Peck vs. Land.

argument in behalf of the plaintiff in error, has assumed the fact, that titles to land can be evidenced by deed only.

The Judge proceeds. "This is a question of fraud, and the issue submitted to the jury is, the bona fides or honesty and good faith of the transaction. There are badges, or evidences of fraud, which are of different imports. A badge is a circumstance, sign, mark, or suspicion, not sufficient of itself, to authorise a finding, unless more than one combine. Evidences of fraud are either presumptive or conclusive. All presumptions become conclusive, unless rebutted."

As to the dissertation of the Court upon frauds, and the indicia which usually accompany them, I need only say, that we are not prepared to assent to the proposition, that in order to condemn a transaction as fraudulent, that two or more of the marks of a collusive conveyance must be affixed to it. On the contrary, we should be inclined to hold, that continued possession by the vendor, unexplained, and in the face of an absolute transfer, would of itself warrant a finding that the sale was covinous. And so of the other badges. Indeed the charge itself inculcates the same doctrine, for it expressly affirms, that all presumptions become conclusive, unless explained. This is not an error, however, with which the plaintiff here has any right to be dissatisfied, and we notice it, because should it be passed in silence, it might be understood as having received the indorsement of this Court.

"The pending of the writ at the time of the sale," continues the Judge, "is a badge of fraud. If a creditor buy in satisfaction of his antecedent debt, and also in satisfaction of the debts of other favoured creditors, to the exclusion of a particular creditor whose suit is pending, and buys a large surplus over, this is a badge of fraud."

Now, if the first proposition be true, that it is a sign of fraud for an insolvent debtor to sell his property pending a suit against him, the second, which is only an amplification of the first, is necessarily so. For if fraud be inferred from a sale, even to a third person, much stronger will that conclusion become, when the purchaser is a creditor, and he buys not only in extinguishment of his own debt, but the debts also of other favoured creditors; and not only property sufficient to discharge these demands, but a large surplus over.

[1] The first and main question to be settled then is, is the sale of his property by an insolvent debtor, pending a suit against him,

Peck vs. Land.

to the exclusion of the collecting creditor, a circumstance calculated to create suspicion, that it was done to hinder or defeat such creditor. Not whether it will have the effect of delaying such creditor of his debt; for such is the effect pro tanto of every transfer that can be made by one who has creditors. Every disposition of an insolvent's property, however valuable the consideration and honest the motive, diminishes the fund out of which payment is to be made of his remaining liabilities. This, therefore, is not the issue. The question is, was it done fraudulently? And was this sale, under the circumstances, an evidence that such was its character? The affirmative of this proposition was ruled distinctly to be law in Twyne's Case, 3 Coke's R. 62, nor has it ever, within the knowledge of this Court, been adjudicated otherwise. Pierce was indebted to Twyne £400, and to one C. £200. C. brought an action of debt against Pierce and, pending the writ, Pierce being possessed of goods and chattels to the value of £300, in secret made a deed of all his goods and chattels to Twyne in satisfaction of his debt, and yet Pierce continued in possession of the property, and some of it he sold, and the sheep he marked with his own mark; and afterwards C. had judgment and a fieri facias to the sheriff and by virtue thereof bailiffs came to make execution of the goods, and divers persons, by the commandment of Twyne, with force resisted them, claiming the goods to be Twyne's by virtue of the deed made to him, and the question was, whether or not this conveyance was fraudulent. Upon an information, per Coke, Attorney General, against Twyne for contriving and publishing a fraudulent deed, it was decided by Sir Thomas Egerton, Keeper of the Great Seal of England, and by the Chief Justice Topham, and Anderson, and the whole Court of Star Chamber, that this deed was fraudulent and within the Statute of 13th Elizabeth c. 5. And in this case, the following points were resolved:

First. That this deed had the marks of fraud. It was general and without exception of his apparel or any thing of necessity : for dolosus versatur in generalibus.

Secondly. The donor continued in possession.

Thirdly. It was made in secret, et dona clandestina sunt semper suspiciosa.

Fourthly. It was made pending the writ.

Fifthly. There was a trust between the parties; for the donor was in possession and used them, and fraud is always appareled with a trust, and trust is the cover of fraud.

Peck rs. Land.

Sixthly. It was contained in the deed that it was made honestly, truly and bona fide, et clausula inconsueta semper inducunt suspicionem, &c.

It was resolved that although it was a debt due to Twyne, and a good consideration of the deed, yet it was not within the proviso of the said act of the 13th Elizabeth, by which it is provided, that the said act doth not extend to any estate or interest in lands, &c., goods and chattels, made upon good consideration and bona fide; for although it be upon good and true consideration, yet it is not bona fide; for no deed shall be deemed to be made bona fide within the said proviso that is accompanied with any trust; for the proviso saith, upon good consideration and bona fide; so a good consideration doth not serve, if it be not also bona fide.

I have extracted from the report the whole of these resolutions, although it is the fourth only that has immediate application to the point under discussion. It will be found, however, that there are other features in this leading case altogether analogous to the one at bar. Besides, this was an early and sound exposition of the Statute of Elizabeth, and the doctrines which it promulgated although perhaps, somewhat modified and restricted, have never been overturned nor materially altered on the contrary, they have always been recognised as sound law, both in England and in this country. (Holbird vs. Anderson, 5 Term R. 236; Cadogan vs. Kennett, 2 Cowp. 432; Seward vs. Jackson, 8 Cowen, 443, et passim.)

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'And," says Sir Edward Coke at the foot of the foregoing case, "because fraud abounds in these daies more than in former times, it was resolved that all statutes made against fraud shall be liberally expounded, for to suppress the fraud." If the corruption of the times in the age of Queen Elizabeth, required not only the enactment of this law, but its liberal interpretation-an epoch, the most remarkable feature of the jurisprudence of which, was its antipathy to deceit, and which had already comprised within its code the notable aphorism, that even right itself is turned into wrong by circumventing to obtain it—what shall we say of our own day, when the temptations to fraud, as well as the facilities for its commission, are multiplied an hundred fold; when so many areseeking to live by their wits, instead of their labour; by cunning and craft, instead of eating their bread in the sweat of their brow.

The Statute of Elizabeth goes no further than the Common Law as now understood. I apprehend the time never was, when a fraudulent conveyance would not be invalidated, which was intended to

Peck vs. Land.

defeat, delay, or hinder creditors of their just debts. And we have not only adopted the Common Law, but we have expressly incorporated the Statute of Elizabeth as a part of the law of this State, and with it Twyne's case, as a rule of construction.

The purpose for which any conveyance is made, is a conclusion from all the circumstances attending the transaction, and a sale pending a suit by an insolvent debtor is, in the nature of the case, well calculated to awaken suspicion. The vendor is insolvent. And why insolvent? In three-fourths of the cases, I venture the assertion, from improvidence or wild speculation. The vendor, then, overwhelmed with debt, and unable to pay, when pursued by his creditor, whose property he has appropriated, takes it upon himself to withdraw his effects from the lien about to be created, and to secure them to others. Is it strange that the law should imply a fraudulent intent?

Who has not marked the smile of derision curling the lip, whenever the title is quoted of our honest debtor's act? And does not this very act treat its beneficiary as a suspected person? Why is his conscience purged by oath? Why notice to creditors, with the privilege of forming an issue and testing the fairness of his surrender? Is it not obvious, that the law presumes an insolvent guilty rather than innocent? And while therefore it accords to him the privilege of making a preference, still it distrusts his motives; and hence it requires of him every thing in the manner of making the transfer of his property, which will rebut the presumption of an interest for himself.

Again, the sale is made pending the suit. Shall that suit be defeated? To permit it would seem to bring disrepute and discredit upon our Courts. They are constituted to coerce delinquents into a fulfilment of their engagements. Shall the debtor be allowed to hold the rod, in terrorem, over his creditors, by postponing those altogether who dare resort to their legal remedies? Would not this policy be, to reverse the maxim, the law regards those only who watch, and not those who sleep? Shall the debtor not only get his creditor's property without compensating him for it, but mulct him with the expense which he has incurred in suing out his writ? Does not the principle, prior in tempore, potior in jure, equitably apply to this case? If equality is equity, then is this preference strongly tainted with fraud and injustice. If there be a preference given, it would seem to be due to those who are first in the race. But in this case, the first is made last, and the last,

Peck vs. Land.

first. The inference is irresistible. Every such voluntary disposition, by an insolvent, creates distrust as to his motives. They may be meritorious. The law allows the right to the debtor upon the supposition that he knows best whom to favour. Experience demonstrates, however, that this is a fiction, and that the exclusion of the vigilant creditor is the result of irritation, and for no better reason is his recovery defeated. In nine cases out of ten the debtor is influenced by the determination to thwart the particular ereditor, or to secure an interest to himself in the arrangement. Either of these facts will invalidate the conveyance. And a sale, pending a writ, is clearly evidence of one or the other of them. [2.] But to return to the charge:

"The possession of the vendor, after an absolute sale of personal property, is now only prima facie evidence of fraud, and is open to explanation. Possession of land remaining with vendor, after an absolute deed, is not, under the Statute of 13th Elizabeth, e. 5, an evidence of fraud."

As it respects the sale of personal property, we cheerfully concur in the opinion of the Court below. The science of jurisprudence, like all others, is progressive; and notwithstanding it was settled, and repeatedly held at home and abroad, that an absolute bill of sale of chattels, unaccompanied with possession, was fraudulent in law, and void as against creditors, yet the Courts every where are adopting the less rigid rule, that the vendor's retaining possession after an unconditional sale, was not conclusive, but only prima facie evidence of fraud and susceptible of explanation; that strictly speaking, there is no such thing as fraud in law, and that fraud or no fraud, is, and ever must be, a question of fact to be found by the jury. Wash vs. Medley, 1 Dana (Ken.) R. 269; Sterling vs. Van Clere, 7 Halsted R. 285; Howell vs. Elliott, 1 Dev. R. 76; Callen vs. Thompson, 3 Yerger R. 475; Ibid, 502; Bissell vs. Hopkins, 3 Cowen R. 166; Adams vs. Wheeler, 10 Pick. R. 199; Haven vs. Lowe, 2 N. H. R. 13; Eastwood vs. Brown et al. 1 Ryan & Moody R. 312; Storer et al. assignees of Ketcher, a Bankrupt, vs, Hunter, 3 Barn. & Cressw. R. 368; Martindale vs. Booth, 3 Barn. & Adolph. R. 498,

We are constrained to dissent, however, from Judge Scarborough as to real estate. It is true, that the ownership to lands is usually evidenced by deeds and other written muniments of title, Still, in real as in personal property, we hold, that if the vendee take an absolute conveyance and nevertheless leave the property