delivered the opinion of the Court:
It is contended that the conveyances by which the title to the property in question became vested in the complainant’s son, were made with intent to hinder, delay and defraud the complainant’s creditors, and that the complainant, therefore, is entitled to no relief as against his fraudulent grantee, or as against the Springfield Homestead Association, which claims said property as mortgagee of said grantee. There is evidence tending to sustain the charges of fraud made by the answers,, and if the bill had been brought to compel an execution the alleged fraudulent grantee of the secret trust alleged have been reposed in him by said conveyances, the contention here made would have been entitled to grave consideration. Where a conveyance of property is made in fraud of the creditors of the grantor, such conveyance is binding as between the parties to it, and neither courts of law or equity will aid the fraudulent grantor in recovering back the property conveyed, or in enforcing the trust upon which the conveyance was made. The courts will leave the parties to the fraudulent transaction precisely where they have placed themselves by their own fraudulent acts, and will give aid or assistance to neither.
But that is not this case. Here, as the complainant con-. tends, his grantee, whether fraudulent or otherwise, has ac-. tually and voluntarily made a reconveyance to him of said. property, and the scope of the bill is to have the rights to which the complainant has become entitled by means of such reconveyance ascertained and declared. While a fraudulent, grantee is under no legal obligation to reconvey, he is under a moral obligation to do so, and where, in fulfillment of his. moral obligation, he actually makes a reconveyance, such act will be^alid and binding on him, and if the rights of no innocent third parties have intervened, the fraudulent grantor will become reinvested, both at law and in equity, with the title previously conveyed to his grantee. Such reconveyance is not within the condemnation of the Statute of Frauds, but vests in him to whom it is made a title which the courts will recognize and protect precisely as they would a title derived from any other source.
The bill alleges that, about August 1, 1880, the complainant’s son to whom said property had been conveyed, at the complainant’s request, made, executed, acknowledged and delivered to the complainant a deed of said property; that said deed had not been recorded, and that it had been lost by or stolen from the complainant, and the prayer of the bill is, that a decree be entered establishing the complainant’s legal title to said property. The answers of both defendants deny that such deed was executed as alleged, or that any such deed ever existed, and the real controversy in the case arises upon the issue of fact thus presented. By the decree of the court below that issue was determined in favor of the complainant, and the question now is whether that decree is sustained by the evidence.
The evidence as to whether said deed was executed as alleged is conflicting, and is not perhaps in all respects as clear and satisfactory as could be desired, but after giving it careful consideration, we are not prepared to say that it is not sufficient to warrant the finding of the court below. John E. Boll, the complainant, testifies positively that about the 28th or 30th of July, 1880, Frank P. Boll, his son, executed and delivered to him a deed of said property; that the signature to the deed was in his son’s handwriting; that according to his best recollection the deed was acknowledged before Charles Arnold, a notary public, but as to that he is not positive; that his son handed him said deed after it was executed, and that he placed it in a bureau drawer in his room in the house where he lived, and that he saw it many times afterward in that place of deposit; that he first missed it about July or August, 1883; that his son, who was married shortly after the execution of said deed, and also his wife, lived in the same house with the complainant for several years, and had complete access to said room and bureau drawer, and. that after said deed was found to be missing, the complainant charged them with having taken it away, but they denied, or at least refused to admit, having done so.
Charles Arnold testifies that he was a notary public in 1880, and that he remembers Frank P. Boll’s coming to his office that year to get an acknowledgment taken, and that while he does not remember whether he actually took said acknowledgment, he thinks he did. . He admits, however, that he did not examine the deed nor see its contents nor what land it related to, and his recollection of the transaction seems to be quite indistinct.
William B. Shutt testifies that, about 1884 or 1885 he purchased, as the result of a somewhat protracted negotiation with John B. Boll, a small lot which formed a part of the property claimed to have been conveyed by Frank P. Boll to John B. Boll by the deed the existence of which is now in controversy, the price agreed upon being $350; that after agreeing upon the terms of the purchase, he examined the title of said lot as the same appeared of record, and found it to be in Frank P. Boll; that he then went to Frank P. Boll and told him that the title of a piece of property which, he had bought of his father was in him, and that as soon as said title was made good, the purchase money was ready; that Frank P. Boll then told the witness that he had nothing to do with said lot; that the property belonged to his father; that he had made to his father a deed for it, which his father said was not on record; that thereupon, at the suggestion of the witness, John B. Boll and Frank P. Boll and wife joined in the conveyance of said lot to the witness, and that the witness paid for it with his check payable to the order, of John B. Boll.
The testimony of these witnesses is met by Frank P. Boll with a simple denial. He swears that he never made a deed of the property in question to his father or to any one else; that Charles Arnold never took an acknowledgment of a deed from him to his father; that he sold said lot to Shutt, although he admits that the bargain was made with Shutt by his father; that he received the consideration, although he admits that it was paid by a check, and that he can not remember who drew the money from the bank or where it went to, and as to the admissions to Shutt in relation to an unrecorded deed to his father testified to by that witness, he merely says that he does not remember them.
The testimony of Frank P. Boll stands uncorroborated, and besides, the judge of the court below saw the witnesses and had an opportunity of hearing them testify, and therefore had a better opportunity for judging of their relative credibility than we can have. In view of all the facts, we are of the opinion that the said court was' justified in holding that the clear preponderance of the evidence was in favor of the complainant and decreeing accordingly.
The evidence clearly shows that at and before the time of the execution of the mortgage to thé Springfield Homestead Association, the complainant .was in visible and notorious possession of that part of the property in question in respect to which the decree is in favor of the complainant. Such possession charged said association with notice of the complainant’s title, and the court therefore properly held that, as to that property, the mortgage was void as - against the complainant.
The decree being supported by the evidence will be affirmed.
Decree affirmed.