
    
      A. E. Ingrem v. Benj. Phillips et al.
    
    A grant of land, on good consideration, from a father to his child, and duly recorded, is only voidable by debts existing against the father at the time it was made ; and becomes good when those debts are paid. Only existing creditors, or others standing in equali jure with them, can challenge such a grant on the ground of fraud, although the father remained in possession, with his childi during his life.
    The statute of 13th Elizabeth does not necessarily make a voluntary conveyance void as to subsequent creditors. There must be, in such a case, “ some acces-sary indications of fraud.”
    A father being indebted, furnished his son with funds to purchase his own land, sold under execution by the sheriff, and convey it to his daughter. The father’s existing debts were all subsequently paid off: held, that there was no valid legal objection to a title under such a deed.
    Plaintiff, about to purchase land at sheriff’s sale, was fully and explicitly notified by defendant, of the existence of a deed under which he claimed the land: held that the actual notice was sufficient; and that defendant’s deed was valid as to plaintiff, so far as it could be questioned for the want of registry.
    
      Before Frost, J. at Lancaster, Spring' Perm, 1849.
    This was an action of trespass to try title. Both parties claimed title by purchase under executions against John In-grem. For the plaintiff, were produced a judgment against John Ingrem, at the suit of Arant, entered up the 14th Nov. 1845, and a fi. fa. lodged 14th Nov. 1845, endorsed for the collection of $100, with interest from the 15th August, 1844, and costs. Under this execution the land in dispute was bid off by Arant, at a sale in January, 1847. He did not comply with the terms of sale, and it was re sold in February, 1847, at his risk; and purchased by the plaintiff, for ten dollars. The tract contained 500 acres.
    The defendant claimed under a judgment of John E. In-grem against John Ingrem, entered the 9th November, 1840, for $1,353 40, with interest from the 2d November, 1840; a sale under that judgment, and purchase by John A. Ingrem, a son of John Ingrem, in March, 1844, for $5. A deed of conveyance from Hancock, sheriff, to John A. Ingrem, dated May, 1844; and a release by John A. Ingrem, to Charlotte Ingrem, in consideration of .ten dollars, dated the 21st June, 1844, and recorded the 5th December, 1845. John Ingrem died in October, 1845 ; Charlotte was his youngest daughter, and married Benjamin Phillips.
    . The plaintiff insisted that the sale, under which the defendant made title, was a fraudulent device to protect the land from the creditors of John Ingrem, and to secure it to his own use. On this subject there was evidence that, at the time of the sale to the plaintiff, there were older executions than Arant’s unsatisfied. None, however, existed before the first sale to John A. Ingrem, in March, 1844, nor was there evidence of any debt owing by John Ingrem, before that time. Adams, the sheriff, who made the sale to the al.plaintiff, testified that Phillips forbid- the sale, and it was announced that he claimed, the land in right of his wife, under a former sheriff’s sale. James B. Ingrem was very active in urging the sale of the land. At his solicitation Arant ordered it to be levied on.
    Respecting the sale of 1844, under which the defendant claimed, Adwrns, who was, then, the deputy of Hancock, the sheriff, testified that the sale of the land was made at the instance of John E. Ingrem, the plaintiff in the execution, and not of John Ingrem, the defendant. John E. Ingrem was very urgent for the sale, would not postpone it, and said he would give $600 for the land. This was on the day of the sale. Several persons interested to bid up the property, were present, so that the witness was surprised when the land was bid off by John A, Ingrem, for $5. John Ingrem earnestly begged off the sale. He feared McKenna and others would bid up the land. He said he did not want his land applied towards payment of his liabilities as a surety of Se-crest, a former sheriff.
    
      James B,.Ingrem, who had married, a daughter of John Ingrem, testified that, on the day of the sale, he rode to the Court Hpuse with John Ingrem, and his son, John A. Ingrem. They conversed about the sale. The land was to be bid off by John A. and the old man was to furnish the money to pay for it. The old man had been Secrest’s surety, and he was advised to have the land sold before any more executions were entered to. bind the land. It was to be purchased by John A. and assigned to the old man’s youngest daughter. The old man was not- to be put out of possession. He was to furnish the money. The witness had heard them speak of it a dozen times. The witness saw the old man give to John A. the money to pay for his bid, and he went into the sheriff’s office and saw John A. pay .the money. A due bill of the old man to Adams, sheriff, for $3, for titles for John Ingrem’s land, without date, was produced. Adams said it must have been given for the sale in 1844. John E. Ingrem was, at the time of the sale, hostile tr .old Ingrem.— James B. Ingrem and the old man and his Sbn were friendly. He said nothing about the fraud in the sale, until after the death of the old man. Then there was a family quanel; after this he set on Adams, the sheriff, and McKenna, and others, to levy and sell the land, disclosing what he would prove respecting the first sale.
    There was some evidence that Charlotte Ingrem, before the sale, made some money by sewing. She might have had as much as five dollars at one time, but did not make more than enough to buy her dresses.
    The jury were instructed that if the purchase by John A. Ingrem, at the first sale, and his conveyance to Charlotte In-gretn, was a mere device and cover to retain the land as the property of old Ingrem, and protect it from the claims of his creditors, that'the transaction was fraudulent and void, and the land was subject to levy and sale as the property of the old man, and in that case the plaintiff should have a verdict. If Charlotte Ingrem had, in fact, paid the money, and was honestly the purchaser, that the verdict should be for the defendant; and even if old Ingrem paid the purchase money, yet if, without any imputation of fraud otherwise, he had, bona fide; directed the title to be made to Charlotte, as a gift to her, it might be a valid gift; since there was no evidence of any prior creditors, whose rights might ’be thereby infringed. And in this view of the case, they were instructed that they might find for the defendant. After the jury •had retired for some hours, being unable to agree on a verdict, they returned into Court, and the foreman stated as one of the difficulties they found in uniting in a verdict, the question, whether fraud, after the sale, would vitiate it. The Circuit Judge stated to the jury, that it might; but, at the same time, instructed them that the evidence and argument, in the case, did not present any such question, and directed their átterttión'carefully to the testimony, which entirely excluded any such enquiry from a proper consideration of the Case.
    A verdict was rendered for the plaintiff, and the defendants appealed, on the grounds:
    1. Because it was incompetent for the plaintiff to impeach •the defendants’s older title under the sheriff, as he, the plaintiff, was no-creditor of John Ingrem, senior,nor did he-purchase under an execution creditor, upon any claim against John Ingrem, existing at the time of sale, when John A. In-igrem purchased.
    
      2. Because, upon the question of fraud, raised by the plaintiff, against defendants’s title, the jury, upon asking the Court if fraud, after the sale, would vitiate the sale, was told by his Honor, that it might: whereas, it is submitted that fraud, subsequent to the sale, could not vitiate the sale.
    3. Because when plaintiff bought at sheriff’s sale, he was distinctly informed by defendant and the sheriff, that the land had before been sold by the sheriff, and that defendant had a title under that sale.
    4. Because, at the time of the sale, when plaintiff bought, defendant was in possession, and there was sufficient notice to plaintiff, to put him on his guard that defendant had title.
    
      WilliamsV"i Bail! 57™ El wee 4°">_ r Bai'‘ Izard2Bail" Eq. 237. ’
    5. Because the testimony was full and conclusive that John ingrem, senior, intended, at the time of the sale by the sheriff,' '"and purchase by John A. Ingrem, that the purchase by John A. should be for Charlotte, the wife of Phillips ; that John A. conveyed afterwards to her. This constituted a good gift by John Ingrem, senior, to Charlotte ; and that it was incompetent for plaintiff to impeach defendants’s title as a gift, inasmuch as there was no evidence that John Ingrem, senior, was indebted at the time of the sale.
    
      Clinton, for the motion.
    
      Wright, contra.
   O’Neall, J.

delivered the opinion of the Court.

In this case, if it be assumed that the title in the defendant’s wife cannot stand upon any higher or belter ground *ban t^iat a grant> 011 g°°d consideration, from her father, in such a case, there could be no doubt that it was only per se, by debts existing at the time the conveyance was made to her by her brother, or at the sheriff’s sale, wben be purchased. The existing debts have been paid, and according to all our cases, the title is good.

But it is urged that the arrangement by and under which John A. bought, at the sheriff’s sale in 1840, the land for $5, constitutes an express or actual fraud, and that as fraud destroys every thing in any way affected by it, therefore, that the deed to him is void, and of course that to his sister. It may be, that the creditors then existing, could set up the fraud, and thus destroy the title. But it by no means follows, if they could do so, that, therefore, others, not standing in •equali jure with them, could also do it. If they, the existing creditors, do not challenge the title in the defendant Charlotte, or if they be paid off, and therefore cannot, it is in vain to talk about the fraud. For if no one legally entitled to complain does, or if by being paid, they cannot, how is it possible for a Court to declare a fraud to exist, or undertake to furnish a remedy unasked for, or unnecessary ? It is true, there might arise a case in which the fraud might -be set up, where the existing debts were passive, or had been paid off. If to pay existing debts, or if after paying existing debts, the whole of the debtor’s estate would be or had been consumed, and subsequent debts existing, when such payment was to be or had been made, would be left without the means of payment, then the land liable to the payment of the existing debts, on account of the fraud, would, at the instance of the subsequent creditors, be so declared.

But no such case exists here. The existing debts were paid in the life time of John Ingrem, and Arant, as his creditor, so far as I am informed by the case, had, then, no existence. John Ingrem, therefore, in respect to him and the sale made in 1847, stands in the same position that a man would who did not owe a cent beyond a trifling debt, for which there might be an execution in the sheriff’s office, and under it, he should choose to have his land sold and conveyed to his son for a nominal price, which he should pay himself, stipulating that the land should be conveyed to another child, and that he, the father, should, during life, remain with that child in possession, and should, afterwards, also pay the balance of the debt on the execution. In such a case, could there be a fraud ? There is no more possibility of a fraud, under such circumstances, than there would be of theft, in a man stealing from himself his own goods. To be a fraud, there must be some person affected or to be affected by it: if there be no injury, there can be no fraud.

6 Stat‘483,

Motten v. Aiken, 2 Spears, 113,

It is very true, however, that this transaction, which, on the face of the deeds, appears to be for valuable consideration, if John Ingrem be regarded, in law, as the grantor, may, perhaps, be considered and treated as standing, in truth, upon no higher consideration than that of natural love, good will, and affection. In such a point of view, if it had been a gift of personal property, then, there is no doubt his subsequent possession (he and the donee living together) would, under the Act of 1832, reuder the gift void, as against subsequent creditors. This Act, however, does not extend to estate, the title to which does not rest in possession, but in deed. I suppose, however, if a grantor remain in possession with a child to whom he has conveyed, and the deed be not recorded, or is unknown to the creditor who trusts him on the faith that the land of which he is in possession is his, that, then, in such a case, the subsequent creditor might avoid such a title as being fraudulent against him. For the stat. 13 Eliz. c. 5, sec. 2, does not necessarily make a voluntary conveyance void as to subsequent creditors. There must be, in such a case, as Roberts, in his treatise on fraudulent conveyances, page 452, says: “ some accessary indications of fraud.”

In this case, if the deeds from the sheriff to John A. Ingrem, and from him to his sister, Chailotte, were necessarily to be considered as if made by John Ingrem, still it would be enough to say we have no certain proof of such accessary indications of fraud. We have no proof whether the deed from the sheriff to John A. Ingrem be recorded; it appears that the deed from John A. to Charlotte was recorded in time; theie is not any testimony by which it can be known whether John Ingrem got credit on the faith of his possession. It is very true, in most cases, the facts mentioned above and not proved, would, without contrary proof, be taken to be against the grantee. But in a case like this, resting upon the proof of such an ingrate as James B. Ingrem, I would not conclude the defendants without an opportunity to have _ these matters investigated.

Harrington r, Withcrspoon, 1848 Col™" ’ ’

Roberts on veyaUchap sec. 6, p. 463.

Harp. Rep. 295.

But I rejoice to have it in my power to say that the defendants’s title is not to be considered as if John Ingrem was their grantor. They stand upon a higher and better legal ground. Their title is exactly the same as if John A. In-grem had been furnished with funds, by his father, to buy another man’s land, and he had directed him to convey it to Charlotte. For in this case, the sale under execution legally divests his title to the land, and confers it upon the purchaser, John A. That John Ingrem furnished the money tnakes a resulting trust, which can alone be reached in equity. The conveyances by the sheiiff to John A. and by him to Charlotte, are not within the letter or the intent of the 13 Eliz. c. 5, and 27 Eliz. c. 4. There can be, therefore, no valid legal objection to such a title.

The deed to Charlotte was recorded; if the deed from the sheriff to John A. be not recorded, it could not affect, in this point of view, the defendant’s rights. For the deed is not that of John Ingrem, under whom the plaintiff claims, by a subsequent sheriff’s sale and deed, and hence not within the recording Act. But it is not necessary to place this part of the case on that point, for a decision. The plaintiff, the purchaser, had full and explicit notice, and that, according to McFall v. Sherrard, was sufficient.

The motion for a new trial is granted.

Richardson, J. — and Evans, J. — concurred.

Motion granted.

Wardlaw, J.

/ concur in the result: and more than this the signing of an opinion never means, (as I thought was well understood,) which I take this occasion of repeating, because of something which was said to-day in the dissenting opinion that was read in the case of Fulmer v. Harmon.

Sometimes, when I would call attention to a doubtful proposition, which I have noticed in the reading of an opinion, I make some slight qualification of what might else seem to be my general approbation ; and sometimes I disavow altogether a ground which has been assumed in support of a conclusion which I approve. But according to the usual eourse of proceeding in the Court, every concurring Judge is often obliged to sign, without qualification, opinions which are different from what he would, himself, have written.— The Court, after discussion in consultation, settles the result of a case, and assigns to some member who has agreed to the result, the preparation of the opinion. He reads it in public: any dissenting opinion must, then, be read also, and the preparation of one, afterwards, is deemed improper: the Judges who approved the result, sign the opinion which has been read as the opinion of the Court, without pretending to scan the argument, and usually without any more exact knowledge of what has been written, than the public reading has afforded.

Under such circumstances, a Judge who signs, can hardly be responsible, even for the general grounds of the conclusion, much less for an erroneous observation, made in support of a ground which he is satisfied with.

Frost, J.

dissenting. — The plaintiff and defendant both derived title from John Ingrem ; the plaintiff, by a sale under execution, in 1847; and the defendant by a sale under execution in 1844. The plaintiff charged that the sale, under which the defendant made title, was a fraudulent device of John Ingrem to protect the land from his creditors, and secure it for his own use. It was alleged that the fraud was effected by collusion between John Ingrem and the plaintiff in the execution, and the sheriff; and that the conveyance of the land, by the sheriff, to John A. Ingrem, and by him, at the direction of John Ingrem, to Charlotte, the daughter of John Ingrem, and wife of the defendant, Phillips, was a co-vinous device to secure the land for John Ingrem. It is unnecessary to refer to the evidence. It may not be very conclusive of the charge; but the new trial, in the opinion which has been read, is not granted on the ground of its insufficiency.

On the issue of fraud, thus made by the plaintiff, the jury were instructed, that if the conveyance by the sheriff to John A. Ingrem, and the conveyance by the latter to Charlotte In-grem, (both made by the direction of John Ingrem,) were employed by John Ingrem to cover and retain his land, as his own property, and protect it from the claims of his creditors, the transaction was fraudulent and void: and the land was subject to levy and sale, as the property of John Ingrem; and, in that case, the plaintiff should have a verdict.

The verdict was for the plaintiff. If it be sustained by sufficient evidence, it is impossible to conceive on what principles of law, heretofore recognised, it can be set aside for error in the instruction of the Circuit Judge. It is a maxim that fraud vitiates all contracts ; and that all deeds, stipulations and agreements, made with a fraudulent intent, are null aud void; creating no obligation and transferring no right. The rule operates to defeat the fraud, whatever may be the complexity and extent of the devices and expedients by which, it may be attempted to conceal the true character of the transaction. If John Ingrem did, by fraudulent collusion, procure his land to be bid off by his son John A. Ingrem, for a nominal price, and did direct that the sheriff should make the deed to his son, and that his son should make a convey-anee of the land to the defendant’s wife; and did make use of these conveyances, more effectually to conceal his design and secure the land for himself, the transaction was fraudulent ; and the conveyances, designed to give it effect, are void; transferring no interest or estate in the land. The title to the same remains in John Ingrem, as if no such deeds had ever been executed. There were creditors of John In-grem at the time of the sale, the payment of whose debts it was his declared purpose to defeat.

But it is argued* that none but creditors, at the date of the sale to John A. Ingrem, can impeach the defendant’s title; and that the judgment of Arant, under which the plaintiff purchased, having been rendered after the first sale, and the debt recovered having also been contracted after that time, the land was not subject to levy and sale, at Arant’s suit. This objection cannot apply if the sheriff’s sale, and the conveyances to John A. Ingrem and Charlotte Phillips were void, for fraud. In that case the title of John Ingrem to the land never passed from him; but he was seized and possessed of it, in the same manner as if the sale and conveyances had never been made.

If the conveyance to Charlotte Phillips did not form any part of John Ingrem’s scheme of fraud, but was, bona fide, a gift by him to his daughter, another rule would apply. Accordingly, a second issue was presented to the jury, whether the conveyance of John A. Ingrem to Charlotte Phillips was intended as a gift to her. On this subject, they were instructed that, even if John Ingrem, by paying the purchase money to the sheriff, was the actual purchaser, yet if, (without any imputation of fraud, otherwise) he had ion a fide directed the title to be made to her by John A. Ingrem, as a gift, it might be valid as a gift, since there was no evidence of any prior creditors, whose rights might, thereby, be infringed. The distinction was thus presented, between the effect of the conveyance to Charlotte Phillips, as a mere instrument of the fraud, whereby John Ingrem designed to secure the land to himself, and the effect of the same deed, as a voluntary gift to his daughter. In the former case, the deed was void, and the property in the land not being changed, it was subject to levy and sale under a judgment agaiust John Ingrem, whatever might be its date. But if the conveyance was, bona fide, intended as a gift from John Ingrem to Charlotte Phillips, it was fraudulent only against creditors, existing at the time; and no others could impeach it. Accordingly the jury were instructed, if they were satisfied this was the case, to find a verdict for the defendant.

The doctrine of resulting trusts has no application to the case. A resulting trust arises where the conveyance is made to one person, and the purchase money is paid by another. This is the only resulting trust known in the Chancery jurisdiction; except in some cases of fraud. All the trusts of the latter class, are measures of redress against fraud, which the Court of Chancery employs to make retribution to the innocent subject of the fraud. The fraudulent party is charged with a trust as a mode of reparation. A resulting trust for the benefit of the fraudulent party, would be an extraordinary measure of justice. If the conveyance to Charlotte Phillips was part of the fraudulent scheme of John In-grem to secure the land to himself, no resulting trust could be decreed for him against Charlotte Phillips. The decree in such case would be, that the deeds should be delivered up and cancelled: and the parties restored to their original rights. If the conveyance to Charlotte Phillips was bonafide a gift of the land to her, it would be opposed to the effect and intention of the deed to raise a resulting trust to John Ingrem.

4 Kent Com. 306-  