The first question presented by the motion, is, whether the judge, at the circuit, erred in admitting testimony, introduced by the defendants, to show, that the deed of the plaintiffs from Merriman was fraudulent, and also, testimony to show, that their deed from him was bona fide. This is certainly a novel mode of contesting the validity of a deed challenged to be fraudulent. It should be borne in mind, that this deed, if made to defraud creditors, was good betwen the parties; and it may well be doubted, if it be any valid excuse for the defendants’ conduct in procuring this deed from the town-clerk’s office, that had they proceeded legally, and contested the deed, they could have shown it void. It is not, in any respect, like the case of Bacon v. Norton, 5 Day 128. in which it was holden, that the assignee of a promissory note might give, and the maker might take a discharge from a usurious note, after assignment without fraud. The note there was void to all intents and purposes. Here the deed is good against every body but creditors. They, indeed, may avoid it; not however, by force or fraud.
It was further insisted, that Barnes being a tenant in common with the plaintiffs, and he assenting to the withdrawal of the deed from the town-clerk’s office, the defendants ought to be excused for the attempted destruction of this title. It is true, that he held by the same deed with the plaintiffs; but this could not authorize him to assent to the destruction of their title. Their only connexion was, holding under the same deed; and surely, no act of his could prejudice their rights.
It was also insisted, that by these acts of the defendants, the *347title of the plaintiffs to this land, was not destroyed. To this idea I give my assent. If in consequence of this deed’s being taken from the office, another title has been attempted to be created in a bona fide purchaser or creditor without notice, still the plaintiffs’ title is not defeated. It would be monstrous to suppose otherwise. If a deed lodged with the town-clerk and entered upon by him “received for record,” according to our statute, (p. 459.) should be stolen or burned, the title would not be defeated. All the cases on this subject are one way. McDonald & al. v. Leach, Kirby 72. Botsford v. Morehouse & al. 4 Conn. Rep. 550. Coe & al. v. Turner & ux. 5 Conn. Rep. 86. Gilbert v. Bulkley, 5 Conn. Rep. 262. 1 Swift’s Dig. 127. Woodward v. Aston, 1 Vent. 296. Bolton v. The Bishop of Carlisle, 2 H. Bla. 259. 263.
The opinion of the court, then, that these acts did not destroy the plaintiffs’ title, was correct; but that therefore, the jury ought to find a verdict for the defendants, is incorrect. The defendants, upon the facts, which were proved or admitted, had violated the plaintiffs’ rights, destroyed their deed and thus created an embarrassment to their title; and all this was done with design to injure them, which ought to subject the defendants to just damages.
There is another ground for a new trial. The jury refused to obey the instruction of the court, and to return a verdict for the defendants. The court, upon this, ordered a verdict to be entered up for the defendants. This certainly was incorrect. By the 59th section of the statute under the title of “Actions civil,” the court have power to return a jury to a second and third consideration, where they shall have mistaken the evidence, or brought in their verdict contrary to the direction of the court, in a matter of law. The court has the further power of granting a rule to show cause why a new trial should not be granted, where the law has been misapprehended, or where the jury have not obeyed their instruction in a matter of law; but the court cannot enter up a verdict, without one is offered, and especially, if the jury refuse to present it.
For these reasons I would advise a new trial.
Hosmer, Ch. J. and Peters, J. were of the same opinion. Williams, J. gave no opinion, having been of counsel in the cause; and Bissell, J. was absent.New trial to be granted.