The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1868-11-16

tnN " bhoulu consider In the contest tn
s III 10 o. seting down cause for heuriug OF
; This ia always the act OF the complainant IL
aeausei II cannot be done by n defendant. III
effect is to deprive the defendant of the oppor
tunity TO establish the defence by testimony
ieomplainsnt Intends to deny the truth Of
the deIendsnts answer, IT. Is his duty to do go
BY Ming q replication, which would put the
cause at issue, and then defendant has the
right to make out his case by evidence.
ny setting down the cause for hearing on
bill and answer, complainant IL taken 10 adj.
! NIT the truth OF the whole Of Defendants an.
swer, not only OF the facts stated IN direct re.
Spouse 70 the bill. but also all those set up BY
would always be In the power OF the com.
plainant to deprive the defendant OF the op-
\ portunity Of taking evidence to establish the
perfectly Reasonable, and fully settled by ali
the authorities. tSee Coopers Eq. Pi, s2s,
a29 and story p IA, eh. 10, sect. stu
taken 70 be true, not only so far as they are
new and Affirmative statements Of Il fact e. '"'"
ee II Gs ss e. na. 81 sSS,y out S ShsG
lively BY the party who makes the charge.
In the present case, we End nothing on the
fraud In law. IL there be fraud in the case, II
must DO found In the motives OF the parties to
wn9m' or for whose bencft tho deeds were
Talmadge was a creditor OF weleh, and as
me answers show, most meritorious cred
| itor. HIS claims were past due the defend.
N.Y.. wn,'ch, was IN falling circumstances II
BlfdsaIi should obtain judgment to n large
amount against welch, the very property
which In equity and good con cie nee Is shown
h BEs. SfISnssa to nigh, be sTsp,
himself i his duty 70 DO co. p pc
ana yigiiantly. " was not even a'badgo OF
81. 9n RsgSP %ss d Sss9n n th s
Instance, which 10 doubtful In Downs VS..
hl IN. n 10 At.-
ver.ed Judgment on he Eiopnd tsnt G tse c i
cult court had told the Jury tina, this circum.
ot 9ssu S,' badge Of fraud ~ Is NO badge
which is mere security, to cover moro prop,
erty than will secure the debt due. Any cred.
tor may Up pay the mortgage debt and proceed
tho payment OF his debt by other modes Of
We're II true IN law that no creditor could
debtor against whom actions were pending
| and near trial, because his doing so might de-
ieat or delay the collection Of Judgment, for
to be permitted to avail Rims elf OF Ms superior
uiigence, because to do so would defeat the
claims o. other creditors who had not been
form OF security, and In ltselfis not more merit
toflous than q mortgage or deed OF trust;
otherwise diligence Itself would become
| oauge OF fraud, and so every security would be
VOID Tor fraud, except such as might be salts
factory TO everybody, In cases arising under
the statute OF Elizabeth, eh. s, It may be laid
| ilf the cause be trial at lawj the question OF
Isud OF no fraud 10 one for the considera-
.Ss B q, ME- .hs jury So too in shapssry there
stances to be indeiibie badges Of fraud; but the
question OF bona ade Is there also, one OF fact.
aih Il inc Ca aS pGes
perfectly reconoilablo with all the facts be-
fore us, and is solemnly declared by him In his
| answer under oath as TO both transae tions, and
10 admitted by the complainant In his act OF
setting down the cause for hearing. what
ever may have been the design OF welch,
the good faith OF Talmadge 10 enough to
sustain these deeds. II there have been
good faith and valuable consideration on the
part OF the purchaser, the deed is valid, not
withstanding there may have been fraudu-
lent purpose on the part of the grantor. In
hstor vs.. Wells, Wheat, 5l7, the court held
that tho fraudulent purpose Of the debtor TO
would not affect one who had purchased the
property 10 good faith.
And 10 Roberts Boyd VS.. Anderson, John.
Chancellor Kent, while he took occasion to
retract an erroneous opinion on the point
which he had expressed in another case. "Such
proviso lin the 9th see Of the act OF 18th Eliza.
bethl however fraudulent the intention OF the
grantor might be, and the contrary impression
some OF the English cases, without at the
me to the distSa in hiiGreti WI" vs.. T Lands, "a
SPENCE P @Sss I6s S"t enSss %
afterwards before the Court OF Errors, IA
AZ 10 Inc real estate, that property wa.
sold for fair consideration the purpose
to defraud creditors is positively denied IL
say In this case that the admitted facts re
| guire US to declare that fraud existed In the
lace Of these ,n . .. and with no proof to
missions Of the complainant in setting down
the cause for hearing on the bill and answers.
I ses sdm .he answers show, and complain.
tl0, o00l Vi, 400 were already liens on the prop
erty. They at least are beyond our reach.
noe eco e9nsss.ttnE Of The PESIeasis
transferred to Mayo Il Go. towards the pay
ment OF their claim against WEIGH. Mayo &
20, are e, therefore In equity the owners Of the
the assignment Of the notes carried with 1t the
deed OF trust which secured them. To max,
decree annulling that sale would destroy
that security How can we do that wheI
were at the time creditors OF Welch quite AZ
therefore, equal equity In this court, and DO
sides have a legal advantage in their deed OF
trust Of which we ought not to deprive them.
| Although, under the statute 18th Elizabeth,
chapter s, bona hde purchaser, without notice
from fraudulent grantee, gets no title by his
conveyance, because his grantor,s title was
be made directly from a fraudulent grAntor.
In this last case, the proviso to the sixth sec.
tionsayes his eonyeyanSs, Notwithstanding, the
down by Oh, Kent In Roberts 4 BOYD vs. An.
Iderson, 3 Johns, ch. r., 31i.
In the case before us, Mayo y Co. were bona
hde purchasers, without notice from Wolch
himself, OF the security which he had reserved
| on the property in question, for the payment
OF the notes. They arc therefore protected,
even II Weleh had been fraudulent In giving
them the security.
Nor is the case made better for the complain
ant by regarding both these transactions as
parts OF one, for II Is not easy to see how one
transaction, consisting of two parts, both OF
which are free from fraud, could become fraud
ulent when considered together.
But the sale OF the real estate to Talmadge
was not a fraud In law. II allowed to prove
his case he might have shown that II was per-
fectly honest In purpose, and whatever he
might have established by proof this COM
plainant admits to be true.
But to this charge OF fraud there 10 another
answer which appears on the face of the bill
itself, and Is also insisted on In Welch's answer
to the bill. II 10 that the whole IN after has
been tried In the action Of FeploYin, and n
verdict n nd Judgment therein rendered ln favor
Of the defendant.
Tho question of fraud in this case 10 mani
| testify one OF fact, and most proper to be tried
Judgment for damages Rgninst Weleh he
Issued his execution, indemnihcd the marshal,
and levied on the personal property covered
by Davis deed, Davis repleYied the property
and judgment rendered In favor OF Davis,
That verdict and judgment settled the ques'
zion Of fraud, aud established the deed, and Is
conclusive against the complainant In this
suit as to the PsoPssrtiy y:s Ara u ne
Of one transaction, and the whole must stand
or fall together, 1t Is conclusive In favor OF the
other also.
, held that In all cases Of concurrent Jurisdic.
tlon, the Court which first has possession OF