with an express agreement that the latter should enjoy the premises during his life, or for a shorter period ? or receiving an absolute deed, in extinguishment of his debt, under an agreement to give a lease immediately to Brownell, for one or more years, or as long as he might live, at a pepper-corn per annum ? Agreements of this nature can only be impeached on a supposition that there is no difference between such cases and that of Tzvync. A moment’s consideration must convince us of the contrary. Besides, that Twyne was prosecuted on the 13th Eliz, cap. S. for making and publishing a fraudulent gift of goods, notqne of tb,e badges of fraud, there relied on, exists here.

1st. The gift in that case was general, without excepting apparel, or any thing of necessity. Here was no gift qt all, but a judgment which could only be satisfied by a subsequent public sale, and of so much property only, as might be viopth the debt?

2d. Tzvyne’s debtor continued in possession, used the goods as his own, and thereby, defrauded and deceived those with whom he traded. This could not happen here. The defendant held the premises under Richmond, and paid rent. But if she had occupied them gratis, possession of real property is not considered as such evidence of tide, as to give the occupant a credit in consequence of it. The party may be a tenant of the lowest grade, or the property may be incumbered beyond its worth, which is often the case, long after the mortgager’s possession continues. The reason, therefore, why possession of goods (which is generally the only criterion of this species of property) after sale, is considered fraudulent, fails altogether when applied to lands.

3d. In Twyne’s case, the gift was made hi secret. This transaction was as public, as matter of record, and a sale at auction could make it.

4th. It was also made pending a writ. This doesjnot appear to have been the case here. A debtor, after suit by one creditor, has undoubtedly aright, where no bankrupt laws interfere, to confess judgment to another, or to give him any other preference or security he pleases. All that appears here, is, that Meeker’s suit was commenced before the third Tuesday of October, 1800, and that the bond to Richmond, was executed the first day of that month, so that the latter may have been prior to any Us pendens against Brownell.

The two last indicia of fraud in Twyne’s case were, a trust between him and his debtor, and the gift’s stating on its face, that it was made honestly, truly, and bona fide. Neither of these marks appear here.

My opinion, therefore, is that no assurance by Richmond, to shew favor to Brownell, or his family, as far as it respected his real estate, or any secret trust or understanding between them, for that purpose, can avoid the judgmént or sale made under it. It will always be borne in mind, that a conveyance was not to be made by Brownell himself to Richmond:, which would have put it in his power to. aliene a valuable estate, for a trifling debt, but that it was. tQ proceed, and that after public advertisement, from ⅞ public, and sworn officer. At this vendue, any one could bid, and his other creditors might have prevented the land selling for less than its value. _ Not having done this, they have no right to complain of the price, or of the indulgence shewn to the former proprietor, or his family. There must be a new trial, with costs to abide the event of the suit.