Jackson, ex dem. Cary against Parker

Jackson, ex dem. Cary against Parker. NEW YORK, May, 1828. One who is in possession of land, under a contract of purchase, has a real estate in the land, within the statute, (1 R. L. 500,) which is bound by a judgment in a court of record. And therefore if he assign his interest and possession after judgment, tho’ before a fi. fa. levied, yet the lien of the judgment continuing, his interest may be sold upon the execution. The-docketing » of the judg- ment is notice to. the purchaser, as in other cases. A sale of, land by one indebted at the time, in consideration of supporting his family, is fraudulent and void as to creditors; and if a jury find the sale valid as to creditors, a new trial will be granted. Ejectment for land in Genesee, tried at the circuit in that county, July 6th, 1826, before Birdsall, C. Judge, when the case was as follows: • On the 4th day of June, 1819, one Jeremiah Parker, father of the defendant, contracted with the Holland Land Company, for the purchase of the premises in question, and entered into a written agreement, by which J. Parker agreed to pay them $175, the amount due them, in six equal annual instalments, as the consideration money;, (part having been paid under a previous article;) and the company agreed, that on payment of the money in the manner and at the times' specified, they would convey to him, or such person as he should appoint. But if he should fail to make the payments as stipulated, the covenant to convey should be void. On the 20th June, 1820, Trumbull Carey and William Davis recovered judgment in the Genesee G. P. against Jeremiah Parker, for $195 25J on which a_/?./«. Was issued, and delivered-to the sheriff on the 5th of May, 1821, seven days previous to which, to wit, on the 28th of April, 1821, Jeremiah Parker, by a written assignment, for the consideration expressed to be $1000, sold and transferred all his right and title in the article above mentioned to his son Albert Parker, the defendant. On the 21st of June, 1821, the sheriff sold the premises on the execution against Jeremiah Parker, and the lessor of the plaintiff became the purchaser, and received a deed from the sheriff, May 25th, 1825. At time of docketing the judgment, and at the time of the sale to his son, Jeremiah Parker was in possession, claiming *title under the above contract, which was the last of several that he had held for the same premises, he having been in, possession altogether about 16 years. When this suit was commenced, the defendant was in possession, and had been for two years. The plaintiff objected to reading in evidence the assignment to the son, on the ground that it wag executed after docketing the judgment in favor of Carey and Davis, tinder which the plaintiff made title; but the judge decided that the possessory interest of J. Parker Was not bound by the docketing of the judgment, but by the delivery of the execution to the sheriff. The plaintiff excepted. An objection was made by the plaintiff’s counsel, that, by the assignment, no interest passed in the land, but in the contract only; The judge decided that the assignment and possession under it, transferred all J. Parker’s interest, as well in the land as the article« The plaintiff excepted. • The defendant -then proved that though nothing was paid by him for the farm, yet he was to support the family of his father. That Jeremiah Parker, the father, was very intemperate; that the defendant was of age, and had left home, but returned when the assignment was given, and had supported the family ever since. Jeremiah was sent' to the state prison-soon after the assignment, and had just been pardoned. That $1000, with what was due at the land office, were the full value of the farm. The fact of the defendant’s support of the family was proved by his mother, who was objected to as incompetent, and the testimony was also objected to as proving a consideration different from that expressed in the assignment. The judge admitted the testimony, on the ground that it Was only showing the manner of payment of the consideration expressed. It was in evidence that- Carey and Davis had a large demand against J. Parker, which was known to the defendant; and some expressions of his were proved, to show an intent to defeat them in the collection of their debt. The plaintiff’s counsel contended, that as the conveyance was from the father to son, and confessedly for the support of *the family, the assignment was fraudulent in law, and void as against creditors. The judge charged the jury, that the judgment was not a lien on J. Parker’s interest in the land. That at the time of the assignment he had a right to sell it bona fide, and apply the money to the support of his family ; and that the defendant might, therefore, agree to p°ay in supporting the family. That the defendant’s knowledge of the existence of the judgment did not, of itself, render the assignment fraudulent; but that this, together with the relation existing between the father and son, were circumstances of suspicion, and required them to scan the transaction critically. That if they found the object of the assignment was that the defendant should become the owner of the property, and support the father’s family to the amount of the consideration, aside from any purpose of defeating the collection of Cary and Davis’s judgment, and other creditors, then it was valid, and the plaintiff must fail. The jury found for the defendant. Talcott, (attorney general,) for the plaintiff now moved for a new trial. He said that when the judgment of Cary and Davis was docketed, Jeremiah Parker had an interest *n PIehdses, subject to be sold on an execution. True, a mere equitable interest cannot be sold on execution ; but if connected with the possession of the land, the legal interest, of which the possession is evidence, may be sold This is the very language of the court in Jackson v. Scott, (18 John. 98,) and it meets this case exactly. Howard v. Easton (7 John. 205,) is cited, which held that possession is of itself an interest in land, within the statute of frauds. Such being the rule in respect to Jeremiah Parker’s rights, when the judgment was obtained, his son and assignee, who comes in under his father, can no more raise an objection against its application, than the assignor himself. The assignee takes cum onere in all cases. The interest of J. Parker was not chattel property in any view. It would, on his death, have descended to his heir. (Com. Dig. Chancery, (2 C. 1.) Edwards v. Countess of Warwick, 2 P. Wms. 171, 175, 6.) And the only way to apply it to the payment of his debts would.*be either by action against the heir, or by a surrogate’s sale on the petition of the personal representative. The act concerning judgments and executions (1 R. L. 500, §. 1,) makes all judgments of a court of record a lien on the debtor’s lands, tenements and real estate. If it be objected that the execution is by the same statute, (1 R. L. 502, 3,) to command a levy on lands or tenements of which the debtor is seised, we answer, the term seised is broad enough to comprehend an equitable as well as a legal seisin;- and such was its object, and such has been its construction. (Waters v. Stewart, 1 Cain. Cas. Err. 66. Jackson v. Town, 4 Cowen, 631.) • Thus, - if the sale to the son was not fraudulent, yet the interest was bound. But the sale was fraudulent in law as against all antecedent creditors; and fraudulent in fact, as against Cary and Davis. The matter should not have been put to the jury . as a naked question of fact. There is no need of direct proof and actual intent. Under the circumstances of this case, the fraud cannot be gainsaid. It is a prcesumptio juris et de jure. Nothing was paid. It was a voluntary conveyance. (Bennett v. The Bedford Bank, 11 Mass. Rep. 421. Sexton v. Wheaton, 8 Wheat. 229. Reade v. Livingston, 3 John. Ch. Rep. 481.) But if the question was properly put to the jury, they erred in finding against the fraud. The judge erred in admitting evidence to show that the consideration of the assignment was not money as expressed in it, but the future support of the family. F. M. Haight & H. Bleecker, contra. Jeremiah Parker, the father, never had any interest in the land which was the subject of sale under an execution at law, except the possession: and no lien on that interest could be created except by actual levy under an execution during the existence of the possession. It was held, In the matter of Merry v. Hallet, (2 Cowen, 497,) in which the court followed Vredenburgh v. Morris, (1 John. Cas. 223,) that a judgment is not a lien on a term for years, a chattel real; and will it be pretended that a possession of Jeremiah Parker was a higher interest! Jackson v. Town (4 Cowen, 631,) does not impugn the doctrine *of Merry v. Hallet. Seisin of some sort, which can be said of freehold only, must be shown in the defendant, at the time of the judgment, in order to make that a lien. ■ With this accords the form of the execution. An equitable seisin can not existan any one who does not own the whole equitable interest. Here was no pretence of seisin, by right or wrong, in Jeremiah Parker, but a mere naked possession in subordination to the right owner. (Taylor v. Horde, 1 Burr. 60.) No person conld be seised here, except the Holland Company, who had merely agreed to give a deed; but had in fact conveyed nothing in the land. Here was no such technical trust in Jeremiah Parker, as is subjected to execution within the statute, (sess. 10, ch. 37, § 4, 1 R. L. 74;) but the most that can be pretended is a mere inchoate equitable interest, which an execution cannot pass, of which a court at law knows nothing, and which it can not protect or enforce. (Bogart v. Perry and others, 1 John. Ch. Rep. 52. 17 John. Rep. 351, S. C. on appeal.) This case is lull upon the point; and was decided by our court of dernier irue, possession is prima facie evidence of a legal title; yet when the extent, the nature, the character 01 the possession is ascertained, it can. be evidence of no greater right than in fact exists. If Jeremiah Parker was not seised, it follows that he had no other than a chattel interest, which could not be bound by the judgment, but only by execution. In Jackson v. Town, a mere abandonment of the possession by the judgment debtor, was held to destroy the seisin and prevent the effect of the judgment asa lien. Can it be, that not only an abandonment of possession, but actual transfer of the right, shall have a less effect here in respect to the judgment and execution ? Certainly not in respect to the judgment, unless there was' a seisin by which the defendant must be bound as an assignee, claiming -under his father as an assignor. Jackson v. Scott (18 John. 64,) cited on the ether side, establishes nothing incompatible with the previous case of Bogart v. Perry; but that case is referred to and its doctrines expressly recognized in Jackson v. Scott; and the two cases, whenproperly understood, will be found to harmonize ^perfectly. In the latter, the transfer was voluntary and fraudulent as to creditors. It was therefore void, and the-possession never changed. Every thing in that respect remained in statu quo. Though actual possession was changed, yet the assignee held for the assignor, whose seisin continued. Howard v. Easton, (7 John. 205,) cited against us, was a case upon the statute of frauds. That statute applies to all interests in the land, or real estate, whether freehold or less, and is therefore much more extensive than the' statute declaring the nature of the interest upon which a judgment shall operate as a lien. No doubt the former statute applies to chattels real; the latter we have seen reaches freehold only 1 We ask again, how is Jeremiah Parker’s interest to be made the’subject of seisin? He was under a contract not paid up. He was a mere vendee, under an executory contract, or covenant of sale. What right can be acquired in such an interest at sheriff’s sale ? Does the purchaser be (come substituted for the vendee under the contract? No. If any thing be settled, it is, that a mere equitable interest cannot be the subject of a lien or sale by a judgment or execution. What can be sold? The possession only. That is gone when the execution comes, and there never was any seisin. What then was there left for this sale under execution to operate upon? Is there a third estate neither freehold nor chattel, a sort of tertium quid, which was bound by this judgment. We admit that we are left in some confusion on this question by the books, owing to such an estate being there recognized ; a union of the possession with an equitable estate. When fairly considered, however, we do not come within them. There is no such thing here. The idea must be totally discarded in considering this case. The possession being gone, when the execution came, all that remained was a mere naked chose in action. Nothing hut the actual possession could ever have been sold; and then the sheriff’s vendee might have been removed by the real owners at any moment. He never could even call for and enforce a conveyance. It is said, the interest of Jeremiah Parker was descendable to his heirs. The argument would be true in a court of *equity; and the authorities cited in support of the position, sustain it as to that court only. They furnish no test in a court of law, where, it should be remembered, we stand. If we are correct as to the nature of Jeremiah Parker’s estate, then fraud cannot be predicated of it. The actual change of possession, from whatever motive, turned his interest into a naked chose in action, and nothing was left for the judgment or execution to operate upon. But if we are mistaken in this view of the question upon the fraud, then we say that question was disposed of by the jury. The notion of fraud in law, advanced in Reed v. Livingston, (3 John. Ch. Rep. 481,) and iterated in Jackson v. Seward, (5 Cowen, 67,) is now exploded by the decision of the court of errors in the latter case, who held that fraud is a proper question for the jury, on which their finding must be conclusive (Hinde’s Lessee v. Longworth, 11 Wheat. 213, S. P.) Though no money was actually paid, yet the son was liable on his promise to support the family; and an action would have lain on his promise, though the deed acknowledged a payment in full. (Shepherd v. Little, 14 John. 210. Bowen v. Bell, 20 John. 338.) By what means the payment should be made, was a matter between the father and son. But if there was a want of consideration, this was only a badge of fraud, and the finding of the jury must conclude. (11 Wheat. 213.) Talcot, (Attorney-General,) in reply. The principle decided here in Jackson v. Seward, was affirmed by the court of errors. The judgment of this court was not reversed upon the point of fraud in law. That principle was held inapplicable to the case. An adequate consideration was paid or secured, and the jury had passed upon the question of fraud in fact, which the constitution of that court forbade them to interfere with on error. This court can act upon the evidence. In the view which the chancellor took of Jackson v. Seward, when it came before the court of errors, there was nc evidence of fraud, either in law or fact. The special verdict was defective, and nothing was before the court upon *which they could act, though it was otherwise with the supreme court when the case was before them on a motion for a new trial, or for judgment on the case. Jackson v. Scott, cited at the commencement of the argument, shows abundantly, that a judgment is a lien on an interest under a contract to purchase when coupled with the possession. The assignment and change of possession in that case were intermediate the judgment and the execution. That does not vary the principle. Some estate of the predecessor must have been sold and passed upon the execution, or the purchaser could not have recovered possession. The judgment must have been a lien. Jackson v. Graham, (3 Caines, 188,) is that the purchaser of a defendant’s interest at sheriffs sale comes into the defendant’s place, acquires his rights, and becomes subject to his liabilities; and it is not for the real owner to question the change of possession, as between the judgment debtor and purchaser. The purchaser cannot set up any defence against the owner beyond what the debtor could have done. If there be an equitable estate in the debtor, that may be sold. It is said there can be no lien by judgment except on a freehold estate. But what is a freehold ? It may be a life estate, or any uncertain estate in lands or tenements. If there be such an estate as would descend to the heir, is it not a freehold estate ? There need not be, as supposed on the other side, a seisin of the whole beneficial interest, to constitute a freehold. A seisin for life only makes a freehold, yet there is a lien in such case, by judgment against the tenant for life. The alleged seisin of the Holland Company in this case, has certainly no existence, any more than the seisin of the state in Jackson v. Scott. Seward v. Jackson, 8 Cowen, 407 [MAJORITY — Curia, per Savage, Ch. J.] Curia, per Savage, Ch. J. Two interesting questions arise out of this case, which I shall briefly discuss in the order in which they present themselves. They are, 1. Had Jeremiah Parker an interest in the land upon which the lien of the judgment could attach? 2. Was the assignment fraudulent? 1. By our statute, the lands, tenements and real estate of every defendant in a judgment obtained in a court of record, *are liable to be sold; and such judgment is a lien upon them. (1 R. L. 500.) Were the premises in question the real estate of Jeremiah Parker by virtue of the contract ? The term estate is very comprehensive, and signifies the quantity of interest which a person has, from absolute ownership down to naked possession. It is the possession of lands which renders them valuable, and the quantity of interest is determined by the duration and extent of the right of possession. Real estate, therefore, includes •every possible interest in lands, except a mere chattel interest. The possession of lands is an interest which may be sold On an execution against the possessor; (3 Caines, 189; 16 John. 192;) and in an action of ejectment against such possessor, he cannot- show title in another. (3 Caines, 189.) The estate which is the subject of a sale in execution must be a legal estate. A judgment at law is- not a lien on a mere equitable interest in land: and the execution under it will not pass an interest which a court of law cannot protect and enforce. There must he either an interest known and recognized at law, or an equitable title within the purview of the statute of uses. (1 John. Ch. Rep. 56, 7.) If the naked possession of land is such an estate, upon which the lien of a judgment will attach, surely the possession, coupled with a right to that possession, being a greater estate and a legal estate, may also be. bound by a judgment- A more equity indeed cannot be sold; (5 Cowen, 485;) but an equitable interest, coupled with the possession, may be sold on execution. Thus the interest of the mortgagor or mortgagee in possession,, is bound by a judgment, and may be sold: but out of possession, neither has an interest upon which the lien of. a judgment can. attach. In the case of Jackson v. Scott, (18 John. 94,) it was decided that a person in the possession of land under a contract for the purchase and sale of it, has an interest in the land which may be sold on execution. That case was much like the present; and I think the two are not distinguishable unless upon the ground of fraud. In that case the facts were the following: in the spring of 1817, the title was in the people of the *state. The premises were sold by the surveyor general to Elijah Scott-, and a. certificate was given, him by which he would be entitled to a ¡latent on complying with the conditions of sale, A judgment had been docketed against. Scott, before this, purchase from the state. In August, 1817, Scott assigned the certificate to the defendant who. was his son-in-law, who went into possession of the premises. In May, 1818, an execution was issued on the judgment against E. Scott, and the premises sold, and the purchaser at sheriff’s sale brought ejectment. . Spencer, Ch. Justice, says the only question is, whether, as E. Scott had only the possession of the premises, with a contract from the surveyor general entitling him to a conveyance on the payment of certain sums of money which yet remain due, he had such an interest as might be levied on and sold on execution.- He adds,'that whether E. Scott was seised or not, was not the subject of inquiry ; for if not seised, he had a chattel interest liable to- be sold1. In that; case, the transfer was fraudulent; so. that the court seem to have put it. on the same ground as if E. Scott had been in possession. The chief justice then says, we have decided that a mere equitable interest cannot be sold on execution; but if connected with the possession of the land, the legal interest, of which possession is evidence, may be sold. The 7th John. 206, is referred to for this principle ;. but the decision there was under the statute of frauds. It was there held, that an agreement to sell and deliver possession of lands must be in writing ; arid possession must be considered an interest in land, within the meaning of that statute. In Jackson v. Scott, the chief justice says, “ The purchaser acquires all the debtor’s legal rights; and possession is a legal right.” It becomes a different question, he says, whether a court of equity will enforce an equitable interest which the debtor had in the land at the. instance of the purchaser.. This remark probably had relation to the case of Bogart v. Perry, (1 John. Ch. Rep. 52, and 17 John. 351, on appeal,) in which the chief justice had shortly before delivered the unanimous opinion of the court of errors, affirming the decree-of the chancellor. That case was as follows: Atkinson being the owner of a lot of land, contracted with Birdsall to sell *him 296 acres for a certain price, part of which was paid, and Birdsall took possession. Birdsall contracted with Smith to sell him 200 acres out of the 296. Smith was to pay the balance due to Atkinson on Birdsall’s contract. He (Smith) took possession of the 200 acres, and made large improvements, and erected buildings. While he was in possession under the contract, Harrison recovered a judgment against him, which was docketed on the 19th of October, 1808. In May or June, 1809, Smith contracted to sell the 200 acres to Perry. Perry also purchased of Birdsall his part of the contract, being 96 acres. He paid Atkinson what was due, and surrendered up the contract and took a deed for the whole, the legal title never having passed out of Atkinson. While the possession remained in Smith, and before he sold to Perry, an execution was issued on Harrison’s judgment, and Smith’s interest sold by Birdsall, who was sheriff of Seneca county, and purchased by the plaintiff Bogart, for $30. Bogart tendered to Perry the money and interest which he paid to Atkinson, and' demanded a deed. Perry afterwards sold to Van Tuyl, to whom Bogart made a like tender and demand. Notice to Perry and VanTuyl was charged in the bill. The chancellor says Smith had no interest in the land on which the judgment could attach, or the execution operate. There had been a default in payment to Atkinson; and it is not certain that Birdsall or his assignee (Smith) would have been entitled to a specific performance of the contract. But the mere right in equity that Smith, as assignee of Birdsall, might have had against Atkinson under the contract, was not the subject of a judgment and execution as “ real estate.” The chancellor thought the case different from that of a mortgagor in possession. When the cause came before the court for the correction of errors, Chief Justice Spencer says, the single question in this case is, whether Smith had such an interest in the land contracted for with Birdsall, and which the latter had contracted for with Atkinson, as was liable to be sold on execution, or as was bound by the judgment in favor of Harrison ? He then proceeds to show that it was not a case in which the cestui que use is considered the real owner, and whose interest may be *sold on an execution. He concludes by saying that Smith never having paid Atkinson the money due him, had but a mere equity in the lands, which could not be reached by execution. This case was decided in March, 1819, on appeal; and the case of Jackson v. Scott was decided in May, 1820; and the learned chief justice who delivers the opinion in both, understood the two cases not to be at variance, and evidently, in the last case, considered the question in the first to be, whether a court of equity would enforce an equity in favor of Smith at the instance of Bogart, á purchaser of Smith’s equity at sheriff’s sale. If, however, the court in Jackson v. Scott were correct in saying that the interest of Scott under the surveyor general’s contract might be sold, it must be incorrect to say that Smith’s interest while he was in possession, was not also the subject of a sale. The only difference is, that Scott had contracted with the state, and Smith had, through Birdsall, contracted with Atkinson. In both cases the owner retained the fee, and the defendant in the judgment had the possession, and an equitable claim to the legal title on performing certain conditions. I prefer following the case of Jackson v. Scott, because it is in this court. Bogart v. Perry was in chancery. Had Jeremiah Parker remained in possession till this suit was brought, there could be no doubt. The case then would be exactly the case of Jackson v. Graham, (3 Caines, 188.) Where the defendant in the execution, says Mr. Justice Woodworth, (Jackson v. Town, 4 Cowen, 602,) is the possessor, it is of itself sufficient; for actual possession is prima facie evidence of a legal title. He cannot show title in another; for the plaintiff comes into exactly such estate as the debtor had; and if it was a tenancy, the plaintiff will be a tenant also, and estopped in a suit by the landlord from disputing his right in the same manner as the original tenant. In the case then before the court, Eleanor Town, the defendant in the execution, had left the possession of the premises several years before the judgment against her, and had conveyed to her daughter before the cause <d action accrued against herself; and no title but possession had been shown. Speaking of the plaintiff’s deed under the sheriff’s *sale, the judge remarks, “ His deed is necessarily inoperative unléss the judgment was a lien; and that can not be unless there is a legal or equitable seisin. E. Town having neither, nothing could pass by the sale to the plaintiff.” My conclusion upon this part of the case is, that possession being an interest in lands, a judgment becomes a lien upon it, and it may be sold upon execution,, and that the defendant himself may be turned out in action of ejectment, and it seems to follow that the possession may be recovered of any one who takes that possession with notice of the judgment. The assignee, with notice, stands equally in the character of quasi tenant with the original defendant. But if the possession under contract is such an estate that a judgment becomes a lien, it is immaterial whether the assignee had actual notice or not; the docketing of the judgment is of itself notice. The interest of the party in possession is not a mere equity, like the interest of a. mortgagor out of possession. The landlord cannot be injured ; for whoever is the possessor, the landlord’s rights are the same; and it. is equal to him whether a third person is assignee of the contract, by an instrument under seal, or by operation of law. 3. But the consideration of the second point may relieve this case from all embarrassment. Was the assignment fraudulent either in fact or in law? So far as the defendant, Albert Parker, was influenced by motives of filial duty in undertaking to support the family of his profligate father, he should be commended; but if one object was, as some ot the witnesses stated, to prevent Cary and Davis from taking his father’s farm in satisfaction of their honest demand, such object is fraudulent. But it is perhaps un- • i *i /* t n ■ necessary to impugn the motives of the defendant. It the J f , . , , , . - object was purely to support his mother and the lamuy, and that was to be done by means of his father’s property, which his creditors had a right to have appropriated to the payment of his debts, then the assignment was fraudulent in law. Had the father continued in possession, it is, clear from the cases of Jackson v. Graham and Jackson y. Scott, that the plaintiff must have recovered it. It has been decided that a *failing debtor may prefer one creditor, or set of ereditors by an assignment of his property; but if, in that assignment, a provision is made for the debtor or his family, the whole assignment is void. (Mackie v. Cairns, 5 Cowen, 54.) It is in evidence that both the Parkers knew of this debt and spoke of it; and of their determination that the creditors should not have the farm; and as no other consideration is pretended hut the support of the family, it seems to me the assignment is fraudulent and void as to creditors. If I am correct in this position, then the case is precisely within that of Jackson v. Scott, and the plaintiff is entitled to recover. I am of opinion that a new trial must be granted, with costs-to abide the event. New trial granted. Griffin v. Spencer, 6 Hill, 525. Talbot v. Chamberlain, 3 Page 219. Grosvenor v. Allen, 9 id. 74. Kellogg v. Kellogg, 6 Barb. 117. See also, 2 R. S. 4th ed. 153, § 4. The only remedy of the creditor to reach the interest of the- debtor in a contract for the' purchase of land, is by filing a bill in equity, after he has-exhausted his remedy at law, for the recovery of the debt by the return of an execution unsatisfied. Grosvenor v. Allen, 9 Page 74. Although it: has been held (Jackson v. Scott, 18 John. 94. Jackson v. Pacher, supra,)’ that a person iri póssession under a contract for the pur* tihase of land, had a.real estate bound by judgment and liable to be sold on execution. It was an equitable interest, coupled with possession. But the words of the Bevised Statutes (2 R. S. 4th ed. 153, § 4,) are broad enough to reach that case; and it could not probably be withdrawn from the statute, and those former decisions restored, unless the possession rested upon somd ‘ specific agreement, for a limited time, giving to the possession the inte» rest and character of a chattel real. ,See 4 Kent, † 437, note a.