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and there must be the mutual consent and concurrent will of both parties. It is nevertheless, hinted or assumed, in ancient and modern cases,a that a gift of a chattel, by deed or writing, might do without delivery; for an assignment in writing would be tantamount to delivery. But in Cotteen v. Missing, a letter to executors, expressing a consent that a specific sum of money be given to a donee, was not a sufficient act in writing; and it was held not to be a gift of so much money in their hands, because the consent was not executed and carried into effect, and a further act was wanting in that case to pass the money. The vice-chancellor held, that money paid into the hands of B., for the benefit of a third person, was countermandable, so long as it remained in the hands of B. A parol promise to pay money as a gift is not binding, and the party may revoke his promise ;d and a parol gift of a note from a father to a son, was held not to be recoverable from the executors of the father.
Delivery, in this, as in every other case, must be according to the nature of a thing. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The
2, 15, 16. The delivery must be, if not actual, yet, under the circumstances, constructive or symbolical. Carradine v. Collins, 7 Smedes & Marshall, R. 428. In South Carolina it is declared by statute in 1830, that no parol gift of any chattel shall be valid against subsequent creditors, purchasers, or mortgagees, except where the donee is separate and apart from the donor, and actual possession delivered at the time and continued in the donee and his representatives.
a Flower's case, Noy's Rep. 67. Irons v. Smallpiece, 2 Barnw. & Ald. 551. Carne v. Marley, 2 Yerger's Tenn. Rep. 582.
b 1 Maddock's Ch. Rep. 176.
e 1 Dyer, 49, a. S. P.
a Pearson v. Pearson, 7 Johns. Rep. 26.
• Fink v. Cox, 18 Johns. Rep. 145. Pitts v. Mangum, 2 Bailey's S. C. Rep. 588. S. P.
donor must part not only with the possession, but with the dominion of the property. If the thing given be a
chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed. Therefore, where a donor expressed by letter his intention of relinquishing his share of an estate, and directed the preparation of a release of the personal estate, and he died before it was executed, it was held, that his intention, not being perfected, did not amount to a gift.b
*When the gift is perfect, by delivery and ac- *440 ceptance, it is then irrevocable, unless it be prejudicial to creditors, or the donor was under a legal incapacity, or was circumvented by fraud. A pure and perfect gift inter vivos was also held by the Roman law to be in its nature irrevocable; and yet in that law it was nevertheless revocable for special reason, such as extreme ingratitude in the donee, or the unexpected birth of a child to the donor, or when sufficient property was not left with the donor to satisfy prior legal demands. The English law does not indulge in these refinements, though it controls gifts when made to the prejudice of existing creditors.
By the statutes of 50 Ed. III., ch. 6, and 3 Hen. VII. ch. 4, all fraudulent gifts of goods and chattels in trust
Hawkins v. Blewitt, 2 Esp. Rep. 663.
Noble v. Smith, 2 Johns.
b Hooper v. Goodwin, 1 Swanst. Rep. 486. Picot v. Sanderson, 1 Devereux's N. C. Rep. 309. S. P. By the civil code of Louisiana, edited by Upton and Jennings, art. 1523, a donation inter vivos of immoveables and choses in action must be verified before a notary and two witnesses, unless it be manual gifts, accompanied with actual delivery.
e Code, lib. 8. tit. 56. De Revocandis Donationibus, 1. 10. Ibid. 1. 8. Code, lib. 3. tit. 29. De inofficiosis Donationibus. Puff. Droit Des Gens, par Barbeyrac, tom. ii. 53. n. So by the civil code of Louisiana, art. 1484, 1485, the donation would be void if the donor divested himself of all his property, and did not reserve enough for his own subsistence; and he cannot deprive his descendants of a certain portion. Lagrange v. Baire, 11 Rob. Lou. R. 302.
for the donor, and to defraud creditors, were declared void; and by the statute of 13 Eliz. ch. 5, gifts of goods and chattels, as well as of lands, by writing or otherwise, made with intent to delay, hinder, and defraud creditors, were rendered void, as against the person to whom such fraud would be prejudicial. But the statute excepted from its operation, estates or interests in lands or chattels conveyed or assured bona fide and upon good consideration, without notice of any fraud or collusion. The statute of 27 Eliz. ch. 4, was made against fraudulent conveyances of lands to defeat subsequent bona fide purchasers, and it applies in favor of subsequent purchasers for a valuable consideration, even in cases of fair voluntary conveyances, provided they were purchasers without notice of the voluntary conveyance. These statutes have been re-enacted in New-York and with increased checks;b
■ Vide infra. vol. 4, p. 463.
b N. Y. Revised Statutes, vol. ii. p. 135. sec. 1; Ibid. vol. ii. p. 137. sec. 1. 3. The provision applies equally to every species of transfer, and to things in action, and to every charge upon lands, goods, or things in action; and not only in favour of creditors and purchasers, but in favour of the heirs, successors, personal representatives, and assignees, who represent them. It is even made a misdemeanor to be a party or privy to any conveyance or assignment of any interest in goods or things in action, as well as in lands, with intent to defraud prior or subsequent purchasers, or to delay, hinder, or defraud creditors, or other persons. Ibid. vol. ii. p. 690. sec. 3. In Louisiana it is held, that the right of a creditor, to attack a sale as fraudulent, made by his debtor to a third person, depends on his showing he was a creditor before the date of the act. Lopez v. Bergel, 12 Louis. Rep. 197. This rule, I should think, was rather too strict for all cases.
The statute in Connecticut against fraudulent conveyances is distinguished for its simplicity, precision, and brevity. It declares that all fraudulent conveyances of lands or chattels, and all bonds, suits, judgments, executions, and contracts made with intent to avoid any debt or duty, are utterly void, as against the persons whose debt or duty is endeavoured to be avoided. Revised Statutes of Connecticut, 1821, p. 247. The Ohio statute of 1810, and the statute of Illinois, of 1827, and of North Carolina, by the Revised Statutes of 1837, p. 287, make all such conveyances equally void, as against creditors and purchasers. The statutes of Kentucky of "13th December, 1820, and of Feb. 1st, 1839, render all mortgages and deeds of trust, of real or personal property, unless recorded, void against creditors and purchasers.
and doubtless the principle in them though they may not have been formally or substantially re-enacted, prevails throughout the United States. All the doctrines of the courts of law and equity, concerning voluntary settlements of real estates, and the presumptions of fraud arising from them, *are applicable to chat- *441 tels; and a gift of them is equally fraudulent and void against existing creditors.b Voluntary settlements, whether of lands or chattels, even upon the wife and children, are void in these cases, and the claims of justice precede those of affection. The English cases were extensively reviewed and considered, in the case of Reade v.
a See vol. Infra, 4. p. 462. In Cadogan v. Kennett, Cowp. 434, Lord Mansfield observed, that the principles and rules of the common law, were as strong against fraud in every shape, as the statutes of 13 and 27 Eliz.; and those statutes are considered as only declaratory of the principles of the common law. Marshall, Ch. J., in Hamilton v. Russell, 1 Cranch, 316, to the same point. Lord Coke considered the statute of 13 Eliz. as declaratory of the common law. Co. Litt. 76. a. 290. b. It professes to be so. In North Carolina, by act of 1806, all gifts of slaves are void, unless in writing, signed by the donor, and attested by one subscribing wit ness, and proved or acknowledged, and registered within one year.
ь Bayard v. Hoffman, 4 Johns. Ch. Rep. 450. An immoral and corrupt motive is not essential to render the act fraudulent as to creditors. It is constructively so if it necessarily leads to the injury of the creditor. Montgomery v. Tilley, 1 B. Monroe, 157. Huth v. Bank of U. S. in Ch. Louisville, Kentucky, August, 1843.
• This sentiment is strongly inculcated and sententiously expressed by Cicero, (De Off. 1. 14.) Videndum est igitur, ut ea liberalitate utamur, quæ prosit amicis, noceat nemini. Nihil est enim liberale, quod non idem justum. But settlements of personal estates are held, in England, not to be within 27 Eliz. ch. 4; and a voluntary settlement of them by persons not indebted at the time, is good against a subsequent purchaser for a valuable consideration. 1 Sim. & Stu. 315. And in Bohn v. Headley, 7 Harr. & Johns. 257, it was held that a gist of chattels by a father, not indebted at the time, to his child, by deed, with a provision that the donor was to retain possession and use for life, was valid under 13 Eliz. and also at common law, and good against a subsequent purchaser. A gift of a particular chattel, though the giver be at the time indebted more than he is worth, has been held to be only presumptive evidence of fraud, and not necessarily void. Toulmin v. Buchanan, 1 Stewart's Ala. Rep. 67. VOL. II. 43
Livingston; and the doctrine of that case was, that a voluntary settlement by a person indebted at the time, was fraudulent and void, as to existing creditors. The conclusion in that case was, that if the party be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such antecedent debts, and that the presumption did not depend upon the amount of the debts, nor the extent of the property in settlement, nor the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would be embarrassing, if not dangerous to the rights of creditors, and prove an inlet to fraud. The principle had not only been previously established in the state of New-Jersey, but it has since been recognized by the supreme court of New-York, and by the supreme court of the United States; and it prevails equally in several of the other states.d A voluntary convey
a 3 Johns. Ch. Rep. 481.
b Den v. De Hart, 1 Halsted's Rep. 450. • Jackson v. Seward, 5 Cowen's Rep. 67. The doctrine of the case of Jackson v. Seward, as settled in the court of errors, in 8 Cowen's Rep. 406, is not pressed to the severe extent of holding a voluntary conveyance absolutely void, though there be a small indebtedness at the time. It is only so under certain circumstances. The question is one of fraud, in fact, for a jury. See, also, to the same point, Jackson v. Peck, 4 Wendell's Rep. 300. Hopkirk v. Randolph, 2 Brockenbrough, 132. Van Wick v. Seward, 6 Paige, 62. The rule in Vermont and Pennsylvania is to the same effect; aud indebtedness, at the time of the voluntary settlement, is only presumptive evidence of fraud, and the conclusion will depend upon the amount of the debt, and the estate of the settler, and other circumstances. Bracket v. Waite, 4 Vermont Rep. 389. Chambers v. Spencer, 5 Watts, 404. Posten v. Posten, 4 Wharton, 27. In Van Wyck v. Seward, Chancellor Walworth held, that if a parent makes an advancement to his child, and honestly and fairly retains in his hands sufficient property to pay all his existing debts, the child will not be bound to refund, even though the parent does not pay his debts existing at the time of the advancement. A voluntary conveyance is not per se fraudulent, even as against creditors to whom the grantor was indebted at the date thereof. Bank of U. S. v. Housman, 6 Paige's Rep. 526.
d Sexton v. Wheaton, 8 Wheaton, 229. Hinde v. Longworth, 11 Ibid 199. Thompson v. Dougherty, 12 Serg. & Rawle, 448. Parker v. Proc