Ingrem v. Phillips

Frost, J.
dissenting. — The plaintiff and defendant both derived title from John Ingrem ; the plaintiff, by a sale under execution, in 1847; and the defendant by a sale under execution in 1844. The plaintiff charged that the sale, under which the defendant made title, was a fraudulent device of John Ingrem to protect the land from his creditors, and secure it for his own use. It was alleged that the fraud was effected by collusion between John Ingrem and the plaintiff in the execution, and the sheriff; and that the conveyance of the land, by the sheriff, to John A. Ingrem, and by him, at the direction of John Ingrem, to Charlotte, the daughter of John Ingrem, and wife of the defendant, Phillips, was a co-vinous device to secure the land for John Ingrem. It is unnecessary to refer to the evidence. It may not be very conclusive of the charge; but the new trial, in the opinion which has been read, is not granted on the ground of its insufficiency.

On the issue of fraud, thus made by the plaintiff, the jury were instructed, that if the conveyance by the sheriff to John A. Ingrem, and the conveyance by the latter to Charlotte In-grem, (both made by the direction of John Ingrem,) were employed by John Ingrem to cover and retain his land, as his own property, and protect it from the claims of his creditors, the transaction was fraudulent and void: and the land was subject to levy and sale, as the property of John Ingrem; and, in that case, the plaintiff should have a verdict.

The verdict was for the plaintiff. If it be sustained by sufficient evidence, it is impossible to conceive on what principles of law, heretofore recognised, it can be set aside for error in the instruction of the Circuit Judge. It is a maxim that fraud vitiates all contracts ; and that all deeds, stipulations and agreements, made with a fraudulent intent, are null aud void; creating no obligation and transferring no right. The rule operates to defeat the fraud, whatever may be the complexity and extent of the devices and expedients by which, it may be attempted to conceal the true character of the transaction. If John Ingrem did, by fraudulent collusion, procure his land to be bid off by his son John A. Ingrem, for a nominal price, and did direct that the sheriff should make the deed to his son, and that his son should make a convey-*572anee of the land to the defendant’s wife; and did make use of these conveyances, more effectually to conceal his design and secure the land for himself, the transaction was fraudulent ; and the conveyances, designed to give it effect, are void; transferring no interest or estate in the land. The title to the same remains in John Ingrem, as if no such deeds had ever been executed. There were creditors of John In-grem at the time of the sale, the payment of whose debts it was his declared purpose to defeat.

But it is argued* that none but creditors, at the date of the sale to John A. Ingrem, can impeach the defendant’s title; and that the judgment of Arant, under which the plaintiff purchased, having been rendered after the first sale, and the debt recovered having also been contracted after that time, the land was not subject to levy and sale, at Arant’s suit. This objection cannot apply if the sheriff’s sale, and the conveyances to John A. Ingrem and Charlotte Phillips were void, for fraud. In that case the title of John Ingrem to the land never passed from him; but he was seized and possessed of it, in the same manner as if the sale and conveyances had never been made.

If the conveyance to Charlotte Phillips did not form any part of John Ingrem’s scheme of fraud, but was, bona fide, a gift by him to his daughter, another rule would apply. Accordingly, a second issue was presented to the jury, whether the conveyance of John A. Ingrem to Charlotte Phillips was intended as a gift to her. On this subject, they were instructed that, even if John Ingrem, by paying the purchase money to the sheriff, was the actual purchaser, yet if, (without any imputation of fraud, otherwise) he had ion a fide directed the title to be made to her by John A. Ingrem, as a gift, it might be valid as a gift, since there was no evidence of any prior creditors, whose rights might, thereby, be infringed. The distinction was thus presented, between the effect of the conveyance to Charlotte Phillips, as a mere instrument of the fraud, whereby John Ingrem designed to secure the land to himself, and the effect of the same deed, as a voluntary gift to his daughter. In the former case, the deed was void, and the property in the land not being changed, it was subject to levy and sale under a judgment agaiust John Ingrem, whatever might be its date. But if the conveyance was, bona fide, intended as a gift from John Ingrem to Charlotte Phillips, it was fraudulent only against creditors, existing at the time; and no others could impeach it. Accordingly the jury were instructed, if they were satisfied this was the case, to find a verdict for the defendant.

The doctrine of resulting trusts has no application to the case. A resulting trust arises where the conveyance is made to one person, and the purchase money is paid by another. *573This is the only resulting trust known in the Chancery jurisdiction; except in some cases of fraud. All the trusts of the latter class, are measures of redress against fraud, which the Court of Chancery employs to make retribution to the innocent subject of the fraud. The fraudulent party is charged with a trust as a mode of reparation. A resulting trust for the benefit of the fraudulent party, would be an extraordinary measure of justice. If the conveyance to Charlotte Phillips was part of the fraudulent scheme of John In-grem to secure the land to himself, no resulting trust could be decreed for him against Charlotte Phillips. The decree in such case would be, that the deeds should be delivered up and cancelled: and the parties restored to their original rights. If the conveyance to Charlotte Phillips was bonafide a gift of the land to her, it would be opposed to the effect and intention of the deed to raise a resulting trust to John Ingrem.

4 Kent Com. 306-

O’Neall, J.
delivered the opinion of the Court.

In this case, if it be assumed that the title in the defendant’s wife cannot stand upon any higher or belter ground *ban t^iat a grant> 011 g°°d consideration, from her father, in such a case, there could be no doubt that it was only per se, by debts existing at the time the conveyance was made to her by her brother, or at the sheriff’s sale, wben be purchased. The existing debts have been paid, and according to all our cases, the title is good.

But it is urged that the arrangement by and under which John A. bought, at the sheriff’s sale in 1840, the land for $5, constitutes an express or actual fraud, and that as fraud destroys every thing in any way affected by it, therefore, that the deed to him is void, and of course that to his sister. It may be, that the creditors then existing, could set up the fraud, and thus destroy the title. But it by no means follows, if they could do so, that, therefore, others, not standing in •equali jure with them, could also do it. If they, the existing creditors, do not challenge the title in the defendant Charlotte, or if they be paid off, and therefore cannot, it is in vain to talk about the fraud. For if no one legally entitled to complain does, or if by being paid, they cannot, how is it possible for a Court to declare a fraud to exist, or undertake to furnish a remedy unasked for, or unnecessary ? It is true, there might arise a case in which the fraud might -be set up, where the existing debts were passive, or had been paid off. If to pay existing debts, or if after paying existing debts, the whole of the debtor’s estate would be or had been consumed, and subsequent debts existing, when such payment was to be or had been made, would be left without the means of payment, then the land liable to the payment of the existing debts, on account of the fraud, would, at the instance of the subsequent creditors, be so declared.

But no such case exists here. The existing debts were paid in the life time of John Ingrem, and Arant, as his creditor, so far as I am informed by the case, had, then, no existence. John Ingrem, therefore, in respect to him and the sale *569made in 1847, stands in the same position that a man would who did not owe a cent beyond a trifling debt, for which there might be an execution in the sheriff’s office, and under it, he should choose to have his land sold and conveyed to his son for a nominal price, which he should pay himself, stipulating that the land should be conveyed to another child, and that he, the father, should, during life, remain with that child in possession, and should, afterwards, also pay the balance of the debt on the execution. In such a case, could there be a fraud ? There is no more possibility of a fraud, under such circumstances, than there would be of theft, in a man stealing from himself his own goods. To be a fraud, there must be some person affected or to be affected by it: if there be no injury, there can be no fraud.

6 Stat‘483,
Motten v. Aiken, 2 Spears, 113,
It is very true, however, that this transaction, which, on the face of the deeds, appears to be for valuable consideration, if John Ingrem be regarded, in law, as the grantor, may, perhaps, be considered and treated as standing, in truth, upon no higher consideration than that of natural love, good will, and affection. In such a point of view, if it had been a gift of personal property, then, there is no doubt his subsequent possession (he and the donee living together) would, under the Act of 1832, reuder the gift void, as against subsequent creditors. This Act, however, does not extend to estate, the title to which does not rest in possession, but in deed. I suppose, however, if a grantor remain in possession with a child to whom he has conveyed, and the deed be not recorded, or is unknown to the creditor who trusts him on the faith that the land of which he is in possession is his, that, then, in such a case, the subsequent creditor might avoid such a title as being fraudulent against him. For the stat. 13 Eliz. c. 5, sec. 2, does not necessarily make a voluntary conveyance void as to subsequent creditors. There must be, in such a case, as Roberts, in his treatise on fraudulent conveyances, page 452, says: “ some accessary indications of fraud.”

In this case, if the deeds from the sheriff to John A. Ingrem, and from him to his sister, Chailotte, were necessarily to be considered as if made by John Ingrem, still it would be enough to say we have no certain proof of such accessary indications of fraud. We have no proof whether the deed from the sheriff to John A. Ingrem be recorded; it appears that the deed from John A. to Charlotte was recorded in time; theie is not any testimony by which it can be known whether John Ingrem got credit on the faith of his possession. It is very true, in most cases, the facts mentioned above and not proved, would, without contrary proof, be taken to be against the grantee. But in a case like this, resting upon the proof of such an ingrate as James B. Ingrem, I would *570not conclude the defendants without an opportunity to have _ these matters investigated.

Harrington r, Withcrspoon, 1848 Col™" ’ ’
Roberts on veyaUchap sec. 6, p. 463.
Harp. Rep. 295.
But I rejoice to have it in my power to say that the defendants’s title is not to be considered as if John Ingrem was their grantor. They stand upon a higher and better legal ground. Their title is exactly the same as if John A. In-grem had been furnished with funds, by his father, to buy another man’s land, and he had directed him to convey it to Charlotte. For in this case, the sale under execution legally divests his title to the land, and confers it upon the purchaser, John A. That John Ingrem furnished the money tnakes a resulting trust, which can alone be reached in equity. The conveyances by the sheiiff to John A. and by him to Charlotte, are not within the letter or the intent of the 13 Eliz. c. 5, and 27 Eliz. c. 4. There can be, therefore, no valid legal objection to such a title.

The deed to Charlotte was recorded; if the deed from the sheriff to John A. be not recorded, it could not affect, in this point of view, the defendant’s rights. For the deed is not that of John Ingrem, under whom the plaintiff claims, by a subsequent sheriff’s sale and deed, and hence not within the recording Act. But it is not necessary to place this part of the case on that point, for a decision. The plaintiff, the purchaser, had full and explicit notice, and that, according to McFall v. Sherrard, was sufficient.

The motion for a new trial is granted.

Richardson, J. — and Evans, J. — concurred.
Motion granted.

Wardlaw, J.
/ concur in the result: and more than this the signing of an opinion never means, (as I thought was well understood,) which I take this occasion of repeating, because of something which was said to-day in the dissenting opinion that was read in the case of Fulmer v. Harmon.

Sometimes, when I would call attention to a doubtful proposition, which I have noticed in the reading of an opinion, I make some slight qualification of what might else seem to be my general approbation ; and sometimes I disavow altogether a ground which has been assumed in support of a conclusion which I approve. But according to the usual eourse of proceeding in the Court, every concurring Judge is often obliged to sign, without qualification, opinions which are different from what he would, himself, have written.— The Court, after discussion in consultation, settles the result of a case, and assigns to some member who has agreed to the result, the preparation of the opinion. He reads it in public: any dissenting opinion must, then, be read also, and the preparation of one, afterwards, is deemed improper: the *571Judges who approved the result, sign the opinion which has been read as the opinion of the Court, without pretending to scan the argument, and usually without any more exact knowledge of what has been written, than the public reading has afforded.

Under such circumstances, a Judge who signs, can hardly be responsible, even for the general grounds of the conclusion, much less for an erroneous observation, made in support of a ground which he is satisfied with.