
    William Bridge versus Azariah Eggleston.
    Jurors are not to be permitted to testify to the motives or inducements upon .which they have joined in a verdict.
    The conduct and declarations of a grantor, respecting the estate conveyed, and tending to prove a fraudulent intention on his part before the conveyance, is 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
    This was a writ of entry, in which the demandant counted upon his own seisin of the estate demanded within thirty years, and upon a disseisin by the tenant.
    Trial was had upon the general issue before Putnam, J., April term, 1816. The demandant claimed under an execution, which he levied upon the demanded premises, as the property of Joseph Goodwin, on the 15th- of November, 1811, in due form of law. The tenant claimed to hold the premises under a deed of conveyance from the same Goodwin, dated the 6th of October, 1809, acknowledged and recorded.
    The demandant undertook to prove that the said deed was made without a good and valuable consideration, and was not bond fide, but made to delay or defeat the creditors of the said Goodwin.
    
    * It was admitted that the demandant, on the 6th of October, 1809, and long before, was a creditor of said Goodwin; his claim originating in consequence of the liability of Goodwin and other directors of the Berkshire Bank, in their individual capacity. The demandant proved that the said bank stopped payment in August, 1809; and he was permitted to give in evidence the confessions of Goodwin, made when Eggleston was not present, prior to the said 6th of October, provided the knowledge thereof was brought home to Eggleston before that time; the tenant objecting to the admission of such evidence.
    One witness testified that, in the spring of 1809, Goodwin told him that the bank would fail; that there was not much property belonging to the directors ; that he had an idea of their individual liability, and that was the worst of all; that it would be a question with him, whether he should give up all his property and pay as much as he could, or save what he could to live on and pay as little as he could ; that he seemed to think. it would be best to pay as little as he could; that it would be a question whether he should go to jail here in Albany, or in some other place.
    Another witness testified that, in August, 1809, he conversed with Eggleston, who told the witness that the directors could not pay twenty-five cents on a dollar. A third witness swore that, in August, 1809, Eggleston said to the witness, that the failure of the directors would be the consequence of the failure of the bank ; adding, that it would take every cent they had. A fourth witness testified that he was present at a conversation between Goodwin and Eggleston in August, 1809, when Goodwin observed that the notes of the bank were not worth a cent on a dollar, nor were the directors worth a cent. It was in evidence that Eggleston was present at a meeting of the directors of the bank on the 4th of October, 1809, and that he observed that the directors had long faces.
    There was evidence that Eggleston gave two promissory notes, dated on the same day with the deed, * for 5000 dollars each, payable respectively in three and six years, as a consideration for the land conveyed to him by Goodwin; and that one of these notes had been sued by Robert Center, an endorsee, and that the judgment recovered thereon was satisfied bj an extent on Eggleston's real estate.
    
      The judge instructed the jury that a deed made to delay or defraud creditors was void against them, unless made for a good and valuable consideration, and bond fide to a purchaser, without notice of the fraud ; that the confessions of Goodwin, after the date of his deed to Eggleston, were not to prejudice this latter; nor the confessions before, unless the knowledge of the fact were brought home to Eggleston before the date of the deed ; that negotiable notes were to be considered as payment, if delivered and accepted according to their import; that, if they believed that Eggleston bought the estate innbcently, he should be protected, although the grantor was endeavoring to place his property in a situation to keep it from his creditors ; because a man in failing circumstances might lawfully sell his estate with a view to pay his debts; but that, if Eggleston paid the money for the estate, and did it with a knowledge of the circumstances of the grantor, and with the intent to aid and assist him to delay or defraud his creditors, the deed would be void against them.
    The jury returned a verdict for the demandant; and the tenant moved for a new trial, on the ground that evidence of the confessions of Goodwin, admitted as aforesaid, ought to have been rejected ; and if that should be the opinion of the Court, a new trial was to be granted.
    
      Ashmun, for the tenant,
    before entering on the general ground of the motion for a new trial, offered the affidavit of John Hewlet, who was foreman of the jury who tried the cause, stating that he, with three of his brethren, were opposed to the verdict, but that, believing it to be their duty to yield their opinion to that óf the majority, they had joined in returning the verdict * for the tenant. Ashmun was aware that testimony of this kind had been rejected in some courts, but he was ignorant that such a decision had occurred in this Court. It was admitted in the case of Grinnell vs. Phillips, 
       although the late authorities are on the other side. 
    
    
      But the Court said that it had been expressly ruled, in a capital case in Suffolk, that jurors should not be received to testify to the motives or inducements upon which they had joined in a verdict. And as to the conduct of the jurors in the present case, as stated in the affidavit, the Chief Justice expressed himself satisfied with it. 
    
    
      Ashmun then urged objections to the admission of Goodwin’s 
      conversations and confessions, before making his deed, and not in the presence or hearing of Eggleston. He was a competent witness for either party at the trial. 
    
    Evidence should be legally sufficient at the time of its admission; and it is not enough after the jury have heard it, and its impression has been received upon their minds, that the judge afterwards endeavors to counteract its effects. The evidence in this case was objected to, and should not have been admitted thus conditionally, nor until, by previous testimony, the facts necessary to make it proper evidence had been proved.
    The instructions of the judge to the jury were unquestionably correct; but perhaps no instructions would have sufficed to remove from their minds the impressions which had been made by the improper testimony they had heard.
    
      Gold and Sedgwick for the demandant.
    
      
       3 Mass. Rep. 530.
    
    
      
       See 4 Binney’s Rep. 150, Cluggage vs. Swan. — 1 New Rep. 326, Owen & Al. vs Warburton.
      
    
    
      
      
         [3 Chitty, Pr. 920, 921, Eng. ed. — Homer vs. Watson, 6 Car. & P 680.-Desbrow vs. Wetherly, 6 Car. & P. 760, 761. — Tidd. Pr. 869—896. — Ed.]
    
    
      
       11 Mass. Rep. 498, Loker vs. Haynes. — Ibid. 368, Inhabitants of Worcester vs. Eaton. —12 Mass. Rep. 439, Clarke vs. Waite.
      
    
   Parker, C. J.

The evidence objected to at the trial, and now made the ground of a motion for a new trial, is that which relates to certain conversations and declarations of Goodwin, the grantor of Eggleston, and the judgment debtor, in the judgment whicli was attempted to be satisfied by a levy on the land demanded in this action.

* The substance of the conversation proved is, that Goodwin expected to be ruined by being connected with the Berkshire Bank as a director ; and that he thought it best to pay as little of his debts as possible, and intimated an intention to submit to imprisonment in Albany, in the state of New York. This conversation took place before the execution of the deed to Eggleston, and he was not present at it. The judge overruled the objection made at the trial, on the ground that, if knowledge of the fact could be proved upon Eggleston, the evidence was proper; and there was afterwards evidence of other declarations of Goodwin, made in the presence of Eggleston, of a similar import, so far as their tendency was to prove the known or expected insolvency of Goodwin, but none in which any intention, on his part, to conceal his property was intimated.

So far as the conversation tended to prove the insolvency or embarrassment of Goodwin before he conveyed his estate, we think the evidence proper, The fact was essential to be proved, in order to establish a motive on his part to make a fraudulent conveyance; and it could not be better proved than by his own acknowledgment. It is true that Goodivin is a competent witness, if he is not bound by his covenants, or if he is released. But the creditor, who is pursuing his debt through a supposed fraudulent conveyance, is not obliged to rely upon the testimony of the principal in the supposed fraud. His conduct, actions, and declara tians, before such conveyance is made, are proper subjects to lay before the jury, to enable them to ascertain whether the conveyance, on his part, was fraudulent; and such evidence does not prejudice the supposed grantee. If he purchased bona fide, and for a valuable consideration, without knowledge of such design, his title will not be affected.

There has been much doubt with respect to this species of evidence, different opinions having heretofore prevailed, and no case solemnly decided having settled all the questions which grow out of the subject. It is * certain that more laxity or liberality has prevailed, with respect to the rules of evidence in inquiries concerning the validity of conveyances supposed to be fraudulent, than upon most other subjects. It will be well to establish some precise rules, which may make this branch of litigation less troublesome than it has hitherto been. Now, as the creditor, in such cases, is obliged to prove actual fraud in the grantor, and a participation in or knowledge of it in the grantee, we think these two branches of his case will admit of the application of evidence to the two parties which, although appa rently inconsistent with, is by no means repugnant to, the common rules of evidence.

To prove fraud in the grantor, his conduct and his declarations before the conveyance may be the best, and often the only, evidence within the power of the creditor. He at that time is not interested, nor can it be his design, to injure those with whom he may afterwards contract. If fraud is thus proved upon him, then the knowledge of it on the part of the grantee is to be proved ; w'hich may be done by showing a trifling consideration, or none at all; by acts inconsistent with the bona fide ownership of the property ; by confessions of the nature of his bargain ; or by other circumstances, tending to show a knowledge of the designs of the grantor. Without this latter evidence, the former, as to the designs of the grantor, is wholly ineffectual to defeat the purchase ; and a jury, under the direction of the court, will always be able to discriminate; so that the purchaser will not be injured by the declarations of the grantor, unless he be proved to have been privy to his fraudulent designs.

But the declarations, conversations, or even the actions, of a grantor, after making his deed, ought not to be received in evidence, in prejudice of the title he has created; because he is interested to have such title defeated by his creditors; and because the other party has a right to examine him upon oath, provided he is a competent, witness. Before he has conveyed, he is * an independent party, whose conduct may be examined, to ascertain the causes and motives of his conveyance. Afterwards he has no relation to the estate he has conveyed ; and his conversation respecting it, if sworn to on a trial, is mere hearsay, which is never received as evidence.

Two cases have been adjudged, which tend to establish this latter principle. The first is that of Bartlett vs. Delprat & Al. There the declarations admitted were of a deceased supposed grantor, viz., that he had never made any conveyance to his son. The judge at the trial admitted evidence of that declaration; but a new trial was granted, and the principal reason assigned was, that no cure could be found, where the declarations of a party, so situated in point of interest, had been received as evidence. The declarations objected to in that case were made after a title was supposed to be created by deed, and tended to contradict and defeat that deed. The other case is that of Clarice vs. Waite, cited in the argument. There declarations of the grantor, both before and after the execution of the deed, tending to show that it was fraudulent, were rejected by the judge at the trial, and his decision was confirmed by the whole court.

This decision does not establish the inadmissibility of declara tians made before the deed, if connected with evidence of knowledge on the part of the grantee. The adjudication is not to be extended beyond the subject matter, which was a case of declarations made after the execution of the conveyance, as well as before, without any proffer of evidence tending .to show a participation in the fraud by the grantee.

There is nothing, therefore, in any settled decisions to interfere with our opinion in the present case; which is, that the conduct and declarations of the grantor, respecting the estate conveyed, and tending to prove a fraudulent intention on his part before the conveyance, is 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

Judgment on the verdict. 
      
      
         [Bell vs. Coiel, 2 Hill, Ch. 109. — Varick vs. Briggs, 6 Paige, 323.— Lee vs Huntoon, 1 Hoff. 448. — Fitch vs. Chapman, 10 Conn. 8. — Ed.]
     
      
       4 Mass. Rep. 702.
     
      
      
         [Phœnix vs. Ingraham, 5 Johns. 412. — Ivatt vs. Finch, 1 Taunt. 141. — Davis & Al. vs. Spooner, 3 Pick. 284.— Woolway vs. Rowe, 1 Ad. E. 114.— Spargs vs. Brown, 9 B. & Cr. 935. —Phil. & Am. Ev. 8th Lond. ed. 315, 392, 416, 417, 448.— Greenl. Ev. 213, 214. The declarations of a person living at the time of the trial are not in general admissible to affect the title of a party to the suit, unless they be a pari of the res gesta, or there be a privity of estate, or identity of interest between the person making them and the party against whom they are offered in evidence. — Ed.]
     