Сн. 32. one not grantee in the deed, where "there is no declaration of Art. 11. trust in writing, neither is there a resulting trust by implication of law," where "there is nothing in the deed which surmises a trust, or an interest in any person other than the grantee." No trust can be proved by parol. "The policy as well as the express provisions of our law being, that no title to real estate shall exist, except by deed or record." 12 Mass, R. 104, 111, Northampton Bank v. Whiting. Ambrose v. P. W. 323. s. 6. 11 Mass. R. 99.-Pr. Ch. 526.-Bac. Abr. Agreements, letter C. See art. 12. 12 Mass. 277, Cushman. 528. § 3. Same principle as to resulting trusts was recognised in this case; and observed, as to the case of A's buying land with B's money, it must be "understood to be in cases where the parol evidence is not inconsistent with the deed." In which case it is held, if the purchase money be in fact A's, yet if in the deed it is said to be B's, there can be no resulting trust to A. But as B, after A's death, executed a declaration of trust, this took it out of the statute of frauds. 4. If the parties, A and B, really agree verbally on a mortgage, but A conveys absolutely to B, and he make a verbal promise, that on a day named, he will make a defeasance, so that A's deed to B shall operate as a mortgage, this verbal promise is void by the statute of frauds, as it directly affects an interest in lands: but 2. Where chancery will decree a specific performance generally, the injured party in a court of law may recover damages for breach of promise or contract: 3. Chancery will not aid where such a mere verbal promise is broken, being no more fraudulent than any other breach of trust or promise. Quære, as to the second rule are some exceptions. 5. Assumpsit for money had and received, and also a Frasier v. special count. The deft. contracted in writing to convey 3 D. & E. 683. lands to the plt. on the payment of a sum of money within a Dougl. 694.-time named. At its expiration the plt. offered to borrow the 3 Johns. R. money and pay it, if the deft. desired it; and he dissuaded the 4 Cranch R. plt. from hiring it, saying he might pay at any time, and no 239.-Eq. Ca. advantage should be taken &c. Afterwards the plt. tendered Abr. 19, 20, the money and the deft. refused also to give the deed. Judgment against the plt.; he did not do what was equivalent to a seasonable tender of the money, he only offered to borrow the money. The disingenuous conduct of the deft. did not vary the law of the case. 21. 12 Mass. R. 456, Harrison & al. v. Trustees of Phillips Academy.-Mass. Stat. June 23, 1802. See art. 2, Good ale v. Nich ols; Sutton v. Lord. § 6. Question as to a fraudulent conveyance; the material points decided were: 1. If the grantor in a deed of lands has fraudulent intentions to delay and defeat his creditors, yet the deed is valid if the grantee in it be honest, and acts fairly: 2. If A make a deed of land to B for his security as creditor, without his knowledge, and get it recorded, the deed is inoperative till B accepts it, and when he accepts it the same is in fact delivered, and if then he make a bond of defeasance to A to reconvey to A, on his paying what he justly owes to B, this is a good defeasance, and A's said deed to B is never any thing but a mortgage, a fair security: 3. If A keep the said bond in his pocket, not registered, that is the law's fault, not B's, if he do nothing to prevent its being recorded: 4. A may give the bond back to B, and let his title become absolute to so much of the estate as will honestly pay his debt. The facts in this case occupy many pages. Every deed is inoperative till both parties agree to it, on the principles of the common law; and on those principles the honest grantee is not to be prejudiced by the fraudulent intentions of the grantor. CH. 32. Art. 11. & P. 238. See ch. 11, a. 7. An agreement void by the statute of frauds, made 11 Mass. R. valid by the after acts of the parties. As where A and B 6, 11.-2 Bos. contracted for the sale of twenty-five hogsheads of rum, and their contract was void by that statute; but was nine days af- 7, s 1. terwards made valid, by payment of part, and delivery, &c.; and the last transactions were viewed as the only bargain, because the only one of which there was legal evidence. 2 Heu. & M. 302, 303. 8. Fraud, in point of law. A sells goods to B, by an 1 Cranch absolute bill of sale by deed. If possession do not accompa- Hamilton v. 309, 317, ny and follow it, the sale is fraudulent as to creditors. This Russell.-3 want of possession is not mere evidence of fraud, but is a Cranch 89.fact, per se, that makes the sale fraudulent in point of law. (See the distinction taken in Waite v. Hudson, above, a. 4, s. 10, as to the statutes of James and of Elizabeth.) In this case the deed of the slave was absolute, and the vendor retained possession unexplained, and exercised ownership. See a. 13, s. 13, 16. Perhaps the best rule. Riddle.-1 289. See 9. Fraud consists in intention, and that intention is a fact 5 Cranch that must be averred in a plea, pleading fraud. But this court 351, Moss v. has decided that the offence is not in the intention, but in the Wash. 177.attempt to smuggle goods, without paying the duties. Not a 2 Hen. & M. fraud to mortgage property for future advances; 3 Cranch 73, The mortgage was to secure the mortgagee, as to his future endorsements of the mortgagor's notes, at a certain fraud was bank. Held not fraudulent as to creditors generally. But in this case the consideration was good, and admitted no fraud was intended. 92. § 10. On a view of the various cases on this subject of fraud, the material circumstance is the intention; the view or design to defeat creditors. Therefore, if A has goods, and owes to his creditors large sums, and I take a bill of sale and possession of his goods, with a design to defeat his creditors, all is void, as the delivery of his goods to me, can never make such a transaction valid. So on the other hand, if his bill of sale be fair and bonâ fide, though he remain in possession of the goods, my title is valid. The few cases in which it is ams, there understood. CH. 32. said that such possession is conclusive evidence of fraud, are, it Art. 11. is conceived, not law; but no doubt is so far evidence of fraud, 4 Wheaton 503, Wheaton v. Sexton's Lessee. 4 Maule & tey v. Emery. as to make it incumbent on me to explain why A remains in possession, after the bill of sale is made, and to prove the transaction fair and honest. And the possession must not be clearly inconsistent with the deed. As if A make an absolute bill of sale of goods to B, but A remains in possession, using them as his own; Hamilton v. Russell, above. Here" the separation of the possession from the title, is incompatible with the deed itself." It does not accompany and follow the deed, so by 13 El. is a fraud. Otherwise where a deed is on condition, which does not entitle the vendee to immediate possession, as explained in Edwards v. Harben, exr.; Ch. 32, a. 116. 11. What a valid execution and deed. A scire facias is duly issued and a sale is made under it, on a levy made before the return day. The sale is good though made after that day, and the writ was not actually returned: 2. If a deed be made on a valuable and adequate consideration, actually paid, and the change of property is bona fide, or such as in the deed it purports to be, such deed cannot be viewed as a deed to defraud creditors. Was decided in an action of ejectment. The scire facias was against the goods, chattels, lands, and tenements of W., in the district of Columbia; he (Wheaton) two days before the judgment against him, made the deed to one Caldwell, conveying the premises to him in trust for Wheaton's wife. The court below instructed the jury that it was void, if made by Wheaton," without a valuable consideration therefor, or was made by him with intent to defeat, delay, or defraud his creditors." The Supreme Court of the United States, observed, had and been used instead of or, the deed had been clearly valid; but as it reads, it must mean that even had a valuable consideration been paid, if the deed was made with intent to defeat creditors, it was void :" said the Supreme Court, " we know of no law which avoids a deed, when a valuable (by which, to a general intent, must also be understood adequate) consideration is paid, and the change of property be bona fide, or such as it professes to be;" for the consideration paid, is a substitute by which the judgment may be satisfied. § 12. What a sale of barley within 29 Ch. II, and not a Sel. 262, As- mixed contract for the carriage as well as sale. Plt. sued for the price of his barley, one Longstaffe, a corn factor, agreed to sell the deft., November 18, 1815, at 38s. a quarter, to be delivered at Longstaffe's warehouse at Derby, to go by his first boat at his expense. The barley was then in one Turner's hands; the deft, desired him to see it delivered, and measured, and properly put up-was sent by the first boat, and invoice delivered to the deft., who requested time to pay; but afterwards refused to accept the barley. Held, it was such contract, though the price of carriage was included in the 38s.; the defts'. appointing the particular boat, and desiring Turner as above, did not amount to an acceptance. CH. 32. Art. 12. · v. Clerk. 502.-3 ART. 12. Evidence of fraud in equity, &c. § 1. Inadequate Pr. Ch. 138, price in a bargain. This does not defeat it, merely because 538, Young inadequate; but does where it shews the person did not un- 6 Vesey jr. derstand the bargain he made, or was so oppressed, that he 253-3 Dall. thought it best to make it, though he saw the inadequacy; for Wooddes 453 this proves a command over him, that may amount to fraud. 10 Vesey jr. 209, Underhill v. Harwood; 9 Vesey jr. 246; 7 Vesey jr. 30; 3 Br. Ch. R. 605; 10 Vesey jr. 292, 470, Burrows v. Lock; 1 Vern. 465; 13 Johns. R. 484; 11 Johns. R. 555; 1 Ball and Beatty 241; 1 P. W. 745; 1 Bro. C. C. 567. Gibson v. ele.-1 Br. $2. The inadequacy of terms may be material, and evi- Eq. Ca. Abr. 19, 28.dence of fraud, when the inquiry is, if an agreement shall be Sugd. 189set aside, for supposed weakness of understanding in one of 1 Atk. 12, the contracting parties, or other material reasons. And when Patterson.an agreement appears very unequal, and affords any ground 2 Vern. 280, to suspect any imposition, unfairness, or undue power or Cass v. Rudcommand, the courts will seize any very slight circumstances Ch. R. 157, to avoid enforcing it. As where he that claims to have it ex- 567-1 Ves. ecuted, fails to make out his title in the time agreed; a circum- jr. 450. 3 Cranch, 27. stance generally not deemed material, where a contract is fair. -1 John. Ca. But if one be equally and fairly made, it will be enforced, 156. though by a subsequent event it becomes unequal. 3 Br. Ch. R. 605; 6 Vesey jr. 349, Paine v. Miller; but 2 P. W. 220; 7 Bro. P. C. 184; 4 Cranch 137; 1 Hen. & Mun. 110; 4 Vesey jr. 689, 690; 2 Vesey jr. 294, Buxton v. Cooper; 3 Atk. 383; 4 Dallas 250. re Vredenburg v. White.- 1 Ves. jr. 139. -1 Bin. 503, Wilt v. Franklin-4 Dall. 90.-4 Dall. 3. One insolvent, bonâ fide assigned his estate for the benefit of his creditors, but continued in possession, at the quest of the assignees, and for their benefit; who sold in a reasonable time. Held not fraudulent. No false credit was created, and the possession was consistent with the real intent of the assignment. So one having a large verdict against him, 76.—1 Bin. in favour of A, conveyed all his estate to a trustee, for the 515-1 Bay. benefit of all his creditors in due proportion. Valid, though 86-4 East 1. the trustee did not know of it, or accept till four days after; and the debtor remained in possession of the deeds and estate near two months. Here was no intent to defraud creditors. He might have preferred one; so, do an act to prevent any one getting a preference; 8 D. & E. 528. Not necessary to deliver the title deeds; and the non-delivery of the CH. 32. 2 Ves. 155, Chesterfield v. Janssen. 1 Bac. Abr. letter C. goods was accounted for; John. 510, 525, Johnson v. Stagg. The registry of the mortgage, is notice to every after mortgagee, &c. § 4. Lord Hardwicke, enumerates four kinds of fraud: 1. Fraud arising from facts and circumstances of imposition, which is the plainest case: 2. Fraud which may appear from Agreement, the intrinsic value and subject of the bargain itself: such as no man not deceived, and in his senses would agree to; or honest man impose or accept : such the common law notices: 3. Fraud presumable from circumstances and the condition of the contracting parties; and this, in equity, goes further than the rule of law, which is, that fraud must be proved, not presumed; but it is presumed in equity, to prevent taking any surreptitious advantage of the weakness or necessity of another; which knowingly to do, is equally against conscience, as to take advantage of his ignorance: 4. Fraud may be collected in equity from the nature and circumstances of the transaction, as being an imposition and fraud on persons not parties to the fraudulent agreement. 2 Atk. 83, v. Vincent.3 Atk. 692. 5. It is said, if I see A go on in building on my land, E. L. Comp. through mistake or inadvertence, and I do not interfere or claim till afterwards, though I am all the time conusant of his right, chancery will oblige me to permit A to enjoy his building &c. quietly. Bunb. 53; 9 Mod. 37. 6 D. & E. 554, the King tants of But v. The Inhabi terton. This was a pauper case. A, the pauper's father, when he married, obtained from his wife's father, a spot of ground, but no conveyance, on which he built a house, and enjoyed it during his life, and his eldest son after him, in all near twenty years, uninterruptedly. Held, the younger children of A could not be removed. Lord Kenyon said, as twenty years nearly had elapsed since the land was given to A, the pauper's father, the court ought not to allow the title to be decided in this See Bay. 239. "After such a length of possession as pauper cause. -5 Ves. jr. this, perhaps a conveyance may be presumed to have been 688.-12 Ves. executed." And if a claim were now made by the father-injr. 85. law's heir," he would, perhaps, be told in a court of equity, that as" the said father stood by, while the pauper's father built on the land and treated it as his own, he could only resume the possession on certain terms." Lawrence J. "I remember a case some years ago, in which Lord Mansfield would not suffer a man to recover, even in ejectment, when he had stood by, and seen the deft. build on his land." Abr. Eq. Ca. v. Blades. 6. So if the second purchaser, knowing of the first pur358, Blades chase get his own first recorded, it is a fraud; and chancery decreed against him. See Norcroft v. Widgery; also 3 Vesey jr. 478; 3 Mass. R. 575; Co. L. 290. 1 Dall. 435. |