
    * Samuel Parker versus Ebenezer Proctor and Henry Proctor.
    A conveyance of land from a fattier to his son ten years of age, for the consideration of natural affection, the father at the time having other real estate sufficient to support himself and family, and not being encumbered with debt, and also continuing with the son in the occupation of the land, was held good against a creditor who had levied an execution on the same as the father’s estate, the creditor having had notice of the conveyance before the father became indebted, at which time this latter had no title to any other lands than those so conveyed.
    Entry sur disseisin. The demandant counts upon his own se:sm within thirty years, and upon a disseisin by the tenants.
    The said Ebenezer disclaims all title to the demanded premises. The plaintiff replies, that the said Ebenezer, on, &c., entered into the demanded premises, claiming a freehold, and so continued until the purchase of the writ; which is traversed, and issue joined thereon.
    The demandant and the other tenant, Henry Proctor, agree in a case stated for the opinion of the Court, containing the following facts, viz.: —
    The said Ebenezer, father of the said Henry, conveyed the demanded premises to the said Henry, by a deed made and executed on the 3d day of April, 1800, a copy of which is annexed to the state of facts, and which, for and in consideration of the love, goodwill, and affection, which the grantor has and bears towards his said son, a minor, and under his government and protection, purports a grant in fee simple of the lands described therein, with a covenant that the grantor is lawfully seised in fee of the premises; that they are free of all encumbrances; that he has good right to convey the same; and that he will warrant and defend the same against the lawful claims of all persons. The deed was acknowledged on the 23d day of the same April, and recorded on the 24th day of October, 1801.
    The said Henry, at the time of making said deed, was ten years of age, and the said Ebenezer was sixty-eight years of age, and continued with his said son in the occupancy of the premises to the date of the demandant’s writ.
    On the 13t.h day of June, 1809, the said Ebenezer, being indebted to the demandant in the sum of 306 dollars *50 cents, entered into a recognizance to the demand-ant in that sum, payable on the 2d day of December then next. ■ On the 3d day of the same December, a writ of execution issued in due form of law upon the said recognizance, which was on the same day duly levied on the demanded premises, and afterwards duly recorded.
    The demandant had notice of the conveyance above recited, before the said Ebenezer became indebted to him as aforesaid; and the said Ebenezer had, at the time of making the said conveyance, other real estate sufficient to support himself and family, and was not encumbered with debts.
    If, upon these facts, the Court should be of opinion that the said conveyance was fraudulent as to the demandant, and that the title to the demanded premises is in him, the said Henry agreed to suffer judgment to go against him by default; but if the opinion of the Court should be, that the title to the demanded premises is in the said Henry, a nonsuit was to be entered, and judgment be rendered for the said Henry for his costs. And it was further agreed that if die Court should be of opinion that the said Ebenezer remaining in possession, under the circumstances above stated, amounted to a disseisin, and that the demandant was entitled to recover, then judg ment to be rendered against the said Ebenezer; otherwise he was to have judgment for his costs.
    The cause was argued at the last October term in this county, by Richardson for the demandant, and Lawrence for the tenants.
    [Note.—It was agreed, in the course of the argument, that the said Ebenezer had, by conveying lands, made advancements to his other sons, who were then of age; and that when he entered into the recognizance to the demandant, he had no lands, unless those in question were to be deemed his.]
    
      Richardson contended that the deed from Ebenezer to Henry Proctor was void by the statutes of 13 Eliz. c. 5, * and 27 Eliz. c. 4, as against a bona fide purchaser for valuable consideration, even with notice ; and he insisted that the demandant was a purchaser within the' intent of the statutes.  The age of Henry, at the time of the conveyance, was a strong badge of fraud; and even his assent to the conveyance does not appear.
    Every motive of public policy is against supporting transfers of this kind. Their whole tendency is to impoverish fathers, and to deprive them of the means of supporting their children; while, at the same time, the benefits to these latter are precarious, if the consequences are not directly mischievous to them.
    
      
      
        Roberts on Frauds, 393.
    
   Lawrence.

The question in this case is, whether the deed from Ebenezer to Henry Proctor is to be considered fraudulent as against the demandant. At common law, a fraudulent conveyance could only be avoided by him who had a prior interest or claim. The demandant is not a purchaser within the intent of the statutes, but a creditor only. ' Purchaser, in the construction of the statutes, has always been taken in its popular sense, and not technically as including every mode of acquiring an estate, except by descent.

The recognizance in this case has no such effect, in creating a lien on the conusor’s land, as statutes merchant and staple, and recognizances in nature of these, in the English law. The statute of this commonwealth, which provided this species of recognizance, was intended merely to save costs to the debtor, not to create a lien. Nor is there any difference, in this respect, between such a recognizance and a judgment of a common law court rendered upon any civil contract.

Then is the deed in this case void, considering the demandant as a creditor ? — It was a voluntary conveyance, but it was not a fraudulent one; and the confounding of the distinction between these two has occasioned the jarring opinions under the statutes of Eliz abeth. If a conveyance is not fraudulent at the time of making it, it is not within the * meaning of the statutes, although no money be paid. One great circumstance,” says Lord Mansfield, in Doe vs. Routledge, “ which should always be attended to in these transactions, is, whether the person was indebted at the time he made the settlement; if he was, it is a strong badge of fraud.” In the case at bar, it is found, expressly, that the grantor had other real estate sufficient for the support of himself and his family, and was not encumbered with debts There was nothing.in the whole transaction which wore the appearance of fraud. It is true the grantor continued in possession ; but he was the father and natural guardian of the grantee, who was an infant of a very tender age. No power of revocation was reserved. He had made similar settlements upon his other children. The demandant knew of the conveyance before he gave the credit to the father. In short, every circumstance negatives the idea of fraud.

The action stood continued for advisement; and at this term, the Court ordered the demandant to be called,

Demandant nonsuit. 
      
       3 Co. 83.
     
      
      
        Cro Eliz. 445. — Roberts, 371.
     
      
       1782, c. 21.
     
      
      
        Cowp. 711.
     
      
      
         [Sexton vs. Wheaton, 8 Wheat. 229. — Hildreth vs. Sands, 3 Johns. Ch. Rep. 35. Anderson vs. Boyd, 18 Johns. Rep. 515. — Ed.]
     