
    Miles Beach against Abijah Catlin.
    June, 1810.
    Where the question in an. action of ejectment was, whether a deed under which the defendant claimed was fraudulent as against creditors, the plaintiff* offered to prove, that the grant- or, being in custody on two executions, proposed to the witness to convey to him the land on being discharged from the executions, with an understanding that he should answer the a-creditors” and hnrsed should" reconvey the matclydojus-grantor-^that the witness declined, but suggested to defendant ⅛” would do it; that the witness and went°to theXfendant; that the grantor aná defendant went into anpther room; that immediately after, the defendant gave a receipt to the officer for property taken on the executions ■ and the grantor executed the deed in question. Held that this evidence was inadmissible, the proposition of the grantor to the witness being res inter alios acta, not brought home to the defendant. . ,
    MOTION for a new trial.
    This was an action of ejectment. The suit was commenced on the 8th of March, 1809.
    The defendant claimed title by a deed from Nathaniel Brace, who, as was agreed, was, in November, owner of the demanded premises; at which time, he sold the same to the defendant. The plaintiff contended that said deed was fraudulent and void against the creditors of Brace ; that he was a creditor of Brace ; and by the levy of an execution on the 8th of July, 1805, had acquired title to the land.
    In the course of the trial the plaintiff offered to prove, by Lewis Catlin, that he, as constable, had two executions against Brace, on which he was in custody, and offered to convey said lot to him said Lewis, if he would discharge him therefrom; said Lewis understanding that he should be obliged to answer the amount to the creditors, and on being reimbursed should reconvey said lot, and ultimately do justice to Brace ; that said Lewis refused to compiy, but told Brace perhaps the defendant would do it; that said Lewis and Brace went to the defendant; that Brace and the defendant went into another room; tbat immediately after, the defendant gave a receipt to . said Lewis for property t^ken on said executions, and Brace executed a deed of the land in question to the defendant. To the admission of this evidence the de- ...... .... fendant objected ; but the objection was overruled. And the court charged the jury, that fraudulent conveyances were void as to subsequent as well as prior creditors; that where a man in failing circumstances con veys property to another for a less sum than its value, upon a secret trust or understanding that the purchaser shall do the ' seller justice, such sale is fraudulent and void as it respects creditors; that where a purchaser takes possession of lands by a fraudulent conveyance he cannot acquire a title by fifteen years’ possession under such deed ; and that no length of possession, under a fraudulent conveyance, will be a bar to the creditors of the grantor. After verdict for the plaintiff, the defendant moved for a new trial, on the ground that the court erred in receiving the testimony, and also in charging the jury.
    
      A grantee, under a fraudulent conveyance, eannot acquire a title by possession against the creditors of the grantor.
    
      
      Daggett and Bacon, in support of the motion.
    1. The points to be discussed in this case arise on the admission of the testimony of Catlin, and the charge of the court to the jury. With regard to the first, we contend that it is liable to every objection which can be made to hearsay evidence, and that we are not to be affected by it. How does the fact that Brace offered certain terms to Catlin prove that the defendant entered into a fraudulent contract ? He was not privy to those offers ; they never came to his knowledge ; and, of course, he never assented to them. Nor can any possible connection be shown between those proposals to Catlin, and the subsequent agreement with the defendant. Those offers were no part of the res gesta ; and it would be hard to subject the defendant by presumptions drawn from facts to which he never assented, and over which he had no control, and upon which his contract in no way depended. The grantor will be thus admitted to defeat his own conveyance; and by one offer carrying the marks of fraud destroy the effect of a subsequent bona fide sale to an innocent purchaser. The rule allowing t fraud to be presumed from circumstances has already been carried great lengths; but a'privity between ⅞⅛ parties has always appeared. Swift’s Ev. 153. Gibson v. Hunter, 2 Hen. Bla. 288. Gardner v. Preston, 2 Day, 205. was decided on the ground of a fraudulent combi* nation. Swift’s Ev. 155. The decisions of the superior court have uniformly been against the admission <of the testimony here received.
    It is urged that the objection was improperly made ; and did not point to that part of the testimony to which only exception can be taken. But is it so, that if wé object to the whole testimony of a witness, the whole is to be received, if any part be proper? We had thought that an objection to the whole of necessity included an exception to every part; and that when counsel believed an exception lay against every part of the evidence, the court would not admit the whole because they differed from the counsel, and considered a single fact admissible.
    2. We claim that the charge of the court was incorrect. The principles of the Roman law are inapplicable; and if admitted, would prove too much. Indeed, were they adopted in their extent, they would entirely defeat oür statute of limitations. By the civil law, if the possessor is not in possession without consciousness of another’s right, he cannot prescribe. To this the case of Healey v. Shaw, 6 East, 214. is directly opposed. The law heretofore declared in Connecticut will support the defendant’s case. Trowbridge v. Royce, 1 Root, 50.; and to show what evidence of adverse possession is available, Lane v. Coply, 1 Root, 68. is a direct authority. To the same point also are Smith v. Isaacs, 1 Root, 151. and Miller v. Doto, 1 Root, 412. We contend that no case is to be taken out of the statute, unless it comes expressly within the savings. Prideaux v. Webber, 1 Lev. 31. South Sea Company v. Wymondsell, 3 P. Wms. 143, 144.
    No direct evidence of a trust appeared; and it should have been left to the jury to determine whether therfc •was any trust; for the court might be of opinion that a fraudulent grantee, as such, could not gain a title, yet the jury might have found that the defendant had been in possession fifteen years by a different title, and that he had held adversely to all the world. Fisher et al. v. Prosser, Cowft. 217. (
    It would be a dangerous rule to admit, that a title could be acquired in fifteen years against a deed, and not be safe from parol proof of fraud at the end of thirty.
    As to the plaintiff’s not having a right of entry until the levy of his execution, it surely is a fair presumption that he has waived his right after a lapse of fifteen years, even supposing the conveyance to have been originally fraudulent as regards him. But the statute has run against somebody; here has been an adverse possession more than fifteen years.
    But the plaintiff had no interest in the land to be protected from the operation of the statute. His claim accrued subsequently to the sale of the land to Brace; and it cannot be prétended that credit was given with a view to security from this land, as the defendant went immediately into possession under his deed.
    
      Gould, contra.
    The grounds on which the defendant claims a hew trial, are, I. That the evidence, stated in the motion, was inadmissible ; and, 2. That the direction to the jury was against law.
    1. Under the first head of objection, the only question necessary to be discussed, relates to the testimony of Lewis Catlin; all exception to the other parts of the evidence being waived.
    The purpose for which Lewis Catlin's testimony was introduced, was to show, not only that Brace, at the time of executing the deed, was embarrassed with debts, and pressed by his creditors; but that the receipt, given by the defendant, wa, the consideration of the deed. That it was proper for the plaintiff to prove these facts, and that a part of the testimony in question was admissible for that purpose, is not denied. But it is objected, that so much of it as relates to the offer made to the witness, by Brace, ought to have been rejected, because the defendant was not privy to the offer.
    We answer, 1. that the defendant’s having been privy to the offer or not, can make no difference in the case. If such an offer, made to the witness in the presence of the defendant, would have been admissible in evidence, (and this the reason assigned in support of the objection presupposes,) it must be so, though made ⅛ his absence; for the ground of objection cannot be, that the evidence Jin question is in the nature of hearsay; since the offer by Brace was not a declaration of any fact that had taken. | place. On the contrary, it was itself in nature of an act— a part of the res gesta, or transaction, to which the testimony immediately related. Upon any principle, there-ifore, on which it was competent for us to prove that \Brace \was in custody on execution; that he went, in ¡custody, to the defendant’s house, for the purpose of obtaining the means of enlargement; that the latter gave a receipt to the witness, on taking the* deed; and that, in consequence of the receipt, Brace was discharged from custody; it was equally proper for us to prove the offer made to the witness; that being one of a series of connected acts, which, taken together, conduced'to prove both that Brace was embarrassed, and that the receipt was the consideration of the deed. *
    The declarations of a party, accompanying his own act, may, when that act is the subject of inquiry, be given in evidence, even in his own favour; because declarations; made under such circumstances, are considered as part of the fact or transaction in question. This rule was admitted by the Attorney-General and Bower, arguendo, m Hardy’s Case, 1 M‘Pally’s Ey . 373. 375. 377. and is fully established in Bateman v. Bailey, 5 Term Rep. 512. and in Aveson v. Kinnaird, 6 East, 188. Its application to the present question is perfectly obvious.
    
      But Brace’s offer to the witness would have been admissible evidence, even if it had stood unconnected with any of the subsequent facts. For it furnishes strong evidence of his being in embarrassed circumstances at the time of giving the deed: a fact which a creditor, -claiming against a deed as being fraudulent, may always prove, and which is always provable by the acts of the grantor.
    2d. If that part of the evidence, to which the objection is now confined in the argument, was inadmissible; no advantage can be taken of it on this motion; for, as appears in the motion, and as the fact was, the exception at the trial was taken not to any particular part of Lewis Catlin’s testimony, but to the whole of it together. If, then, any part of it was admissible, the objection cannot prevail; otherwise, verdicts might be overturned upon a general objection to the whole of a witness’s testimony, however multifarious it might be, if a single irrelevant expression should have escaped him during his examination.
    2. As to the question of misdirection, the objections are, reduced, in the argument, to two: 1st. That a fraudulent conveyance is good, as against subsequent creditors ; and, 2d. That a fraudulent purchaser by a possession of fifteen years, under the fraudulent conveyance, acquires a valid title against all the grantor’s creditors, whether subsequent or antecedent.
    • 1st. It is very manifest, that subsequent as well as prior creditors, are exposed to the mischiefs intended to be prevented by the statute against fraudulent conveyances. Their claims are, therefore, within the reason of the statute ; and if so, are entitled to its protection ; for all statutes in suppression of fraud are to be liberally expounded. It seems unnecessary, however, to discuss this question .as an original one; for it is put.at rest by authority. It was resolved in Twine’s Case, 3 Co. 82. b. that, “ if one, to prevent a forfeiture, by felony or out? Vol. IV. O o > lawry, makes a gift of his goods, and is afterwards at-tainted or outlawed, the goodsare forfeited notwithstanding the gift.” In Creswell v. Cokes, Dyer, 351. b. it was determined, that if one, before his death, sells all his horses, without consideration, to defraud the lord of his heriot, (the right to which cannot accrue till after the vendor's death,) the sale is fraudulent and void as against the lord. And Chief Baron Comyns says, in his Digest, tit. Covin, (B. I 2.) “ Without question, every gift, grant, &c. being Fraudulent, shall be void, as to creditors, 8cc. whether they claim by a younger, or by an elder title.” The same rule is recognised in Walker v. Burrows, 1 Atk. 94. and in Tay* lor v. Jones, 2 Atk. 600. And since the case of Mason v. Rogers, 1 Root, 324. it has been uniformly approved) and adhered to by our own courts.
    2d. To the second objection we answer, that no length of possession by a fraudulent purchaser, under the fraudulent deed, will bar the grantor’s creditors ; for the possession, in such a case, is in execution of the fraud) and is, therefore, itself a fraud upon the creditors. It is one of the very acts by which the fraudulent agreement is to be carried into effect. Can a contract be covinous, and the execution of it in pursuance of the fraudulent intent not so ? But it is objected that the defendant, if he had been in possession fifteen years, without any conveyance from Brace, would have acquired a valid title against the creditors; and we are then asked, can he be in a worse situation than if he had never taken a deed ? The obvious answer is, that, in the case supposed, there would have been no fraud between the grantor and the defendant; and, therefore, no claim, on the part of the creditors, under the statute. But where there is a fraudulent conveyance, the covin destroys the effect, as well of the acts or means by which the intended fraud is to be effected, as the fraudulent contract itself. So that, to every purpose to which the conveyance is of no effect, tlie grantee’s possession under it must be str.
    
      This view of the question is not only correct, as we VfijiSt, on principle, but warranted by authorities, Roberts, in his treatise on the statutes, 13 & 27 Eliz. p. 521. observes, that “ a fraudulent estate forfeits the protection of every statute which gives confirmation to doubtful titles; and while a disseisor has the benefit of the statutes of fines and limitations, a title acquired by covin is indefinitely open to be disputed.” In Cotterell v. Purchase, Cas. temfi. Ta,lb. 63. Lord Talbot lays down the same doctrine ; as does Domat, also, under the title of Possession and Prescription. (1 Domat, 495.)
    But it is still objected that, as the statute of limitations had run against Brace, so that he had no title when the land was taken in execution, the plaintiff, of course, could acquire none. Without occupying time to show that this argument is directly opposed, as it clearly is, to the authorities just referred to, it is sufficient to observe that the conclusion ia non sequitur. For, independently of the defendant’s possession, and immediately after the deed was delivered to him, Brace clearly had no title ; the conveyance being good, as between the parties to it. But the opposite counsel will not surely deny that a creditor to Brace, by the levy of an execution on the land, at that time, could have obtained a title. And, indeed, in no case, in which a creditor obtains a title by execution, against a fraudulent conveyance, does the property, at the time of the levy, belong to the debtor. Brace's want of interest, therefore when the land was taken in execution, furnishes no answer to our claim.
    The objection, however, admits of another reply, viz, that the defendant’s possession, the deed being fraudulent, cannot be deemed to have been adverse, as to Brace. A fraudulent conveyance, as contemplated by the law, is designed to create a secret, fraudulent trust for the grantor. The grantee holds, not against the grantor, but for him. In judgment of law, therefore, the defendant’s possession, if considered by itself as a distinct, substantive ground of claim, would not give him a-title as against Brace. The very foundation, therefore, of the last objection fails.
    To the argument ab inconvenienti, that according to our doctrine, the defendant’s title must remain unsettled for an indefinite period, it may be answered, that both, law and justice require that while he continues to hold, it should so remain. Who is liable to be affected by this doctrine ? No other than a fraudulent purchaser, whom the statute of limitations was never intended to protect. A possession of fifteen years, by a bona fide, purchaser under him, would, doubtless, require a different consideration.
   Swift, J,

It was formerly the practice to admit what was said by a fraudulent grantor respecting his intent to defraud his creditors prior to the conveyance, as evidence in an action against the fraudulent grantee, though he had no knowledge of it; but this practice cannot be warranted on principle; for the grantee ought not to be affected by the declarations of the grantor, unless they come to his knowledge; and though a grantor may have a fraudulent intent, this may be wholly unknown to the grantee, and the transaction may be bona fide on his part.

In this case, it was competent for Lewis Catlin to testify that he had executions against Brace, which he had levied on his body; that he and Brace went to the defendant; that Brace and the defendant went into another room; that immediately after, the defendant gave a receipt for property taken on the executions, and Brace executed a deed. These were facts which, taken in connection with the other testimony, might explain the transaction. But it was not admissible to prove the proposition of Brace to the witness, to convey to him the land on being discharged from the executions, with an un- de'rstanding that he should answer the amount to the creditors, and on being reimbursed should reconvey the land, and ultimately do justice to Brace ; and that the witness declined, but told him perhaps the defendant, would, because, from the circumstance that Brace went immediately to the defendant and gave him a deed of the land, who thereupon executed a receipt for property taken on the executions, the jury could not be warranted to presume, or draw an inference, that Brace made to him the same proposition, and that the conveyance was executed in pursuance thereof. Though there can be little doubt that Brace made the offer to the defendant, from the circumstances proved, and it was under this impression that the court below, in the hurry of the trial, admitted the proof; yet this is mere matter of conjecture, which should never be admitted as evidence in a court of justice. A circumstance to furnish presumptive evidence against a party should be brought home to his knowledge. An offer by A. to B. to make to him a fraudulent conveyance, which he declines accepting, is no evidence that a subsequent conveyance of the same land to C. is fraudulent. The offer of Brace to the witness was a transaction between other parties, res inter alios acta, not brought home to the defendant, and he ought not to be charged by it.

The other question is, whether the defendant can protect himself by the possession of fifteen years under the statute concerning the possession of lands.

It is unnecessary to consider the questiqn whether fraud will take the case out of the statute; for I apprehend, on a sound construction, it will be found neither to be embraced by the words, nor comprehended within the meaning, of the statute; and it would be a new idea to construe a statute liberally for the protection of fraud.

The statute does not enact that a naked possession of fifteen years shall vest a title in the possessor; but that no person shall make entry into any lands, but within fifiteen years after his right shall accrue, and in default thereof, shall be excluded from making entry. It h@s been the uniform construction here, and of a similar star tute in England., that the possession must be adverse; that the possessor must claim title in himself, and deny the title of all others; that he must be guilty of an actual disseisin.

The possession of the defendant in this case could not be adverse to the title of Brace; for Brace had no title or right of entry. The statute supposes the possessor holds adversely to some one having title and right of entry. If Brace had no such right, then the relative situation of these parties was such that the statute could not operate upon them; and it is a solecism to say, that a man acquires a title to land by an adverse possession of fifteen years against another, when he had previously acquired from him a legal title by a deed duly executed and recorded. The defendant acquired all the title of Brace the instant the deed was executed; how could he acquire any thing more by fifteen years’ possession ?

As it respects the creditors of Brace, there is no ground to pretend that the statute can operate. The plaintiff had no right of entry before the levy of his execution on the land, and he has brought his action within fifteen years from that period. He had till that time nothing but a right to proceed against Brace till he obtained an execution for his debt, and then to levy it on the land. This right to levy on the land, is not a right of entry, and cannot be within the letter or meaning of the statute ; and it is not supposable that the legislature contemplated a right of this description. When a creditor levies on the land, then a right of entry accrues; and at that time the statute begins to run against him.

But the true point of light in which this transaction is to be considered is this: The defendant, by the deed, took all the right of Brace, but he held the lands subject to the claims of his creditors, and in the nature of a trustee for them. His possession was inconsistent with no right of Brace ; for he had none. It was inconsistent with no right of the creditors ; for they had no title to the land, or right of entry. The defendant had a lawful possession of the land, till the creditors levied upon it, Mid took it for their debts; he disseised nobody, and no one, not even the creditors, could enter upon him, or maintain trespass against him. His possession was consistent with every existing claim, and could be adverse to none, because it was lawful; and it is an undeniable position, that a lawful possession acquires no title under the statute.

I am therefore of opinion that the charge to the jury Was correct; but that a new trial ought to be granted for the admission of improper testimony.

Brainerd, Baldwin, and J. C. Smith, Js. were of the same opinion.

N. Smith, J.

I am in opinion with my brother Swift, that the court erred in admitting Le-ais Catlin to testify respecting conversations with Brace, in the absence of the defendant. The declarations of one are never admitted to affect another who is not present and assenting to them, unless they accompany some act about which testimony is adduced ; and then they must be considered as explanatory only, and not as original and distinct proof.

I think, also, that the court were incorrect in the charge they delivered to the jury.

The court, in the first place, instructed the jury as to the facts necessary to constitute a fraudulent conveyance; and here they do not require that the jury should find any intent to defraud a creditor, nor even that the defendant knew that Brace was in failing circumstances. But. I have no doubt of the correctness of this part of the charge. The direct tendency of the contract was to defraud creditors; and this has frequently been adjudged sufficient to set aside a contract in favour of creditors, whether there was an intent to defraud them or nót. The court then instructed the jury, that where a purchaser takes possession of lands by a fraudulent conveyance, he cannot acquire a title by fifteen years’ possession under such deed; and that no length of possession under such fraudulent conveyance will be a bar to the creditors of the grantor. This opinion of the court, I think, is incorrect. The inquiry, under the statute for quieting possessions, should be, has the defendant been in possession in his own right, holding all others out, for the term of fifteen years ? And not, how did he come by such possession ? The first inquiry is authorized by the statute; the latter is altogether unauthorized.

The creditors of Brace do not claim under a new independent title; they take his title, and come in under him. The statute against fraudulent conveyances removes the deed from Brace to Catlin out of their way; as to them, therefore, Catlin went into possession without deed. The creditors must take all the consequences of the deed being void; they cannot both claim it to be void and valid j they cannot declare the deed void so as to take Brace’s former title, and at the same moment declare it good so as to avoid Catlin’s possession. But I do not admit that their possession was imperfect as against Brace himself. It had every quality required by the statute for quieting possessions. He holds the possession in his own right in opposition to Brace ; and there is no pretence that this possession was tobe delivered back in any event. .And it is no objection to the nature of this possession, that Catlin held it under a deed that was valid; though as to Brace, he, having a good valid deed, might not wish to avail himself of his possession; yet he could, if he pleased, and would not be obliged to rely on his deed.

It was said, in argument, that the taking possession was a wrong act, and a part of the fraud; and the deed being void, the possession niust be void also. To be sure, all wrongful possessions are in themselves void, and of rib effect. It is the statute for quieting possessions which gives to them their whole operation. In that statute I look in vain for an exception in favour of wrongful possessions. What can be more wrong than to turn a man out of his lands by force, and hold him out by strong hand ? And what possession can be more void, than one thus acquired, and thus held ? And yet does any one doubt that such a possession, if held fifteen years, would secure the title ? The statute against fraudulent conveyances declares the deed void; leaving the possession which may be acquired under it, like any other wrongful possession, to the operation of the other „ statute. But if the argument I oppose would apply to any case of fraudulent conveyances, it must be to one where, there was a fraudulent intent, and not to those of mere constructive frauds, which are deemed fraudulent and void as to creditors without any intent to deceive. And the proposition advanced by the court before, does not confine the principle to cases of actual frauds; but is general in its application, and comprises every species of fraudulent conveyances. Had it been confined to eases of fraudulent intent, it could have had no application to the case before the court ; because no fraudulent intent was claimed or pretended.

I confess I should feel some degree of concern to have it considered as settled law, that rao length of possession under a fraudulent conveyance will be a bar to the creditors of the grantor; and this to apply as a general rule to all cases, whether there were actual fraud or not.

It ought to be remarked, that the fact of fraud may, and frequently must, be proved by mere parol testimony; and this may be a fact not only fifteen, but twenty or thirty years before the trial. It ought, also, to be remarked, that this fact, when established by parol, is to overset a record title. And if no length of possession is to secure the record title against these attacks of‘parol testimony; if the durability of records, and the open ⅜ sible occupancy of lands, are to be thus set at naught by the mere parol recollection of witnesses, after the lapse of so many years, there will be no safety to our titles.

Edmond, J. concurred in this opinion on both points.

Mitchell, Ch. J. and Trumbull, J.

thought that the admission or rejection of the evidence in question would not affect the event of the cause; and, on that ground, were opposed to the granting of a new trial. They were of opinion that the charge was correct.

Reeve, J. being interested in the question, gave no ©pinion.

New trial to be granted.  