Gillan v. Metcalf

Murray, C. J., after stating the facts, delivered the opinion of the Court.—Burnett, J., concurring.

The finding is not sufficient to support the judgment. The first section of the “ Act concerning Fraudulent Conveyances and [139]Contracts,” passed April 19, 1850, provides that, “ Every conveyance of any estate, or interest in lands, and every charge upon lands, or the rents and profits thereof, ¡made or created with the intent to defraud prior or subsequent purchasers, for a valuable consideration, of the same lands, rents, or profits, as against such purchasers, shall be void.”

It will be observed, that this section provides that such conveyance must be made with the intent to defraud prior or subsequent purchasers. By the twenty-third section of the same act, it is provided, “ that the question of fraudulent intent, in all cases arising under this act, shall be deemed a question of fact, and not of law; nor shall any conveyance or charge be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration."

The finding of the Court that “ the sale was not made in good faith, and was without consideration,” is not sufficient to bring it within the statute, so as to enable the defendants to attack it. The sale would have been good between the parties, without any consideration whatever. So far as the question of good faith is concerned, we are at a loss to understand the exact meaning of the Court. If it was intended that the want of a consideration stamped the instrument as having been executed mala fide, it was error, unless it was shown that the instrument was intended to affect creditors or purchasers, and this fraudulent intent should have been found as a fact, by the Court.

There is no conclusion of fraud, springing from a want of a consideration, in a deed, which will enable a stranger to attack it; and although it is a circumstance, among others, from which fraud may be inferred, still the party must bring himself within the statute. From this, it results, that this Court having failed to find the fact of a fraudulent intent, the decree is erroneous, and must be reversed.