JACOBS & AL. vs. MELLEN AND TRUSTEES.

the supposed trustees, whether there should be a judgment against him or not. If he should rely on their taking the exception, and should therefore neglect to appear, he would be de

*

faulted; and the trustees, by waiving the exception, [ * 135 ] might make the judgment conclusive against him.

If, on the other hand, the defendant should apprehend that they would not take the exception, and should therefore plead to the action, he would be concluded, by force of the statute of 1798, c. 5, although it should afterwards appear that there had been no sufficient service of the writ. The consequence would be, that, in every case where the defendant was not willing to be defaulted, and to suffer judgment against him, he must plead to the action, and so make the writ good, although the service was wholly insufficient.

If Wheeler & Gay alone had been summoned as trustees, the writ would have been abated at the motion of the defendant, or of any one as amicus curiæ; because the defect would be apparent on the face of the writ. The defect is not less fatal when the name of another supposed trustee is inserted, for the purpose of evading the statute; the plaintiff well knowing that he has no effects of the principal. Such an attempt to evade the statute would be wholly ineffectual; and the writ would be considered as if the name of the fictitious trustee had never been inserted.

But these facts cannot be made to appear without a plea; because the plaintiff must have opportunity to traverse them. Then it necessarily follows that the defendant may show the defect in the writ and service by a plea, when it does not appear upon the face of the proceedings; for the same reason, and with the same effect, as he may point it out to the Court, and take advantage of it, when apparent in the writ.

It was said that the defendant, in this case, could not object to the jurisdiction of the court in Boston; because, as to him, the action was well brought in the county where the plaintiffs lived. But the objection, as it lies in his mouth, is not that the court has no jurisdiction, but that there has been no legal service of the writ. The service on Safford is avoided by the facts pleaded; the service on Wheeler & Gay is prohibited by the [* 136 ] statute; so that, in effect, there is no estate of property

This

of the defendant attached on the writ; and it appears, by the return, that no other service of the writ was made or attempted. brings the case within that of Gardner vs. Barker & Al. 12 Mass. Rep. 36.

Writ abated.

119

CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

IN THE

COUNTY OF YORK, MAY TERM, 1817,
AT YORK.

Of fraudulent conveyances. The possession of land by a fraudulent grantee will not render invalid a title from the fraudulent grantor to a subsequent purchaser, with knowledge of the former conveyance.

TRESPASS against the defendants, for breaking and entering the plaintiff's close, &c. The defendants pleaded not guilty as to the force and arms, &c., and, as to the residue of the supposed trespass, that the locus in quo was the proper soil and freehold of the said William Ham; whereupon issue was joined.

At the trial of these issues, which was had at Alfred, October term, 1815, before Wilde, J., the plaintiff read, in evidence, a deed of the land in question, from Ezekiel Gowen, one of the defendants, to him, dated January 1, 1810, but actually executed, acknowledged, and recorded, on the 8th day of the same January.

The defend in s he read to the jury a deed of the same land

RICKER VS. HAM & AL.

from the said Gowen to the other defendants, William and Samuel Ham, dated the 29th of September, 1812, and proved

that they paid to said Gowen therefor the sum of [138] ninety dollars, which appeared to be the value thereof.

They then proved that the first-mentioned deed was made without any consideration, and with a view to prevent the creditors of the said Gowen from taking the same in satisfaction of their debts against him; and that John Leighton and Benjamin Heath, on the said 8th of January, 1810, did extend their execution against said Gowen upon the said land, in part satisfaction thereof.

The plaintiff then proved that, after the extent of said execution, he, in December, 1810, paid to the said Leighton the amount of the appraised value of the land, with a view to redeem the same; and that the said Leighton promised to give him a release of the same, but failed so to do; that, after paying said appraised value to said Leighton, the plaintiff took possession of the land by running out the same and fencing it; that the said Gowen and William Ham were present when he ran the lines, and assisted therein; and that Gowen observed to him that he was glad that he, the plaintiff, had got the land. A witness testified that this observation was made when William Ham was present, and might have heard it, but could not testify that he did.

It appeared that, on the 17th of August, 1812, the said Leighton and Heath, the creditors in the said execution, released the land in question to the said Gowen, by their deed of that date.

Upon this evidence, the judge instructed the jury that the deed to the plaintiff was fraudulent and void, as against the creditors of Gowen, and bona fide purchasers for a valuable consideration of Gowen; and that the payment by the plaintiff to the said Leighton could not give a title to the plaintiff, as nothing passed by the deed of 1810, as against creditors of Gowen and after purchasers from him for a valuable consideration, and the plaintiff had derived no title from Leighton.

If this instruction was wrong, and if, upon the evidence

stated, the soil and freehold of the land in *question [* 139] were by law in the plaintiff, the verdict returned for the

defendants was to be set aside, and a new trial granted; otherwise, judgment was to be rendered upon the verdict.

Emery for the plaintiff.

Wallingford and Holmes for the defendants.

PARKER, C. J., delivered the opinion of the Court.

Ezekiel

Gowen having been the acknowledged owner of the land in dispute until January, 1810, when his deed to the plaintiff was executed, that deed conveyed his title to the plaintiff, as against the grantor 121

VOL. XIV.

11

RICKER VS. HAM & AL.

and every other person, unless it was fraudulent at the time of its execution; in which case, it was void against creditors and subsequent purchasers.

The facts reported show that the deed was fraudulent; so that Leighton acquired a good title by the levy of his execution, to satisfy a judgment he had obtained against Gowen, the fraudulent grantor. By that levy the estate of Ricker was divested, and he could not afterwards acquire a title but under Leighton, the judg ment creditor, or by a new deed from Gowen, made bonâ fide, and for a valuable consideration.

The payment of the money within the year to Leighton, with a view to redeem the land, could not, of itself, make a title to Ricker ; for the deed under which he held being fraudulent in its creation, any other creditor might have levied upon the land; or any subsequent purchaser might have taken it.

Upon payment by Ricker, he was restored to the situation he was in before the levy; that is, he held under a fraudulent deed from Gowen. But it was always in the power of Gowen to defeat him of his title, by conveying to any person for a valuable consideration, even if such person knew of the conveyance to Ricker. The promise of Leighton to give a release avails nothing, because it was not performed; and if it had been, the debt being paid before the year from the levy expired, the release would have passed no estate; but Ricker would have been in, of his former fraudulent [*140] estate, the * fraud being purged only as against Leighton. When, therefore, Ricker entered into the premises, run the lines, and put up the fences, he had only a defeasible title under Gowen; and that might be defeated by a conveyance from Gowen to a purchaser for a valuable consideration.

The release made on the 17th of August, 1812, by Leighton to Gowen, merely removed an encumbrance, supposed to exist by virtue of the levy; but no such encumbrance, in fact, existed; for the money was paid long before by Ricker. This transaction shows, however, unless some reason for it exists unknown to us, that Leighton was willing to assist Gowen to cheat Ricker, who had before assisted him to cheat Leighton, and this in direct violation of the promise made by Leighton to Ricker. Whether this sort of retaliation be justifiable according to the scale of morals which these parties are governed by, we do not know; but it certainly has the appearance of fraud according to common notions.

Gowen, however, had the power to convey, and he did convey, to the defendants, for a valuable and adequate consideration; and this conveyance passed the title to the defendants, if this deed of Gowen was valid and operative at the time. Here, again, is a transaction, in

RICKER VS. HAM & AL.

which another party, viz., William Ham, one of the grantees, participated; and which looks like a fraudulent combination to cheat Ricker out of the land, or the money he had paid to Leighton. But we apprehend that this has no effect upon the question of legal title, which is all we have to settle in the present action. If Ricker can, by another action, compel Gowen, or any of these persons, to refund the money, we shall not be sorry; although he is the author of his own misfortune, in having consented to become the instrument of fraud for one who appears not to have honor or honesty enough to refrain from defrauding the friend who assisted him to defraud others.

*

The knowledge of William Ham that Gowen was in possession, professing to have some title, may be pre- [* 141] sumed from the evidence reported, although it is not expressly found by the jury. If this knowledge were important to the decision, there ought to be a new trial, to ascertain whether it existed or not. But it is clear that a subsequent purchaser of land, fraudulently conveyed, will hold, even if he knew of the former conveyance; for that is absolutely void against creditors and subsequent bona fide purchasers. (a)

It has been supposed, in the argument for the plaintiff, that the knowledge of Ham would show that he was not a bona fide purchaser; but we apprehend the term bonâ fide, as used in the law upon this subject, means only that the purchase shall be a real and not a feigned one; otherwise the knowledge would not be held immaterial, as it is in all the books.

The only point which has occasioned doubt is, whether the deed from Gowen to Ham passed the land, as Ricker was then in possession. But he was not in as a disseisor of Gowen, but under him, and relying upon a fraudulent deed; and the possession of a fraudulent grantee would not, in our apprehension, render invalid a title from the fraudulent grantor to a subsequent purchaser. Otherwise it would be impossible for the purchaser to avail himself of a title which the law holds good. For if an action were brought by the grantor, in order to divest the grantee, that he might convey, he would be estopped by his deed, against which he could not allege fraud, in which he was the principal.

We are therefore of opinion that the verdict is right; and although we see no commendable conduct in any of the parties to this transaction, we are bound by the principles of law to render 'udgment for the defendants.

(a) [Hill vs. The Bishop of Exeter, 2 Taunt. 69. — Doe vs. Manning, 9 East, 59. — Bothul vs. Martyn, 1 New. R. 332. - Huron vs. Wilsmore, 8 D. & E. 528. Rodgers vs. Langham, 1 Sid. 133. — ED.]

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