#### Den ex *dem.*of John Hoke *v.*Lawson Henderson

Where a purchaser of land under an execution, against a fraudulent vendor, neglected to take his deed , from the sheriff, and before its delivery, the fraudulent vendee entered into recognizance to the state, it was held, that though between the state and a subject? there is no' priority obtained by the latter, from the relation of Ilia execution, when they are pursuing the estate of a common debtor, yet as the land was primarily liable to the creditor of the vendor, the prerogative of the state did not operate, and that the sheriff’s deed related to the sale.

*A*recognizance is a specific lien, which is not lost by suing out a *fi. fa.*The cases of *Beterson*v. *Williamson f anís, not.*2, *p*326) *Burton v Mttrphey*(2 *Murp.*339) and the *State*v. *Magniss*(1 *May.*99) approved by Rumor, Judge.

EJECTMENT, in which both parties claimed iindeC *Robert Wier.*

The lessor of the plaintiff produced a judgment in favor of *John Wier*against *Robert*Wier, which was entered up at the Fall term, 1821, of Lincoln Superior Court, *13'■executions upon 'which regularly issued until the fall term, 1802, when the lessor of the plaintiff purchased, hut did not take a deed from the sheriff until the 26th of April, 1827, :

The lessor of the plaintiff also claimed title under two otliér sheriff’s sales, made upon executions in favor of one *Wilson,*and one *Fuknwider,*which it is’unnecessary to notice further.

The Defendant deduced his title as follows :

1st, By a deed from *Robert Wier,*to his son *Joseph*Wier, dated March 6, 1809.

2d. By proof-of *Joseph Wiefs*possession from the date of that deed, until November, 1825.

3d. He produced the record of a recognizance to the state, entered into by *Joseph Wier,*at the spring term, 1826, of .Lincoln Superior Court, which was forfeited at the ensuing term, when process issued, and final jadgment was afterwards entered in' favor of the state : a *fufa,*issued on this judgment, and the defendant'purchased in November, 1827.' ’ . .

It was in proof, that in March, 1809, the date of. the deed from *Robert*to Joseph, a suit was pending in Orange Superior Court, at the instance of one *Robertson,*against *Robert Wier*for a malicious prosecution,in which final judgment was afterwards obtained for $500, and an execution upon which was satisfied. It was also proved, that *Robert Wier*lived on the land with bis son *Joseph.'*

His Honor Judge Baüstee charged' the jury, that as the lessor of the plaintiff claimed under a judgment in favor of *John Wier,*a creditor of Robert,• at the time of the conveyance by *Robert*to *Joseph,*in March, 1809, they ought to inquire, whether that conveyance was made to hinder, delay or defraud the creditors of *Robert Wier*—.that it was unnecessary to enquire, whether *Robertson*was a creditor within the meaning of the 13th of *Elisabeth ;*because the lessor of the plaintiff did not claim under him — that if they should think the deed of *Robert*to *Joseph*was fraudulent, as to *John Wier,*then they' should find for the lessor of the plaintiff, unless the pos* session of *Joseph Wier*had ripened Ms defective title into-*14a good one, and barred the entry of the lessor of the plaintiff — that under the act of 1715, a fraudulent deed vas colour of title, and that if *Joseph Wier*continued in possession for the space of seven years, holding the land adversely to all the world, the lessor of the plaintiff would be barred by that act»

*A*fraudulent as to void as toalTcre-ditors.

A verdict was returned for the defendant, and the lessor of the plaintiff appealed.

*Seawell*& *Winston,*for the lessor of the plaintiff.

*Ilogg,*for the defendant, contended,

1st. That the state, by the recognizance, acquired the title of a purchaser, and that a *bona fide*purchaser from a vendee whose title was defective under the 13th *Elizabeth,*and who had no notice of that defect, acquired a valid title. For this he cited *Burton*v. *Murphey*(¿Y! C. *Term Rep.*259) *Anderson*v. *Roberts (IS John. Rep.*515) *Robert's Fraudulent Conveyances*392, 462.

2d, That the title to land sold by the sheriff did not pass until the execution of the deed. For this was cited *Simon ds*v. *Cal tin*(2 *Caines’*60) *Jackson*v. *Catlin*(8 *John. Rep.*520) *Jackson*v. *Terry*(13 *do.*471) *Frost*v. *Ethe-ridge (ante, vol.*1, *p.*30) *LilUngton’s case*(7 *Rep.*38 a} *Butler*& *Baker’s case*(3 *do.*25).

3d. That no relation took place against the sovereign. *Viner’s Jib. Relation, E, pi. 3. Butler*v„ *Butler*(1 *East*338) *JJphani*v. *Sumner (Blk. Rep*1294) *Itorke*v. *Day-veil*(4 *Term Rep.*402) *Rex*v. *Wells*(16 *East*278) *Rex*v. *Sloper*(6 *Price*114) *Scales*v. *Fewell*(3 *Hawks*18) *Haughton*v. *Gray (do.*21).

Rueein, Judge.'

.The first position of the judge of the Superior Court, that it was immaterial to inquire, whether the conveyance of *Robert Wier*to his son *Joseph*intended to defraud *Robertson,*since neither party claimed under him, is contrary to what I have always considered the law; and contrary to the authorities. I conceive, that a conveyance in fraud of one creditor is void as to all creditors. It is upon this foundation, that *15■what aro called *fishing*bills are filed in Equity, to find out a creditor at tbe time of tbe conveyance, and to bring tbe whole fund into subjection to general creditors, including subsequent creditors, and n/oriion,other creditors at the time. *(Lush*v. *Wilkinson, 5 Ves.*384. *Taylor v. Jones,*2 *Atk.*600.)

¡ífjnopcra! tive when offer-titlR^as^dl as when offered as title itself.

under a cmli-iti'fcoSw'ofü-tie agakist the

This court lias likewise the misfortune to differ from the court below upon the nest instruction given to the jury. The case of *Peterson*v. *Williamson, (ante*2, *vol.*326) and *Pickett*v. Pickett, decided at this term, establish, that the possession of a fraudulent, grantee does not bar a creditor under the statute of limitations. The title is void to all intents, and tbio extends to the deed, when operating as color of title, as well as when offered as ti-tie itself. It will enure under the statute, against the purc.haser under tbe creditor’s execution, but not before. For tliese reasons the judgment below must be reversed, unless tbe record shows 'that, at all events, the hath a better title, and must obtain a verdict upon a second trial.

The counsel for the defendant, admitting’ that he could not support the charge of the court, has insisted here, that the defendant has thebetter right. He founds his argument on this state of facts: That the lessor of the plaintiff, altho’ lie purchased under *John Wier’s*execution against *Robert kRer,*in October 1822, obtained his deed on the 26th April 1827 ; and that *Joseph P/ier*being in possession, entered into recognizance to tbe state in. Apifil 1826, on which execution afterwards issued, under which the defendant purchased the 22d October, 1827, and took a sheriff’s deed in November following. It is insisted, in the first place, that the state, by force of the recognizance, is a purchaser from *Joseph JFier,*within our statute against fraudulcntconveyauces j and that the true construction of that statute, since the proviso is adopted from the 27 *Elia.*hmtoad of 13 *Elia,*is, that the first *Iona file*purchaser, whether from the grantor or grantee, has a good title; and also., that a like purchaser front *16tbe grantee is to be preferred to a creditor of the grantor. This last position is one? which retires to *be*established. by very clear reasoning? before it can be adopted. Where creditors are the peculiar objects of the protection

The statute 13th *.Elizabeth*being' tect'avditors^á 5o;m./irfi'pm'cha-to dulentSendee," has no title a-tors of the ven-

the 27th *Elizabeth*being benefit'of”' ur ^ie chasers,^he first up *bona fidspm-cha.-*ser,whetheriroin,. the fraudulent vendor or yen-dee, is witlumts operation,

a statute, which makes an act done to their injury void as against them, it seems difficult to suppose, that any subsequent occurrences can set it up again, contrary the object and express words of the statute. Under tbe other statute, purchasers only are within the purview; and wherever a purchaser appeal's, whether from TMe grantor or grantee, there is a person tor whose be-ne^ s^a^° was designed, and can operate. In the case of creditors, those of the grantor alone are within ^ie Plu‘’TMw' Has the act been ever construed, to set up a fraudulent conveyance for the benefit of the *grantee'$ creditors ?*Can it be ? If not, how does a *purchaser from*, , , , . ... ., , „ *him*stand better ? The opposing decisions cited from *Johnson's Reports,*are entitled to much consideration, *1 y*and would be to much more, did they not conflict with each *other. The. court*would certainly pay very great great respect to the latest, as the- adjudication of the highest court, and weigh the reasons well, before adopting a contrary rule ; and would not proceed to decide this case against those cases, without discussing those reasons, if the decision depended upon the point, But we think it does not; because, admitting the state to be a purchaser, and that such a purchaser is within the proviso, yet here the creditor of the grantor had sold, and the lessor of the plaintiff purchased at his sale, before the state purchased. The sheriff’s sale under *John’s*.execution was in October, 1822, and the recognizance was in April, 1826.

It is said however, that the title did not pass by the sheriff’s sale, but only by his deed, which ivas in April, 1827, after the *recognizance;*and therefore that the land remained the estate, in law, of *Joseph,*and was bound by the recognizance. The effect of a sheriff’s sale, and the relation of his deed to the sale,' have been considered by the court, in the cases of *Davidson*v. *Frew*and *Pickett*v. *Pickett,*decided at this term, as between individuals. In the former, the plaintiff claimed under *17execution against the husband, and the defendant by act of law as his widow'. In the lafter, the plaintiff claimed in like manner under execution against a fraudulent grantor, and the defendant was the fraudulent grantee himself. In botli it was held, that the deed, operating as the execution of a power, related back to the power itself. There has been an attempt to distinguish this case from those, by saying there is no relation against the sovereign ; and a string of cases cited to show, that the execution of the king is entitled to the first satisfaction, unless the debtor’s goods be actually sold under the subject’s process, before the sovereign’s is delivered. The court is not disposed to contest that, nor to lay the pub-lie here, under greater disadvantage, than is imposed the interest of the community represented by the crown, in England. But the question in this case is altogether different. The cases relied on, are those of *the debtor*to the crown and the subject; and *no*safe by latter, before the former sues execution. Both stances must concur, to give operation to the prerogative. The cases of *Hex*v. *Wells*(16 *East*278) and *Rex*v. *Sloper*(6 *Price*114) so lay down the rule. If the subject hath sold the goods of the king’s debtor, before the sovereign sues execution, the sale is not disturbed. It is no longer a question of preference of satisfaction *;*for the goods have ceased to be the debtor’s for any purpose, But here the question is not one of relation, on which depends the right of prior satisfaction. But the question is, whose lands were these when the lien of the recognizance was created. If both parties claimed the lands under *Joseph Wier,*then the reasoning might apply. And it would then have to be determined, whether the sale by an individual of land, for which no sheriff’s deed was executed, would defeat, by a subsequent execution of the deed, the lien of an intermediate recognizance. Upon that, we will he ready to give an opinion when it arises ; for there seems not much difficulty in it. But in our case, the parties claim under different creditors, against *different debtors.*And to that case, the. doctrine of the prerogative does not extend. It is not ,a *18question of priority ; but simply one, for the creditors of which of two debtors is "the land a fund. When the Ies-sor of the plaintiff bought, his purchase was a good one, since the land was the. father’s for the purposes of his creditors. His ■ deed, as to all persons claiming under the father, relates to the sale. A stranger claiming under *Joseph*subsequently, has no interest in the question of its relation. The doctrine of relation does not con--cern him. He can only show, that the lands remained *Joseph’s,*to pay his debts. . And in that respect, the state and an individual stand on the same footing.

*17A sheriff’s deed üiJexecutíon^of a power, andre-power itself

There is no .■<, hitionag-ainstthe state, between executions in its fi-voi-aud that oí ferenoe, unless ¿tvebeen 1S deliv<a

*18It-will he perceived, that the recognizance has been treated as creating* a lien *;.*and that such lien continues, notwithstanding the process of *ji. fa,*on: it. The court is not obliged, in this case, to decide the effect of suing that execution ; but as the point was made, and it is of consequence that no doubt should he felt on it, the court feels it a duty to express a prompt opinion upon it. The specific lien of a recognizance is not lost by suing a notwithstanding the case of *Jones*v. *Edmunds*(3 Murp. 45) rules it so, as to judgments generally. The security of the public, and the ease of persons demanding to be let to ball, require it.' There has been no *extent,*sued -in this state within memory ; indeed none heard of; and without giving this effect to the ordinary process of execution, a recognizance would afford the state no assurance of the appearance of criminals. *Burton*v. *Murphey*(2 *Murp.*339) is in point; and that case is founded on the previous one of the *State*v. *Magniss'*in 1794, (1 *Hay.*99) which recognizes the rule as so understood, and generally received at that time; and id the stronger, because referring to what was said on the same subject, in the argument of *Bell*v. *Hill*(1 *Hay.*87).

No notice is taken of the title set up under *Wilson’s*executions ; because the title of the plaintiff is plain under *John*Wier’s, and the facts do not very clearly appear. The sale under *Fulemvider’s*is certainly bad ; because they were against *Joseph*himself, and posterior to his recognizance.

Per Curiam — Judgment reversed.