
    John Waterhouse against Ozias Benton.
    A voluntary conveyance, made by the advice, and at the request, of a creditor of the grantor, is not valid as against that creditor; such advice and request not constituting him a party to the conveyance, nor releasing his rights as creditor, nor affecting' the legal operation of the deed.
    MOTION fu> a new trial.
    This v, us ⅛ action of ejectment for sui equal undivided moiety oí a gate, Í of land in Toiland.
    
    The d<dV;;ú,an! pleaded the genetai issue, which was closed to the court. , e v
    On the trial, it appeared, that in the year 1770, John 11 air den, the eider, hy deed of gift, conveyed the whole of the described land to John Waldm, (lit younger, ami haac If al~ den ; that afterwards, the plaintiff, IVfdnhovsc, levied sundry executions in his favour again?! John If aldcn, Use younger, on his moiety of the land, for the recovery oí which, this ac* tion was brought.
    The defendant claimed one moiety of ¡he land, hy virtue of a deed from Jonathan ÍValdai, whose Idle to this moiety accrued hy the levy of an exrrniion in his favour against Isaac Walden. He claimed She oilier moiety, also, by a subsequent deed of Jonathan Walden, as administrator of the insolvent estate of John Walden, the elder. Jonathan Waldai’.s claim to this moiety, accrued by reason of a debt due to him from John Walden, the elder, at the time of the conveyance to John Walden, the younger, and Isaac Walden, in 1776. It was claimejl by the defendant, that the deed of John Walden, the elder, being a voluntan/ conveyance, was void, as against creditors.
    To rebut tisis claim, the plaintÜT often d Cha¡mian. as a v lb,; ,-s, to prove that Jonathan Walden, prior to the date ■ ad i. edition of his deeds to the defendant, and the def. c ’ Í luiself, had acknov.led/ed, that the deed from John • ! i\ the eider, to John Walden, the younger, and ¡-eaf 'did- i, was made, executed and (h livcred, by the advice, ansi at the request of Jonathan Wttiikn, The court adjudged this evidence to be iaudmisslltU, and rejected it; ■whereupon, the plain tiff moved for a «•, \v trial. The court granted a rule to shew cause why y new trial should not he ranted, and reserved the question of law arising on the motion, for the consideration of the nine judges.
    
      1. T. Peters, in support of the motion.
   Edmond, J.

On the motion for a new trial, it appears, that John Walden, the eider, in 1776, conveyed the described land to Isaac Walden and John Walden, the younger ; — Wa-terhouse levied sundry executions in his favour, on the moiety of John, the younger ; and to recover this moiety, he brings this action. Jonathan Walden levied an execution in his fa-vour on Isaac Walden's moiety, and conveyed it to the defendant Benton ; on the death of John, the elder, Jonathan, as administrator of his estate, which was insolvent, sold the other moiety to the defendant, by reason of a debt previously due from John, the elder, to him ; and by virtue of these two deeds, the defendant claimed the whole of the described land.

To rebut the defendant’s claim, the plaintiff offered Ash-hel Chapman, as a witness, íójjrove that Jonathan Walden, and the defendant, before the date of his deeds to the defendant, had acknowledged, that the deed of 1776 from John, the elder, to Isaac and John, jun. was made, executed and delivered, by the advice, and at the request of Jonathan Walden. This testimony was rejected by the court; and, as I think, properly.

The deed of 1776, on the face of it, was a deed of gift, a voluntary conveyance, and carried with it notice of the nature of the conveyance to all the creditors of John, the elder, and to every one else. The advice and consent of Jonathan, did not make him a party to the deed; his consent was not necessary to the execution of it; nor could his giving or withholding his consent, alter its legal operation.— Had he advised to the execution of a deed purporting to be for a valuable consideration, it might have misled purchasers, and had a tendency to defraud creditors ; but, to advise to the giving a deed of this description, was neither unlawful nor improper ; especially, as it does not appear ',y the motion for a new trial, but that at the time of the execution of the deed, John, the rider, was solvent. The; advice, therefore. if it »'T iolhienee, in the traua'ietion, could only benefit the crani.ee?, win; paid nothing for it while they possessed it, without affecting, in the least, the rights of creditors, or pur-chusers.

The --'s-sení of Joint!’¡an io the sale is; ih‘? manner, did not discharge (he debt d:;e In him from John, Hit eider; it was no release of any claim or title he had to the land, for he had none ; it was no release of any supposed lien he might have upon it, as a creditor; because, the deed, when exeeiiw fed as advised, could not operate to defeat hi»;, or any other creditor, of their rights. If then, the deed itself, is na bar to the claims of any previous creditor, it would be strange to gay, that the consent io the execution of such a deed, and that resting in parol, might bo set up to effect that, which the deed itself did not effect.

It has been urged, that if a creditor of a man of property, advise to a voluntary conveyance to his children, or others, such conveyance puls it in Ihe power of the grantee to de» fraud purchasers, and to obtain a false credit; and that the creditor who thus advises, being accessary to the act, shall never disturb the sale ; that it would be a fraud in him. — - But this carjnot be admitted. Ail conveyances arc matter of record ; and when the record «hews the conveyance to he voluntary, both purchasers and creditors are affected with notice of the circumstances, under which the grantee holds.

The plaintiff in this action has levied his executions, with this record evidence before him, and has no right to complain ; he must have known the circumstances under which he look the land. That Jonathan had no better title to Isaac’s moiety, than he had to John's, has nothing to do with Ibis case ; he must recover, if at all, on the strength of his own tille; and for aught that appears in the motion, Jonathan, nn administrator, may yet be obliged to dispose of it for the benefit of the creditors of John, the elder.

For these reasons, I am of opinion, that the evidence war properly fejected, and that the plaintiff take nothing by hi# motion.

Aórcrnoí.!., Ch. J., Reeve, S«k, Tui mbuijl, BbaiRakd s?;;'. iíAUnvi.v, Ja., concurred.

Sacra. J.

dissented, aud delivered ihc following opinion.

The only question of law to be decided in this case, is, whether a person’ who is present at the making of a voluntary conveyance, and where the same is made by his advice, and at his request, can, at any future period, gain a title to the land, by levying an execution upon it, as the property of the grantor, for a debt due at the time of such conveyance ? This question arose, was involved and decided in offering and rejecting the testimony to prove these facts.

Í consider the creditor as waiving, by this conduct, all claim which he might otherwise Slave, to levy on the land ; and it amounts to an agreement with the grantee, that he will run the risk of collecting his .debt otherwise ; and that, he will never take away the land from him, in any event j or it may tie considered as amounting to a declaration that he has no existing debt. In either case, so far as it respects the grantee, he ought ever after to be estopped from saying he had a debt against the grantor ; otherwise, the most manifest injustice may be done, by the concealment of the creditor’s debt, and by bringing about a voluntary conveyance by his advice, and at his request ; and by inducing the grantee to make large improvements on the land ; all which he may do under the mask of friendship, and at a future period, take the -whole land with the improvements. So a creditor may, at the time of such voluntary conveyance, be governed by none other than fair and honourable views, in concealing his debt, and advising to and requesting the conveyance. Ke may know of other means of satisfying his debt, and there may be other property which he might take; and in this case, if he will suffer those means to fail, by his negligence, it is unreasonable that he should take the properly from the gun.tee, at any future period, before his debt is out-lawed ; which may be after large improvements have been made ; and will, of course, be after expectations have been raised, aud calculations made, with a view to the property.

if a prior mortgagee witness a second mortgage, without, giving notice of his claim, this act is considered as a tacit assent, that his own security shall he postponed. So a second lessee may lie' postponed to (he first, of the same lands, where leases ate not recorded, and whore the first lessee is present at the making of the second, and aclive in bringing about the bargain, and is a witness of the second lease.

Ho (ho mere concealment of a right to real estate, already vested, under certain circumstances, has been frequently adjudged to he a uv.iver of ¡.rich right. Pow. Contr. 132, 133.

Nod 1 think it may he laid down as a general rule, that where a man vil! stand by, and knowingly conceal his rigl.ts, when i! is important to another, that they should he disclosed, it is a tacit waner of such rights. This argument is still more forcible, when he is active, and in any degree instrumental in bringing about a conveyance of property, inconsistent with the exercise of his rights.

1 am of opinion, therefore, that a creditor, under these circumstances, is estopped from ever setting up his claim to defeat the grantee’s purchase ; and that a new trial ought to be granted.

Ingersoll, J. also dissented, and concurred in the preceding opinion.

New trial not to be granted,  