TITLE XXXII. DEED. CHAP. XXVII. What Deeds are void as to Creditors and Purchasers. ditors and BY the statute 13 Eliz. c. 5. § 2. made per- Statutes in petual by stat. 29 Eliz. c. 5. it is enacted, that all favour ofCreand every feoffment, gift, grant, alienation, bargain, Purchasers. and conveyance of lands, tenements, and hereditaments, goods and chattels, or of any lease, rent, or other profit or charge out of the same, shall be deemed and taken, only as against person or persons, their heirs, executors, administrators, or assigns, whose actions by such covenous or fraudulent devices, shall be in any wise disturbed, hindered, or defrauded, to be void and of What Deeds are void by these Statutes. ante, c. 2. $53. Deeds made with an In tent to defraud Credi tors. none effect; any pretence, colour, feigned consideration, expressing of use, or other matter or thing, to the contrary. 2. By the stat. 27 Eliz. c. 4. § 2., made perpetual by the stat. 30 Eliz. c. 18,. it is enacted, "That all and every conveyance, grant, charge, lease, estate, incumbrance, and limitation of use or uses of, in, or out of any lands, tenements, or other hereditaments whatsoever, for the intent and purpose to defraud and deceive such person or persons, bodies politic or corporate, as shall purchase the same lands, tenements, or hereditaments, or any rent, profit, or commodity in or out of the same, shall be deemed and taken, only as against that person and persons, bodies politic or corporate, his and their heirs, successors, executors, administrators, and assigns, and against all and other person every and persons, lawfully having or claiming by, from, or under them, which shall so purchase, for money or other good consideration, the same lands, tenements, or hereditaments, or any rent, profit, or commodity in or out of the same, to be utterly void, frustrate, and of none effect." 3. With respect to the deeds which are rendered void by these statutes, as against creditors or purchasers, they are of two sorts: 1st, Deeds made with an express intent to defraud creditors, or subsequent purchasers. 2d, Deeds made upon good, but not valuable considerations, which are usually called voluntary conveyances. 4. As to deeds made with an express intent to defraud creditors, no doubt can arise respecting their nullity under the statute 13 Eliz. whenever such an intent can be proved; even though they should be made for a valuable consideration. Case, 3 Rep. 80. 1 Roll. Rep. 3. Tarback v. 5. In a case determined in 44 Eliz. the following cir- Twine's cumstances were held to be badges of fraud:-1°. The gift was general, of all the donor's goods and chattels, real and personal, without exception of his apparel. 2o. The donor continued in possession, and used them as his own; and, by reason thereof, he traded and Stone v. trafficked with others, and defrauded and deceived Grubham, them. 3o. There was a trust between the parties. 6. A. conveyed his estate to the use of himself for life, with power to mortgage such part as he Marbury. should think fit, remainder to trustees, to sell and pay all his debts; but continued in possession, and kept the deed afterwards A. became indebted by judgment and bond. It was decreed that this conveyance was fraudulent, as against the creditors by bond and judgment; who, not having notice of the settlement, should not come in on an average only with the other creditors. : 2 Vern. 510. 5 Term R 7. It was determined in a modern case, that where Estwick v. Cailland, a person, having several creditors, conveyed part of his real and personal estate to a trustee, in trust to 420. pay half the rents and profits to the grantor, for his own use, and the residue among certain creditors named in a schedule; without any intention of fraudulently delaying his other creditors; the deed was not void, within the stat. 13 Eliz.: and Lord Kenyon said it was neither illegal nor immoral to prefer one set of creditors to another. 8. No creditor can avoid a fraudulent conveyance, 1 Ves. Jun. unless his debt is of such a nature as to affect the 160. land: so that he must obtain a judgment for it. fraud Pur 9. With respect to deeds made with an express Or to deintent to defraud purchasers, the stat. 27 Eliz. was particularly necessary; for it is said by Yelverton in 37 Eliz. that at common law, no fraud was remedied 445. Cro. Eliz. Colville v. which should defeat an after-purchase, but that only which was committed to defraud a former interest. 10. The mere continuance in possession, after the Cro. Ja. 158. execution of the conveyance, if such possession be consistent with the deed, is not in itself sufficient evidence of an intent to defraud. Burrell's Notice is immaterial. Gooch's Cowp. R. 711. Standen v. Bullock, 5 Rep. 60. 11. It is not necessary that the person who sells the land should have made the former conveyance. For it was resolved in 3 Jac. that if a father made a lease by fraud or covin to defraud purchasers, and died; and the son, knowing or not knowing of the lease, sold the land for valuable consideration, the purchaser should avoid the lease. 12. Although the subsequent purchaser should have notice of the preceding fraudulent conveyance, yet he will be allowed to invalidate it. 13. Thus, Lord Ch. J. Wray has said, if A. seised of land in fee, makes a fraudulent conveyance, to the intent to deceive purchasers, against the stat. 27 Eliz., and continues in possession, and is reputed owner; B. enters into discourse with A. for the purchase of it, and by accident gets notice of the fraudulent conveyance, and notwithstanding concludes with A., and takes assurance of him. In this case B. should avoid the fraudulent conveyance by the said act, notwitstanding his notice: for the act, by express words, made the fraudulent conveyance void, as to a purchaser: and forasmuch as it was within the express purview of the act, it ought to be taken and expounded in suppression of fraud. 14. One Bullock made a fraudulent estate of his land within the stat. 27 Eliz., and afterwards offered to sell it to Standen. Before assurance thereof, Standen had notice of the fraudulent conveyance, and notwithstanding proceeded and took his assu rance of Bullock. It was agreed that Standen should avoid the fraudulent conveyance; for the notice of the purchaser could not make that good, which an act of parliament made void as to him; and true it was, quod non decipitur qui scit se decipi. But in this case the purchaser was not deceived; for the fraudulent conveyance, whereof he had notice, was void, as to him, by the said act, and therefore should not hurt him; nor was he, as to that, in any manner deceived. 15. When the Judges were first called upon to ex- Voluntary pound these statutes, they appear to have considered Conveyances. void against all voluntary conveyances, that is, all conveyances Creditors. not founded on a pecuniary or other valuable consideration as fraudulent, and consequently void against actual or future creditors. 16. Thus where A. having lands as heir to his Apharry v. Bodingham, father, covenanted for natural love and affection to Cro. Eliz. stand seised to the use of himself for life, remainder 350. to his first son in tail, &c.; he having notice at the time of a bond entered into by his father to B.; an action of debt was brought by B. on this bond against A. as heir; and it was held that the conveyance by Att. Gen. A. was fraudulent and void against B., as much as a 2 Atk. 152. conveyance by the father, the original debtor, would have been. Stiles v. 1 Ves. & Bea 112. 17. Lord Hardwicke has said, that he had scarcely known one case, where the person conveying was 1 Atk. 15. indebted at the time of the conveyance, that had not been deemed fraudulent. the Grantor time. 18. It appears however to have been soon esta- Except where blished, that voluntary conveyances were only void is not indebtagainst creditors, where the persons making such ed at the conveyances were indebted at the time; and that all voluntary conveyances were not void against future creditors; but only such as were also fraudulent. 2 Vern. 327. |