#### Asa Godbold *vs.*James Lambert, and others.

Bill by a creditor to subject land to his demand, sustained. The debtor had purchased the land and fraudulently procured the conveyance to be made to his children.

Where plaintiff to avoid the bar of the statute of limitations avers ignorance of the fraud until within four years, the *onus*of showing notice is on the defendant.

No more is required in this averment, than that it should be sufficiently explicit to enable the defendant to meet the issue tendered.

Notice of a deed of conveyance of land is presumed from the time it is registered. But proof that the party had notice of the deed, does not, ordinarily, show that he had notice of the fraud.

BEFORE JOHNSTON, OH., AT HORRY, FEBRUARY, 1855.

Johnston, Ch. The defendant, James Lambert, sometime in 1840, purchased from one Thompson, a tract of land, lying in Horry District, and containing about six hundred and three acres, and described in the pleadings and exhibits. He was indebted at the time; and among other dealings, he had on the 4th January, 1836, given his note (payable the first of the succeeding year) to one John Baker, for one hundred and one dollars and fifty cents, for the hire of a negro, to which note the plaintiff, Asa Godbold, was his surety. To avoid liability for those debts, he caused Thompson to convey the land to his three children, and co-defendants, all three minors; — accordingly, Thompson conveyed to them by deed, dated October 13, 1840, whieh was subsequently registered, March 16, 1841.

The children paid no part of the price, of the land, nor does any valuable consideration appear to have proceeded from them to their father for the conveyance which he caused to them.

On the 7th Oct., 1839, a credit of thirteen dollars had been endorsed on the note held by Baker. This sum was probably paid by Lambert.

Godbold, the surety, afterwards took up the note, and early *156in 1841, brought it to his attorney, Mr. Harllee, and by him obtained a confession from Lambert for one hundred and nine dollars and fifty-one cents, for the money he had paid on it as surety. On this confession, judgment was signed the 9th, and execution lodged the 10th of March, 1841.

Under a judgment and execution obtained against Lambert the 3d April, 1839, Gowan, the Sheriff of Horry, made sale of the tract of land before mentioned, as the property of Lambert, the 4th of October, 1841, and it was bid off by Josias T. Sessions, at the sum of ten dollars and fifty cents, (which was applied to the oldest execution,) and on the 10th of December, 1841, Gowan conveyed the land to Sessions.

In the mean time, Sessions was willing to relinquish his purchase upon being refunded his purchase money. Accordingly, Lambert called on him, and in a settlement of some other matters between them, allowed him a discount for the purchase money expended by him, and took from him a quit claim, to his children, dated the 16th of February, 1846, which was put on the registry along with Gowan’s deed, the 27th March, 1851.

This quit claim recites that the ten dollars and fifty cents was paid by the children. But this is not corroborated by any answer in the case. According to the defence, no consideration was paid to Sessions, and his conveyance was gratuitous. Of course, if this were admitted, the children paid nothing. But it is clearly proved, in opposition to the answer and evidence of Lambert, that a consideration passed to Sessions, and passed from Lambert himself, and not from his children.

The plaintiff’s judgment all this time, remained unsatisfied. It is possible that his executions had been permitted to lose their active energy. As heretofore stated, his original execution was lodged the 10th of March, 1841. An alias was not lodged till the 9th of January, 1850. Then followed a pluries, which was lodged 14th March, 1850, and was re-entered by a succeeding Sheriff the 10th March, 1851.

*157On the 2d of November, 1850, this last execution was levied on the land, as Lambert’s property; and on the 5th of May, 1852, the Sheriff made sale of it, and it was purchased by the plaintiff, at the sum of ten dollars, and conveyed to him by the Sheriff accordingly.

Having brought suit for the land, and finding obstacles to his recovery, he filed his bill, in this case, the 10th January, 1855.

The object of the bill is to set aside the deeds to the children as a fraud on the creditors of the father, and that the Court either help the plaintiff in his suit at law, or grant him full relief in equity.

The plaintiff comes forward in the character of *purchaser*of the land; and as such, entitled to have the way cleared for his title; and in the character of creditor, and entitled as such, to have his demands satisfied out of the land.

He has not shown himself to be a *purchaser.*His purchase is void on account of the process, under which the sale was made. The Statute of 1827, 6 Stat. 825, does not extend the time for renewing executions, so as to take in the alias of 1850; so that the continuity of process was broken, and the judgment could not be renewed for execution but by *scire facias,*or action of debt.

Then we are to examine his rights as *creditor.*

There is no doubt of the fraudulency of both the deeds to Lambert's children. But the question is presented by the pleadings whether the plaintiff is not barred by the Statute of Limitations.

I take it to be established in this Court, that the Statute runs from the perpetration of a fraud, unless the injured party remains ignorant of it until a late date, in. which case it runs from the discovery. But the general doctrine is, that if nothing be said in the ease to the contrary, the discovery will be presumed to be contemporaneous with the fraudulent act. On the other hand, our cases show, that this presumption will not be *158applied, if the plaintiff, in his bill, aver that he was ignorant of the fraud at its- perpetration, and remained so until a subsequent time, as this averment *may*be true, but, being negative in its character, the plaintiff cannot *prove*its truth. In such a case, the Court deems it but reasonable that he who contests the averment, and has it in his power to prove positive information in contradiction of it, should be put to such proof. Then the Statute will run from the earliest information brought home to the plaintiff.

In this case, the plaintiff has averred his ignorance of the fraudulent conveyance until within four years of filing his bill, and no information is brought home to him independently of the notice arising from the registration of the deeds.

Parties liable to be affected 'by notice, must take notice of deeds duly registered; and, indeed it has been lately decided against my opinion, that though a deed be not duly recorded— that is, not within the statutory period, yet it shall operate notice constructively from the time of its actual registration.

We are, therefore, to hold the plaintiff to notice from the time these deeds were put upon the registry.

There is nothing to bar him from the recording of Glowan’s deed to Sessions, or Sessions’ quit claim to Lambert’s children. They were recorded the 27th March, 1851, and the bill was filed the 10th January, 1855. The interval was less than four years, and the Statute had not run out.

So far, I was clear at the hearing. But upon another point my opinion has undergone a change since that time.

At the hearing, I supposed the fraudulency of Thompson’s deed to the children might be thrown out of the consideration. Its fraudulency could only consist in its imparting to the children, a title to property which really was the property of the father. But as the property had been subsequently sold as the father’s, his creditors had received the same benefit as if his title had not been perverted. This was my view when the case was *159heard; and if it were correct, then the whole case would depend upon the latter deeds.

But Thompson’s deed was registered the 15th March, 1841, and the registry was equivalent to notice of its existence to the plaintiff. On inspecting the bill, it does not appear that the plaintiff intended by his averment anything more than that he had discovered the *existence of this deed*within four years. His language is, “And your orator further showeth unto your Honors, that it is within four years he has discovered the fraud that was perpetrated upon his rights, by the fraudulent conveyance made by the said Lambert, through others, for the benefit of himself and children, to wit: he discovered the deed to Sessions in October, of the year 1852 ; and the conveyance of John Thompson to the children of said Lambert, in the Spring of the year 1853.” In another place, his words are: — “ That at the Spring term of the said Court,” (the Law Court, where he had sued for the land,) “ in the year 1853, when the said case would have come to a hearing, your orator first learned and discovered, that there had been a prior deed by the said John Thompson first mentioned, to the said children of the said Lambert, to wit: — Robert W. Lambert, Ann Jane Lambert, and James W. Lambert.”

There is no where in the bill any statement of the *facts constituting the*fraud, with an allegation that *those facts*came to his knowledge only within four years. In the first passage just quoted, he d'oes, indeed say : — “ It is within four years he has discovered the *fraud*that was perpetrated on his rights by the fraudulent conveyance.” But he immediately defines his meaning by saying that he had discovered the deed.

This is very loose. He does not, as he should have done, state what the *ingredients*of the fraud were, and that he had remained ignorant of *them*until within four year. Using the word fraud is not charging a fraud; it is mere invective.

Proceeding no further than to call by a harsh name the deed whose existence he had discovered, he has not enabled the *160defendants to meet his averment otherwise than they have. If they had proved his knowledge of any of the constituents of the fraud, this would not have been a contradiction of his averment; and this establishes clearly, that the averment is not legally sufficient.

But as far as he has gone, to wit: the *existence*of the deed, they have done away his allegation by proof of registry, which was notice to him.

The Statute, then, commenced to run from the recording of this deed, and the plaintiff cannot come, after four years, from the registration, to set it aside, unless he shows some impediment which prevented his proceeding at an earlier day.

We need not say whether he may not be excused for omitting to proceed before he had paid off the note to Baker, or before he had obtained his judgment against Lambert, his principal. But his judgment was complete the 9th and the 10th March, 1841. He was then a full creditor. On the 16th of the same month, Thompson’s deed was recorded. What prevented his proceeding to set it aside ?

Being not set aside, and the right to set it aside being lost, it must operate as a valid conveyance in this Court.

Then I do not think that the sale of the land as Lambert’s by his creditor, obviates this deed, as I had supposed at the hearing.

What though the land was sold as Lambert’s land ? The question is, whether that sale set aside the children’s title under this deed? Certainly it did not. The purchaser from the Sheriff got no title so long as this deed stands.

The children are not concluded. It is ordered that the bill be dismissed.

The plaintiff appealed and moved this Court to reverse the decree on the grounds:

1. That the general averment, charging fraud, in a bill to set aside fraudulent conveyances, the word “ fraud ” is not to *161be interpreted as a word of “invective,” but is to be considered as a technical term, implying the unlawful and corrupt alienation of property, and the use of the word “fraud” is legally sufficient in a bill seeking relief from fraud, without stating the ingredients of the fraud.

2. That it is not necessary to allege formally that the fraud was discovered within four years. It is enough to aver and prove it substantially, that the fraud was discovered within the statutory period.

8. That the registry of a fraudulent conveyance operates only as constructive notice of the deed and its contents, and not notice of fraud, unless there be apparent matter in the deed that will put the plaintiff on the inquiry.

*JEvans,*for appellant.

Phillips, contra.

The opinion of the Court was delivered by

DaRGAN, Ch.

It is manifest that James Lambert, one of the defendants, has committed a fraud upon the plaintiff, who was his surety, and whom he left to pay his debt, although he had means enough to pay his own debts. After the surety had paid the debt the defendant, Lambert, gave Mm a confession of judgment on the same, upon which judgment was entered up and execution was lodged. The defendant, Lambert, having bought land from one Thompson, (about 603 acres,) and fraudulently, and with the view of defeating his creditors, caused titles to be made by Thompson to his three infant children, (who are also parties to this suit); the deed of Thompson bearing date the 18th Oct., 1840.

Under a judgment and execution against Lambert, Gowan, *162the Sheriff of Horry, sold the land on the 4th Oct., 1841, to Sessions for $10.50, and conveyed the land to Sessions by deed, bearing date 10th Oct., 1841.

In the meantime, by reimbursing Sessions for the purchase money, Lambert procured him to re-convey the land to his children; which was done by deed, dated 16th Eeb’y, 1846.

The plaintiff’s judgment remaining unsatisfied, by virtue of an execution under the same the Sheriff again levied on and sold the land as Lambert’s property. It was bid off by the plaintiff .to this suit for $10, and conveyed to him by deed accordingly.

The plaintiff has instituted a suit at law for the land, but deeming his success doubtful, he has come into this Court. His bill was filed the 10th January, 1855. The bill prays that the deeds to the children may be set aside as fraudulent against the creditors of the father. The plaintiff asks that this Court will grant him aid auxiliary to his suit at law, or grant him plenary relief in this Court.

Whatever view may be taken of the case, this Court can grant him no aid in his suit at law. The execution, by virtue of which the land Was sold to Grodbold, was dormant. It had been renewed from time to time, but not in such a manner as to enable it to retain in unbroken continuity its active efficacy. This, at the time of the levy and sale, had been lost, and the Sheriff had no authority. The sale and conveyance to Grod-bold was simply null and void, and could convey no legal estate ; without which the action at law cannot be maintained. It remains to be seen if this Court can give him relief as a creditor. So the Chancellor has thought, and we concur.

As I have said, the whole transaction was a fraud upon the creditors of the defendant, James Lambert, and especially upon Godbold, whose kindness and friendly confidence he had most grossly abused. This Court *can*afford him relief as a creditor unless an impediment arises from the Statute of Limitations, which has been pleaded.

*163Anticipating, and with the view of evading the operation of the statute, the plaintiff has averred, (but in a very imperfect manner,) that he has come to the knowledge of the fraud within four years previous to the filing of his bill. The Chancellor who heard the cause on the circuit, has well stated the rule on this subject. It is now the settled practice in this Court that an allegation of ignorance of the fraud, being a negative proposition and scarcely ever admitting of proof, it is incumbent on the party who wishes to set up the bar of the statute to prove the affirmative; that is to say, that the plaintiff did come to a knowledge of the fraud more than the period of the statutory limitation, before the commencement of the suit.

A question occurs, whether the plaintiff has made the averment as to the time of his coming to a knowledge of the fraud in such manner and form as will entitle him to its benefit. It must be made in the bill, and in a manner sufficiently explicit to enable the defendant to meet the issue tendered. This is what is required and no more. The Chancellor on the circuit thought, and still thinks, that the plaintiff’s averment did not come up to this requirement. But a majority of the Court is of opinion that it does, though imperfect and obscure. And I certainly should not recommend it to the profession as a form or model.

Such being the state of the pleadings, on the trial of the issue whether the plaintiff had notice of the fraud more than four years before the commencement of the suit, and with the view of bringing home to the plaintiff prior notice, the defendants adduced in evidence the deeds and the registry thereof.

The deed of Sheriff Gowan to Sessions, and that of Sessions to James Lambert’s children, were recorded 27th March, 1851, and the bill was filed 10th January, 1855. But Thompson’s deed was registered. 16th March, 1841. And it is argued that the implied notice, arising from the registry of Thompson’s deed, is a sufficient notice of the fraud to the plaintiff, from the time of the registry; so as to defeat the averment of the plain*164tiff, that he came to a knowledge of the fraud within four years before filing his bill, and thus to give full operation to the statute, which the defendants had pleaded.

If notice of the deed is notice of the fraud, the plaintiff is barred. But that proposition cannot be sustained. There is no rationality in it. Eraudulent deeds are always fair on their face. Parties, about to commit a fraud, do not blazon it upon the face of the deed, and invite the gaze of the world by spreading it upon the books of the Register. On the contrary, fraud most carefully masks its horrid and revolting features, whilst in all its external forms and shewings it assumes the semblance of purity and justice. This difficulty out of the way, the Court is of the opinion that the registry of a deed is only implied notice of its contents, and not of any fraud that may have been perpetrated in its execution.

The judgment of this Court is that the circuit decree be reversed, and that the deed of Thompson to the infant defendants, and also the deed of Sessions to the same parties, be set aside and vacated, as to the claims of this plaintiff; and that the plaintiff is entitled to have satisfaction of his claim, now in execution against the said James Lambert, out of the land described in the pleadings.

It is further ordered and decreed, unless the claim is otherwise satisfied, that the commissioner proceed on some convenient sale day, after due notice by advertisement, to sell the said land, and that out of the proceeds of said sale he pay the plaintiff the amount due him, on said execution, of debt, inter-, est and costs; and that out of the proceeds of the sale he also pay the costs of this suit; and that he retain in his hands the balance of the proceeds of said sale for the infant defendants in this suit, whose claim is not intended to be otherwise impaired than is provided for in this_decree.

As to the terms of the sale, it is further ordered that the commissioner sell the said land for so much cash as will be sufficient to pay the debt, interest and costs due on the plaintiff’s *165execution, against the said James Lambert, and the costs of this suit, and that for the residue he sell, on a credit of one and two years, with interest from the day of sale, and that to secure the payment of the purchase money, he take from the purchaser bond and personal security, and a mortgage of the premises.

Dunkin and Wakdlaw, CO., concurred.

*Decree, reversed.*