
    Flagg vs. Willington.
    To impeach the title of the demandant in a writ of entry, on the ground of fraud, evidence of the fraudulent intent of his grantor in the conveyance of other lands, to another person at a prior time, though with the connivance of the demandant, who was his brother-in-law, is not admissible.
    In this case, which was a writ of entry on the seisin of the deman-dant, both parties claimed title under one David Lovering; the de-mandant claiming by deed from him, dated Aug. 26,1820; and the tenant by virtue of the extent of an execution in his own favor against Lovering, April 5, 1823. The judgment was recovered, upon a promissory note, made in 1812.
    At the trial before Parris J. the tenant impeached the title of the demandant, as fraudulent and void against creditors; and proved that the demanded premises were conveyed to Lovering by one Briggs, by deed dated June 5, 1819, and recorded Aug. 26, 1820, in exchange for other real estate, whlchLoverin g, on the same day, conveyed to Briggs. And the tenant offered to prove by Briggs, that when he and Lovering were about to exchange deeds, the legal title to Lovering’s real estate, for which the demanded premises were exchanged, was found to be in one Lane, by deed given by Lovering to him in 1814; that Lovering said he put the farm into Lane’s hands for his own security, as “ he was owing a man at the west a considerable of a sum.” And he further offered to prove by Lane that Lovering applied to him to take the deed, giving as a reason, that “ a man at the westward, by the name of Willington, bad a note or notes against him ; that he had paid the notes, but had forgotten to take them up ; and he was afraid Willington would come upon him, and make him pay them over again.” To the admission of this evidence the demandant objected; but the judge, intending to reserve the question, admitted it as tending to prove the fraudulent intention of Ijovering, in his deed to the demandant; but instructed the jury to give it no weight, unless they should be satisfied, from other testimony, that the demandant had knowledge of this fraudulent conveyance to Lane, and that the samo property was exchanged for the demanded premises. It was also proved that Lovering was insolvent, and that he executed the deed to the demandant, his brother-in-law, while he was in prison, and soon after took the poor debtor’s oath.
    The jury returned a verdict for the tenant, which was taken subject to the opinion of the Court upon the admissibility of the evidence objected to.
    
      Fessenden and Debloislor the demandant,
    cited Somes v. Skinner, 14 Mass. 360 ; Clark v. Waite, 12 Mass. 439; Kimball v. Mor-rell, 4 Greenl. 368.
    
      Emery and Longfellow, for the tenant,
    argued in support of the verdict, on the ground that the testimony showed the original conception of a fraudulent intent against this very creditor, of which the de-mandant was conusant at the time, and which he afterwards assisted to carry into more complete effect. Bridge v. Eggleston, 14 Mass. 245; 3 Taunt. 303 ; Bauerman v. Radenius, 7 B. & E. 663: Kingv. Harwich, 11 East. 578.
   Mellen C. J.

delivered the opinion of the Court at the adjournment in August folldwing.

The demandant’s title, as disclosed, is elder than the tenant’s; and, therefore, as both parties claim under Lovering, unless his deed to the demandant is impeached on the ground of the alleged fraud, he is entitled to a verdict. The premises demanded were once the undisputed property of Briggs; and while he was the owner he conveyed them to Lovering by his deed bearing date June 5, 1819, in exchange for other lands which Lovering on the same .day conveyed to Briggs. There is no evidence in the case, nor is it intimated, that in the above transaction between Briggs and Lov-ering, there was any thing fraudulent, except that the deed to Lover-vhg was not registered till about fourteen months after its date, viz. August 26, 1820, the same day on which the deed from Lovering to the demandant is dated. It is so common a practice for grantees to neglect to place their deeds on record in due season, that such delay in the present instance furnishes of itself no evidence of fraud. We may as well suppose that it was recorded on the day when the demandant purchased of Lovering, in consequence of a suggestion from the purchaser, so that the title might regularly appear on record ; but we need not presume either way. It does not appear in the case that this point was presented to the consideration of the jury. The defence was grounded on the evidence of the transactions between Lovering and Lane in the year 1814, and of the motives which governed them on that occasion. Oh these points the cause was submitted to the jury, as appears by the instructions of the judge. The evidence, in relation to those transactions was introduced and admitted for the purpose of proving, or as tending to prove, the fraudulent intention of Lovering in making his deed to the demand-ant. The instruction to the jury was that they would give no weight to this evidence, unless they were satisfied, by other evidence, that the demandant had knowledge of Lovering’s conveyance to Lane for the purpose of defrauding his creditors. This was evidently an instruction to them to find for the tenant on this evidence, if they were satisfied of a scienter on the part of the demandant. Was this evidence properly admitted, and were these instructions correct ?

The cases of Loker v. Haynes, 11 Mass. 499; Hill v. Payson, 3 Mass. 559, and Bridge v. Eggleston, cited in the argument, do not carry the principle so far as this. It is in the last case laid down in these words ; “ the conduct and declarations of the grantor, respecting the estate conveyed, and tending to prove a fraudulent intention on his part, before the conveyance, are proper evidence for the jury, upon an inquiry into the validity of such conveyance, by a creditor or subsequent purchaser, who alleges it to be fraudulent.” We know of no case which has extended the principle farther than this decision. Injustice may be the consequence of sanctioning a verdict founded on the reported evidence. The proof in Bridge v. Eggleston applied to the deed under which the tenant claimed, and to no other; but in the case at bar such was not the fact. Its application was to a deed of another farm, executed about six years before, to another grantee; which deed must have been re-delivered to Lovering prior to his conveyance of the same land to Briggs, who now holds the title of it, unmolested and unquestioned. The defence is nothing more than this ; Willington says to Elagg “ you have no title to the premises demanded ; your title deed from Love-ring is fraudulent, and was made by him and accepted by you, for the purpose of cheating his creditors. My proof of the fraud is this. Six years before Lovering made his deed to you, he fraudulently conveyed a farm, which he then owned, to one Lam, for the purpose of protecting it from my reach. It is true Lane never attempted to retain the land ; and about six years afterwards he re-conveyed it to Lovering, and then Lovering conveyed it to Briggs, and Briggs conveyed to him a farm in another town ; and this last farm he conveyed to you, and therefore your title amounts to nothing.” To us this appears to be very inconclusive reasoning. A man may at one period of his life, actuated by fraudulent motives, convey his farm to his neighbor, who knows the grantor’s design j and he may after-wards repent of this improper and dishonest proceeding, and obtain a reconveyance of the farm. Can he not after this, honestly and fairly convey the farm to me, for a valuable consideration, though I did know of his having, years before, made a fraudulent conveyance ? Or must I lose the farm, in consequence of my grantor’s former misconduct ? We apprehend not. In the present case, however, the fraud practised by Lane respected another farm, now owned by another man; and nothing in the case has been disclosed which, in any degree, contaminates the title conveyed by Briggs to Lovering ; and that is the title which the demandant claims and holds, under the contested deed from Lovering. Our opinion is that the testimony of Briggs and Lane was ,improperly admitted; and even when admitted, is not sufficient to sustain the defence.

Verdict set aside, and new trial granted.  