A sale, under a
fi. fa. duly issued, is legal as
respects the purchaser, provided the writ be levied upon the
property before the return day, although the sale be made after the
return day and the writ be never actually returned.
A deed made upon a valuable and adequate consideration which is
actually paid and the change of property is
bona fide or
such as it purports to be, cannot be considered as a conveyance to
defraud creditors.
This was an action of ejectment brought in the court below by
the defendant in error, Sexton, against the plaintiff in error,
Wheaton, to recover the possession of a parcel of ground in the
City of Washington, being lot number 17, in square 254, containing
8,254 3/4 square feet, with the buildings thereon.
At the trial the plaintiff produced and read in evidence to the
jury a deed of bargain and sale of the premises from John P. Van
Ness and wife, and C. Stephenson, to Sally Wheaton the wife of the
defendant in ejectment, and a deed from one Watterson to the same
of the same premises, a writ of
fi. fa. against the goods,
chattels, lands and tenements of the defendant, issued from the
court below, upon a judgment obtained by Sexton against Wheaton
with a return thereon by the marshal:
"December the 30, 1815, sold the real property
Page 17 U. S. 504
in square 254, to Francis F. Key, Esq., for three hundred
dollars; sales of real property in square 253, countermanded by
said Key; sold personal property,"
&c. The writ was never actually returned, but for the first
time produced by the marshal in court at the trial of this cause.
The sale took place after the return-day mentioned in the writ. The
plaintiff also produced and read in evidence a deed from the
marshal to the plaintiff in ejectment, dated 30 May, 1816, he
having been the highest bidder, by Key, his attorney.
The defendant's counsel prayed the court to instruct the jury
that the lessor of the plaintiff could not recover. The court
refused to give such instruction, but instructed the jury that if
they should be of opinion from the evidence that the writ of
fi. fa. was levied by the marshal upon the property in
question, before the return-day of the writ, it was lawful for him
to sell the same under and by virtue of said writ, and that the
facts respecting the said sale might be proved by parol. To which
instruction the defendant excepted.
The defendant, to show the legal title of the premises to be in
one E. B. Caldwell, and not in the lessor of the plaintiff, gave in
evidence a deed from the defendant in ejectment to said E. B.
Caldwell, made and executed on 23 December, 1811, conveying the
premises to the said E. B. Caldwell, reciting the deeds from Van
Ness, &c., and that it was understood, at the time of making
those deeds, that the property should be absolutely for the sole
use of said Sally Wheaton &c., but it had been apprehended and
suggested, that the said Joseph Wheaton might
Page 17 U. S. 505
have a life estate therein, to carry into effect the original
intent of the conveyances, and for the consideration of five
dollars, paid to him by E. B. Caldwell, the said Joseph Wheaton
conveyed to him all his right, title and interest, in trust for the
use of said Sally Wheaton. Whereupon the court instructed the jury
that if the jury should be of opinion from the evidence that the
said deed was made by the said Joseph Wheaton without a valuable
consideration therefor, or was made by him with intent to defeat
and delay or defraud his creditor, the said Sexton, of his debt
aforesaid, then the said deed was void in law as to the said
Sexton, to which the defendant excepted.
The jury found a verdict, and the court rendered a judgment for
the lessor of the plaintiff. The cause was then brought to this
Court by writ of error. The cause was submitted, without
argument.
JOHNSON, JUSTICE, delivered the opinion of the Court.
The suit below was ejectment, and the defendant in this Court
recovered, under a title derived from a sale by the marshal of this
district. The marshal's deed conveys the life-estate of Wheaton in
the lands in question. And the plaintiff below proved the title in
the defendant's wife, under conveyances executed after marriage.
The defense set up was a conveyance executed by Wheaton to a
trustee, for the sole and separate use of his wife and her heirs,
and the deed purports to have been executed in consideration of,
and to carry into
Page 17 U. S. 506
effect an original intention in the parties, that the
conveyances to his wife should inure to the same uses, although the
conveyances in law operate otherwise. But there is no other
evidence of this fact than what is contained in the deed, and it
was executed but two days before the judgment.
At the trial, two bills of exception were taken, the first of
which brings up the question whether a sale by the marshal, after
the return day of the writ, was legal. The court charged that it
was, provided the levy was made before the return day. And on this
point the Court can only express its surprise that any doubt could
be entertained. The court below was unquestionably right in this
instruction. The purchaser depends on the judgment, the levy and
the deed. All other questions are between the parties to the
judgment and the marshal. Whether the marshal sells before or after
the return, whether he makes a correct return or any return at all
to the writ, is immaterial to the purchaser provided the writ was
duly issued and the levy made before the return.
The second bill of exception brings up the question whether the
deed to Caldwell in trust for Mrs. Wheaton was not fraudulent and
void as against creditors. In ordinary cases, a voluntary
conveyance of a man to the use of his wife, when circumstanced as
Wheaton was, would unquestionably be void. But it is contended that
in this instance, a court of equity would have decreed Wheaton to
make the conveyance he did execute, and therefore it was not a
voluntary conveyance. That there are cases in
Page 17 U. S. 507
which the court would lend its aid to protect the acquisitions
of a wife from the creditors of a husband, may well be admitted,
but on this case it is enough to observe that if the husband may,
upon his own recital, make out such a case, there would no longer
exist any difficulty in evading the rights of creditors.
Yet this Court is not satisfied that the court below has given
an instruction that comports with the law of the case. The
instruction of the court, given on motion of the plaintiff below,
is that the deed was void in law
"if it was made by the said Joseph Wheaton without a valuable
consideration therefor, or was made by him with intent to defeat,
delay or defraud his creditors."
Had the conjunction "and" been substituted in this instruction
for "or," it would have been entirely unimpeachable; but as it now
reads, it must mean that even had a valuable consideration been
paid, if the deed was made with intent to defeat creditors, it was
void. We know of no law which avoids a deed where a valuable (by
which, to a general intent must also be understood adequate)
consideration is paid and the change of property be
bona
fide or such as it professes to be. Of such a contract it
cannot be predicated that it is with intent to defeat or defraud
creditors, since, although the property itself no longer remains
subject to the judgment, a substitute is furnished by which that
judgment may be satisfied. Nor is it any impeachment of such a deed
that it is made to the use of the family of the maker. The trustee
in that case becomes the benefactor, and not the husband. It is
Page 17 U. S. 508
not a provision made by him for his family, but by another.
Although, from anything that appears in this cause, this Court
can see no ground on which the jury could have found otherwise than
it did, yet if the instruction was erroneous and to the prejudice
of the defendant below, as this Court cannot estimate its influence
on the minds of the jury, the judgment must be reversed.
Judgment reversed.
