Hinde Longworth

• Decision Date: 23 February 1826
• Citation: 6 L.Ed. 454,11 Wheat. 199,24 U.S. 199
• Parties: HINDE'S Lessee against LONGWORTH
• Court: U.S. Supreme Court

24 U.S. 199

6 L.Ed. 454

11 Wheat. 199

HINDE'S Lessee against LONGWORTH.

February 23, 1826

ERROR to the Circuit Court of Ohio.

This was an action of ejectment brought by the plaintiff in error, to recover the possession of the premises in the cause, described as in lot No. 107 in the town of Cincinnati. It appeared in evidence at the trial, that on the 28th of March, 1799, Thomas Doyle, sen. under whom both parties derived title, was seized and possessed of the lot in question. The lessor of the plaintiff claimed under a deed of that date from Thomas Doyle, sen. to his son Thomas; and the defendant set up a title under a judgment against Doyle the elder, at the suit of John Graff, entered at the August term, 1799, of the Court of Common Pleas for the county of Hamilton. At the trial, three bills of exceptions were taken by the lessor of the plaintiff.

The first bill of exceptions stated, that the plaintiff in support of his action offered in evidence the deed from Doyle, sen. to his son, to the reading of which in evidence, the defendant objected, and the Court rejected it, as not being properly acknowledged. The certificate of acknowledgment was as follows: 'Hamilton, ss. Personally before me, Thomas Gibson, one of the justices of the Court of Common Pleas for said County, the above named Thomas Doyle and _____ Doyle his wife, who being examined separate and apart, acknowledged the foregoing deed to be her hand and seal, free act and deed, for the uses and purposes mentioned.' Thomas Doyle only had signed the deed. His wife was not named as a party to the conveyance except in the conclusion of the deed as follows: 'In witness whereof the said Thomas Doyle and _____ his wife, who hereby relinquishes her right of dower in the premises, have hereto set their hands and affixed their seals, the day and year first above written.' A seal was affixed to the deed, but no signature of the wife.

In the second bill of exceptions, the counsel for the plaintiff stated, that he claimed title under the same deed mentioned in the first exception by virtue of which Doyle the younger became seised of the premises in question, which had descended to the wife of the lessor of the plaintiff, to which facts he adduced proof to the jury. The bill of exceptions then proceeds to state, that the defendant, in order to prove that the deed was made with intent to defraud creditors, having read certain depositions to establish that fact, offered in evidence the records of two judgments recovered against Doyle the elder, one at the suit of John Graff, at the August term, 1799, of the Court of Common Pleas for the County of Hamilton, for upwards of 900 dollars; and the other in favour of Edward Shoemaker, at the October term, 1800, of the same Court, for 590 dollars. To which testimony the plaintiff objected, as incompetent evidence, upon the ground, that the proceedings in said suits had taken place between other persons than himself and Doyle, jun., and to which he was not a party. The objection was overruled by the Court, and the testimony admitted.

The third bill of exceptions stated, that after the admission of the evidence aforesaid, the judgment records,) and in order to repel the presumption of fraud in Doyle the elder, and to show that he had no intention to defraud creditors by making the said deed, but to prove that Doyle the younger, then an infant, was the creditor of his father, the plaintiff offered in evidence the depositions of certain witnesses. The bill of exceptions then proceeded to state, that the depositions were offered to rebut the evidence of fraud in fact, and the evidence of a fraudulent intent in the grantor; but the Court declared their opinion to be, that the last mentioned evidence offered for rebutting the charge of fraud was inadmissible, and rejected the whole of the evidence so offered.

Upon these exceptions, a verdict and judgment having been entered for the defendant in the Court below, the cause was brought by writ of error to this Court.

Feb. 15th.

The cause was argued by Mr. Scott, for the plaintiff, and by Mr. Webster and Mr. Hammond, for the defendant.

On the part of the plaintiff, it was contended,

1. That the Court below erred in rejecting the evidence stated in the first bill of exceptions, of the acknowledgment of the deed from Doyle, sen.^a 3. The evidence stated in the third bill of exceptions was erroneously rejected, even supposing the statute 13 Eliz. c. 5. to be in force in the States which formed the territory northwest of the river Ohio. The statute 27 Eliz. c. 4. is construed more strongly in favour of purchasers, than that of 13 Eliz. c. 5. in favour of creditors. A mere voluntary conveyance, under the last mentioned statute, is only presumptive evidence of an intention to defraud creditors, and may be rebutted by countervailing testimony.^d The authorities make a distinction between a conveyance to a stranger, and a conveyance to a child, for maintenance and advancement. The latter is not considered as voluntary.^e It is necessary to prove that the grantor was indebted at the time of making the conveyance.^f A voluntary settlement by a trader, who afterwards becomes bankrupt, is good against all subsequent creditors under the statute of Eliz., although it is void under the bankrupt laws.^g Besides, there was, in this case, evidence that the grantee was the creditor of the grantor, his father; so that, though he was then an infant, the conveyance was not voluntary, but for a valuable consideration.^h If it should be objected, that the evidence offered was contrary to the consideration expressed in the deed, the answer is, that the party may aver and prove a consideration different from that expressed in the conveyance, if it be consistent with that expressed.ⁱ And Courts will uphold settlements made upon fair and bona fide inducements, by every reasonable presumption in their favour.^j of creating a debt, immediately afterwards contracted, as of debts actually existing at the time.^l But, here, copies of the accounts, upon which the judgments were recovered, are spread upon the record, by which it appears, that the causes of action on the part of the creditors of the grantor, arose before the date of the deed. The deed itself distinctly stating the consideration upon which it was made, proof of a different consideration was inadmissible.^m If the deed was not properly acknowledged and recorded, it was not notice to the party claiming against it.ⁿ The records of the judgments were admissible in evidence to impeach the validity of the deed, as showing, among other facts, that the grantor was indebted at the time it was executed. The maxim of res inter alios acta could not be applicable to this testimony, any more than to other evidence of the grantor being indebted at the time parties derive title under him. The lessor of the plaintiff claims under a deed of the date above-mentioned, from Thomas Doyle, sen. to his son Thomas. And the defendant sets up a title under a judgment against Doyle the elder, in favour of John Graff, entered in August, 1799. Upon the trial, the validity of the deed from Doyle the elder to his son was the main subject of inquiry. Three bills of exception were taken on the part of the lessor of the plaintiff, and a verdict entered by consent for the defendant, and the case is brought here by writ of error to the Circuit Court for the District of Ohio.

1. The first bill of exceptions relates to the acknowledgment of the deed from Doyle the elder to his son. This was deemed by the Court insufficient, and the deed rejected. In the second bill of exceptions, however, the counsel for the plaintiff stated again, that he claimed title under the same deed mentioned in the first exception, by virtue of which Doyle the younger became seised in fee of the premises in question, and which had descended to the wife of the lessor of the plaintiff, to which facts he adduced proof, which was submitted to the jury, and to which proof no objection appears to have been made on the part of the defendant. What that proof was is not stated, but we must presume it to have been enough to prove the due execution of the deed, both because it does not appear to have been objected to, and because the defendant went into evidence to show the deed was fraudulent and void, which would have been altogether irrelevant if the deed had not been sufficiently proved to be submitted to the jury. This might supersede the necessity of this Court expressing any opinion upon the sufficiency of the acknowledgment of the deed; because, admitting the Court below erred in rejecting it in the first instance, still, as it was afterwards, in the progress of the cause, duly proved, the judgment would not be reversed on account of that error, if this was the only question in the cause.

We notice this point only to correct what we consider a misapprehension of the plaintiff's counsel as to the practice in cases of this kind. But, as this cause must be sent back to another trial, it is deemed advisable to express an opinion upon the sufficiency of this acknowledgment, the certificate of which is as follows: 'Hamilton, ss. Personally before me, Thomas Gibson, one of the Justices of the Court of Common Pleas for said county, the above named Thomas Doyle, and _____ Doyle his wife, who being examined separate and apart, acknowledged the foregoing deed to be her hand and seal, free act and deed, for the uses and purposes mentioned.' The question is, whether this can be taken for the acknowledgment of Thomas Doyle. He only has signed the deed. His wife is not named as a party in any manner, except in the conclusion, which is as follows: 'In witness whereof, the said Thomas Doyle, and _____ his wife, who hereby relinquishes her right of dower in the premises, have hereto severally set their hands, and affixed their seals, the day and year first above written.' A seal is affixed to the deed, but no signature.

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