
    Lessee of Washington Sockman v. Michael Sockman.
    Where a debtor has made a fraudulent conveyance of his lands, and the judgment creditor, after levying on the same, applies to a court of chancery to aid him in making a sale to satisfy his judgment, a decree for the sale by a master will not be void, though the fraudulent grantees are not made par ties, but may be set up by a purchaser under such decree, as a perfect defense in an action of ejectment.
    A new trial will not be granted in ejectment, except under peculiar circumstances.
    This is a writ of error to the Court of Common Pleas of Knox county.
    The original action was ejectment, in which judgment was rendered for the defendant, the case having been submitted to the court without the intervention of a jury. A motion for a new trial was submitted and overruled, and it is alleged that the court erred in giving judgment for the defendant, and in overruling the motion for a new trial.
    From the testimony in the case, all of which is spread out in the bill of exceptions, these facts appear:
    The plaintiff and defendant both claimed title to the prem ises in controversy, as derived from Christopher Myers — the plaintiff, by direct conveyance from Myers, and the defendant, as a purchaser at a judicial sale, made for the satisfaction, in part, of a judgment against Myers. The conveyance was not, indeed, from Myers to the plaintiff alone, but to him and his brothers and sisters, grand-children of Myers. The plaintiff, however, is now the sole survivor of the grantees, and takes, under the conveyance, and as the only heir of the other deceased grantees, whatever title passed, by the conveyance, from Myers.
    To defeat this claim of the plaintiff, and to protect himself in his possession, as well as to establish his own title to the land, the defendant sets up a defense, that the conveyance to the plaintiff is fraudulent and void; that Myers, at the time he made the conveyance, owed a large debt to one John J. Brice; and that the deed was made to save the land from being held liable for the payment of that debt; that Brice afterward obtained a judgment for his demand against Myers — issued an execution upon his judgment, and levied it upon various tracts of land, amongst which was the land now in suit. The defendant further claimed, that, soon after the levy, Brice sought the aid of a court of chancery, to enable him to effect more advantageously a sale of the lands, for the satisfaction of his judgment ; that the court took jurisdiction of his case — determined that the conveyance of all the lands was fraudulent and void, as against that judgment, and decreed a sale of specified portions of it; and that, at a public sale under this decree, the defendant became the purchaser of the premises in controversy.
    The bill1 of exceptions which was taken at the trial, with the agreed statement of facts, the various documents, exhibits and testimony attached to it, shows, that the lands were conveyed after the debt to Brice was contracted ; that a judgment upon that debt was obtained — an execution issued, and the whole of the land taken by a levy. It shows further, the whole, or so much as is required in the ease, of the proceedings in chancery above referred to. The bill, it appears, was filed in the court of common pleas for Knox county, at their June term, 1829, and set out the judgment as having been recovered at the March term previous. John J. Brice was the complainant, and the respondents were Christopher Myers and his sons, Wm. Myers, Jacob Myers, Solomon Myers and Isaac Myers, and his sons-in-law, George Hahn and Michael Sockman.
    The bill describes all the lands — charges that they were fraudulently conveyed to the sons above named and to Hahn, in separate parcels; and that the part so conveyed to Hahn, was by him afterwards conveyed to Michael Sockman. The bill alleges that the lands had been offered for sale by the sheriff, upon the execution, but were not sold; and it is supposed that it would be of no avail to issue another execution for the sale, because, as it was believed, they would not sell, in conse■quence of the doubts created respecting the title of said Christopher, by the acts of the parties before named. By the prayer of the bill, a decree is asked canceling the deeds, or an injunction, restraining the defendants from asserting any claim to the lands, against any person who may become a purchaser, under the execution upon the judgment; and for such other relief as may be agreeable to equity. The bill is the same which was before this court, at their term in Bank of 1831, (5 Ohio Rep. 121;) when,'after a full hearing upon the evidence, the .several deeds of conveyance from Christopher Myers were declared to be fraudulent and void, as against the judgment of Brice; and, unless the judgment should be fully paid before a day fixed, were, by an order of the court, directed to be separately appraised. By the same order, the appraisement was to be returned to the supreme court for the county of Knox, at their next term, and was so returned at that term, which was in October, 1832. This return showed the several appraisements which had been made, 'of the tracts of land as conveyed to the sons ; and of that which had been conveyed to Hahn, and by him to Sockman, the present defendant, being 196 acres ; and of 180 acres conveyed to Sockman’s heirs, being lot 16 and part of 13.
    At this last mentioned term, a decree was taken in the case, directing that the lands described in the bill, be charged with the judgment in certain specified proportions; and after charging against other lands their due proportions, the decree proceeds to charge against the tract of 196 acres and the tract of 180 acres, mentioned in the return of appraisement as deeded to Michael Sockman and his heirs, a sum equal to four-elevenths of the claim of the complainant. The order directs the master commissioner to proceed against the lands, in the- collection of the judgment, interest and costs, so charged upon them; and to cause so much of each tract to be sold as shall pay the sum charged on it. The sale was afterward made by the master, under this order, when 125 acres of lot 16, and 55 acres, part of lot 13, were purchased by Michael Sockman, the defendant in the action of ejectment, and a deed of conveyance in fe«' simple made to him.
    
      Vance Smith and R. 0. Hurd, for plaintiff,
    cited the following authorities:
    
      Myers et al. v. Hewitt, 16 Ohio Rep. 449; Jackson v. Caldwell, 1 Cow. Rep. 622; Woodman v. Bodfish, 12 Shep. Rep. 317; Chesebrough v. Millard, 1 Johns. Ch. Rep. 414; Foulke v. McFarlane, Watts & Serg. Rep. 297; Huffman v. Strohecker, 7 Watts Rep. 86; O’Neal v. Cathran, 4 Desau. Rep. 652; Waller v. Mills, 3 Dev. Rep. 515; 2 U. S. Dig. Sup. 584; sec. 297, p. 729; sec. 398, p. 55; sec. 600.
    
      Delano Israel, for defendant,
    cited the following authorities:
    
      Brice v. Myers, 5 Ohio Rep. 121; Barr v. Hatch et al., 3 Ohio Rep. 527; Hildreth v. Sands, 2 Johns. Ch. Rep. 36, 49; 1 Story’s Eq., sec. 190; 6 Shep. Rep. 232; 18 Wend. Rep. 353, 375.
   Avery, J.

From the statement of facts in this case it will be seen, that the premises in dispute, though actually levied' upon by virtue of the execution, and embraced in the bill and in the order of appraisement, were supposed, till after this last order, to have been included in the deed to the sons and s.onsin-law, who were parties to the bill. The return of the appraisement first disclosed to the supreme court, that the premises last named had been conveyed to the heirs of Sockman, but the court proceeded to direct the sale and apply the money arising' from it towards the satisfaction of the judgment.

It appears further by the bill of exceptions in the case, that the defendant in the action established by proof, which is satisfactory, that the conveyance from Christopher Myers to the plaintiff and his co-grantees, was like the other deeds to the respondents in the bill in chancery, fraudulent and void, as against the judgment of Brice. Upon the evidence given at the trial in the common pleas, that court decided, that the plaintiff in ejectment had no title to the premises, and gave a judgment against him; and they refused, upon a motion of the plaintiff, to grant him a new trial; and we, after a full examination of the case, have not been able to find any error in their proceedings. The lands in controversy were legally taken in execution to satisfy the judgment of Brice. If they had been fraudulently conveyed before that time, by the judgment debt- or, the conveyance as against that judgment, was absolutely void, a perfect nullity; and a sale upon the execution, had it been made, would have passed the title as effectually'as if Christopher Myers had never attempted to convey. It was not necessary to go into chancery in order to secure a valid title for the purchaser; it was only important for the purpose of ■effecting a more advantageous sale, by inspiring in that way greater confidence in the title which would be obtained. If, then, the defendant, being in peaceable possession, could so connect himself with the sale, under that judgment, as to show that he was not an intruder upon the premises, he would have a right to set up the fraud which vitiated the conveyance, and made it a nullity, as against the judgment. Without doubt, in this view, the defendant might have used in evidence the proceedings in chancery. But I can discover no objection to his introducing the record, to show a complete title in himself, if he were prosecuting as a plaintiff in the action. The land was liable to be seized and sold as the property of Myers, upon an execution against him; and could have been offered by Brice without consulting or noticing any person, whose only title was ander a fraudulent conveyance. A judgment creditor may proceed in chancery, when a deed is resting upon the title of the debtor, as well as for other causes; and if, by his will, he presents a case which the court will recognize as sufficient; if any party, even the judgment debtor alone, is before the court, jurisdiction is required over the subject-matter and over the defendant; and a decree ordering a sale in aid of a judgment at law, is not void, so that it can be impeached collaterally. It will operate, to some extent, to support the conveyance which it directs ; and such conveyance will be good till a better title is shown; it will at least be good against a fraudulent conveyance. It results, from what has been said above, that the plaintiff has no claim, merely because he was not a party to the bill in chancery, to disturb the present defendant.

But the plaintiff says further, that the defendant is guilty of misconduct and fraud in his attempt to connect himself with the premises, and that therefore he does not stand in the relation supposed, which would enable him to question the validity of the plaintiff’s deed. He is the father of the plaintiff, who is the only survivor of his co-grantees; and as the natural guardian of his children, he had taken the oversight and charge of the land, which had been conveyed to them by Christopher Myers, their grandfather. ' And while occupying this relation to his children and the land, he betrayed, it is claimed, the interests of his minor children, and fraudulently caused their land to be put to sale instead of his own, and then bid in the title, when he ought to have applied his money towards extinguishing the debt which was an incumbrance upon the land. It is very certain, that something appears in the conduct of the defendant, in relation to the purchase of his children’s land under the execution, which has not been explained; and his motives and actions may be reprehensible. But he was a purchaser at a public sale conducted by a master of the court, and his purchase cannot, at least upon such evidence as was given in this indirect manner, be attacked. However dishonest his motives may have been, his title cannot be assailed, while the master stands above all imputation of wrong. Upon the whole evidence, we decide that the plaintiff showed no right to recover.

But there is a view of this case which would have led to the same result, upon evidence much less decisive and clear for the defense. This is an action of ejectment, where a judgment has been given in behalf of the defendant who is in possession; and the plaintiff is the party moving for a new trial. In such a case, he is not to be heard with much favor. In Runnington on Ejectment 398, it is said, that an application for a new trial formerly, was not countenanced in an action of ejectment; because the injured party might bring a new ejectment. But the practice was at a later period adopted of granting new trials where the party applying would otherwise suffer by a change of possession. In Muhlenburg's Heirs v. Florence, 5 Ohio R. 245, there was a new trial granted; but the verdict was there against the defendant; and in such a case the court said, the reason of the rule ceases. In actions of ejectment, where the verdict is in favor of the defendant, it is rarely set aside for newly-discovered evidence. 6 Ohio Rep. 271.

As a general rule, but it would not answer to say as an inva-' viable rule, a new trial will not be granted on the application of a plaintiff in ejectment, who has failed upon the first trial.

Judgment affirmed.  