
    Lee & Hayden vs Wathen & Spaulding.
    Appeal from the Marion Circuit.
    Chancery»
    
      Case 79.
    
      April 13.
    The case stated.
    
      Fraudulent Conveyances. Devises.
    
    A deed of mortgage given to secure thepayment of a debt not due for three years, at the end of five years, and covering land worth three times Hie amount, when threatenedby another with suit, consideredunder these circumstances to be fraudulent.
   «Okief Justice Ewing

delivered the opinion of th-e Couit.

In August, 1839, Lee conveyed a tract of land to Hayden, his father-in-law, to secure the payment of $523 89, borrowed money, with interest and costs, in five years from the date. In June, 1841, he made an absolute conveyance of the same tract to Hayden, in consideration of the principal and interest that had accrued on said debt.

Wathen & Spaulding upon an execution returned, “no property found,” against Lee for $75 and costs, filed their bill against Lee & Hayden, charging collusion and fraud in the execution of said deeds. Upon the hearing, the Chancellor annulled the deed of 1841, and decreed the •absolute sale of so much of the land as might be necessary to pay the complainant’s debt, interest and costs, ■and Lee and Hayden have appealed to this Court.

There can be no rational doubt, that the deed of 1841 ■was made and contrived to cover over the land and protect it from the claims of creditors, and especially the demand of the complainants, and it was therefore properly annulled. Leo was embarrassed, and on the ovo of insolvency. Spaulding had pressed him to secure the complainant’s debt, by a mortgage on his land, subject to the mortgage of Hayden, and promised indulgence for twelve months. Lee declined', and an immediate suit was threatened and commenced. Lee threatened that their debt should be the last debt paid, and hastened off to his friend Tucker to consult him on the subject, and they both hastened off to Hayden’s, where the deed was concocted, and upon no other consideration than the debt which was secured, and which was not due for more than three years afterwards, when the amount was less than one third of the cash value of the land, and less than one sixth of the price that Lee held the land at.

In such case, where a creditor seeks satisfaction out of the mortgaged property, and the mortgage debt is not due, the chancel’r should direct a sale of mortgagor’s equity of so much of the land as will pay the debt, interest and costs.

Under the circumstances, no rational motivé can be ascribed for the sale of the land at so great a sacrifice, without an effort to make a better sale, other than an intention to place it in the hands of his father-in-law, as the means of securing his equity of redemption from the demands of creditors, and especially to hinder and obstruct the complainants in their efforts to coerce their debt. And this motive and intention must have been well understood by Hayden, whether the object was distinctly avowed or not, as the facts enumerated were known to him.

But the decree is erroneous in directing the absolute sale of so much of the land as may be necessary to pay the complainant’s demand. The mortgage is valid and unimpeachable, and has not been, and ought not to have been annulled by the decree. It secures to Hayden the prior lien upon the land for the payment of his debt, and he ought not to be deprived of his prior claim: (6 Dana, 184.) If his debt had been due, it would have been proper to have directed the sale of so much of the land as might be necessary to pay both debts, paying the debt of Hayden first. But the debt not being due, and Hayden not having a right to exact payment until it fell due, the decree should have been rendered, requiring the sale of the equity of redemption in so many acres on some end or side of the tract in convenient form as might be necessary to pay the complainant’s debt, interest and costs, subject, however, to the prior lien of Ilayden, for so much of his debt, interest and costs, as may not be satisfied by a sale of the residue of the land.

Fogle for appellants: Shuck for appellees.

Decree reversed, and cause remanded, that a decree may be rendered as directed in this opinion.  