Question as to the sufficiency of a certificate of
acknowledgement of a deed at lands in Ohio.
In examining the admissibility of testimony in the court above,
the party excepting is to be confined to the specific objection
taken at the trial.
Where a voluntary deed is impeached as fraudulent, evidence of
judgments against the grantor is admissible as proof (among other
facts) that he was indebted at the time of making the deed,
although the grantee was not a party to the suits on which the
judgments were obtained.
A voluntary deed is void only as to antecedent and not as to
subsequent creditors. But when the record of a judgment obtained a
short time after the data of such conveyance appears to be founded
on accounts exhibiting a prior indebtedness, it is competent
evidence to be left to the jury to establish the fact that the
grantor was indebted at the date of the deed.
A deed from a parent to a child for the consideration of love
and affection is not absolutely void as against creditors; it maybe
so under certain circumstances, but the mere fact of being in debt
to a small amount would not make the deed fraudulent if it could be
shown that the grantor was in prosperous circumstances and
unembarrassed, and that the gift to the child was a reasonable
provision, according to his estate and condition in life, and
leaving enough for the payment of the debts of the grantor. The
want of a valuable consideration may be a badge of fraud, but it is
only presumptive, and not conclusive evidence of it, and may be met
and rebutted by evidence on the other side, and where the deed to
the child is expressed to be for the consideration of love and
affection, evidence to show that the father was indebted at the
time to the child, to an amount equal to the value of the property
conveyed to him, is competent to go to the jury to repel the
presumption of fraud.
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 28 March, 1799, Thomas Doyle, Sr.,
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
Page 24 U. S. 200
Doyle, Sr., 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, Sr.,
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
Page 24 U. S. 201
by virtue of which Doyle the younger became seized 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, and the other in favor of Edward Shoemaker, at the
October term, 1800, of the same court for $590. 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, Jr., 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
Page 24 U. S. 202
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
Page 24 U. S. 205
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The premises in question in this cause, are described as in lot
No. 107 in the Town of Cincinnati, and it is admitted on the record
that on 28 March, 1799, Thomas Doyle, Sr., was seized and in
possession of this lot. Both
Page 24 U. S. 206
parties derive title under him. The lessor of the plaintiff
claims under a deed of the date above-mentioned, from Thomas Doyle,
Sr., to his son Thomas. And the defendant sets up a title under a
judgment against Doyle the elder, in favor 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 seized 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
Page 24 U. S. 207
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
Page 24 U. S. 208
above written."
A seal is affixed to the deed, but no signature.
The certificate is insufficient unless it contains enough to
show with all reasonable certainty that, in point of fact, Thomas
Doyle did appear before the officer and acknowledge the deed. And
this, we think, it does not show. It does not even state expressly,
that Thomas Doyle appeared before the officer; but if that is to be
inferred, the purpose for which he appeared is not stated, as that
nothing can be inferred from the mere fact of appearance. It does
not set forth that he in point of fact did acknowledge the deed, or
did anyone act that might by possibility be construed into an
acknowledgment. The certificate does state that the wife did
acknowledge the deed, which, if true, necessarily implies, that she
appeared before the magistrate, although that fact is not stated.
The form of the certificate is adapted to the acknowledgment of the
wife. It states, that being examined separate and apart, she
acknowledged the deed to be her hand and seal, free act and deed.
The relinquishment of dower, and the affixing of the seal, show
that she was intended to be made a party; and if the court was at
liberty to conjecture, or indulge any intendment about the real
fact, it would be as reasonable, if not more so, to infer that the
wife did appear, and make the acknowledgment certified, and by
mistake omitted to sign the deed, than that the husband
acknowledged it. But the certificate of acknowledgment ought not to
be left in such uncertainty. It is
ex parte proof
Page 24 U. S. 209
of the deed, and it ought to appear with all reasonable
certainty, that the requisites of the law had been complied with.
The deed was therefore, properly rejected in the first
instance.
2. The second bill of exceptions necessarily presupposes that
the deed was in evidence before the jury. For it states that the
defendant, in order to prove that the deed was made with intent to
defraud creditors, and therefore void, having read some depositions
to prove that fact, offered in evidence the records of two
judgments recovered against Doyle the elder; one in favor of John
Graff, on the first Tuesday in August, 1799, for upwards of $900,
and the other in favor of Edward Shoemaker, in October term,
$1,800, for about $500. To the admission of which the plaintiff's
counsel objected as incompetent evidence, on the ground that these
were proceedings
inter alios, to which Doyle the younger
was in nowise a party. The objection was overruled and the evidence
admitted.
It will be perceived that the objection to the evidence was
specifically placed on the ground, that Doyle the younger was not a
party to the judgments. And it may well be questioned whether, when
the purpose for which the evidence is offered is specifically
avowed, the court will look at it in any other point of view or
inquire whether it might not be proper for some other purpose. As a
general rule, we think, the party ought to be confined, in
examining the admissibility
Page 24 U. S. 210
of evidence, to the specific objection taken to it. The
attention of the court is called to the testimony in that point of
view only, and, to admit an inquiry afterwards, whether the
evidence might not have been admissible for some other purpose,
would be sanctioning a course of practice calculated to
mislead.
It is unnecessary, however, in this case to put the question on
that ground, for the evidence was admissible in whatever light the
objection is taken.
The consideration expressed in the deed from Doyle the elder to
his son is natural love and affection, and the judgments were
introduced to show that the grantor was in debt at the time of
giving the deed, which, as was contended, would render it void as
against creditors. This was therefore necessarily an inquiry into
matters to which the grantee in the deed was not a party. It was
certainly competent for the defendant to show that the grantor was
indebted at the time he made the conveyance; this was a necessary
step towards establishing the fraud, and if these judgments
conduced to prove that fact, they could not be shut out as
incompetent evidence. The extent and effect of the evidence was
matter for the jury. If the evidence ought to have been excluded
because Doyle the younger was not a party to the judgments, the
same objection would have lain against the proof of his being in
debt to others in any manner whatever; that would have been equally
an inquiry into matters to which the grantee in the deed was not a
party.
Page 24 U. S. 211
There was therefore no objection to the evidence on this
ground.
The judgments appear to have been entered some short time after
the date of the deed, and it is said that a voluntary deed is void
only as to antecedent, and not subsequent creditors, unless made
with a fraudulent intent, and this appears to be the doctrine of
this Court as laid down in
Sexton v.
Wheat., 8 Wheat. 242, after a review of the leading
authorities on this question. But copies of the accounts upon which
the judgments were founded, are spread upon the record, by which it
appears, that the cause of action arose before the date of the
deed. If these accounts did not properly form a part of the record,
according to the course and practice of the court where the
judgments were entered, a specific objection should have been made
to their being received in evidence, which would have led to the
inquiry whether they properly formed a part of the record; but as
the question is now presented to this Court, we cannot say that
these accounts are to be stricken out of the record. They may be
looked to for the purpose of showing that Doyle the elder was in
debt at the date of the deed; but whether to an extent which would
avoid the deed must depend on circumstances which are not to be
inquired into by this Court. There was no error, therefore, in the
admission of this evidence.
3. The third exception arises on the rejection of certain
depositions offered in evidence on the part of the plaintiff. The
introductory part of
Page 24 U. S. 212
the bill of exceptions sets out
"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 that he had an intention to defraud creditors
by making the said deed, but to prove that Doyle the younger was
the creditor of his father, the evidence was offered."
The concluding part of the bill of exceptions alleges that the
depositions were offered to rebut the evidence of fraud in fact,
and the evidence of a fraudulent intent in the grantor, Doyle the
elder. But the court declared its opinion to be that the last
mentioned evidence, offered for rebutting the charge of fraud, was
inadmissible, and rejected the whole of the said evidence so
offered.
Looking, then, as we must, to the whole bill of exceptions to
collect its true meaning and import, we must understand the
evidence to have been offered for the double purpose of showing
that Doyle the younger was a creditor of his father and that by
reason thereof, although the consideration in the deed purported to
be natural love and affection, it could not be considered as given
with intention to defraud creditors, and also to rebut the evidence
of fraud in fact and to show the character and situation of Doyle
the elder in point of property at the time he executed the deed in
question.
If the testimony offered was admissible for either of the
purposes above stated, the court erred in rejecting it.
Page 24 U. S. 213
That the evidence was proper for the latter purpose cannot be
questioned. The charge against the grantor was that he was guilty
of fraud in fact in making the deed to his son, that it was done
for the express purpose of defrauding his creditors, and it was
proper evidence, therefore, to rebut this allegation to show that
the grantor had the means of paying his debts independent of the
property conveyed to his son. Whether the evidence would have made
out that fact to the satisfaction of the jury is not for this Court
to inquire. If it conduced to make out that fact, it should have
been submitted to the consideration of the jury. A deed from a
parent to a child for the consideration of love and affection is
not absolutely void as against creditors. It may be so under
certain circumstances, but the mere fact of being in debt to a
small amount would not make the deed fraudulent if it could be
shown that the grantor was in prosperous circumstances and
unembarrassed and that the gift to the child was a reasonable
provision according to his state and condition in life, and leaving
enough for the payment of the debts of the grantor. The want of a
valuable consideration may be a badge of fraud, but it is only
presumptive, and not conclusive evidence of it, and may be met and
rebutted by evidence on the other side. The evidence offered to
show that Doyle the elder was indebted to his son to an amount
equal to the value of the property conveyed to him was declared
also to be for the purpose of repelling the presumption
Page 24 U. S. 214
of fraud in fact and to show that there could have been no such
intention to defraud his creditors by putting his property out of
their reach without receiving any real and adequate consideration
for it. Doyle the elder might have sold the land to his son or to a
stranger for a valuable consideration and given a good title for
the same, although his debts might have been double in amount to
the value of his property, unless his creditors had acquired a lien
upon it. It would have been no fraud in judgment of law against his
creditors for him to have paid one and left the others unpaid. Had
the evidence been offered for the purpose of showing that the deed
was given for a valuable consideration and in satisfaction of the
debt due from the father to the son, and not for the consideration
of love and affection, as expressed in the deed, it might well be
considered as contradicting the deed. It would then be substituting
a valuable for a good consideration and a violation of the well
settled rule of law that parol evidence is inadmissible to annul or
substantially vary a written agreement.
But that was not the object for which the evidence was offered
or the effect it was intended it should have. It could not in any
respect vary or alter the deed or give to it a different
construction or operation between the parties to it. The defendant
had attempted to invalidate the deed by going into proof of
circumstances out of the instrument itself and unconnected with it,
and which circumstances, it was contended,
Page 24 U. S. 215
showed a fraudulent intention in the grantor in conveying the
lot in question to his son. And the evidence of the father's being
indebted to the son was to meet and repel the presumption of fraud
which was attempted to be raised against the deed by reason of such
extrinsic circumstances. The evidence which has been admitted to
show the fraud, and that which was offered to rebut it related to
collateral and independent facts unconnected with the deed, and
could not therefore in any manner vary or alter its terms.
The third exception was accordingly well taken. The judgment of
the court below must therefore be
Reversed and the cause remanded with directions to issue a
venire de novo.
