majority">

The opinion of the Court was pronounced by

Prentiss, J.

Two grounds have been relied upon in the argument, for reversing the judgment of the county court, neither of which, in our opinion, can avail the defendant.

It is evident, that the proof offered of the existence of an in-cumbrance upon the land attached by the defendant, with the other property, in the suit against Mumford Eldred, could have had no other effect, than merely to obviate whatever inference might be drawn from the declaration of the defendant, that he had attached more property than to the amount of his debt. This declaration, the proof of which it seems was admitted without objection, it is apparent could have had no influence in the case. If a creditor attaches more property than is sufficient to secure his debt, no presumption of a fraudulent intent can arise from that circumstance alone. The matter in issue was, whether the suit was instituted, and the judgment recovered, *405against Mumford Eldred, without consideration, and with an intent to avoid the plaintiff’s debt. Whether the amount of the property attached was excessive, or the land was incumber-' ed by the mortgage to Parker, or not, was not at all material, either as to the question of consideration, or the intent with which the suit was instituted and the judgment recovered. Besides, the offer to give the mortgage in evidence was accompanied with an admission, that the defendant was ignorant of its existence at the time of the attachment, and of course it could not have been considered by him, or entered at all into his motives, in making the attachment. As the evidence was irrelevant, and could have had no bearing upon the issue, it was properly rejected.

The instruction to the jury, to which exception has been taken, was, that if the defendant commenced and prosecuted to judgment and execution, the suit against Mumford Eldred, having no claim or demand against him, with the purpose and intent to avoid the plaintiff’s debt, and the defendant and Mumford Eldred afterwards justified the same to be bona fide, and upon good consideration, it was not necessary for the plaintiff to show any previous concert or agreement between the parties, or the privity of Mumford Eldred. Under this instruction, the verdict must be taken to have found, that the suit was instituted, and the judgment recovered, by the defendant, upon a feigned demand, with an intent to avoid the plaintiff’s debt, and consequently, was without consideration, and fraudulent in fact; and also, that Mumford Eldred, as well as the defendant, after the recovery of the judgment, justified it as being bona fide, and upon good consideration. It would seem that these facts, without the production of other proof on the part of the plaintiff, were sufficient to bring the case within the statute, which in express terms makes '■'•every of the parties to such fraudulent and deceitful conveyance, &c. suit, judgment, or execution, who, being privy .thereto, shall justify the same, &c.” liable to the penalty. If covin or collusion between the parties was essential to constitute the offence, the facts found sufficiently show this. The jury were not directed, that it was not necessary to find that Mumford Eldred participated in the fraud, but that if, after the recovery of the judgment, he justified it as being bona fide, and upon good consideration, when in fact it was without consideration, and recovered with an intent to avoid the plaintiff’s debt, it was unnecessary for the plaintiff to show a previous agreement between the parties, or that the judgment was obtained with the actual consent or knowledge of Mumford Eldred. The substance of the direction was, that the fact that Mumford Eldred justified the judgment after its recovery, was, in point of law, sufficient evidence of collusion between the parties; and to hold otherwise, and require other or further proof of his consent, or of an agreement between the parties, would narrow the operation of the statute, and in a great measure defeat its beneficial provisions. If a person is *406ma^e a party to a fraudulent conveyance, without his knowledge, and he does not accept or justify it, he is not within the statute. But although such conveyance is made, and put upon record, without his knowledge, as it may be, yet, if he after-wal'ds claims the benefit of it, and sets it up as being bona fide, and founded upon good consideration, he will be considered as participating in the fraud, and subject to the consequences of it. So, although a suit is instituted and judgment recovered in the name of another, without his knowledge, yet, if he after-wards assents to the judgment, and sets it up as being bona fide, knowing it to be fraudulent, he will be liable as a party to it. By the provisions of our laws, a judgment may be recovered at the instance of one party, in the absence of the other from the state,' and without his actual consent or knowledge; and it would seem, that if the party against whom a fraudulent judgment shall be so recovered, should afterwards assent to it, and justify it as being bona fide, it would be equivalent to a precedent agreement or consent. On this principle, the fact, which the jury must be considered as having found, that Mumford El-dred justified the judgment after its recovery as being bona fide, was, of itself, sufficient evidence of collusion between the parties, and brought the case within the statute, without other proof of his knowledge of the judgment, or consent to its recovery.

Hall, Bennett, and Phinéhas Smith, for the plaintiff.Morrill, Church, and John Phelps, for the defendant.

It has not been urged as a point in the case, that the statute, in the latter part of the clause giving the penalty, only mentions ubond, bill, note, contract, or agreement,” omitting the words, “suit, judgment, or execution.” A similar omission occurs in the 13 Eliz.; and in Meux vs. Howell, 4 East, 1, it was held, that the penalty, notwithstanding the omission, attached as well upon a covinous judgment as upon a covinous bond. Our statute is not a literal transcript of the enacting clause of the 13 Eliz. nor does it contain a like proviso for the protection of bona fide purchasers upon good consideration; yet it has always been considered in substance the same as that act, and as subject to the samé construction.

Judgment for the plaintiff affirmed.

Citation profile

How this case has been treated — in progress