#### MALCOM PURCELL *v.*ARCHIBALD M'CALLUM.

A conveyance made to defeat, hinder, or delay a party injured by the erection of a mill, in the recovery of his damages, is fraudulent and void as to such party, and the owner or proprietor of the mill, notwithstanding such conveyance, continues still liable for the damages,

*Qutsre,*whether damages for an injury to the plaintiff’s health can be assessed under that act ?

This was a petition filed in the County Court of Robeson, at February Term, 1834, under the act of 1809, *(Rev. ch.*773,) in which the plaintiff sought to recover damages for an injury sustained by the erection of a mill. The petition stated, that the defendant, by the erection of his mill and dam, had not only overflowed the plaintiff’s land, but had also greatly impaired the operation of his cotton gin, by throwing water back upon its works. It stated, likewise, that the health of the plaintiff and his family had, and was likely to suffer much from the same cause. After a verdict for the plaintiff in the County Court, and an appeal, the defendant entered, together with the *general*issue, the following special plea: “ That he was not the owner or proprietor of the mill and dam complained of in the petition, since the twenty-seventh day of September, 1833, at which time he conveyed the said mill and dam by deed to Edward M'Callum, and that ever since the said date, Edward M'Callum was the owner and proprietor.” To this plea the plaintiff replied, *“*That the deed mentioned in the defendant’s plea was not *bona fide,*but was made in fraud of the plaintiff’s right to recover the damages sought in the petition.” Upon the cause coming on to be tried at Robeson, on the last Circuit, before his Honor Judge Sea well, upon the allegations of the petition and the issue of fraud, the defendant’s counsel objected to the admission of any evidence to prove the fraud, on the issue joined. The objection was overruled and the evidence received. And under the instruction of the Court upon that part of the case, relating to the injury sustained by the plaintiff’s cotton gin, the jury returned the following verdict: “ That the annual damages which the plaintiff *222sustains by reason of the overflowing of his land by the water, as charged in the petition, amounts to *thirty dollars,*°f which twenty-five results from damages- done to the cotton gin; and they assess no damages for the injury to the plaintifF’s health, as sought and charged by the petition. And they further find for the plaintiff on the issue of fraud.” From the judgment rendered on this verdict the defendant appealed.

*Winston,*for the defendant, argued, upon the question of fraud, that the act of 1715, *(Rev. ch.*7,) was designed to avoid alienations which were fraudulent as to creditors, by preventing them from reaping the fruits of their executions: that the defeating, hindering, or delaying creditors, was what constituted the fraud against which the statute was aimed: that this could not apply to a case where the alienation could not disturb the remedy.of the plaintiff; and that all cases where a nuisance was created by the erection of a mill, an alienation of the mill furnished in the alienee a person from whom the party injured could obtain ample recompense. He contended, that t a proper construction of the acts of 1809 *(Rev. ch.*773,) and *1813, (Rev. ch.*863), showed that the “ owner or proprietor” of the mill, whether the rightful or wrongful owner or proprietor, was the person liable for damages accruing during the time of such ownership. And that if he who erected the mill, disposed of his interest therein, he could not be made responsible for the continuance of the nuisance, after such disposition. The counsel then went into an examination of the law upon the different remedies against nuisances, by *quod permittat,*assize of nuisance, and the action on the case which was substituted for the assize; and he stated the effect which the alienation of him who created the nuisance had upon these remedies. He adverted to the statute of West. 2, (13 Edw. 1, c. 24; 2 Inst. 405,) illustrating it by reference to the construction placed upon the statute of 3 & 4 William and Mary, in the cases of *Gawler*v. *Wade, 1 Peere*Williams, 99, and *Warren v. Stowell,*2 *Atk.*125. He also cited *Fetter*v. *Beal,*1 Lord Raym. 339, 682; *Beswicke*v. *Cunden,*Cro. Eliz. 402; *Penruddoch’s case,*5 Rep. 101, b.; 16 Yin. Abr. *22332. Nuisance, K. 2; *Rosewell*v. *Pryor,*Salkeld, 460; 1 Lord Raym. 713, to prove the position, that after alienation, the alienee was the only person liable for the continuance of a nuisance created by the alienor.

No counsel appeared for the plaintiff.

Ruffin, Chief Justice.

— The Court deems it proper to premise, that the rule acted on in assessing damages, as far as it respects the injury to plaintiff’s health, is not considered as presented to the revision of this Court. The caséis stated with a different view. Possibly the judge excludes that allegation of the petition from the consideration of the jury, because it was not proved; for while it is stated that evidence was given for the plaintiff on the other parts of his case, the record is silent as to any on this. But, as it is not probable, that the mere result of a defect of proof would. be so "emphatically set out in the verdict and case, it may be supposed, that his Honor entertained the opinion, that an injury to health by the erection of a mill is not such a private nuisance, as can be redressed by an action for damages; or that it cannot be redressed by this peculiar remedy. Whether the opinion, thus supposed, be correct or not, it would be extrajudicial now to pronounce. The record does not contain facts to raise the question. If it did, and such an opinion was given, it was adverse to the plaintiff, and he has submitted to it. Por an error, if there be any, in the opinion, the Court would not therefore reverse the judgment of the Superior Court. While that is so, it seems proper to disclaim the sanction of it, which might be inferred from affirming the judgment. The Court does not consider the point at all; and to prevent a possible inference to the contrary, is the sole purpose of adverting to it.

The case depends upon the exception of the defendant. Notwithstanding he joined in the issue tendered in the replication, he moved the Court to exclude all evidence on it, on the part of the plaintiff. That actually given is not stated. The objection is not, therefore, to the particular evidence, as irrelevant, incompetent, or insufficient to prove the issue; but is, in substance, that the issue is, itself, *224immaterial, and that consequently the defendant would be entitled to judgment, notwithstanding a verdict on it against him. The evidence must be deemed proper, and to authorise the verdict, if any could be of that character, and have that effect. The counsel has so treated the case in the argument, and has contended, that there cannot, in such a case, be a fraud, legally speaking, and that, therefore, it cannot be proved or founded upon any evidence.

It is said, that the act of 1715 means to protect the *rights*of creditors, and is satisfied, if the party injured is not defeated of all remedy against any person ; and that this case cannot be within it, because the defendant’s alienee becomes responsible, each proprietor being successively liable for the damages in his own time: and so the plaintiff is not without adequate redress.

As subsidiary to these positions, the counsel for the defendant laid down the general proposition, that one who erects a nuisance, and then aliens the land, was not, before the act of 1809, liable for subsequent damages arising from its continuance; and that our statute clearly restricts this remedy by giving it against the owner or proprietor for the time being. The Court does not consider this case as calling for any construction of the act of 1809, upon this point; nor deem it necessary to pursue, with the learned counsel, researches into the ancient law upon the first part of the proposition. For, allowing to alienation the operation demanded upon the remedy by *quod permitted*at the common law, or upon the writ of assise, either before or after the statute of Westm. 2, c. 24; and yielding to it any effect, that may be desired, on the action on the case, which, as respects the recovery of damages, has been substituted for the assise; or the like effect upon the petition in our law; yet the alienation supposed must be a real alienation, and not a feigned nor a fraudulent one. The general question is not open upon this record; in which it is found, that the deed made by the defendant was executed with the intent to defeat the plaintiff of his damages sought to be recovered in this suit.

The case is therefore brought back to the point of the exception; which is, whether the deed could have that *225effect, if it stood, or could, in a legal sense, have been made with that intent.

On these questions the Court entertain no doubt. Many cases may be easily conceived, in which the deed would prejudice the plaintiff, both as to his rights and his remedies. If the defendant, being liable for the damages in his own time, was insolvent, except as the owner of the mill, and conveyed that, voluntarily, the plaintiff would lose his previous damages. The deed may be upon an express or secret trust for the defendant, he continuing in the perception of the profits ; or it may have a clause of revocation, and thus be within the words of the statute 13th Eliz. The alienee also may be insolvent, and the conveyance made to him for that reason ; for the injury to the plaintiff may be greater than the value of the mill will answer, by the time judgment can be had against the alienee. But we do not think it necessary, that the object should be, ultimately to defeat the plaintiff entirely of his damages, or any part of them, though that intent is alleged and found in this case. It is sufficient, if the object was to blind him, to put him to a difficulty as to his remedy, so as to delay him of a direct one, and hinder him of that which was most beneficial, and impose costs on him. Such a design would be deceitful and fraudulent. Suppose this deed to have been made secretly and disclosed for the first time in the plea: that it was without consideration, to an infant or to a son, or to one not resident in the state, and that there was no visible change of occupation: and all this to the intent that the plaintiff should not know the owner, but should sue the present defendant, under the belief, that he continued to be the owner; and thus be delayed of his remedy against the alienee, and defeated in the action against the alienor. The case,-we think, would be clearly within the statute, and the plaintiff have a right to treat the title, as if no such deed had ever been made. The case supposed is precisely within that of *Leonard,*v. Bacon, Croke Eliz. 234. In Formedon, the defendant pleaded *non tenure,*on which the plaintiff took issue. Before suit brought, the tenant had, in fact, enfeoffed several persons of the lands; but it was found, that it was *226to the intent to defraud those who claimed the land, and that he took the profits. There, it might have been argued, that the conveyances worked no wrong, and defeated no right; for the feoffees were good tenants to the precipe, and might have been sued. But it was held otherwise, and adjudged for the demandant under the statute of Elizabeth. This must have been upon the ground, that the conveyances, although they might not defeat the plaintiff’s right, were intended to hinder the remedy against the feoffor, and to delay him of one against the feoffees.

The Court is not, indeed, aware of any instance in-which a conveyance may enure when it is made and received with the intent that it shall enure to hinder or delay a creditor or other claimant of his remedy, as provided, by law, directly against him who makes the conveyance, in which it is not avoided, either at common law, upon a general principle of justice, or by force of the statute, in in the same manner as if the intention was to defeat the right altogether. In truth, that might be the ultimate effect of such devices; since by successive secret aliena-tions, the title would be so passed from one to another, that the party could never know whom to sue.

Per Curiam. Judgment affirmed.