New-York tribune., 1841-09-29

- c;rc,,,,.,a,cas But eight wears afterwards
the law thus declared was overtnro"l. Inc
- Ss,-arG went through every hish
- - tho state and resulted IN a rue thus
.,a,cJ l,,, Chancellor Walworth % rage ~
"a bereore conclusively settled that the mere tact
IS an .xisting indebtedness does not render vol
=. 90 conyeyance from parent TO a child ALSO
lD,elv fraudulent and void at law as against the
EDITORS whose debts We're contracted previous to
s-h conyevance where no intention exis ed on the
mart of the grantor to delay or detraud his credit
ors."
Then came the Revised Statutes establishing,
first, that the question of fraudulent intent should
be deemed question OF fact and not OF law nest.
that no conveyance should be adjudged fraudulent
against creditors or purchasers solely the ground
thatt was not founded on valuable considerations
and Justly, that the transfer Of goods and chattels
not accompanied by an immediate delivery, and
followed by an actual and continued change of pos
session, should be conclusive evidence OF fraud
against creditors or purchasers, unless 1t be sde
TO appear the same made in good faith, and
/ without any intent TO defraud such creditors or
purchasers. The term creditors, as used IN
this provision, j. 20 include al! who should become
such at any time while the goods and chattels re-
rnained in possession OF the assignee vendor.
So far. then, and in the case of PEI senal proper
and subsequent creditors. becoming .uch during
the continued possession, are put upon the same
footing others.
But with this qualification, the argument as TO
subsequent creditors is irresistible. Ii cOnstruc-
i've fraud from indebtedness and other circum-
stances is precluded and fraud is to be shown as
matter of fact to have been the intention OF ;hc
party, the argument is very powerful that parry
whose debt did not exist at the lime not meant
to be cheated No matter who else the OBJ
cct of the fraud, the strong presumption is that he
not. Ii i. left to be proven that the party did
then contemplate the creation of the debt, and
meant to provide for saving his property from it.
Thi. argument has been thus stated by able
judges -
Thus in Nm rs. Uismore OF. r. 800 Laic-
renee j. said " 1t could not be intended that the
plaintiffs in this action should be detrauded, for
they did not exist in the character of creditors
when the deed made. In the Lessee Of Bon
neg vs. GrG;ths q Hayes Exch. Rep. 100 lrish)
the chief baron said " 1t has also cen urged that
tie deed of 1916 was void Is against creditors.
voluntary Conveyance may be void against creditors
it is true, but they have been creditors at the
execution Of the deed. Ii not indebted, man
may, for mcritorious considerations, make volun-
,ary deed" The chief baron then enters into the
question AS to subsequent creditors coming in by
proving prior debts.
In Houo,cay w. Miller q Mad. Rep. 4l3) the
| voluntary settlement in favor of a stranger,
and was held good as TO future creditors.
The following are cases in which tae decisions
or the opinions of the Court recognise the distinc
ton, that there is presumption OF law of fraud
to existing creditors, but to subsequent enes,
tho fact of fraudulent intent be established.
Carlisle vs.. Rich, 9, New hampshire Rep. Ia,
$3.50. LHleton vs.. Liuletoa,, /, Dew and Bat
to- 33I $3.50. O'Danteivs CramJord, 4, Dew.
1917 1883. JTaHer vs.. Toda 3, Dana, SOB, /
where it is held that subsequent creditors may be
admitted through prior ones
The decision in Kinds Lessee vs.. Long~orM
On Wheaton, 1899 and in Sa.rton Wheaton /
e Wheaton 229) are also pointed upon the distinc-
ton between the classes OF creditors.
Hore vs. Ward q Greenlcaf 1860 is an in
s,ructve case. In the first place it WIS decided
that surety in a bond creditor from the
time of his liability and right Of contribution ari-
sing, 50 us to inpeuch deed in the character OF
an existing creditor he atcrwaId paying the bond.
The learned Chief Justice proceeds 10 examine
the statute of Elizabeth and the authorities. He
cites the language of Judge Daae (Abrid. /, COB
that according to the Massachusetts decisions,
one becoming u creditor after Il voluntary convey
ancc is made and known, has no ght 10 complain
of il. That there might, however, be an eXcep-
ti0n as where the deed Is unrec0rdei and unknown
to him. OF actually made with design 10 affect
after creditors" This, the Chief Justice says,
is the true and solid ground He pats the
of n voluntary conveyance to-day with the intent
of making a purchase OF goods the next day. and
TO keep the property from the reach Of the intend
ed creditor. After noticing that this Is an extern
sion upon the principle Massachusett. and
Maine, he adds" 1t goes no further than TO per
init the introduction of proof to the jury for the
purpose ofimpcachlng conveyance on the ground
of fraud, and II the party was not creditor al the
time tho conveyance was made, such proof cannot
avail him rnlcss found sufficient convince the
Jury that the conveyance made for tho pur-
pose of deirauding him in particular, subse-
quent creditors generally, as we'll as those who
were creditors AT the time" He states the result
in series of propositions With, in my opinion
II variation in his fourth proposition, adopting the
latter clause and oHitng the first, il is impossible
to FIND u more clear exposition OF true rules of law
upon this subject. See also Reed vs.. IfOodman
a Greonleai 1000 Damon vs.. Bryant G Pick.
AID.
In Benton vs.. Jones e Con. Rep 1869 SINH
lar doctrine laid down ; to the necessity of
proving an actual fraudulent intent suisse
quent creditors
l cannot forbear also quoting the language of
Ruiin, Oh. Justice, in Ltt:lcton vs.. LiuietoH (a6
supra: Express fraud must render every thing
into which ii enters vicious. IL consists i'll mean
ng at the time of produce thereby par
ticular prejudice to another, and that very conse
quence will be fraudulent ii the act be allowed to
stand The statute OF 18th Elizabeth makes void
only such conyeyaRces intended TO defeat
crsditorS; and therefore voluntary conveyance
by then having no creditor is not apparently
within it. Yet if it be made with view 10 be-
coming indebted, it Is fraudulent A debt con-
tracteI Immediately after the debtor has made
himself insolyent, staads upon the footing
with previous one. There Is the same intent IL