It was formerly understood to be the law that contracts and conveyances made with a view to delay, hinder or defraud creditors were, nevertheless, valid and binding between the parties to such contracts and conveyances. (Jackson v. Garnsey, 16 John., 189; Osborn v. Moss, 7 id., 161; Findley v. Cooley, 1 Blackf., 262 ; Fairbanks v. Blackington, 9 Pick., 93.) The English statute of frauds, which was early reenacted in this state, in declaring the effect of such transactions, pronounced them void and of no effect only as against the person or persons who might in anywise be disturbed, hindered or defrauded. In Nellis v. Clark (20 Wend., 24; S. C., 4 Hill, 424), the rule was departed from by a decision which restricted the doctrine to executed conveyances, the court holding that an executory agreement entered into in fraud of creditors could not be enforced between the parties; conceding, however, that the principle-which I have stated applied universally to grants and conveyances, and all executed contracts. The court applied to transactions fraudulent against creditors the rule which
Enough of the ancient principle is left to determine this case. The deed of Joseph Mosely to the plaintiff is an executed conveyance, which the grantor could never be heard to question in a court of justice, on the ground that it was executed in fraud of creditors. The defendant is not a creditor, and he does not claim under a title arising out of any proceedings instituted by creditors. If he has any claim to the subject of the suit, it is one taken under his father, the grantor, and he can claim no right which the grantor was estopped from setting up. The judge therefore fell into an error in leaving the question of fraud to the jury. Which ever way that question might be determined, the finding would not legally aid the defendant.
It was also erroneous to charge, that the delay of the plaintiff in recording his deed, was some evidence that it was void. Unless the defendant had acquired an advantage Under the recording acts, it was not important whether the plaintiff ever recorded his deed.
The judgment should be reversed, and a new trial awarded.
was for affirming the judgment, on the ground that there was no specific and direct exception to any of
Shankland, J., took no part in the decision.
New trial ordered.