Alexander v. Gould

Although a deed be fraudulent as to creditors, yet it cannot be avoided by a creditor the consideration of whose claim is illegal.

This was a real action, in which Alexander demanded divers parcels of land. He declared upon his own seisin within 30 years, and the disseisin of the tenant within that time. The tenant pleaded the general issue, viz. “ that he did not disseise the said A. ia manner and form, &c.” The demandant relied on a judgment recovered by him against one Linnell for $1132 13 cents, upon whicli an execution issued, and was levied upon the lands October 2, 1800, and registered the 15th day of the same month. The tenant claimed title to the demanded premises by virtue of a deed to himself from said Linnell, dated November 3, 1798, acknowledged the 26th and registered the 17th of the same [ * 166 ] November, by which *deed, Linnell, in consideration of $3000 therein expressed to be paid to him by Gould, “ bargained, sold, &c., to him in fee, all and every part and parcel of his, the said Linnell’s, real estate lying in Orleans, Harwich, and Eastham, in the county of Barnstable, consisting of cleared land, wood land, meadow and swamp, with all the buildings thereon standing, and all the privileges and appurtenances thereto belonging.” One of the subscribing witnesses to the deed, being the justice before whom the same was acknowledged, was called by the counsel for Gould; and he testified that he saw Linnell sign and seal the deed, Gould not being present at the time ; that a few days afterwards, and after the deed was registered, he saw Linnell deliver the deed to Gould, who then paid about 500 dollars in money to Linnell, and made a note to him, the sum of which the witness did not recollect: at that time, Gould produced an account against Linnell for maintaining and supporting his family, {Gouldbeing the father-in-law of Linnell,) amounting to about 850 dollars, which was then discharged by Gould; that some time after the last transactions took place, he saw Gould pay Linnell a further sum of 200 dollars. It was contended by the counsel for the demandant that the deed was fraudulent against creditors ; and having proved that the note, upon which the judgment was recovered, was made previous to the deed, viz., on the second day of October, 1798, for $1000, payable to one Osmer, (the clerk of the plaintiff,) or his order, on demand, and by Osmer endorsed to the plaintiff, the counsel offered to prove the declarations of Linnett, made by him when he was carrying the deed to the office to be registered, as evidence of its being fraudulent. This was objected to, because Gould was not present at the time the declarations of Linnett were said to have been made. *It was insisted in reply, that, where color is given, [ * 167 ] and the circumstances are strong against the grantee, the rule is to admit evidence of the conduct and declarations of the grantor to prove the fraud, whether the grantee be present or not; that, in this case, the deed itself carried with it the strongest evidence of fraud; it was a general sweeping conveyance of all the grantor’s real estate in three different towns, without particularizing or describing a single parcel.