hardly known one case where the person conveying was indebted at the time of the conveyance, that had not been deemed fraudulent (a)." 2dly, The secrecy of the convey. ance at the time, and the subsequent want of notoriety, are strong badges of fraud, according to Twyne's case. The deeds were prepared at Wardour Castle, by the clerk of the conveyancer, without the knowledge of Lord A.'s own solicitor; and they continued unknown to all the confidential domestics until after an execution had come in at the suit of another creditor. The circumstance of its being done by two deeds of even date, one of which only shewed the true nature of the transaction, when it might have been comprized in one deed, is suspicious; and seems intended to conceal the transaction as much as possible. If the conveyance had been meant to be made bona fide and for an adequate consideration, a meeting of the creditors would have been convened, or some notice given to them, that such a fund had been set apart for them; but no creditor was consulted, and no notice given, nor even any list of creditors prepared or communicated to the trustees, nor any enquiry made about them. It does not even appear that the trustees themselves were previously required to undertake the trust, nor that any person, on the behalf either of them or of Lady A. attended to the framing of the deed, which was to secure her interest in opposition to that of her lord and so little interest did the trustees take in the conveyance, that, after the executions came into the house and their claim was brought forwards, the preservation of the property in the house was confided by them to one of Lord A.'s domestics, who was under his controul. This differs the case materially from Cadogan v. Kennet (b), where the deed of conveyance was settled by a Master in Chancery, and there was no secrecy. 3dly, The want of an inventory of the goods is another strong badge of fraud; without which it could not be certified to any creditor what goods were comprized in the deed. The necessity of this is strongly recommended in Twyne's case (c); and in Cadogan.v. Kennet there was an inventory; and though it was said by Lord Kenyon, in Jarman v. Wool (a) Lord Hardwicke delivered an opinion to the same effect in Lord Townshend v. Windham, 2 Ves. 11. 1805. DEWEY against BAYNTUN [269] (b) Cowp. 432. (c) 3 Rep. 8r. loton 1805. DEWEY against BAYNTUN, loton (a), That Lord Mansfield would not probably have dif fered from the conclusion which he drew if there had been an inventory, yet that was said with reference to a case of settlement before marriage, and where there was no clause that there should be an inventory; and yet where the fairness of the transaction was so much the stronger evinced, by the parties having, before any question arose in fact, lodged a catalogue in the hands of the trustees of all the settled goods, excepting only the stock in trade, which it was nugatory to do from the fluctuating nature of it. There, however, the jury found that the deed was fraudulent as to [270] such stock, the husband having joined in carrying on the trade so in Haselington v. Gill (b), though the property settled on the wife before marriage, consisting of stock in trade, could not be scheduled, and stock purchased afterwards with the produce of the settled property was protected by the settlement, yet it appears from what was said in the argument of Jarman v. Woolloton, where that was cited (which was not denied) That the trade was carried on in another place, distinct from the husband. 4thly, Though Lord A's continuing to have the same possession and use of the furniture, &c. after the conveyance as before, was consistent with the deed, and therefore not fraudulent in it self, yet it made it more necessary to give notice of the change of property, and to have an inventory of the furniture, &c. so conveyed; and none such having been given or made at the time, affords another ground of suspicion that the conveyance was never meant to be acted upon, unless to defeat the suits of creditors. 5thly, The same infer ence arises from the trustees having paid over the money raised by them for the purposes of the trust in Lord .'s own hands, trusting to him for the application of it, and from their having suffered him to appropriate part of it to his own use: and though they might thereby have rendered (a) 3 Term Rep. 622. (b) 3 Term Rep. 620, n. It was observed at the bar, That Mr. Justice Buller, iu Edwards v. Harben, 2 Term Rep. 597, says, in Haselington u Gill, That the cows purchased after the marriage might be taken in execution, to satisfy the husband's debts: but it does not appear by the note in 3 Term Rep. 620, the accuracy of which I cannot doubt, that the Court so decided. On the contrary, it appears that they held expressly, That the cows purchased by the wife after the marriage, with the produce of the cows settled before marriage, were equally protected by the settlement. them themselves personally liable to the creditors, yet their act was evidence, to shew that they considered themselves to be acting under his controul, and not under an adverse deed of trust. At all events, it was a question of fact for the jury, under all the circumstances, Whether the conveyance were fraudulent or not?. Erskine, Gibbs, Dillon, and Richardson, in support of the rule. The question is, Whether the property were well conveyed to the trustees at the time? or, Whether the conveyance were fraudulent and void, either at common law, or by the stat. 13 Eliz. c. 5? which depends upon this, Whether the deed of the 29th of April, 1800, were made bona fide and upon good consideration? A conveyance may be avoided by two sorts of fraud: - One where nothing is intended to be conveyed; but only the mere form or appearance of a deed is held out to the world, affecting to change the property, accompanied with a secret trust or defeazance, which renders it of no effect after the purpose has been answered; and this is in truth a mere trick or contrivance, in the terins of the question left to the jury in this case. The other is, where the deed is really meant to pass, and does actually pass the property to another; but it is given under such circumstances as avoids the effect of it, with respect to creditors, under the statute of Elizabeth. Of the former kind of fraud, there was no evidence whatever to justify the verdict; and it is probable that the jury came to their conclusion upon a misapprehension of the law for the fact; considering that the delay of the creditor, which is an ingredient to bring a case within the stat, 13 Eliz. c. 5, made the deed fraudulent in fact, without adverting to the distinction above noticed, and to the other circumstances of the case, which take the deed in question out of the statute. In order to justify the conclusion of fraud in fact, the jury should have been persuaded that Lord A. never meant to give up his life interest in the estate, or the furniture, &c. in his house to the trustees for Lady A.; and that the latter never meant to charge her reversion with the raising the 12,000l. for the creditors; but that the money either was not meant to be raised at all; or, if raised, was meant to be repaid to her; although in fact a considerable part of it was raised and ap: plied by the trustees in payment of debts, and that too, be fore this action was brought; and, no doubt, they are compellable 1805. DEWEY against BAYNTUN. [271] [272] 1805. DEWEY against BAYNTUN. of the subject. pellable to raise the remainder, and would be holden respon. sible in equity for any misapplication of it. There can be no collusion then in this case: the consideration is in the deeds; the estates are conveyed to third persons; the parties cannot be placed in statu quo; the benefit of the consideration does not remain in Lord 4. who has conveyed. It could not have been intended at the time that Lady A. or her trustees should take secretly for the benefit of Lord A. It would have defeated the whole object of the trust, which was to secure the property for Lady A. and her daughters; and the trustees are the husbands of those daughters, who are to be benefitted by it. The evidentia rei is decisive upon this part The fine indeed was not levied till a year after the covenant; but it could not be part of the fraud meditated that Lady A. should die in the mean time; though if she had, equity would have supplied a fine upon the covenant to levy one. At all events, the deed is valid and binding upon the face of it; and the proof of fraud lies up ́on the party who would avoid it. A conveyance however, tho' real, and even made for good and meritorious consideration, may still be fraudulent in law, if made maliciously and with design to defeat creditors; but it is not enough to bring a conveyance within the statute, that its effect is to [273 delay or hinder a creditor if it he made bona fide as well as upon good consideration, according to Cadogan v. Kennet (a) and Meux v. Howell (b). This is a species of fraud distinct from the other; but none of the indicia of fraud relied on are sufficient to bring this case within the statute, nor will any of the decided cases warrant it. Twyne's case (c), which is the leading one, is very distinguishable; for there the conveyance was made pending the writ, and the donor continued afterwards in possession of the goods which the deed professed to have conveyed to another; and none of the cases go further but here there was no writ pending at the time of the conveyance; and the possession of Lord 4. afterwards was consistent with the deed. Besides which, the deed, while it operated to withdraw out of the reach of the creditors that which was before amenable to their process, at the same time substituted something which was at (e) Cowp. 43% (5) 4 East, 1. (c) 3 Rep. Sc. least least as beneficial to them. This brings it to the second and principal objection made, The want of an adequate and available consideration for the deed of the 29th of April; in order to establish which, it must be shewn that the consideration was so clearly inadequate to the value of the property conveyed, that fraud must have been intended; for there are many authorities to shew, that in cases of this kind, if the transaction be bona fide, the Court will not weigh the adequacy of the consideration in nice scales. Scot v. Bell (d), Brown v. Jones (e), Doe v. Routledge (ƒ), and Nunn v.. Wilsmore (g). Now, besides the 12,000l. which Lord A. was to appoint amongst the creditors, and part of 37161. which had been before raised by mortgage, principally for bis benefit, and for which Lady A.'s estate was a creditor, there was a further consideration moving to Lord A. which was the settlement of his wife's reversion on his daughters, in default of issue male: he was therefore a purchaser of that reversion for his daughters. In return for all this, Lord A. conveyed his own life estate in 30007. a year, landed property, which, at nearly 70 years of age, could not be very valuable; and his furniture, &c. in Wardour Castle, worth about SOGOL. This then was at least a sufficient consideration to rebut the implication of fraud from want of consideration. In addition to which, it may be observed, That if Lord 4.'s lifeestate had not been conveyed to the trustees, it would not have been easy for them to have raised money on the reversion: but at all events, it is sufficient as to the new trial to say, That the case never went to the jury upon the ground of inadequacy of consideration. It is then objected, That the fund of 12,000l. set apart for the creditors, is made subject to Lord A's appointment, who may prefer some in exclusion to others; but that is no other than the same power which the law gave him before over his own property. At common law, any debtor might dispose of his effects at any time before execution, although his object in so doing was to squander the money and defeat his creditors; and such disposition would have bound them, provided it were real, and not rendered nugatory by a secret trust for his own be pefit. Hence the necessity of the stat. 29 Car. 2, c. 3, s. 15, (d) 2 Lev. 70. (e) 1 Atk. 188-190. ̄ (ƒ) Cowp. 7056 16 1805. DEWEY against BAYNTUN. Want of con sideration for the deed of 29th April, 1800 [ 274 ] |