
    Moseley against Moseley.
    The defendant in ejectment cannot impeach a grant to the plaintiff made by the party under whom both claim, and overreaching the defendant’s titlej by showing that such grant was made in fraud of creditors, the defendant not being himself a creditor nor claiming under any proceedings instituted, by creditors to avoid the deed.
    
    Appeal, by the plaintiff, from a judgment of the Supreme Court. The action was brought to recover the possession of fifty acres of land, lying in Dryden, Tompkins county, which was in the possession of the defendant. Joseph Moseley, the father of the plaintiff and of the defendant, was admitted to have been formerly the owner of the land. The plaintiff gave in evidence a deed in fee to hims,elf, from Joseph Moseley, dated April 1820, acknowledged July 27, in the same year, and recorded October 5, 1830. It was expressed to be given in consideration of $800, and purported to convey one hundred and seventy-six acres of land, and included the premises in question.
    Among other defences, the defendant set up, and gave evidence tending to prove, that Joseph Moseley was indebted to various persons, at the time of the execution of the deed to the plaintiff, and that the same was given in order to defraud his creditors. The defendant also set up a parol purchase by himself of his father, Joseph Moseley, and alleged that he had paid the consideration of that purchase in discharging certain debts of his father.
    
      The judge charged the jury, among other things, that it was a question for them whether the plaintiff’s deed from Joseph Moseley was not void ; that the delay in recording it was some evidence of that fact; that the defendant was entitled to show that the deed was fraudulent and void as against the creditors of Joseph Moseley the grantor; and he submitted to the jury whether the defendant had succeeded in establishing that position. The plaintiff excepted, and the jury found a verdict for the defendant.
    The judgment in favor of the defendant was affirmed at a general term, upon which the plaintiff appealed here, and the case was submitted upon printed briefs.
    
      Samuel Love, for the appellant.
    
      Ferris & Cushing, for the respondent.
   Denio, C. J.

It was formerly understood to be the law that contracts and conveyances made with a view to delay, hinder or defraud creditors were, nevertheless, valid and binding between the parties to such contracts and conveyances. (Jackson v. Garnsey, 16 John., 189; Osborn v. Moss, 7 id., 161; Findley v. Cooley, 1 Blackf., 262 ; Fairbanks v. Blackington, 9 Pick., 93.) The English statute of frauds, which was early reenacted in this state, in declaring the effect of such transactions, pronounced them void and of no effect only as against the person or persons who might in anywise be disturbed, hindered or defrauded. In Nellis v. Clark (20 Wend., 24; S. C., 4 Hill, 424), the rule was departed from by a decision which restricted the doctrine to executed conveyances, the court holding that an executory agreement entered into in fraud of creditors could not be enforced between the parties; conceding, however, that the principle-which I have stated applied universally to grants and conveyances, and all executed contracts. The court applied to transactions fraudulent against creditors the rule which prevails as to other illegal contracts, namely, that whatever the parties have illegally contracted to execute, neither can by law compel the other to execute, or to pay damages for not executing; and that as to conveyances and executed contracts it refuses to aid either party, but leaves them where it finds them. - This modification of the law as it was finally held, having received the sanction of the Court of Errors, should now be considered as established. The rule has been further changed in one particular. Executors and administrators who could not, formerly, impeach the conveyances of the deceased on the ground of fraud against creditors are now enabled to do so by statute. (2 R. S„ 449, § 17; Bate v. Graham, 1 Kern., 237.)

Enough of the ancient principle is left to determine this case. The deed of Joseph Mosely to the plaintiff is an executed conveyance, which the grantor could never be heard to question in a court of justice, on the ground that it was executed in fraud of creditors. The defendant is not a creditor, and he does not claim under a title arising out of any proceedings instituted by creditors. If he has any claim to the subject of the suit, it is one taken under his father, the grantor, and he can claim no right which the grantor was estopped from setting up. The judge therefore fell into an error in leaving the question of fraud to the jury. Which ever way that question might be determined, the finding would not legally aid the defendant.

It was also erroneous to charge, that the delay of the plaintiff in recording his deed, was some evidence that it was void. Unless the defendant had acquired an advantage Under the recording acts, it was not important whether the plaintiff ever recorded his deed.

The judgment should be reversed, and a new trial awarded.

Brown, J.,

was for affirming the judgment, on the ground that there was no specific and direct exception to any of the legal propositions of the charge, but in place thereof a prolix statement of facts and arguments. The office of an exception, is not alone to get the point before the appellate court, but it also is to call the judges, attention directly to the proposition thought to be exceptionable, that he may reflect and correct himself, if in error.

Shankland, J., took no part in the decision.

New trial ordered.  