assessments levied on them can only be enforced by the sale of their shares. Third. That section 349 does not create, and any personal liability for assesswas not intended to ments, unless from the terms oftha stockholders' subscripFourth. That the remedy tion such liability was of the creditor against the stockholder personally is limited and defined by section 322 of the Code, and his liability cannot be extended beyond the lipritstherein prescribed.
(District Court,D. Maine. December, 1880.)
ST. OF MAINE,
c. 76; §f 17, 18.
The Revised Statutes of the state of Maine (c. 76, §f 17, 18) provide that" a creditor who has received seizin of a levy not recorded, cannot waive it-unless the estate was not the property of the deutor, or not liable to seizure on execution, or cannot be held by the levy, when it may be considered void, and he may resort to any other remedy for the satisfaction of his judgment," and that," when the execution has been recorded, and the estate levied on does not pass by the levy for causes named in the preceding section, the creditor may sue out of the office of the clerk issuing the execution a writ of scire facias, requiring the debtor to show cause why an alias execution should not be issued on the same judgment; and if the debtor, after being duly summoned, does not show sufficient cause, the levy may be set aside, and an alias execution issued for the amount then due on the judgment, unless during its pendency the debtor tenders in court a deed of release of the land levied on, and makes it appear that the land, at the time of the levy, was, and still is, his property, and pays the expenses of the levy, and the taxable costs of suit, and the jUdgment shall be satisfied for the.amount of the levy." Held, under these statuory provisions, that an execution debtor could not set up a conveyance, made prior to a levy, as fraudulent and void, in order to prevent such levy from being set aside and an ahas execution issued.
SAME-RELEASE SUBSEQUENT TO
Held, furth8r, that a subsequent release from the grantee to the grantor of such fraudulent conveyance did not enure to the support of the levy previously made. Freeman v. Thayer, 29 Me. 375.
VNITED STATES V. POOLE.
OF RELEASE OF LAND LEVIED ON-PROOF OF OWNER-
Held,!urther, that the mere tender by the defendant in court of. deed of release of the land levied on, did not amount to proof of the fact .. that the land, at the time of the levy, was and still is his property," within the meaning of the terms of the statute.-[ED.
Sci. Fa. W. F. Lunt,U. S. Dist. Att'y, for United States. Oeo. F. Talbot, for defendant. i Fox, D. J.. January 31, 1870, the United States recovered in this court two judgments against this defendant: one for $2,062.56 for duties, payable in coin; the other for $3,104.28 for penalties, under act of March 3, 1823, including costs of suit. The executions which issued on these judgments were returned fully satisfied by levies made FebruarJ 26, 1870, real estate in Calais, in this district, as the property of the debtor. The gove!'llment received seizin of the premises, and the levies were duly recorded. On the twenty-fifth day of March, A. D. 1868, the defendant, by his deed of warranty, reciting a consideration of $6,000 as having been paid, conveyed to his son, William B. Poole, various parcels of real estate, including the premises levied upon. This deed was April 2, 1868. William B. Poole was at that time about 22 years of age, without property. He never took actual possession of any part of the estate so conveyed to him by his father. The $6,000 recited as the consideration for the deed was paid by the son's note for that amount .to the defendant. Up to the present time S. B. Poole has been in the sole possession and enjoyment of the premises so conveyed to his son, and has received all the rents and profits The United States has never, in any manner, asserted any claim or right to the estates levied upon, or been in possession of any portion thereof, or received any rents or income therefrom. On the seventeenth of June, A. D.1873, William B. Poole released to S. B. Poole all interest in various parcels of real estate, including that conveyed to him by deed of .March 25,1868. This deed was recorded July 22,1873, and recited as paid by the grantee a consideration of $10,000.
The deed from S. B. Poole to William B. Poole having been executed and recorded long before the levies, the grantee thereby acquired a better title to the premises than did the govemment by its levies, unless this deed can be shown to have been fraudulent. The government, by its levies, is in a position to attack the validity of this conveyance, if it elects so to do; but since the levies were made the property has very, greatly diminished in value-the buildings thereon having been consumed by fire-and it prefers to abandon its levies and revive its judgments, if possible, for their full amount, with interest, and then satisfy them by levies on other property of this defendant. It is provided by the Revised Statutes of Maine, c. 76, § 17, that "s, creditor who has received seizin of s, levy not recorded cannot waive it, unless the estate was not the property of the debtor, or not liable to seizure on execution, or cannot be held by the levy, when it may be considered void, and he may resort to any other remedy for the satisfaction of his judgment." By section 18: "When the execution has been recorded, and the estate levied on does not pass by the levy for causes named in the preceding section, the creditor may sue out of the office of the clerk issuing the execution a writ of scire facias, requiring the debtor to show cause why an alias execution should not be issued on the same judgment; and if the debtor, after being duly summoned, does not show sufficient cause, the levy may be set aside, and an alias exe'. cution issued for the amount then due on the judgment,unless, during its pendency, the debtor tenders in court' a del:ld of release of the land levied on, and makes it appear that the land, at the time of the levy, was 'and still is his property, and pays the expenses of the levy'and the taxable costs 'Of suit; and the judgment shall be satisfied for the amount of the levy." The present suit is instituted under these provisioris. The answer of the defendant is that the judgments have' been fullv satisfied from his estates, and with the answer he files in a release to the United States of all right·, title, and interest iIi the lands levied on. The burden is upon defeiid·
UNITED STATES V. POOLE.
ant 'to maintain his answer. To accomplish this, ht. mus' show that, as against the government, his son, William B. Poole, by the conveyance of March 25, 1868; did not acquire a valid title to the estate, and that the governwent, by its levies, did obtain a good title to the same, This he proposes to do by to satisfy the court, that to his son wasex,ecuted with the intent and design of both parties thereto thereby to defraud the United States, to place the property beyond reach oLthe government, and being applied to the satisfaction of. any judgment the government might thereafter recover against the grantor. The government insists that the defendant is not at lib0rty thus, for,his own benefit, to attack and impeach his own deed and establish its invalidity by reason of such fraudulent intention. It is certain that as between the parties to this cor.veyance,however fraudulent may have been, their intent"the title to the estate thereby passed to the grantee. S1;lch a fer is not void, but being a perfect and cO,mplete duly executed.with all the formttlities of thelaw, and a consideration having been paid therefor, it was voidable only by creditors of the ,grantor, and was good between the parties. The question now for decision is whether under these cir. cumstances" SiS against lJ, creditor whose interest it now is that this conveyance should be sustained, and in the relation which the government now bears to this estate, a grantor shall be heard to offer evidence of his fraudulent purpotle and thereby sustain a levy, which, as the record stands, is invalid. In the opinion of the court the grantor must abide by his conveyance, and cannot establish his own fraud to defeat it. The marginal note in Roberts v. Roberts, 2B. & Ald. 367, is: "No man can be allowed to allege his own fraud to avoid his own deed." Abbott, C. J., said: "The plaintiff at the trial produced a proper deed of conveyance, and proved its execution, and by, that he established. his title to the premises. The defendant endeavored to defeat this by showing that, the deed was delivered the fraudulent, purpose of givip.g to the plai,ntiff a colorable qualification. to kilL game;. ,but, in Monte.fiori v. Montefiori, 1 Wm. Bl. 363, Lord l\lanslle)d
said 'that no man shall set up his own iniquity as a defence any more than as a cause of action.' Here that is attempted to be done, but the defendant cannot be allowed to be heard in this matter." In Walton v. Bonham, 24 Ala. 513, (N. S.) the court say: "The appellant proves that the deed to the children was made to defraud creditors, and sets up the fraud of his intestate in order to defeat the deed, and thus sustain the title to complainants. This cannot be done. The law holds the deed void as against creditors and purchasers, but it can only be so declared when it is attacked for the fraud. Here the deed is not assailed by the purchaser. He assumes, as he has a right to do, that it is honest, and a court of justice will not allow the party who made it to say that it was fraudulent; to do so would be against good morals, and the grantor, under such circumstances, not being permitted to impeach his own deed, his administrator cannot do so." In Drinkwater v. Drinkwater, 4 Mass. 356, Parsons, C. J., declared "that a conveyance to defraud creditors is good against the grantor and his heirs, and is void only as to creditors; for neither the grantor nor his heirs, claiming under him, can avail themselves of any fraud to which the grantor was a party to defeat any conveyance made by him. The intention of the law in establishing this principle is effectually to prevent frauds by refusing to relieve any man or his heirs from the consequences of his own fraudulent acts. If creditors have been injured by the fraud they are entitled to relief: as to them a fraudulent conveyance is void." In 2 Philips on Evidence, 184, it is stated: "An instrument may be avoided on the ground of fraud, but the objection is not to from one who is a party or privy to it, for no one can allege his own fraud in order to invalidate his own deed." The same rule is affirmed in Bump on Fraudulent Conveyances, 437, and is sustained by a very large number of authorities found in the notes. In no state has this rule been more distinctly recognized than in Maine. In Nichol, v. Patten, 18 Me. 238, Shepley, J., says: "The statute of 13 Eliz. c. 5, provides that only
against creditors and others, whose actions shall thereby be ,defrauded or delayed, fraudulent conveyancef(shall be of more effect." In 43 Me. 274, (Andrew8 v.Mar,shall,) Cutting; J., p. 276, in a very elaborate opinion, says: "The doctrine is established beyond controversy, by nearly all the authorities touching this ;point, that the fraudulent vendor parts with all his title, and can in no event invoke his own turpitude for the purpose of reclaiming any interest in the property so conveyed." See, also, Ellis v. Higgins, 32 Me. 34; Andrew, v. Marshall, 48 Me. 30. · It is claimed that, while such may a well-established rule of law, the present case should be deemed an exception thereto, as the government has repudiated this conveyance from the defendant to his son, and by its levies defeated the son's title, and obtained a valid title to the estate. It is true that,the government, if it elected so to do, might attack the validity of the deed to the son, and such probably was its original design, as we may well infer from the course first adopted; but having made its levies it has refrained from asserting that thereby it acquired a valid title to the estate. The records disclosed that the son had acquired an older title, andthe governmbut yielded, admits its validity, and has never since undertaken to question it. .It nowhere appears that the officers of the government in any way had knowledge of the fraudulent purpose of the parties to the conveyance, or that if a contest should take place as to the title that it would be able to establish such fraud, and maintlj>in the validity of its levies. As the record stood there was not merely a cloud upon the title of the government, but as against \the son it had apparently acquired no title, and.for more than 10 years had acknowledged that such was its condition by not claim. ing possession of the premises or any income therefrom. The release from the son to the father, in 1873, did not alter the case, as under the law as now settled in this state the title thereby acquired by the father did not enure to support an invalid levy previously made upon the premises as the father's property. Freeman v. Thayer, 29 Me. 375. This defendant cannot be damnified by this result; it acv.5,no.5-27
complishes exactly what was contemplated by the parties to thisconveyance. The defendant has always been recognized, by 'all the worldl as the owner of this estate, and has enjoyed all its benefits. The levies made thereon by the government have, in fact, done him no injury, or defeated or impaired his son's title, who could at aiiy time have given avalid title to a bona fide purchaser by reason of his older eonveyance. It may be claimed that this defendl],nt, tenderipg a deed, now offers to make it appear, in accordance with section 18, "that the land at the time of the conveyance was and still is his property." This language must be understood as meaning thkt the proof oisuch facts must be made by testimony which can be legally heard in courts of justice; as, for instance, when a debtor has title to a parcel of real estate, but his deed is lost before recording, in such case, if taken from him bya levy, he could establish his title by any testimony legally admissible, and so confirm the title under the levy; but it could not have been the intention of this section to enable a party guilty of a fraud to reap the benefit of his fraudulent acts by reason of testimony prohibited in all other cases. . In the opinion of the court; this defendant cannot be allowed to defeat his conveyance to his son by establishing a ulent purpose of the thereby to defraud the United States and prevent the government from appropriating the :property in satisfaction of its claims on the defendant. Upon the evidence, which is admissible on this hearing upon ihe well-established rules bf law, the court finds that the estates levied upon are not the prc',ertyof the debtor, were not liable to seizure on execution, ll.tid cannot be held by the le,vies. The levies are set aside, and the plaintiffs are entitled to alias executions for the full amount of their judgments against S. B. Poole, and interest thereon.
B!,;ACKWELL lie WALXFlR.
& CO.v. WALKER
(Oirouit Court, E. D. Arkansas. - - , 1880.)
1. CoNIllTIONAL BALES STATE OF ARKANSAS. STATUTB Oil' FRAuDs- RECORDING'
Conditional sales were valid' at common law, and their validity was not affected by the English statute of frauds, nor are they within the recording acts of the state of ArkansaB.
2. SAME-VENDOR AND VENDEE CREDrrOR8 AIm PuRCHABERS.
Such sales, oral or in writing, are valid in Arkansas, and 'creditors of and purchasers from the conditional vendee acquire no right to the propertyaB against the vendor, who has been guilty of no fraud and no laches in aBBerting his rights. '
BAME-STATUTE OF ARKANSAS, GANTr'S DIG. §
2957. If conditional sales are within the statute of'frauds of the state of Arkansas, (section 2957, Gantt's Dig.,) it has no operation on them until the posseBBion has continued .in the vendee for five years.
These cases raise the question of the validity of conditional sales. In the first case the plaintiffs agreed toeell one Cowger a gin, portable steam-engine, and fixtures for the sum of six hundred and twenty-three dollars and seventy-eight oents, ($623.78,) upon his paying the a,greed price.' Cowger' executed his note for the price, and plaintiffs gave him possession of the articles upon the distinct v:erbal agreement that the right of property therein should not pass to him,' but should remain in the plaintiffs until the price agreed upon was fully paid. The defendants were creditors of Cowger at the time he received possession of the chattels from the plaintiffs, and subsequently recovered Judgment on their debt and caused an execution to be levied on the 'chattels as the property of Cowger. Cowger still owes $400 on the purchase. '' The vendors here filed a petition setting up these facts, and asking that the property be from levy of the execution, and :the marshal ordered to deliver same to them.: In the last case there was a conditional sale, substantially!