
    
      Charlton and Others v. Gardner. Same v. Kent.
    August, 1840,
    Lewisburg.
    (Absent Pabksb, J.)
    Fraudulent Conveyances — Land—Special Verdict-Inferences. — A father, In consideration of natural love and affection, makes a deed, which, is duly recorded, conveying slaves and other property to three infant children, upon the condition understood and reserved, that the slaves are to remain in the donor’s possession during his life, and if his wife should survive him, that she shall have the use of one third of the slaves and their increase, during her life. At the time of executing the deed, the father is indebted by two bonds, on which judgments are afterwards obtained, and the executions returned satisfied, Subsequent to the deed, he becomes appearance bail, and a judgment being obtained against him as such, the execution thereon is levied upon the slaves so conveyed; which are still in his possession, and they are sold b'y the sheriff. After the father’s death, an action of detinue is brought against the purchaser by the widow and children jointly, and another action is brought by the children alone ; in each of which cases there is a special verdict finding the facts before mentioned. Held, 1. the action in which the widow is joined cannot be maintained, but that by the children alone is well brought: 2. the facts found do not constitute fraud per se : 3. so far as the fraud is matter of fact, the jury not having found it, the court cannot infer it.
    On the 6th of December 1821, a deed was made purporting' to be between John Lynch Charlton and Catharine B. G. his wife, of the county of Montgomery, of the one part, and Pamgla Ann Charlton, Emily B. Charlton and James Christopher Lynch Charlton, infants under the age of twenty-one years, of the same county, of the other part, whereby it was witnessed that the said John L. Charl-ton, for and in consideration of the natural love and affection which he bore to the said Pamela Ann, Emily B. and James C. L. conveyed unto them, and their heirs and assigns forever, one third part *of a certain tract of land, described'in the deed by metes and bounds ; also a certain female slave named Esther, aged 27 years, and two female slaves the children of Esther, one named Clarissa, aged 7 years, the other named Kitty, aged 2 years, and the issue of their bodies which might be born thereafter ; also a certain male slave named Nelson, aged 9 years; which said slaves were then in the possession of the said John L. Charl-ton ; and also the following property, to wit, three feather beds and the furniture thereto belonging, two chests, one trunk, one table, one candlestand, one cotton wheel, two flax wheels, the following blacksmith tools, to wit, one bellows, one vice, three hammers, two pair of tongs and shoeing tools, also a turning machine and all the appurtenances : “ but upon the following express condition, which is hereby understood and reserved, viz. the above mentioned tract of land to remain in the possession of the said John L. Charlton during his natural life, and if the above named Catharine his wife survives him, to enjoy all her dower right in the said lands during her life; and further, the above mentioned slaves to remain in the possession of the aforesaid John L. Charlton during his natural life, and if his present wife Catharine should survive him, to have the use of one third of the said slaves and their increase, during hermatural life; and the other property herein mentioned to remain in the possession of the said John L. Charlton until the above named James C. L. Charlton shall arrive to the age of 21 years, or, if he should not live till then, until the youngest of the two girls shall be of age or marry, and then for an equal distribution to take place between them, their heirs or representatives.” The deed concluded, “In witness whereof I have hereunto set my hand and seal the day and year above written but the names of J. L. Charlton and C. B. G. Charlton were subscribed, and there was a scroll opposite to each signature.
    *In the office of Montgomery county-court on the 12th of December 1821, the deed was acknowledged by John L. Charlton and admitted to record.
    The real property conveyed was situated in the county of Montgomery, and the other property was held therein at the time the deed was executed and admitted.' to record, and continued therein until the period at which the actions of detinue- herein after mentioned were brought.
    At the time the deed was executed, John L. Charlton was indebted by two bonds, one dated the 10th of November 1819, for ^18. 6. 4. payable to John Anderson on demand, the other dated the 16th of November 1819, for £7. 6. 4j4. payable to George and John Anderson on demand. Judgments were obtained for these debts in the county court of Montgomery, and executions were issued thereon the 8th of November 1823, which were returned satisfied.
    On the 3d of December 1823, an execution issued from the same court in the name of Thomas Bowyer against Chattin Pollard, John Kent and John L. Charlton as appearance bail, for j£40, with interest from the 1st of November 1815 till paid, and 13 dollars 15 cents costs. The undertaking of John L. Charlton in respect to the debt for which this execution issued, was made subsequent to the execution and record of the deed before mentioned.
    Nevertheless a sale was made under the last mentioned execution, of the slaves Esther and Clarissa conveyed by the deed, and children of theirs born after its execution. At the sale so made, Esther and two children, who afterwards died, were sold for 281 dollars 50 cents, and Clarissa was sold for 166 dollars. Robert Gardner purchased Esther and the two children. Robert Kent purchased Clarissa, and sold her to Joseph Kent.
    * Actions of detinue were instituted in the circuit court of Montgomery against Robert Gardner and Joseph Kent, for the slaves in their possession respectively; that is to say, against Gardner for Esther and a child named Matilda, born after the sale under the execution, and against Kent for Clarissa and her children Mary and John, born likewise after the sale under the execution.
    Against each defendant two separate actions were brought; one in the names of Catharine B. G. Charlton widow of John L. Charlton, and Pamela Ann Charlton, Emily B. Charlton and James C. L. Charlton, infants under the age of 21 years, suing by James C. Currin their guardian and next friend ; the other in the names of the children without the widow.
    A trial upon the general issue being had in each action, the jury returned in each case a special verdict, finding the facts before mentioned, and also the following, to wit; that John L. Charlton held the property in his possession from the time the deed was executed until the slaves were levied on ; that before the suit were instituted, he died intestate ; that at the time of his death, James C. L. Charlton was not 21 years of age ; that James is still alive, but is not yet 21; and that no division of the property has yet been made between the parties to whom the same was conveyed and limited by the deed.
    In each case, the circuit court gave judgment for the defendant, and a supersedeas was awarded.
    M’Comas, for plaintiffs in error.
    It is well settled that upon a special verdict the court can draw no conclusion of fact from other facts found by the jury. 1 Rob. Pract. 372, 3, and cases there cited; 1 Starkie on Evid. (6th american edi.) 448, 9. Here the special verdict not having found that the deed was fraudulent, the court cannot infer that it was so, unless that inference be a conclusion of the law itself from the facts *found. Do those facts amount in law to a fraud upon subsequent creditors of the donor ? The circumstance that this conveyance was made by a father to his children in consideration of natural affection, does not. of itself render it void as to such creditors ; Newland'on Contracts 385, 6 ; Sexton v. Wheaton, 8 Wheat. 229. Neither does the fact that possession was retained by the donor ; for the possession was in conformity with the provisions of the deed itself ; which, besides, was duly recorded. Durham & wife v. Dunkly, 6 Rand. 135; Davis v. Payne’s adm’r, 4 Rand. 332. ' Though the grantor was indebted about 100 dollars at the time the deed was executed, yet the mere fact of indebtedness is insufficient to avoid it as to subsequent creditors; it must appear that he was indebted to the extent of embarrassment, if not of insolvency. Eush" v. Wilkinson, 5 Ves. 387; Read v. Livingston, 3 Johns. Ch. R. 501; Stephens v. Olive, 2 Bro. C. C. 90; Chamberlayne &c. v. Temple, 2 Rand. 384. The conclusion of chancellor Kent in Read v. Livingston, drawn from a full review of the cases, is, “ that fraud in a voluntary settlement is an inference of law, and ought to be so, so far as it concerns existing debts : but that as to subsequent debts, there is no such necessary legal presumption, and there must be proof of fraud in fact; and the indebtment at the time, though not amounting to insolvency, must be such as to warrant that conclusion.” This deed might have been set aside at the instance of the existing creditors (the Andersons) if they had been thereby hindered or delayed in the recovery of their debts ; as to them, the deed was fraudulent in law : but even as to them, it appears that there was no actual intention to defraud ; for their debts were afterwards paid without resort to the property settled. It may perhaps be argued from the contents of the deed, that the donor appears to have settled his whole property, and that consequently the settlement was fraudulent in fact as to the existing creditors. *But even if an actual intent to defraud existing creditors could avail those whose demands accrued subsequently <which is not admitted), the jury have not found that the whole of the donor’s property was conveyed; and the deed itself shews that if the whole was in fact conveyed, the grantor did not divest himself of all his interest therein. On the contrary, he retained the use and possession of the land and slaves during his life. Besides, the voluntary conveyance of one’s whole property, though a* badge of fraud, is not conclusive evidence of it.
    Edward Johnston and C. Johnson for defendants in error.
    Where a special^ verdict is not imperfect on its face — where it does not shew that some fact properly belonging to the case has been omitted in -the finding, the court must intend that it comprises the whole of the facts existing. In this case, then, it must be intended that the grantor did not pos-ess any other property than that conveyed by the deed. Such is the prima facie evidence afforded by the deed itself ; and if the fact were that he did possess other property, that fact was easily susceptible of proof before the jury, whereas it would have been difficult or impossible for the defendants to prove the negative fact that he possessed no other property. The case shewn by the special verdict, therefore, is that of a party, indebted at the time, making a voluntary settlement of his entire property; and the question is, whether that settlement can be sustained against a creditor whose debt accrued afterwards. The second clause of the statute of fraudulent conveyances has, in this case, no influence upon the question ; for under that clause the only enquiry is, not whether there .was'fraud in the transaction, but whether the conveyance was duly recorded. The question is one arising under the first clause of that act.
    It is not sufficient that the transaction was fair and honest in fact; the question is, what rule does the policy *of the law require 7 Courts of justice cannot in general ascertain motives: there must be, if possible, certain rules, certain landmarks and limits, and not vague conjectures, like estimates of longitude in open sea. The simplest rule applicable to cases of this kind is, that the fact of indebtedness at the time shall be sufficient to avoid the deed. According to the almost unbroken current of english authority, indebtedness to any amount at the time of a voluntary conveyance will render the deed void, both as to existing and subsequent creditors. Walker v. Burroughs, 1 Atk. 93, 4 ; Russell v. Hammond, 1 Atk. 15; Townshend v. Windham, 2 Ves. sen. 10 ; Kidney v. Coussmaker, 12 Ves. 136, 155. The only case which seems to regard the amount of indebtedness as material, is that of Lush v. Wilkinson, 5 Ves. 387, and the expression of lord Alvanley in that case was a mere dictum, which has not been followed; see Atherley on Marriage Settlements, ch. 13, p. 213, 14 ; Id. p. 501. Besides, Lush v. Wilkinson was the case of a fishing bill, and in reference to such a case the dictum and decision of lord Alvanley may well have been correct. It is true that in Reade v. Livingston, and some other american cases, it has been considered material, where the deed was assailed by subsequent creditors, to enquire into the amount of the donor’s indebtedness at the time of its execution ; thus turning the fact of indebtedness, which in England is held conclusive in law as to the fraudulent intent, and sufficient to avoid the deed as to all creditors, into a circumstance from which there arises no more than a presumption susceptible of being repelled. But it is, even according to the doctrine of those cases, prima facie evidence of fraudulent design, and throws upon the parties claiming under the deed the burthen of proving the fairness of the transaction.# Now in this case there is no evidence to countervail the fact of indebtedness. It is not shewn that the grantor, at the time of the conveyance, had other property sufficient *to discharge the existing debts, and therefore it must be taken that the fact was otherwise. The payment of those debts afterwards is immaterial: they might have been paid out of the property settled. Again, if the deed here be taken as a conveyance of the whole or the greater part of the grantor’s property, it is fraudulent in fact and design, and void as to subsequent creditors, though the grantor were not indebted at all when he conveyed ; for no man can voluntarily divest himself of all or the most of what' he has, without being aware that future creditors will probably suffer by it. 1 Fonbl. Eq. bk. 1, ch. 4, § 12, note (a); Twyne’s case, 3 Co. Rep. 81; Stileman v. Ashdown, 2 Atk. 480 ; Towns-hend v. Windham, 2 Ves. sen. 10 ; Taylor v. Jones, 2 Atk. 600 ; Fitzer v. Fitzer, 2 Atk. 513.
    But, upon other grounds, the judgments of the court below were right. The provision in favour of the wife, contained in the deed, must be taken either as a condition annexed to the grant to the children, or as the creation of a substantive estate by limitation. As a condition, it could only be reserved to the grantor himself, not to any stranger.; 2 Bac. Abr. Condition, E), p. 114. As a limitation, it is void, because a husband cannot, by any common law conveyance, give or grant any estate to his wife, either in possession, or in reversion or remainder. 1 Roper on Husband and Wife, p. 53 ; Little-ton., § 168, Co. Litt. 187 b. The wife then taking no legal interest in the property, was improperly joined with the other plaintiffs, and the judgment for the defendants, in the two cases in which she was so'joined, was correct. Then, as to the two other cases, in which the children alone are plaintiffs — -Upon the just construction of the deed, the provision in favour of the wife must be held a limitation to her, and not a condition qualifying the estate granted to the children. There was no contingency with respect to the vesting of her interest, but only with respect to the enjoyment of it, *which was dependant upon the event of her surviving, the grantor ; and the vesting in enjoyment was to occur at the same time with that of the estate given to the children. Besides, as it-is settled that none can take advantage of a condition broken, but the grantor and his heirs, this rule of law bears upon the interpretation of conveyances, so that where the remedy for condition broken would not secure the enjoyment of the estate intended to be given, words of condition will be construed to create a limitation. 2 Bac. Abr. Condition, H. p. 117. Now in this case, the breach of the condition (supposing it such) in favour of the wife, by the children or administrator taking the whole property conveyed, could only be remedied, if at all, by the voluntary act of the wrongdoer. There was then a limitation to the wife, of a third part of the property for her life. But the grant to her was void, by the rule of law ; and the part so granted could not be taken by the children, against the express terms and "clear intent of the deed. Therefore it remained in the grantor himself, and passed, by the sale under the execution against him, to the defendants, who thereupon became tenants in common with the plaintiffs. The question then is, whether one of several tenants in common of personal property can be sued in detinue by the others ? It is well established that he cannot. 4 Bac. Abr. Joint tenants ; I. p. 518 ; Littleton, § 323 ; Co. Litt. 200 a. This ground sustains the judgment of the court below in the two actions brought by the children alone, while it equally applies to those in which the widow was joined as plaintiff.
    M’Coihas, in reply,
    insisted, that by the operation of the deed the whole legal estate in the slaves, expectant upon the death of the grantor, was vested in the children alone, subject to a condition that the wife, in case she survived her husband, should have the use of a third part of the property for her life. The argument *for the defendants itself shews, that the reason of the rule by which words of condition are sometimes held to create a limitation, is wholly inapplicable to this case. A condition annexed to an estate granted to the heir, by which that estate is to be defeated in favour of another person, is construed to operate by way of limitation to that person, only because he is capable of taking by limitation from the grantor, while the condition, enuring to the grantor and descending to the heir himself, cannot be taken advantage of by a stranger. But here, the limitation itself would be void, because made by the husband to his wife. Why should the words of condition in the deed be modified by construction, when the modification can only result in a void grant ? The condition, though not available as such to the wife, yet clearly shews the intent of the grantor that the estate given to the children should be taken and held by them, in part, for her benefit; and to that extent a court of equity would hold them trustees for her. The whole legal title being therefore well conveyed by the deed, nothing passed by the sale under the execution, and the actions by the children are properly brought.
    
      
      Fraudu!ent Conveyances — Fraud.—See monographic note on “Fraudulent and Voluntary Conveyances" appended to Cochran v. Paris. 11 Gratt. 848.
      Sale of Personalty — Retention of Possession by Vendor. — On this Question, see the principal case cited in foot-note to Davis v. Turner, 4 Gratt. 433.
      Special Verdict — inferences by the Court. — See, on this question, citing the principal case, foot-note to Purcell v. Wilson, 4 Gratt. 16; Layne v. Norris, 16 Gratt. 242.
    
   TUCKER, P.

These four cases are without difficulty. By the deed from Charlton to his children, the property passed to them, and nothing to his wife. She occupied the position of grantor in the deed though, as she had nothing, she could grant nothing; nor could any thing be reserved to her, since reservation implies subsisting right, which she had not. In every view of the case, the title was exclusively in the children. Consider the children trustees for her, and the legal title would be in them. Consider the deed to be on condition, yet their right is unimpaired till entry for condition broken. Consider it as intending a grant to the wife (which, however, words of reservation cannot create) still it is void, *for a husband cannot, by common law conveyance, grant or convey even an estate in remainder to his wife. 1 Roper on Husband and Wife S3. The deed then conveys the title to the children, with a condition or reservation that is inoperative and void. Their right therefore is indefeasible. The actions in which she is joined were of course properly dismissed, and those brought by the children alone are well brought.

Then, as to the merits. We must not forget that we are in a court of law, and trying a case upon a special verdict; and the question is, whether the deed under which the plaintiffs claim is fraudulent or not ? The question of fraud is sometimes matter of law for the court, and sometimes matter of fact for the jury. It is matter of law, wherever the facts found per se constitute fraud. For instance, in England it is decided that a voluntary settlement of lands is void as to a subsequent purchaser for valuable consideration. Whether fraud was intended or not, the fact constitutes, by the statute, fraud in itself, and the court pronounces its judgment upon the naked fact. So, if the fact that the party was indebted, and being so indebted conveyed away his property, is as to the subsisting creditor a fraud, whether fraud was intended or not; in a contest between the subsisting creditor and the grantee, the question of fraud would be matter of law, not matter of fact. So in cases like Edwards v. Harben, 2 T. R. 587. And the like principles prevail as to bankruptcy and usury. But where the question of fraud is matter of fact, there the jury must find it expressly, for the court cannot infer it ; not only because it never can infer facts on a special verdict (Bac. Abr. Verdict. D.) but also because covin and fraud are odious, and never to be intended or presumed. Thus, where the question was whether a deed was void under the statute of 13 Eliz. avoiding gifts contrived to defraud creditors and others, the jury found the facts, and submitted the question of fraud to the *court. But it was “unanimously resolved, that forasmuch as no fraud is found by the jury, the court could not adjudge the feoffment to be fraudulent; and although the jury have found circumstances and presumptions to incite the jury to find fraud, yet it is but evidence to the jury, and not any matter upon which the court could adjudge fraud. And the office of jurors is to adjudge, upon their evidence, concerning matter of fact, and thereupon to give their verdict, and not to leave matter of evidence to the court to adjudge, which does not belong to them.” Bittleton’s case, cited and approved in the case of The Chancellor &c. of Oxford, 10 Co. 53 b, 56 a. See also Crisp v. Pratt, Cro. Car. 550

Now in the case at bar, it is not found that the deed was made with intent to defraud, although the facts found might well have raised a suspicion of fraud in the minds of the jury, or of a court of equity, if the case were before that tribunal. The jury might have inferred fraud, and so found it, — subject indeed to the grant of a new trial, if their verdict was not sustained by the evidence ; but the court of law cannot infer the wicked intent, which is a matter of fact on which the party has a right to a trial by the country, for a charge of fraud has been well likened to a criminal prosecution. To this, indeed, the conceded action of a court of equity is an exception.

Fraud in fact, then, not being found, are there facts found which, in law, or per se, constitute fraud ? I think not. — First, as to Charlton’s retaining possession. That possession was consistent with the deed, and therefore not fraudulent per se. Cadogan v. Kennett, Cowp. 432, — a case much weaker than this, since the deed there was not put upon record, there being no recording act in England like ours ; whereas, in this case, the record gave notice to all the world of the limited interest of Charlton in the property. — Next as to the sweeping character of the deed. Non constat that the grantor 293 *had not other ample estates. Besides, if he was not indebted, the conveyance of all he had was no fraud upon any creditor, since the record gave notice to all subsequent creditors ; and at most this could only be evidence of fraud, upon which the jury might have founded their verdict. — Thirdly, as to the precedent debts. Admit that in a contest between the grantees and the preceding creditors, the existence of the debts when the deed was made would have rendered it per se fraudulent; yet where subsequent creditors invoke that fact, it can only serve them as evidence from which to infer the fraudulent intent, and so is matter for the jury, and not the court.

I will, in conclusion, refer to the case of Dewey v. Bayntun, 6 East 257, for an example of the great caution of the courts even in permitting juries to infer . fraud, notwithstanding the occurrence of circumstances most strong and persuasive.

On the whole, I am of opinion to reverse the judgments in the two actions in which the infants sue without the mother, and to enter judgments for the plaintiffs. The-two other judgments must be affirmed.

In each of the cases wherein the widow was plaintiff, judgment affirmed: in the other cases, judgments reversed.  