Kane v. Roberts

• Decision Date: 25 June 1874
• Citation: Kane v. Roberts, 40 Md. 590 (Md. 1874)
• Parties: GEORGE P. KANE, Sheriff, v. MARTHA J. ROBERTS and others, Executors of HENRY T. ROBERTS.
• Court: Maryland Court of Appeals

40 Md. 590

GEORGE P. KANE, Sheriff, v. MARTHA J. ROBERTS and others, Executors of HENRY T. ROBERTS.

Court of Appeals of Maryland

June 25, 1874

APPEAL from the Court of Common Pleas.

The case is sufficiently stated in the opinion of the Court.

The cause was argued before STEWART, BOWIE, GRASON and MILLER, J.

Thomas H. Bevan and Isidor Rayner, for the appellant.

The Statute of 13th Elizabeth, chap. 5, declares all gifts conveyances and alienations, of real and personal property whereby creditors or others may be delayed or defrauded, void as against them. It is now an indisputable principle of law sanctioned by the highest Courts of this country and England, upon the construction of the Statute of 13th Elizabeth, that a conveyance made by a grantor, in insolvent circumstances, for the purpose of hindering or delaying his subsisting creditors from seizing the property conveyed, is void and fraudulent against all those who might become creditors thereafter. That being fraudulent in fact against his subsisting creditors, it is ipso facto void and fraudulent as to every one who may be injured, delayed or defrauded thereby. The record here shows that the appellant offered to prove that this bill of sale contained not only one, but every element of fraud that can be conceived of; the want of consideration, the continuance of the property conveyed in the possession of the grantor, his insolvency at the time of the conveyance, and the admitted and unequivocal intentions thereby to defraud creditors at large. Moore, et al. vs. Blondheim, et al., 19 Md., 172; Horn vs. The Volcano Water Co., 13 Cal., 62; Reade vs. Livingston, 3 Johns. Ch. R., 481; Ridgeway vs. Underwood, 4 Wash. Ct. Ct. R., 129; Thomson vs. Dougherty, 12 S. & R., 448; Ingram vs. Phillips, 5 Strobhart, 206; Iley vs. Niswanger, 1 McCord Ch. R., 518; Clark vs. French, 23 Maine, 221; Smith's Leading Cas., 1-40; Parkman vs. Welch, 19 Pick, 231; Smith vs. Lowell, 6 New Hamp., 67; Hutchinson vs. Kelly, 1 Robinson, (Va.) 123; Bump on Fraudulent Con., 326, 327, et seq.; Benjamin on Sales, 364; 1 Story's Eq. Jur., sec. 361.

A distinction has been drawn in some of these cases between a conveyance merely fraudulent in law, in other words, a voluntary conveyance made by a debtor in insolvent circumstances without the actual intention to defraud his creditors, and one fraudulent in fact, that is, one made for the avowed purpose of defrauding creditors; and while in some of these cases it seems to have been held that subsequent creditors cannot impeach a conveyance, merely because it is voluntary and fraudulent in law, it has in all of them been uniformly held that if fraudulent in fact, it is void against subsequent creditors. In this case there cannot be the least doubt but that the evidence which was excluded, tended to prove that this conveyance was in every sense of the word, fraudulent in fact, and that therefore it should have been admitted.

John C. King, for the appellee.

The question in this case has no reference whatever to the rights of antecedent creditors, and the defendant cannot seize the goods conveyed by the deed by virtue of their claims, or avail himself of their merits. It is in behalf of a subsequent creditor that the deed is assailed; against such it is perfectly good unless made with a direct reference to defraud them.

This fraud is not even alleged in the testimony offered by the defendant. The debt of Sharrer & Son was not only made fifteen years subsequent to the bill of sale, but Matthias Roberts alleges only that he made the deed to hinder and delay his antecedent creditors, and does not intimate anywhere that it was done with a view to contract future obligations; indeed to have asserted that he made it with a view to contract a debt made so long after the execution of the instrument, would have been incredible; when moreover the debt appears to have been incurred for the funeral expenses of his wife, the supposed fraud ceases even to be possible. Williams, et al. vs. Banks, et al., 11 Md., 250; Moore vs. Blondheim, 19 Md., 172; Cooke's Lessee vs. Kell, 13 Md., 469.

GRASON J., delivered the opinion of the Court.

This suit was instituted by the appellees against the appellant for damages for the taking a piano, alleged to belong to the appellees. The piano was seized by the appellant as sheriff of Baltimore city, under a writ of fieri facias issued upon a judgment in the Court of Common Pleas of Baltimore city, which had been obtained by F. A. Sharrer & Son against Matthias Roberts. The proceedings show that the debt, for which the judgment was recovered, was incurred in 1872 by Matthias Roberts for a coffin and funeral expenses. It further appears that on the 9th November, 1858, Matthias Roberts and wife executed a bill of sale to Henry T. Roberts which was duly recorded, by which they conveyed to him certain personal property then contained in...