Osborne v. Moss , 7 Johns. 161 ( 1810 )

Per Curiam.

The defendant justifies, as administrator of Hodges, the taking of the goods in question from the possession of the plaintiff; and he denies the right of the plaintiff to hold them under the judgment and execution which he had against the intestate, because the judgment, execution and sale were all procured by covin and fraud between the plaintiff and intestate, to cheat the creditors of the intestate; and this fact is admitted by the demurrer. But the case of Hawes v. Leader (Cro. Jac. 270. Yelv. 196.) is an answer to this defence, , ,,, _ , , . and completely destroys it. In that case the intestate made a grant of his goods to B. by fraud between him and B. to cheat the creditors, and he kept possession of the goods, and died. B. then sued the administrator for the goods, and he pleaded this covin and fraud and the statute of 13 Eliz. which declares all such gifts and grants void as against creditors ; but, on demurrer, the plea was held bad, and judgment was rendered for the plaintiff, on the ground, among others, that the deed was void only as against creditors, but that it remained good as against the party himself, and his executors and administrators. This ground of the decision is mentioned by Yelverton, in his report of the case, with quod nota; and he was counsel for defendant, and his reports are among the best of the old authorities.

The defendant further sets up in his defence, that he was a creditor, as well as administrator of the intestate. This was not stated in his plea, but in his rejoinder; and it is stated rather as inducement than as matter of justification. It does not, however, alter the case. As creditor, he had no right to take the goods without suit. He was still a trespasser; and in his character of administrator he could not attack the judgment on the ground of fraud. His remedy, as creditor, would have been to have sued the plaintiff for his debt, and charged him as executor de son tort. This he could have done, notwithstanding he was administrator; and the case of Ashby v. Child (Styles, 384.) is expressly to this point. The plaintiff is therefore entitled to judgment.

Judgment for the plaintiff.