#### Hutchison and Others v. Kelly.

August, 1842,

Lewisburg.

[39 Am. Dec. 250.]

(Absent Brooke, J.)

Fraudulent Conveyances—Subsequent Creditors.*—The policy of the statute of 13 Eliz. ch. 5. (substantially adopted in the act of *Vi?'ginia to*prevent frauds and perjuries) investigated by Baldwin, J., and the true principle declared by him to be, that a fraudulent intent of the grantor against one or more creditors is fraudulent against all, and that no distinction exists between prior and subsequent creditors, other than that which arises from the necessity of shewing a fraudulent intent against some creditor, which cannot be done in behalf of creditors not in existence at the time of the conveyance, but by proving either a prior indebtedness, or a prospective fraud against them only.

Same—Indebtedness of Donor—Presumptionof Fraud.— The conclusion drawn from the cases by Kent, chancellor, in *Read v. Livingston & others,*3 Johns. Ch. Rep. 500. that if a grantor be indebted at the time of a voluntary conveyance, it is presumed to be fraudulent in respect to debts then existing, and *no circumstances will permit those debts to be affected by the conveyance, or repel the legal presumption of fraud, approved by Stanard, J., and disapproved by Baldwin, J. The principle declared by the latter to be, that while the indebtedness of the grantor at the time of a voluntary conveyance raises a legal presumption against its validity, that presumption is only *prima facie*and not conclusive.

Same—Voluntary Conveyance to Children—Right of Purchaser at Sheriff’s Sale—Case at Bar.—A father made a deed, whereby, in considerationof natural love and affection, he conveyed to his four children, who were infants living with him, all of his property both real and personal. He had another child afterwards. The real property was transferred to the grantees on the commissioner’s books, and the taxes charged to them. But the taxes were paid by the father, who continued to reside on the lands and cultivate them, and to use the personal property as his own. A small part of the land was sold by him after the deed. One of the tracts of land conveyed by the deed was afterwards levied upon and sold under an execution at the suit of the commonwealth against the father, for money for which he was liable as *81sheriff. The father was still residing- on the land at the time of the sale: and on the day of the sale, the father and one of the sons offered to sell the land and make a good title; but the son forbade the sale by the sheriff. The purchaser from the sheriff obtained possession by virtue of a judgment against the father upon a complaint for unlawful detainer. And then ej ectment was brought against the purchaser by the grantees, all of whom were infants at the time of the sheriff’s sale. In the action of ejectment, a special verdict was returned, finding the foregoing facts, and also the additional fact, that the deed made by the father to his children was executed for the purpose of avoiding a liability to which he might be subj ected in consequence of being the surety of a deputy sheriff. Held, the deed made by the father is void as to his creditors, and the purchaser at the sheriff's sale is entitled to hold the tract of land so purchased by him. But it appearing that the commonwealth was satisfied by the proceeds of that tract of land, and the conveyance by the sheriff being not only of that tract, but of another, which was neither levied upon nor sold, Held further, the conveyance by the sheriff presents no obstacle to a recovery by the lessors of the plaintiff of the last mentioned tract.

Special Verdict- Judgment for Plaintiff in Part and for Defendant in Part.—In ejectment, the jury having returned a special verdict, which finds facts in relation to two tracts of land, and concludes by saying, that if the law arising upon the facts be for the plaintiff, they find for the plaintiff the lands in the declaration mentioned, and one cent damages, but if the law be for the defendant, they *find for the defendant ; and the court being of opinion that the law is for the plaintiff as to one of the tracts of land, and for the defendant as to the other ; Held, it was unnecessary to award a *venire de*novo, but judgment may be given on the special verdict, for the plaintiff for one tract, and for the defendant for the other.

By deed bearing date the 8th of March 1820, between Samuel Hutchison of the county of Nicholas of the one part, and his children Eusebius Robinson Hutchison, David Campbell Hutchison, Eemira Henderson Hutchison and Junius Robert Hutchison of the other part, the said Samuel, in consideration of the natural love and affection which he bore unto his s?„id children, conveyed to them the tract of land on which he then lived, five hundred acres whereof were held by him under a deed, and one hundred acres under a patent; also an entry of two hundred acres adjoining, and ‘ ‘two head of horse beasts, ten head of cattle, eighteen head of sheep, thirty head of hogs, and all the household furniture and the farming utensils, one loom and tackling, and all the grain on hand, either in crop or otherwise.” This deed, on the day of its date, was acknowledged by Hutchison in the court of Nicholas county, and admitted to record.

The deed embraced all of the property, both real and personal, belonging to Samuel Hutchison at the time it was executed. The grantees were infants residing with their father, and he continued to reside on the lands until the 10th of November 1830, when he was removed from the premises by virtue of the judgment on the proceeding for unlawful detainer hereinafter mentioned. The lands embraced in the deed were regularly transferred to the grantees on the commissioner’s books, and the taxes were thereafter charged to them. The taxes so charged were regularly paid; but the payment was made by Samuel Hutchison. He continued to use the personal property as his own, and to cultivate the lands by himself and others. After making the deed, he sold a small part of the land to another.

*On the 16th of June 1826, several judgments were rendered in the general court against Samuel Hutchison as sheriff of Nicholas county; one for 304 dollars 61 cents, the balance due of the revenue taxes collected in the said county for the year 1825, with interest thereon from the first of November 1825 till payment, and 45 dollars and 69 cents damages, and the costs of the motion ; another for 90 dollars and 1 cent, the balance due of the militia fines collected in the said county for the year 1824, with interest thereon from the 15th of December 1825 till payment, and 13 dollars 50 cents damages, and the costs; and another for 10 dollars 83 cents, due on executions, with interest thereon from the first day of November 1825 till payment, and 1 dollar 62 cents damages, and the costs. On these judgments, executions were issued against the lands and tenements, goods and chattels of Samuel Hutchison, on which returns were made, that the same were levied, the 9th of October 1826, on five hundred acres of land, and that the land was not sold for want of time. The judgment on account of the militia fines was after-wards paid the 12th of January 1827. On the judgment for the balance of the revenue taxes, a writ of venditioni exponas issued, on which a return was made, that the land was sold at three months credit to Robert Kelly for 1500 dollars, and that the balance of purchase money in favour of the defendant amounted to 1019 dollars 19 cents. The land levied on and sold was the tract of 500 acres mentioned in the deed from Samuel Hutchison of the 8th of March 1820; but Isaac Gregory, the sheriff who made the sale, executed a deed to Kelly on the 13th of May 1830, conveying not only the tract of 500 acres, but also the other tract of 100 acres, stating both as having been sold bj’ virtue of the execution and purchased by Kelly. At the time of the levy under the executions, and at the time of the sale, Samuel Hutchison was residing on the lands; and at the time of the sale, *Eusebius R. Hutchison, one of the grantees, was present, and forbade the sale, claiming the lands under the said deed of the 8th of March 1820, for himself and his co-grantees.

After the conveyance to Kelly, he instituted a proceeding for unlawful detainer against Samuel Hutchison, for the 600 acres of land, and recovered judgment therein; *82by virtue of which judgment, Kelly obtained possession.

Afterwards an action of ejectment was brought in the circuit court of Nicholas, in the name of John Doe lessee of David Campbell Hutchison, Junius Robert Hutchison, and David Bair and Lemira Henderson his wife, against the said Kelly. The jury returned a special verdict, finding all the facts before mentioned, and- also the following: that after the deed of the 8th of March 1820 was made, the said Samuel Hutchison and wife had another child; that the said deed “was executed by Samuel Hutchison for the purpose of avoiding a liability to which he might be subjected in consequence of being the security of Robert Hamilton, deputy sheriff;” that on the day of the sale of the land by the sheriff, Samuel Hutchison and wife and Eusebius R. Hutchison offered to sell these lands and make a good title; and that' neither the said Eusebius R. Hutchison, nor either of the lessors of the plaintiff, was of full age at the time of the sale by the sheriff. The ejectment was commenced in December 1837.

The jury concluded the special verdict as follows: “If the law arising upon the foregoing facts be for the plaintiff, we find for the plaintiff the lands in the declaration mentioned, and one cent damages. But if the law be for the defendant, we then find for the defendant.”

The circuit court, being of opinion that the law was for the defendant, gave judgment that the plaintiff take nothing, and that the defendant recover of the lessors of the plaintiff his costs.

*On the petition of the lessors of the plaintiff, a supersedeas was awarded.

The cause was argued by Peyton for the plaintiffs in error, and Price for the defendant in error.

The authorities on which they respectively relied are reviewed in the following opinion.

*

Voluntary Conveyances—Prior and Subsequent Creditors—Rights of—Opposing Views.—See extensive *foot-note*to Hunters v. Waite, 3 Gratt. 26. The principal case is cited in Lockhard v. Beckley, 10 W. Va. 98, 99, 100, 103; Hunter v. Hunter, 10 W. Va. 344; Dickinson v. Railroad Co., 7 W. Va. 442; Johnston v. Zane, 11 Gratt. 559, 565; Lewis v. Overby, 31 Gratt. 601; Bickle v. Chrisman, 76 Va. 683.

Same—Same—Fraudulent Intent.—In Hunter v. Hunter, 10 W. Va. 346, the court said': “Judge Baldwin, in *Hutchison v.*Kelly, 1 *Rob.*123, says: ‘The true principle, I conceive to be this, that a fraudulent intent against one or more creditors is fraudulent against all; and the statute justifies no other distinction between prior and subsequent creditors than that which arises from the necessity of showing a fraudulent intent against some creditor.’ Since the statute imposing the limitation of five years, in certain cases, and since the second section of chapter 74 of the Code of West Virginia has been a part of the law against fraudulent conveyancing, when more than five years have elapsed since the deed was made; the same rule applies to such an existing creditor and a subsequent creditor; in both cases fraud in fact must be shown.”

The principal case is cited in Johnston v. Zane, 11 Gratt. 566, to the point that subsequent creditors will be let in upon a fund fraudulently alienated, wherever the conveyance has been or might be successfully assailed upon the ground of actual fraud.

Same—Same—Proof of Fraud.—The principal case is cited in Lockhard v. Beckley, 10 W. Va. 107; Johnston v. Zaine, 11 Gratt. 561. See *foot-note*to Johnston v. Zane, 11 Gratt. 552.

Effect of Grantor’s Remaining in Possession.—For the proposition that the grantor’s remaining in possession of the property conveyed, is notp^r *se*fraudulent, the principal case is cited in Sutherlin v. March, 75 Va. 236.

Imputing Fraud as Matter of Law.—The principal case is cited in Cribbins v. Markwood, 13 Gratt. 495, in support of the proposition that the doctrine of imputing fraud as a matter of law has been repudiated.

Present Rule—Effect of Statute.—£u Johnston v. Gill, 27 Gratt. 592, it is said: “At this day it is unnecessary to consider the question, so long and so ably discussed by former judges of this court, how far a voluntary conveyance without actual fraud is valid against the claims of existing creditors. That question, it is believed, was finally put at rest by the provision incorporated in the revisal of 1849-’50; which declares that every gift, conveyance, &c., which is not upon consideration deemed valuable in law, shall be void as to creditors whose debts shall have been contracted at the time it was made. See section 2, chapter 118, page 565, Code of I860. This provision excludes all inquiry into the motives and circumstances of the grantor; it adopts the views of Judge Stanard in *Hutchison v.*Kelly, 1 *Rob.*123, and of Chancellor Kent in Reade v. Livingston, 3 John. Ch. R. 481, 500, that if the grantor be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts; and no circumstances will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. The effect of the statute is to disable the debtor from making any voluntary settlement of his estate to stand in the way of his creditors whose debts were contracted at’the time.” See also, 6 Va. Law Reg. 62, 63.

In Crawford v. Carper, 4 W. Va. 68, it is said: “The common law is the basis of the statutory provisions relative to frauds against creditors. These are intended to embody the principles of most general application. Hamilton v. Russel, 1 Cranch 316; Fitzhugh v. Anderson, 2 H. *&*M. 302; *Hutchison v.*Kelly, 1 *Rob.*123-128; 13 Howard 92-98.”

Who Is a Creditor—Contingent Liability.—The principal case is cited in Wolf v. McGugin, 37 W. Va. 564,16 S. E. Rep. 800, to the point that a person contingently liable as surety of indorser is a creditor of the principal debtor.

The principal case is also cited for this proposition in Scraggs v. Hill, 43 W. Va. 172, 27 S. E. Rep. 314; First Nat. Bank v. Parsons, 45 W. Va. 700, 32 S. E. Rep. 276; Humphrey v. Spencer, 36 W. Va. 18, 14 S. E. Rep. 413.

The above cases also cite Bump, Fraud. Con., sec. 503-.

BALDWIN, J.

The principles of the common law denounced all frauds perpetrated against the subsisting rights of others, and gave relief to the party injured. In regard to frauds -upon creditors, the mode of redress was to treat the fraudulent act as a nullity, and permit the creditor to prosecute his legal remedies for the recovery of his demand, in like manner as if the fraudulent act had never been done. The statute of 13 Eliz.- ch. 5 (substantially adopted into our code) was passed in aid of the common law, and sprang from the great and growing mischiefs occasioned by the covin and ingenious devices of fraudulent debtors. It is highly remedial 'and beneficial in its nature, and is entitled to a free and liberal interpretation. It has often been said to be declaratory of the principles of the common law; and this is certainly true; but it is moreover true that its operation is more extensive and salutary than the rules of the common law, at least as they were understood at the time of the enactment of the statute. In fact it introduced a principle which had not theretofore been recognized by the courts, that of extending relief to rights not in existence at the time of the fraudulent transaction; for it was agreed in Twyne’s case, 3 Rep. 83, that by common law, an estate made by fraud shall be avoided only bj' him who had a former right, title, interest, debt or demand, and not by one more puisne. But the statute embraces all creditors, whether existing at the date of the fraudulent conveyance &c. or thereafter arising; for it will be seen on examination, that it

*looks more to the fraudulent intent with which the act is done than to the immediate consequences; regarding creditors as a class of persons entitled to the protection of the law, and contemplating not merely actions, suits, debts, damages &c. which should actually be, but those also which might be, in any wise disturbed, hindered, delaj'ed or defrauded; and declaring all gifts, grants, conveyances &c. made with the prescribed purpose of intent, to be clearly and utterly void, frustrate and of none effect, as against all such persons. The result has been to admit subsequent creditors to relief against a fund fraudulently alienated, where the conveyance has been or might be successfully impeached by prior creditors. This is the fair conclusion from the current of decisions, (see Walker v. Burroughs, 1 Atk. 93. Taylor v. Jones, 2 Atk. 600. Russell v. Hammond, 1 Atk. 15. St. Amand v. Countess of Jersey, 1 Com. Rep. 255. Lord Townshend v. Windham, 2 Ves. sen. 1. Montague v. Lord Sandwich, cited in 12 Ves. 136n. Beaumont v. Thorpe, 1 Ves. sen. 27. Reade v. Livingston, 3 John. Ch. R. 497) and must be regarded as the established doctrine, though contrary to the opinion of sir William Grant in Kidney v. Coussmaker, 12 Ves. 136, in which he professed to follow an opinion of lord Rosslyn in Montague v. Lord Sandwich, not reported, but which opinion, it would seem from a note to the same page, he had misunderstood.

The principle, it is true, upon which the subsequent creditor has been admitted to such relief, has not always been distinctly or correctly stated. Lord Rosslyn in particular, in the case of Montague v. Lord Sandwich, fell into the error of supposing the ground to be, that the subject was thrown into assets, and the subsequent creditors so let in. But how can the subsequent creditors be let in, unless the conveyance be fraudulent as to them? and what propriety can there be in placing the right of the subsequent creditor to relief, upon the will and pleasure of the prior creditors in regard *to impeaching the fraudulent alienation? The true principle I conceive to be, that a fraudulent intent of the grantor against one or more creditors is fraudulent against all, and the statute justifies no other distinction between prior and subsequent creditors, than that which arises from the necessity of shewing a fraudulent intent against some creditor; *83which cannot be done in behalf of creditors I not in existence at the time of the convey- j anee, but by proving either a prior indebt- | edness, or a prospective fraud against them j only. I would moreover, on this part of the ' subject, refer to the conclusive reasoning of mr. Atherley in his able treatise on Marriage Settlements, p. 213, and of sir Thomas Plumer, master of the rolls, in Richardson v. Smallwood, 1 Jacobs Rep. 556.

It is the fraudulent intent, therefore, in relation to creditors generally, which forms the substance of enquiry in all questions of fraudulent alienation; and the courts have, of necessity, resorted to a legal presumption arising out of the general nature of the case, and to marks or badges of fraud furnished by the particular circumstances. The legal presumption is founded upon a comparison of the consideration for the conveyance &c. with that which constitutes the just claims of creditors; and though ¡ voluntary conveyances are not mentioned in the statute, their true character and effect are necessarily involved in its application. This leads to a construction natural and wholesome, and not justly liable, it seems to me, to the imputation of Eyre, B., in Jones v. Boulter, 1 Cox’s Ch. R. 288, of being artificial and puzzling. Upon the question ot fraudulent intent where j the conveyance is voluntary, the law, following the dictates of common sense, gives, on the one hand, due weight to the meritorious considerations arising out of the natural duty of the grantor to make provision for his children and family; and, on the other, to the paramount obligation of discharging the just demands of “creditors. Where the grantor, disregarding an obvious moral and social duty, withdraws the means necessary for the payment of his debts, for the ostensible purpose of advancing the interests of those connected with him by ties of blood or marriage, the transaction speaks for itself; it is properly regarded by the laws as fraudulent, and requires no special marks or badges of a fraudulent purpose. But where there are no interfering claims of creditors, there can be no propriety in restraining the grantor’s dominion over his own property, especially when exercised for meritorious purposes, because he may thereafter contract pecuniary engagements beyond his ability to discharge. The presumption therefore against a voluntary conveyance, though fair upon its face, derived from the grantor’s indebtedness at the time, I regard as wise and salutary, adapted to the promotion of justice, and conceived in the true spirit of the statute.

I can perceive no objection to this legal presumption in all cases of prior indebtedness ; but the weight of it is another matter, depending, it seems to me, upon the extent of that indebtedness. There is high authority for treating the presumption as conclusive in relation to all creditors existing at the time of the voluntary conveyance, without regard to the amount of their demands or the circumstances of the grantor. It was so held by chancellor Kent in the case of Reade v. Livingston, 3 Johns. Ch. R. 492, in which the authorities are elaborately reviewed, but to my apprehension, not with his usual success. His-opinion is supported by that of mr. Atherley, in his work above referred to, p. 212. The rule would no doubt be a convenient one in its practical application, and cut up by the roots many perplexing controversies. But the objection to it is, that it would not unfrequently be harsh and unreasonable in its operation, converting a laudable into a fraudulent purpose, and too often involving innocent children in “the ruin of their parents. Where a parent is in prosperous or unembarrassed circumstances, and makes advancements to his children adapted to their wants and justified by his means, leaving ample funds for the payment of all his just debts, there can be no propriety in treating his conduct as fraudulent, in behalf of creditors who have delayed the prosecution of their demands until those means have become exhausted. The preponderating weight of authority is in favour of this view of the subject. Such is the opinion of judge Story, after a careful examination of the cases. 1 Story’s Eq. 349, &c. It was so held by the supreme court of the United States in the case of Hinde’s lessee v. Longworth, 11 Wheat. 199. That decision is in conformity with the doctrine of lord Mansfield in Cadogan v. Kennett, Cowp. 432. To the same purport is the case of Salmon v. Bennett, 1 Conn. R. 525,—judge Spencer’s opinion in Verplanck v. Sterry, 12 Johns. Rep. 557,- and the case of Jackson v. Town, 4 Cowp. N. Y. Rep. 604, cited 1 Story’s Eq. 359. And see New1. on Contr. 385.

Thus, while I regard the indebtedness of the grantor at the time of a voluntary settlement or conveyance, as raising a legal presumption against its validity, that presumption I consider only prima facie, and not conclusive. It is liable to be repelled by the particular circumstances of the case ; as where it appears that the then existing debts were secured by mortgage, Stephens v. Olive, 2 Bro. C. C. 93, or by the settlement or conveyance itself, George v. Milbanke, 9 Ves. 193, or that the grantor was in prospeious and unembarrassed circumstances, and the provision made for his children or family a reasonable one according to his state and condition in life, and leaving enough for the payment of his debts; Hinde’s lessee v. Bongworth, above cited. On the other hand, the legal presumption may be strengthened by particular circumstances, and rendered conclusive by a degree of indebtedness amounting or approaching to insolvency.

“'This legal prima facie presumption depends, I think, upon the general nature of the case, as presented by a comparison of the considerations recognized by law, and not upon the particular circumstances, for example, the degree of the grantor’s indebtedness, or the extent of *84his resources. These and others circumstances may be resorted to for the purpose of confirming- or- repelling the legal presumption, the "weight of which must always be left to the sound discretion of the court, and applied with a single eye to the truth and justice of the cause. I am aware that in Holloway v. Millard, 1 Madd. Ch. Rep. 413, (am. edi. p. 225,) sir Thomas Plumer, in speaking of a voluntary conveyance, says, its being voluntary .is prima facie evidence, where the grantor is loaded with debt at the time, of an intent to defeat subsequent creditors. But surely, unless the debts be secured to the creditors, such a degree of indebtedness would be conclusive against the fairness of the conveyance; for what conceivable circumstance could in such a state of things repel the presumption of a fraudulent purpose? And in George v. Milbanke, 9 Ves. 194, lord Eldon states the doctrine to be, that in general cases, prima facie, a voluntary settlement will be taken to be fraudulent; but shews that case to be an exception, because the settlement provided for the payment of the grantor’s debts, which made it good against subsequent creditors. Nor can I admit that there is any distinction in the application of the presumption to prior or subsequent creditors, as suggested in Reade v. Livingston, by chancellor Kent, who approves of it as to the former, but is disposed to reject it as to the latter; a distinction acted upon by the supreme court of Massachusetts in Bennett v. Bedford Bank, 11 Mass. R. 421, but repudiated by mr. Atherley in his work on Marriage Settlements, p. 215, 217, 218. For my part, I cannot conceive how, on a question turning upon the same fact, to wit, that of prior indebtedness, a distinction can be drawn between antecedent *and subsequent creditors, in the construction of a statute denouncing the alienation of the grantor as fraudulent against his creditors generally.

The foregoing remarks tend to shew, that though the legal presumption arising from prior' indebtedness is highly useful in the application of the statute, yet it would not always be sufficient or safe, without resorting at the same time to the particular circumstances of the case, furnishing, on the one hand, a guide to an innocent and honest purpose on the part of the grantor, or, on the other, marks or badges of a fraudulent intent. It would of course have no application to the case of subsequent creditors, where the grantor was free from indebtedness at the. time of the conveyance or settlement. And'yet there can be no doubt that the alienation may still be fraudulent within the true intent and meaning of the statute, as springing from a fraudulent purpose directed exclusively against subsequent creditors. The conveyance may be made with a view to future indebtedness, and in order to shield the grantor against its consequences. Stileman v. Ashdown, 2 Atk. 481. Fitzer v. Fitzer, 2 Atk. 511. Richardson v. Smallwood, Jacob’s R. 552. Sexton v. Wheaton, 8 Wheat. 245. And where such an intent can be shewn, the conveyance will be void, whether the grantor was indebted or not. Ibid. Salmon v. Bennett, 1 Conn. R. 525. Nor is it necessary that an actual or express intent should be proved; for that would be impracticable in many instances w'here the conveyance ought not to be established. It may be collected from the circumstances of the case, ibid. Lord Townshend v. Windham, 2 Ves. sen. 1, and the enquiry will be aided by bearing in mind what have usually been regarded by the courts as marks or badges of fraud. Amongst these, are the unreasonableness of the gift, compared with the circumstances of the grantor; his continuing in possession of the property against the terms of the conveyance, exercising *acts of ownership over it, paying the taxes, receiving the rents, or otherwise enjoying the proceeds. Twyne’s case, 3 Rep. 83. Stone v. Grubbum, 2 Bulst. 225. 3 Dyer 294. Oakover v. Pettus, Cas. Temp. Finch 270. Bates v. Graves, 2 Ves. jun. 292. Perine v. Dunn, 3 Johns. Ch. R. 516. Salmon v. Bennett, 1 Conn. R. 525. And in estimating the weight of such circumstances, I cannot doubt that the proviso of the statute, in favour of conveyances or assurances upon good consideration and bona fide, ought to have an important influence; for it serves to shew (what is perfectly reasonable in itself) that the legislature intended to avoid all conveyances &c.' to the prejudice of creditors, whether prior or subsequent, which were not made in good faith, and therefore all which were incompatible with the avowed or ostensible' consideration. And this idea I understand to be intimated by lord Hardwicke in Taylor v. Jones, 2 Atk. 603, when he says, ‘ ‘But the material consideration is whether' it” [the conveyance] “be within the proviso of the statute 13 Bliz. for if it is not, the court will not require a strict proof of its being fraudulent. ”

I have thus, inconsequence of the conflict amongst some of the authorities, and the imperfect manner in which some of the decisions have been reported, endeavoured to ascertain the true principles belonging to the subject ; and if I have been successful, there will be but little difficulty in the' application of them to the case before us.

If the case were free from any special marks or badges of fraud, the deed in question would still appear upon its face to have been a voluntary convejTance in consideration only of natural love and affection ; and if it be ascertained that the grantor was indebted at the time, must be liable to the prima facie legal presumption against its validity. But here it has been strongly urged by the appellant’s counsel, that the special verdict does not find. any indebtedness of the grantor at the time of the conveyance, but a mere possibility of collateral liability, arising out of his having been surety for a deputy sheriff. I cannot concur in this view of the matter. The finding of the *85special verdict is, “that the deed under which the plaintiffs claim was executed by Samuel Hutchison for the purpose of avoiding a liability to which he might be subjected in consequence of being the security of Robert Hamilton, deputy sheriff. ” This, according to my apprehension, ascertains a liability which he had incurred, but to which he had not yet been subjected. The jury do not find merely the fact that the grantor was surety for Hamilton, but find substantially, as I understand them, a liability in consequence of that suretyship. This was a -debt; in my opinion, if not within the words, clearly within the spirit of the statute. The language of the statute is, “actions, suits, debts, accounts, damages, penalties, forfeitures,” &c. which “shall or might be in any wise disturbed, hindered or defrauded.” It embraces all pecuniarjr damages incurred by reason of the obligation of a contract; whether of an ascertained amount or sounding only in damages; whether as principal or surety; whether actually asserted, or only demand-able. The failure of a party entitled to a debt or damages, to prosecute his demand to a recovery, could not alter or affect the intent with which the conveyance was made. A liberal construction in allowing to persons who are or might be injured by fraudulent conveyance, the character of creditors, ought to be and has been given to the statute, which follows and goes beyond the common law in this respect. In Twyne’s case, 3 Rep. 82, it is said to have been resolved by all the barons, ‘ ‘that the statute of 13 Eliz. ch. 5, extends not only to creditors, but to all others who had cause of action or suit, or any penalty or forfeiture.” In Mountford v. Raine, or Lenthall’s case, 2 Keb. 499, there was a bond or recognizance in which Benthall was bound *for the imprisonment of Drake, and a judgment on a scire facias, awarding execution thereupon against the heir and tertenants, in consequence of an escape of the principal. A voluntary conveyance had been made by Benthall, fourteen years prior to the recognizance; and Kelynge, chief justice, and Raynsford held, on the trial of an ejectment, that the conveyance was fraudulent, though the plaintiff was but a creditor by way of escape. Twysden, on the contrary, was of opinion that there could be no fraudulent intent at the’ time of making the conveyance, the party not being any wa3rs indebted, and still but collaterally, which he could not divine at first. The verdict was in conformity with Twysden’s opinion : but it will be seen that that opinion was founded upon the fact that the escape was subsequent to the conveyance; for if it had been prior, he must, upon his own principles, have concurred with the other judges. The case therefore establishes, that a liability incurred upon a collateral undertaking, though not yet enforced, gives to the claimant the chraracter of a creditor. In Buckner v. Freeman, 1 Eq. Cas. Abr. 149, though the court upheld a conveyance intended to secure the payment of honest creditors, made before the trial of a cause founded in maleficio, yet the plaintiff in the suit was let in upon the surplus after the debts were paid. In Jackson ex dem. Van Buren v. Myers, 18 Johns. Rep. 425, it was held that a conveyance made to defeat the recovery, by a third person, of damages in an action then pending for a tort, and before trial and judgment, is fraudulent and void within the New York statute, which conforms to that of 13 Eliz. And in Fox v. Hills, 1 Conn. R. 295, four out of the nine judges were of opinion, that a voluntar3r conveyance to defeat a cause of action for a tort (though, it would seem, no action was pending) Was within their statute against fraudulent alienations, though far less comprehensive than the English statute, the operative words *being merely “debt or duty:” and all concurred in holding it void at common law.

The counsel for the appellants has relied much upon the case of Farley v. Briant, 3 Adolph. & Ell. 839, 30 Eng. C. B. R. 239, in which it was held, upon the construction of the statute 3 & 4 Will. & Mary, against fraudulent devises, that the devisee of a surety who had united with the principal in covenants for the payment of rents, which covenants were not broken in the lifetime of the devisor, was not liable in- an action of debt for rents accruing after his.death. The statute avoids devises as against bond and other specialty creditors, and gives to the creditor an action of debt upon the bond or specialt3r, against the heir and devisee of the obligor jointly. In the case of Wilson v. Knubley, 7 East 128, it had been previously held, that an action of covenant not having been given by the statute, such action would not lie against the devisee upon a covenant of seisin contained in a deed of conveyance from the covenantor, to recover damage for the loss and the laud, of the expenses of defending an ejectment in which it was recovered. The two cases,- taken together, shew that covenant would not lie though there was a breach in the lifetime of the devisor, and that debt would not lie where there was no breach till after his death; but not that debt cannot be maintained where the breach was in the life of the obligor. The remedy given by , that statute is a personal action, of a particular form, against the devisee, who was not liable at common law, and an action upon a bond or specialty merely; whereas the statute against fraudulent alienations gives no personal remed}-, but declares in the most comprehensive terms, applicable to all damages, as well as debts of whatever nature, (what had been before provided by the common law, at least to a great extent,) that all conveyances &c. made wjth the proscribed fraudulent intent, shall be void against all *such creditors. The two statutes, it seems to me, are radically different in all respects, and .the decisions upon the one can throw no light whatever upon the construction of the otter.

*86I cannot therefore but think, if I am righ£ in my understanding of the finding in the special verdict, that the grantor had incurred a liability at the time of his voluntary conveyance, which created an indebtedness within the true spirit and meaning of the statute, and the principles of the common law: and if so, the extent of that indebtedness is wholly immaterial; for the prima facie legal presumption attaches, and is rendered conclusive by the finding of the jury that the conveyance was made for the purpose of avoiding that liability; which fraudulent intent nullifies the deed in regard to all creditors, whether prior or subsequent. It will hardly be said, that, the jury having only found the fraudulent intent in regard to that liability, the idea of its existence in relation to others is excluded: for a fraudulent intent against one creditor is, as I think I have shewn, fraudulent as to all; and it was not necessary to find that comprehensive intent, which , would have rendered the verdict general, instead of special, the province of the latter being to find the material facts of the case, leaving the general conclusion of law, or more properly the general conclusion of both law and fact, to the judgment of the court. 8 Bac. Abr. London edi. of 1832, p. 101. Monkhouse v. Hay, 8 Price 256, 3 Eng. Exch. Rep. 368.

But if it were even conceded that the liability found by the jury does not shew an indebtedness of the grantor at the time of the conveyance, still it shews that the deed was made to defeat a legal and just responsibility, to wit, his suretyship for the deputy sheriff, and was not therefore made bona fide for the advancement of his children. And when we come to look at the particular marks or badges of fraud attending the transaction, *we find emphatically true, what was well said by the counsel for the appellee, that the conveyance could have been made for no honest purpose; and if so, we can conceive no other purpose than to delay, hinder or defraud the grantor’s creditor; whether creditors existing at the time, or thereafter arising, I deem wholly immaterial. The facts speak for themselves a language which cannot be misunderstood. A father, in moderate circumstances, and with an increasing family, conveys at one dash to his infant children, four in number, jointly and without discrimination, and with no provision for himself, his wife, or future offspring, his whole property, real and personal, down to his unspecified and unscheduled farming utensils and household .furniture, with the grain and the live stock which furnished his bread and his meat; thereby,-if to be believed, “dispossessing himself of all his goods, and subjecting himself to his cradle:” continuing, however, in the possession and enjoyment of the whole subject, controlling and using it as his own, paying the taxes, though charged to the grantees, and discrediting the very title which he professed to confer, by offering to sell the realty, and actually selling a portion thereof. If such shallow devices be suffered to cover up a man’s property from the pursuit of his creditors, will it not be “not only to the let or hinderance of the due course and execution of justice, but also to the overthrow of all true and plain dealing, bargaining and chevisance between man and man, without the which no commonwealth or civil society can be maintained or continued?”

Upon the whole, I am well satisfied that the judgment of the circuit court is right, so far as relates to the tract of 500 acres: but in regard to the tract of 100 acres, I think it wrong; that portion of the land not having been sold or levied on under the .commonwealth’s execution, and though conveyed by the sheriff’s deed to the purchaser, that conveyance can present *no obstacle to a recovery by the lessors of the plaintiff claiming under their father’s deed, they having acquired a title good between the parties, and unimpeachable by the commonwealth or any one claiming under her; she, since the sale of the 500 acres, no longer occupying the relation of creditor, her debt having been fully satisfied by the proceeds of that sale. A difficulty, however, occurs as to the mode of correcting this' error. It might be thought, at first view, that the alternative general finding of the jury, for the plaintiff or the defendant as the law of the case might be, being entire, the judgment must conform to the verdict in that respect, or not at all; which would render it necessary to set aside the verdict, and award a venire facias de novo. Such a result is to be deprecated, inasmuch as it would put the parties at sea again before a jury: and some reflection will serve to shew that it would be improper. The courts have always disregarded mere informalities in verdicts, of which numerous examples may be found in 3 Bac. Abr. London edi. of 1832, title Ejectment, E. p. 29. In this case,, there can be no doubt that it was the intent of the jury to submit to the court the law of the whole case upon the facts specially found. If the alternative finding of the jury in behalf of the plaintiff had been for the lands in the declaration mentioned, or so much thereof as he is entitled to recover, it is clear there could be no objection to rendering judgment for part only. The omission of such terms I regard as a mere informality, as the jury cannot be supposed to have intended, what would have been obviously improper, to fetter the power of the court in rendering judgment according to the law of the case. The verdict ought therefore to be considered as a finding for the plaintiff of so much of the lands demanded, as in the opinion of the court he was entitled to recover. And my opinion is, that the judgment ought to be reversed with costs, and judgment ^rendered in favour of the plaintiff for the tract of 100 acres, one of the messuages demanded, and for the defendant as to the residue.

STANARD, J. The finding of the jury *87ascertains that the deed from Hutchison to his children was not only voluntary and without valuable consideration, but was made mala fide and covinously. It is not merely constructively fraudulent as being voluntary: it is tainted with actual covin, and according to the letter and spirit of the statute, void as to all creditors. The property conveyed by it was therefore liable to the execution of the commonwealth; and the purchaser under that execution, to the extent of the levy thereof and sale under it, has title paramount to that derived under the fraudulent deed. I think it unnecessary, in this case, to enter at large into the review of the numerous cases which have been so elaborately collected and examined by my brother Baldwin. I content myself with saying, that on other occasions I have examined them with care, and my impression was and still is, that the principle extracted by chancellor Kent, in his elaborate judgment in the case of Reade v. Livingston, 3 Johns. Ch. R. 481,—to wit, that a voluntary conveyance without valuable consideration, though free from actual covin, cannot prevail against the claims for debts existing at the time of such conveyance,—is a sound one.

The claim of the purchaser under the execution is only commensurate with the levy and sale under it. As that levy was on one tract of 500 acres, the sheriff had no authority to sell and convey more, and his deed to the purchaser for the other tract of 100 acres conveyed no title, an'd the judgment in respect to the tract of 100 acres was erroneous.

The judges unanimously concurred in reversing the judgment of the circuit court, with costs, and entering *judgment, as to the tract of 100 acres of land, that the plaintiff recover his term jTet to come in the same, and his costs of suit; and as to the tract of 500 acres, that the defendant go thereof without day.