
    Pride v. Andrew.
    
      Fraudulent conveyance — Section 4196, Revised Statutes — Suit by grantor to compel reconveyance.
    
    Where an owner, during the pendency of a suit against him, and in view of a possible judgment being rendered therein adversely to him, conveys his property to another with intent to defeat the satisfaction of suchjudgment as may be recovered against him in the suit, he cannot, after judgment in such suit in his favor, have the aid of a court of equity to compel the grantee to reconvey to him the property.
    (Decided May 22, 1894.)
    Error to the Circuit- Court of Washington county.
    The original action was commenced in the court of common pleas of Washington county, by James B. F. Pride and others, the plaintiffs in error, against George Andrew and Margaret Andrew, his wife, formerly Margaret Pride. The third amended petition alleges as follows:
    “Said plaintiffs say that they, James B. F. Pride, Jesse Pride, Mary Pride and Bertha Pride, the last three named being the sole and only heirs of William Pride, deceased, Baruch Pride, Alvira Heaclly, formerly Alvira Pride, wife of Thomas Headly, and the said defendant, Margaret Andrew, wife of said Georg-e Andrew, were heirs at law of one Jesse Pride, late of said county and state, deceased, who died testate, and whose will was duly admitted to probate in said county and probated by the probate court of said county, and is as such now by due and proper proof, and the record thereof the valid will of said Jesse Pride, deceased. That among Other things, the said last will of said Jesse Pride, devised as follows, to wit: First, “I give and devise to my beloved wife (in view of her dowery) the farm on which we now reside, situate in Belpre township, Washington county, Ohio, containing twenty-five acres, more or less, with all the stock, household goods, furniture, provisions and other goods and chattels, which may be thereon at the time of my decease, during her natural life. At the death of my said wife the real estate aforesaid, I give and bequeath or devise to my sons William Pride and Baruch Pride and James B. Finley Pride and Margaret Andrew and Alvira Headly, my daughters, and their heirs. If, however, either of my aforesaid sons or daughters should die before the decease of my said wife, leaving no children living at the decease of my said wife, then the shares of said property, above devised to such deceased son or daughter, shall be equally divided among or between, the remaining sons and daughters aforenamed by me. If my said wife should not survive me, then I devise and bequeath the property aforesaid to my sons and daughters aforesaid.
    “Plaintiffs say that on or about the — day of --, 188-, the wife of said J esse Pride departed this life; that the said William Pride, named in said will, has also departed this life, and left as his sole and only heirs at law said Jesse Pride, Mary Pride and Bertha Pride, named above; that the plaintiffs and defendants, except George Andrew, are the persons named in said will, to whom the estate of said real estate, mentioned in said will, as twenty-five acres, more or less, in Belpre township in remainder, was devised, and plaintiffs say that after execution of said will, to wit: About June 2, 1881, said Jesse Pride was seized in fee and in the possession of the following real estate, situate in said county of Washington and state of Ohio, and being the same real estate described in said will as devised to the parties named as devisees, and described as follows, to wit: (Here follows a description of said real estate, containing28 and 99.100 acres, more or less.)
    ‘ ‘ Plaintiffs say that at said date last aforesaid, there was pending in the circuit court of Pleas-ants county, W. Va., a certain action wherein Manderville Coe and Margaret Coe, his wife, were plaintiffs, and one Sarah A. Rawson, Elizabeth Rawson and said Jesse Pride, deceased, were defendants ; that said action was upon a guardian’s bond, executed by said Sarah Elizabeth Rawson, as principal, and said Jesse Pride was her surety therein, in which said bond said Elizabeth Rawson was named as the guardian of Jesse Rawson, Elizabeth Rawson, Nancy Rawson and Isaac Raw-sons, heirs and children of said Elizabeth and her said husband, Eliot Rawson, said action being on said bond by said Manderville Coe and Margaret Coe against said Elizabeth Rawson and Jesse Pride, to recover of said defendants the share of said Margaret Coe in the estate of her deceased father, Eliot Rawson, amounting’ to $1,200 or $1,500.
    “Plaintiffs say that said claim set up in said action was wholly illegal and unfounded, and that there was no legal or equitable liability as against said Jesse Pride arising out of his suretyship on said bond or otherwise in said action as the said Margaret, at the time of said execution of said bond by said Jesse Pride, was not born.
    “And plaintiffs further say that said Jesse Pride, in order to prevent the collection and payment of said pretended demand and claim or any part thereof, and for no other purpose whatever, and with no intent or purpose whatever of defrauding any of his lawful creditors who had just and legal claims against him, said Jesse Pride entered into an agreement with the said defendant Georg-e . Andrew, by which it was agreed by and between said Andrew and said Jesse Pride that said Jesse Pride should convey by good and sufficient deed in law, the land and premises above described, and when and if said Jesse Pride should be relieved and discharged from said unfounded claim made in said suit the said George Andrew agreed and was to reconvey said land and premises to said Jesse Pride by a good and sufficient deed in law.
    “That under and by virtue of said agreement said Jesse Pride did then and there convey to said George Andrew by a good and sufficient deed in law on its face at a nominal consideration of $2,000, but in fact without any consideration thereof whatever. That after said conveyance, said Jesse Pride remained in the possession of said premises, paid the taxes on the same, made improvement on said farm, cultivated the same, and thereupon exercised entire control over the same, paid no rents to said Andrew for the use of said land, nor did said Andrew claim any ownership over said land, nor ask, claim or demand any rent for the same of said Jesse Pride.
    ‘ ‘ Said plaintiffs say that at the time of said conveyance and prior thereto, said Jesse Pride being-very aged, to wit: about eighty-two years old and being feeble in health and by reason of the said litigation in West Virginia, as aforesaid, he became and was very weak in mind; and the effects of this feebleness from ag-e in both body and mind connected with the trouble arising from said litigation, was such that at the date of said conveyance he had not capacity or mind sufficient in law to comprehend and enter into and make such a disposition of his said property as to dispose of the same by deed as aforesaid or in any other manner; and by reason of the state of mind of said Jesse Pride and the promises of said defendants, George Andrew and Margaret Andrew, wife of said George, that they would take and hold said real estate for him, and reconvey the same to him when he should be relieved from said litigation and trouble by reason thereof, and at the urgent solicitations of and' the undue and improper influence of said George and Margaret Andrew over him at said time, said conveyance was made.
    “Said plaintiffs say that said defendants had full knowledge of all the facts above stated in regard to said litigation, and also of the weak condition of the mind of said Jesse, and the sole purpose for which said conveyance was made as above stated, and also the effect of their influence as aforesaid over him.
    “Said plaintiffs say that said Jesse Pride, by the consideration of said circuit court of Pleasants county, West Virginia, was adjudged never to have been subject to any liability in said case, nor upon the cause' of action therein set forth, and was wholly discharged and relieved therefrom and from all liability whatever by reason thereof, and that after said discharge of said Jesse Pride from said litigation and the determination of said litigation in his favor, he called upon said defendants and requestéd them to reconvey said premises to him according to said agreement, but said defendants then and there wholly refused so to do, and' still refuse, and immediately upon the death of said Jesse Pride, said plaintiffs requested said defendants to convey said premises to them in such proportions as they, by virtue of the devises in said will were entitled, but said defendants then and still wholly neglect and refuse so to do or allow said property to be disposed of as provided in said will.
    “Plaintiffs say they had no knowledge of said conveyance, nor did they counsel or advise or take any part in said transaction whatever.
    “Wherefore they pray that said conveyance may be set aside, and that said real estate described above may be divided and disposed of as provided in the said last will and testament as herein set out, and for all other relief as in equity, plaintiffs are entitled to have received.”
    To this petition there was a demurrer, which was overruled. An answer was then filed to said petition, which is as follows:
    “And now come the said defendants and for their answer to the third amended petition of plaintiffs say they admit that said Jesse, Mary and Bertha Pride, plaintiffs, are the. sole and only heirs of William Pride, deceased; that said Jesse Pride, late of said Washing'ton county, in said petition mentioned, died testate, and that his will was admitted for probate as in said petition alleged, and that by said last will he made the devises as in said petition set forth, and said defendants admit that about June 2, 1881, said Jesse Pride, deceased, was seized in fee of the said premises in said petition described, being’ the same premises as devised by his said last will, and that at said date a certain action was pending against said Jesse Pride in the circuit court of Pleasants county, West Virginia, but said defendants deny each and every other allegation except those specifically admitted as aforesaid in said petition contained. ’ ’
    The cause was heard upon the third amended petition, the answer of the defendants thereto, and the evidence and judgment was rendered for the defendants.
    The plaintiffs appealed to the circuit court. The cause was heard in the circuit court upon the third amended petition, the answer of the defendants thereto, and the evidence, and the court found, upon the issues joined, for the defendants.
    At the request of parties, the court made the following special finding of facts, viz.:
    “That the said Jesse Pride, deceased, at the time when he executed and delivered the deed of conveyance to the defendant, George Andrew, mentioned in said petition, to wit: On the 2d day of June, A. D. 1881, was of sound mind and of sufficient mental capacity to make said conveyance; that said conveyance was not intended by him as a gift, but was made without consideration moving to the said Jesse Pride, and without any agreement of the said defendants or either of them to reconvey the property mentioned in said deed, to the said Jesse Pride or any other person; that said conveyance was made by Jesse Pride with the intent, and for the purpose on his part to hinder and delay and defeat the seizure or application of said property to the satisfaction of the claim of Manderville Coe and Margaret Coe, then pending against him, the said Jesse Pride in the circuit court of Pleasants county, West Virginia, mentioned in said petition, in case judgment should afterwards be recovered against him thereon; that judgment was afterwards rendered in favor of said Pride and against the validity and justness' of the claim of said Manderville and Margaret Coe, in said proceeding in said Pleasants county, and before any demand was made for a reconveyance of said property, and that said conveyance was made without any fraud or undue influence on the part of said defendants or either of them. ’ ’
    It was adjudged and decreed by the circuit court that the plaintiff’s petition be dismissed, and that •the defendants go hence without day, and recover of the plaintiffs their costs in and about the action expended, and that the cause be remanded to the court of common pleas to carry said judgment into execution.
    To reverse the judgment of the circuit court this proceeding in error is prosecuted.
    
      Loomis & Knowles, for plaintiff in error.
    The grantor had a legal right to make the conveyance to shield his property from an unjust claim. In all unlawful claims and demands, if he is successful in his resistance to the demand, the transfer cannot be considered fraudulent. See Dearman v. Dearman, 4 Ala., 521; Brady v. Ellison, 2 Hayw., 348; Smith v. Bowen, 2 Hayw., 296; Bump Fraudulent Conveyance, 2d Ed. 444, 445; Barker v. Gillman, 52 Barber, N. Y., 26.
    
      Nye & Oldham, for defendants in error.
    The wrong, on account of which equity refuses its relief, consists in the intention to hinder, delay or defraud the creditor. The grantor who conveys, while a suit is pending against him, in order to defeat a judgment if one shall be obtained, has all the guilty intention of him who seeks to avoid a judgment already rendered.
    The following authorities hold that where a vendor, in contemplation of a possible judgment being rendered against him, conveys his property with intent to defeat such judgment, he cannot, after judgment in his favor, recover his property even where the vendee has promised to re-convey. Tantum v. Miller, 11 N. J., Eq., 551; Harris v. Harris, 23 Gratt., 737; Brady v. Briscoe, 2 J. J. Marsh, 212; Cameron v. Romille, 53 Tex., 238; Fletcher v. Fletcher, 2 McArthur, 38. And in Hack v. Moore, 17 Iowa, 195, where the debtor supposed himself justifiable in attempting by a conveyance to defeat “an old claim,” the court say, on page 198, “the law imperatively pronounces and inexorably stamps all transfers made with this motive as fraudulent.”
    The same doctrine is maintained in Wait’s Fraudulent Conveyances, sections 429, 430; Dunaway v. Robertson, 95 Ill., 419.
   Dickman, C. J.

The finding of facts by the circuit court discloses, that the conveyance by Jesse Pride to George Andrew was not intended by him as a gift; that it was made without consideration to the g’rantor, and without any agreement entered into by the grantee to reconvey the property described in the deed; that the conveyance was made without any fraud or undue influence on the part of the grantee; and was made by the grantor with the intent and for the purpose of hindering, delaying and defeating the seizure or application of the property to the satisfaction of the claim then pending against him in the circuit court of Pleasants county, West Virginia.

Section 4196, of the Revised Statutes of Ohio, provides as follows: “Every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment' or execution, made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons purchasing such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect. ’ ’

While such a conveyance with intent to defraud creditors is, as ag'ainst creditors, thus made absolutely void, the principle is well settled that such a conveyance is good between the parties, and no remedy is afforded the fraudulent grantor or his ’heirs to reclaim the property. While the fraudulent grantee, from a sense of his moral duty, ought to give back the property to him from whom he received it, yet, the law, to discourage frauds, will not compel him to restore it to the fraudulent ' grantor. Swift v. Holdridge, 10 Ohio, 230. The doctrine has been adjudicated by a great weight of authorities, that neither party to a fraudulent conveyance can be aided in a court of- justice, but that they will be left in exactly that position in which they have placed themselves by their covinous and fraudulent transactions, and that the fraudulent grantor will not be permitted to impeach his deed, or to revoke or rescind such executed contract.

There are cases, however, seemingly at variance with this rule, in which aid was extended to grantors who were in delicto, but not in pari delicto with the grantees. But these cases are exceptions to the well-defined and almost universal rule, and rest upon facts not existing in the case before us. Where there are different degrees of guilt as between the parties to the fraudulent or illegal transaction, it was said in Roman v. Mali, 42 Md., 513, that as an exception to the g'eneral rule,, if one party act under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the court in such case will relieve.

In Fletcher v. Fletcher, 2 McArthur (D. C.), 38, an action of slander had been commenced against the grantor and his wife, and the conveyance was executed to the defendant to protect the real estate therein described from the result of the action at law, upon an agreement with the defendant that as soon as the action was dismissed, or decided in favor of the grantor and his wife, he would reconvey the property to the grantor, his heirs or assigns. It was held that such an averment was fatal to the bill of complaint, and that a court of equity would not interpose to set the conveyance aside, but would leave the parties to the consequences of their own act. It was conceded, however, that a court of equity might assist the grantor where circumstances were shown to exist which recognized its interposition on other grounds of settled equity jurisdiction, “such as fraud in procuring the deed, imposition by the grantee, a violation of some fiduciary relation, an abuse of confidence, delusion or the like on the part of the grantor at the time of executing the deed.” See also Pinckston v. Brown, adm’r, 3 Jones’ Eq. (N. C.), 496; Boyd v. De La Montagnie, 73 N. Y., 498; Freelove v. Cole, 41 Barb., 318; Ford v. Harrington, 16 N. Y., 285; Holliway v. Holliway, 77 Mo., 396; Nichols v. McCarthy, 53 Conn., 299; Barnes v. Brown, 32 Mich., 146.

In commenting’ upon the foregoing and other cases of like tenor, Mr. Wait, in his work on Fraudulent Conveyances, § 401, very forcibly says : “While it is possible to deduce from them a general principle that degrees of guilt will be recognized in such transactions, and that grantors may, in certain cases, reclaim the property fraudulently alienated, where the transaction was superinduced by the unfair action of a vendee who occupied some relation of confidence which enabled him to unduly influence the vendor, yet a very clear ease with well defined reasons for excepting it from the general rule must be presented. Debtors contemplating fraudulent alienations should draw little encouragement from these exceptional eases, for, as a general rule, after passing through the troubled waters of insolvency they will find themselves stripped of the power to reach or recover the secreted property in the hands of their fraudulent grantees. The ancient rule, in pa/ri delicto melior est conditio possidentis, is not to be easily uprooted, and must not be considered as overthrown or abrogated bjr these cases.”

It is contended that the deed from Pride to Andrew was not made with intent to defraud creditors, because, the result of the litigation in West Virginia showed that the claim against Pride was without any merit, and that consequently the claimants were not and never had been his creditors. The question therefore arises, whether a conveyance of property by the owner, during the pendency of an action, for the purpose of defeating a judgment that may be rendered therein against him, can be set aside at the instance of the grantor or his heirs after judgment has been rendered in his favor in the pending action, the conveyance having been made without the practice of any fraud or undue influence by the grantee, and without any promise by him to‘reconvey the property.

One of the common incentives of a grantor to transfer his property in fraud of his creditors, is. the commencement of legal proceedings against him to subject his property to the payment of his debts. When such transfer is made of the grantor’s whole estate whilst a suit is pending against him, it becomes a badge of fraud calling for explanation and justification by proof. And when it is avowed, that the secret' intent and purpose of the conveyance was to hinder and defeat the seizure or application of the grantor’s property to the satisfaction of a judgment, if recovered against him, he confesses to a willingness and design to thwart the judgment of the court if contrary to his opinion and wishes. If the plaintiff; in the suit does not succeed, the grantor, on the ground that the plaintiff has turned out not to be a creditor, then invokes the aid of the very court, it may be, whose judgment he has endeavored to make valueless, to restore to him the property which he had deeded to another under a secret trust. If the plaintiff does succeed in his action, and thereby places himself on the footing of a creditor, he may then be forced to assume the burden of overthrowing the fraudulent conveyance made by the grantor.

Courts of law are the effective agencies by which creditors secure their rights, and it is to be presumed that their judgments and decrees will be founded on justice. If the grantor of property, therefore, not being certain whether his apprehensions as to the recovery of a judgment against him in a pending’ suit are well or ill-founded, acts as if the judgment would be against him, and by conveyance puts his property in the name of another under a secret trust, he cannot complain if a court of equity leaves the parties in the position in which it finds them, and declines to set aside the conveyance.

The statute contemplates a grant or conveyance with intent to defraud creditors. It recognizes the moral quality of the act as residing in the intention. The finding of facts discloses, that the conveyance was made by Pride to Andrew with the intent, on the part of the grantor, to hinder, delay and defeat the application of the property to the satisfaction of the claim in litigation in West Virginia, in case judgment should afterward be recovered against him thereon. In other words, his design was,' that if a court of justice should find the claim against him to be good and valid, his conveyance would serve to render nugatory the judgment recovered in the suit by his creditors. The claimants, it is true, did not succeed in establishing their claim, but in view of the avowed intention of the grantor, in the event of the claimants’ success, a court of equity cannot so far regard with favor the conduct of the grantor, as to aid in putting him and the grantee back in the condition in which they were before entering into the transaction.

The fact that the suit resulted in favor of Pride can have but little bearing on the question of his fraudulent intent in conveying all his property to Andrew at the nominal consideration of two thousand dollars, but in reality without any consideration whatever. In many cases, such favorable résult might well have been brought about by the Conveyance itself, 'in causing the creditor to abandon his suit rather than enter upon the task of pursuing the property.

If, before the suit in West Virginia had terminated, Pride had instituted proceedings to set aside his deed to Andrew, a court of equity would not, we think, have waited, to abide the result of the suit, but would have refused to cancel the deed, if convinced that it had been executed to defraud the claimants in the event of their recovering judgment.- It would have been enough to know, that the deed had been prompted by the fraudulent motive of placing the grantor’s prop-' erty beyond the reach of one then seeking to establish the validity of a claim against him in a court of justice, in case the claimant succeeded in his suit.

Our attention has been called to several cases in support of the contentions of the defendants in error. We need refer to only two of them.

Harris v. Harris' Ex'r, 23 Gratt., 737, as stated in the syllabus, was an action of debt brought by the' executor of Gabriel Harris against George Harris, to recover the amount of three bonds executed by George Harris to his father, Gabriel Harris. George tendered a special plea: That at the timé of the execution of the bonds he owed nothing to Gabriel, and that the consideration of the bonds was as follows: In 1866 four suits at law were pending’ against him in the county, naming the plaintiffs, to recover damages for trespass during the rebellion in impressing horses, etc., by him under orders of the Confederate government, hq" being an officer of the army under that government. He did not regard these claims as debts or. just liabilities on his part, but owing to the constitution of the courts and juries at that time, he feared they might be enforced against his property. He was informed by his counsel that the result was uncertain. He conferred with his father, who advised him to secure his property against these claims. The plan adopted was for him to execute to his father the bonds sued on, antedated, with the distinct understanding that they were only to be used and treated as obligations to claim priority over the plaintiff in case of necessity, and if unnecessary, yvere to be handed back to the defendant. The bonds were executed under this understanding, and upon no other consideration. Wherefore Gabriel Harris and his executor were bound to redeliver the bonds to the defendant, because the suits hcod been dismissed in 1867, before the death of Gabriel, and the bonds were therefore null and void, and to be surrendered. On motion of the plaintiff the plea was rejected. The court held that the averment by the defendant of his fears that the courts and juries would not do him justice, could not avail him, as the court must presume that no injustice would be perpetrated in regular legal proceedings had in the forum where such proceedings were pending. * * . * it was held further, that the plea was not good on the ground that the facts stated would entitle him to relief in equity, because his ground of relief was his own fraud.

In Tantum v. Miller, 11 N. J., Eq., 551 (3 Stock. Ch.), the complainant, who was threatened with a prosecution for larceny, conveyed to her niece several tracts of land. Although entirely innocent of the charge, yet, being ignorant of the law and the effect of such prosecution, and being informed by persons with whom she was well acquainted and in whom she confided, that if such criminal prosecution was urged against her she might be deprived of her property, and that the same might be taken from her by process of law, she was induced by such advice, and through the influence of her fears to make the convejmnce, her niece, the grantee, intending in due time to reconvey, the property to her. The chancellor said: “If this bill can be maintained, the court must take the broad ground, that if a person charged with a crime conveys away his property for' the avowed purpose of protecting it against the consequences of his conviction, if he escapes such conviction, a court of equity will aid him in recovering back his property. * * * The complainant made the conveyance for the unlawful purpose of placing it beyond the reach of the law, if the threatened prosecution should prove successful. * * * This was against public policy. This court cannot-aid a person under such circumstances.”

The two cases last cited go to sustain the position, that where an owner, in view of a possible judgment being rendered against- him, conveys his property with intent to defeat such judgment, he cannot, after judgment in his favor, recover back his property, even where the grantee has promised to reconvey.

In our opinion the judgment of the circuit court should be affirmed. ,

Judgment accordingly.  