#### HUMBERT’S LESSEE v. THE METHODIST E. CHURCH OF CINCINNATI.

Voluntaiy and’fraudulent deed — discrepance between judgment and execution explained— evidence.

Where it is alleged a former deed is voluntary and fraudulent, it is competent to offer a junior deed from the same person for the property, as a circumstance of fraud.

A difference between the amount of a judgment recited in an execution and a record of the judgment, may be explained by proof, and the fact shown, that the execution is upon the judgment misdescribed in it.

A voluntary conveyance by a father, in embarrassed circumstances to an infant child, is onits face void against creditors, and those deriving title under a sheriff’s sale for the father’s debt, will hold protected from the child’s deed, or those claiming under him.

Ejectment for lots 18,19, 43 and 44 in Cincinnati on which the Methodist chapel is erected. The plaintiffs claim as heirs of *Samuel James, jr.*and derive their title through James his father, and Gano and wife back to J. C. Symmes the common proprietor. When the deed to young James was executed he was an infant only two or three years old, living with his father, who was then in embarrassed circumstancs. The defendants set up a title in themselves through Kirby who bought at sheriff’s sale. It was alleged that the deed to young James was voluntary, fraudulent and void.

The defendants offered in evidence a deed from James, sen. to Kirby, for part of the premises, dated in Aug. 1805, two years after the deed to his son.

*E. King,*for the plaintiff,

objected, because it was of subsequent date to the plaintiff’s title.

*E. King,*

objected to the deed and recordon account of this variance, and referred to a decision of this court in Ross county.

F. *Worthington,*contra,

cited 6 *Pet. R.*344.

*Gano,*

clerk of the Common Pleas, was then sworn and testified that the execution exhibited was issued upon the judgment of which the record was here. The variance arose from the custom of adding the increased costs into the writ as part of the judgment.

F. *Worthington,*contra.

By the Court.

The deed is admissible as an item of evidence. It is a circumstance to show fraud. Whether the deed to young James is void as to subsequent purchasers without notice, we will reserve for future decision.

A deed was then offered from the sheriff to Kirby, of the 20th Sept. 1806, upon a sale on a judgment in favor of *Rilditch v. James*with the record of a judgment and execution. The judgment was for $51 47. The execution in the body of it first referred to a judgment for $52 27, but afterwards recited a judgment for $55 17. The deed recited a judgment for $55 17.

By the Court. Unexplained the sale and deed do not appear to be sustained by any judgment.

*214C. *Hammond*and *E. King,*for the plaintiffs,

argued to the jury.

F. *Worthington*and *N. Wright,*

contra, cited 5 *O. R.*122.

By the Court. The testimony may go to the jury. The court has heretofore determined, that these discrepancies are susceptible of explanation. The case in Ross is identical with this, except the explanation and proof by the clerk. In that case there was no explanatory proof. The certificate of the clerk of the facts, which was offered in that case was not evidence, though his examination in court might have been.

The cause eventually turned mainly upon the fraudulent character of the conveyance from James to his son, and whether the defendant stood in the relation of a creditor to James, having a right to question the conveyance. Much testimony was given to prove the pecuniary circumstances of James, sen.

Lane, J.

charged the jury, that a voluntary conveyance by a father in embarrassed circumstances to an infant child, was on its face voluntary, and fraudulent against creditors. The subsequent control and conveyance of the property were but circumstances to strengthen the presumption of fraud. If the evidence satisfied the jury that the conveyance by the elder James to his child was voluntary, with intent to secure the property from his creditors, either for his own use, or as provision for his child, it was subject to the father’s debts; and if such was the case here, the levy on the lot and sale to Kirby through whom the defendants derive title, passed the estate, and will protect them against the son or those deriving title under him.

Verdict and judgment for defendant.