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donor must part not only with the possession, but with the dominion of the property.a If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed. Therefore, where a donor expressed by letter his intention of relinquishing his share of an estate, and directed the preparation of a release of the personal estate, and he died before it was executed, it was held, that his intention, not being perfected, did not amount to a gift.b
*When the gift is perfect, by delivery and ac. *440 ceptance, it is then irrevocable, unless it be prejudicial to creditors, or the donor was under a legal incapacity, or was circumvented by fraud. A pure and perfect gift inter vivos was also held by the Roman law to be in its nature irrevocable ; and yet in that law it was nevertheless revocable for special reason, such as extreme ingratitude in the donee, or the unexpected birth of a child to the donor, or when sufficient property was not left with the donor to satisfy prior legal demands. The English law does not indulge in these refinements, though it controls gifts when made to the prejudice of existing creditors.
By the statutes of 50 Ed. III., ch. 6, and 3 Hen. VII. ch. 4, all fraudulent gifts of goods and chattels in trust
* Hawkins v. Blewitt, 2 Esp. Rep. 663. Noble v. Smith, 2 Johns. Rep. 52.
Hooper v. Goodwin, 1 Swanst. Rep. 486. Picot v. Sanderson, 1 Devereux's N. C. Rep. 309. S. P. By the civil code of Louisiana, edited by Upton and Jennings, art. 1523, a donation inter viros of immoveables and choses in action must be verified before a notary and two witnesses, unless it be manual gists, accompanied with actual delivery.
• Code, lib. 8. tit. 56. De Revocandis Donationibus, 1. 10. Ibid. 1. 8. Code, lib. 3. tit. 29. De inofficiosis Donationibus. Puff. Droit Des Gens, par Barbeyrac, tom. ii. 53. n. So by the civil code of Louisiana, art. 1484, 1485, the donation would be void if the donor divested himself of all his property, and did not reserve enough for his own subsistence; and he cannot deprive his descendants of a certain portion. Lagrange v. Baire, 11 Rob. Lou. R. 302.
for the donor, and to defraud creditors, were declared void ; and by the statute of 13 Eliz. ch. 5, gifts of goods and chattels, as well as of lands, by writing or otherwise, made with intent to delay, hinder, and defraud creditors, were rendered void, as against the person to whom such fraud would be prej udicial. But the statute excepted from its operation, estates or interests in lands or chattels conveyed or assured bona fide and upon good consideration, without notice of any fraud or collusion. The statute of 27 Eliz. ch. 4, was made against fraudulent conveyances of lands to defeat subsequent bona fide purchasers, and it applies in favor of subsequent purchasers for a valuable consideration, even in cases of fair voluntary conveyances, provided they were purchasers without notice of the voluntary conveyance. These statutes have been re-enacted in New-York and with increased checks;b
· Vide infra. vol. 4, p. 463.
o N. Y. Revised Statutes, vol. ii. p. 135. sec. 1 ; Ibid. vol. ii. p. 137. sec. 1. 3. The provision applies equally to every species of transser, and to things in action, and to every charge upon lands, goods, or things in ac. tion; and not only in favour of creditors and purchasers, but in favour of the heirs, successors, personal representatives, and assignees, who represent them. It is even made a misdemeanor to be a party or privy to any conveyance or assignment of any interest in goods or things in action, as well as in lands, with intent to defraud prior or subsequent purchasers, or to delay, hinder, or defraud creditors, or other persons. Ibid. vol. ii. p. 690. sec. 3. In Louisiana it is held, that the right of a creditor, to attack a sale as fraudulent, made by his debtor to a third person, depends on his showing he was a creditor before the date of the act. Lopez v. Bergel, 12 Louis. Rep. 197. This rule, I should think, was rather too strict for all cases.
The statute in Connecticut against fraudulent conveyances is distinguished for its simplicity, precision, and brevity. It declares that all fraudulent conveyances of lands or chattels, and all bonds, suits, judgments, executions, and contracts made with intent to avoid any debt or duty, are utterly void, as against the persons whose debt or duty is endeavoured to be avoided. Revised Statutes of Connecticut, 1821, p. 247. The Ohio statute of 1810, and the statute of Illinois, of 1827, and of North Carolina, by the Revised Statutes of 1837, p. 287, make all such conveyances equal. ly void, as against creditors and purchasers. The statutes of Kentucky of “ 13th December, 1820, and of Feb. 1st, 1839, render all mortgages and deeds of trust, of real or personal property, unless recorded, void against creditors and purchasers.
and doubtless the principle in them though they may not have been formally or substantially re-enacted, prevails throughout the United States. All the doctrines of the courts of law and equity, concerning voluntary settlements of real estates, and the presumptions of fraud arising from them, *are applicable to chat- *441 tels; and a gift of them is equally fraudulent and void against existing creditors.b Voluntary settlements, whether of lands or chattels, even upon the wife and children, are void in these cases, and the claims of justice precede those of affection.c The English cases were extensively reviewed and considered, in the case of Reade v.
See vol. Infra, 4. p. 462. In Cadogan v. Kennett, Cowp. 434, Lord Mansfield observed, that the principles and rules of the common law, were as strong against fraud in every shape, as the statutes of 13 and 27 Eliz. ; and those statutes are considered as only declaratory of the principles of the common law. Marshall, Ch. J., in Hamilton v. Russell, 1 Cranch, 316, to the same point. Lord Coke considered the statute of 13 Eliz. as declaratory of the common law. Co. Litt. 76. a. 290. b. It professes to be so. In North Carolina, by act of 1806, all gifts of slaves are void, un. less in writing, signed by the donor, and attested by one subscribing wit. ness, and proved or acknowledged, and registered within one year.
Bayard v. Hoffman, 4 Johns. Ch. Rep. 450. An immoral and corrupt motive is not essential to render the act fraudulent as to creditors. It is constructively so if it necessarily leads to the injury of the creditor. Montgomery v. Tilley, 1 B. Monroe, 157. Huth v. Bank of U. S. in Ch. Louisville, Kentucky, August, 1843.
• This sentiment is strongly inculcated and sententiously expressed by Cicero, (De Off. 1. 14.) Videndum est igitur, ut ea liberalitate utamur, quæ prosit amicis, noceat nemini. Nihil est enim liberale, quod non idem justum. But settlements of personal estates are held, in England, not to be within 27 Eliz, ch. 4; and a voluntary settlement of them by persons not indebted at the time, is good against a subsequent purchaser for a val. uable consideration. 1 Sim. o Stu. 315. And in Bohn v. Headley, 7 Harr. of Johns. 257, it was held that a gist of chattels by a father, not indebted at the time, to his child, by deed, with a provision that the donor was to retain possession and use for life, was valid under 13 Eliz. and also at common law, and good against a subsequent purchaser. A gift of a particular chattel, though the giver be at the time indebted more than he is worth, has been held to be only presumptive evidence of fraud, and not necessarily void. Toulmin v. Buchanan, 1 Stewart's Ala. Rep. 67. VOL. II.
Livingston ja and the doctrine of that case was, that a voluntary settlement by a person indebted at the time, was fraudulent and void, as to existing creditors. The conclusion in that case was, that if the party be indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such antecedent debts, and that the presumption did not depend upon the amount of the debts, nor the extent of the property in settlement, nor the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The at. tempt would be embarrassing, if not dangerous to the rights of creditors, and prove an inlet to fraud. The principle had not only been previously established in the state of New Jersey, b but it has since been recognized by the supreme court of New-York,c and by the supreme court of the United States; and it prevails equally in several of the other states.d A voluntary convey
2 3 Johns. Ch. Rep. 481.
• Jackson v. Seward, 5 Cowen's Rep. 67. The doctrine of the case of Jackson v. Seward, as settled in the court of errors, in 8 Cowen's Rep. 406, is not pressed to the severe extent of holding a voluntary conveyance ab. solutely void, though there be a small indebtedness at the time. It is only so under certain circumstances. The question is one of fraud, in fact, for a jury. See, also, to the same point, Jackson v. Peck, 4 Wendell's Rep. 300. Hopkirk v. Randolph, 2 Brockenbrough, 132. Van Wick v. Seward, 6 Paige, 62. The rule in Vermont and Pennsylvania is to the same effect; and indebtedness, at the time of the voluntary settlement, is only presumptive evidence of fraud, and the conclusion will depend upon the amount of the debt, and the estate of the settler, and other circumstances. Bracket v. Waite, 4 Vermont Rep. 389. Chambers v. Spencer, 5 Watts, 404. Posten v. Posten, 4 Wharton, 27. In Van Wyck v. Seward, Chancellor Walworth held, that if a parent makes an advancement to his child, and honestly and fairly retains in his hands sufficient property to pay all his existing debts, the child will not be bound to refund, even though the parent does not pay his debts existing at the time of the advancement, A voluntary conveyance is not per se fraudulent, even as against creditors to whom the grantor was indebted at the date thereof. Bank of U. S. v. Housman, 6 Paige's Rep. 526.
d Sexton v. Wheaton, 8 Wheaton, 229. Hinde v. Longworth, 11 Ibid: 199. Thompson v. Dougherty, 12 Serg. g. Rawle, 448. Parker v. Proc
ance, if *made with fraudulent views, would seem to be void even as to subsequent creditors; but not to be so, if there was no fraud in fact.a
ter, 9 Mass. Rep. 390. Bennet v. Bedford, 11 Ibid. 421. Meserve v. Dyer, 4 Greenleaf's Rep. 52. Hudnall v. Teasdall, 1 M Cord's Rep. 227. O'Daniel v. Crawford, 4 Dev. N. C. Rep. 197. Hanson v. Buckner, 4 Dana's K. Rep. 254. Mills v. Morris, 1 Hoffman's Ch. Rep. 419. In Hudnal v. Wilder, (4 M Cord's Rep. 294,) it was held, that a voluntary deed in favour of wife or children, was valid against subsequent purchasers with notice ; but it was void as to existing creditors, if the donor was at the same time largely indebted. To the same purpose it was decided in the court of appeals in South Carolina, in 1830, in Howard v. Williams, that a voluntary gift to a child was not necessarily void as to existing creditors, but it would depend upon circumstances; and that a voluntary gift to a child, if made bona fide, would be good against subsequent creditors, even without notice of it; and that the possession by the donor, if the donee be a child residing with the parent, was not to be deemed a badge of fraud. Carolina Law Journal, No. 2. p. 231. 1 Bailey's Rep. 575. S. C. A very inconsiderable amount of debt existing at the time, would not effect the gift as to existing creditors. Ibid. 585, note. M Elwee v. Sutton, 2 Ibid. 128. Such a gift is good even against subsequent creditors with notice, though the donor retains possession. Madden v. Day, 1 Bailey's Rep. 587. Cordery v. Zealy, 2 Ibid. 205. The English courts seem now inclined to be as indulgent as any of the courts in this country, for from the language of the judges of the K. B., in the case of Shears v. Rogers, 3 B. g. Adolph. 362, we are led to infer, that the party must be indebted at the time to the extent of the insolvency, to render his conveyance frandulent within the statute of 13 Eliz. ch. 5. In Massachusetts he need only to be deeply indebled and not to the extent of insolvency. Parkman v. Welch, 19 Pick. Rep. 231. The N. Y. Revised Sta. tutes, (vol. ii. p. 137. sec. 4,) have relaxed the strictness of the doctrine in the text, as to voluntary gifts and conveyances, by declaring, that no conveyance or charge (and the provision applies equally to lands and chattels) should be adjudged fraudulent as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration. In Louk jaiana, a deed cannot be set aside as fraudulent by a creditor, who becomes such after the date of the alienation, unless it be proved to have been made with an intention to defraud future creditors. Hesser v. Black, 17 Mart. Lou. Rep. 96. In Parkman v. Welch, 19 Pick. R.231, it was held, that a convey ance under the 13th Eliz. c. 9, made upon a secret trust and with fraudu. lent intent, may be avoided by subsequent as well as by previous creditors.
a Reade v. Livingston, 3 Johns. Ch. Rep. 501, 502. Bennet v. Bedford Bank, 11 Mass. Rep. 421. Damon v. Bryant, 2 Pick. Rep. 41). Howe v. Ward, 4 Greenleaf's Rep. 195. Sexton v. Wheaton, 8 Wheaton, 229. Hinde v. Longworth, 11 Ibid. 199. Benton v. Jones, 8 Conn. Rep. 186.