Sewell v. Baxter

On the 22d of October, 1819, the late Joshua Swan, by deed of that date, conveyed to his daughter Emily Augusta Swan, now the wife of the defendant, Baxter, in consideration of natural love and affection, two parcels of land, situate and lying in Baltimore county, one of which had been conveyed to the grantor by Matthew Murray, sheriff of the county, on the 28th of October of the preceding year.

*454The bill in this case charges, that at the time of making said conveyance, the said Swan was largely indebted to divers persons, and among others to Charles S. Sewell and Matthew Murray, and that it was made fraudulently, and in furtherance of a conspiracy between the parties thereto, to delay, hinder and defraud the said Sewell and Murray, and the other creditors of the grantor. And this is the question now to be decided by this court.

Baxter and wife answered jointly, but as he professes to have no knowledge of the circumstances charged in the bill, except as derived from his wife, the answer, so far as he professes to speak, need not be adverted to. Thé questions in issue between the parties, grow out of the answer of Mrs. Baxter. She attempts to support the deed by alleging and attempting to prove that the land was purchased by her father for her, and paid for with her money, acquired from her uncle James Helm, in the mode pointed out in the answer. She repudiates the idea that the deed was simply voluntary in consideration of natural love and affection, and charges, that her father,, having received her money, “applied a portion of it towards the purchase of the lands mentioned in the deed,” and “that her father at the time of making the purchase, and frequently afterwards, told respondent, that the deed should be given to her for said lands, with which arrangement she was satisfied.”

To the evidence offered to support this view of the case, the complainant has excepted, and it appears to me, clear, upon the authorities, that it is inadmissible. The deed, upon its face is voluntary, the nominal consideration of five dollars mentioned in it, being introduced simply to give it the character of a bargain and sale, and the question, therefore, is, whether it is competent to the grantee in this deed, to show by parol, that it was not a voluntary settlement by her father upon her, but, that the land conveyed to her by the deed, was purchased and paid for by her father with her money. The decisions in this state are conclusive to show, that parol proof is inadmissible to vary the consideration stated in deeds, and thereby either to alter their character, or to maintain them when impeached for fraud, by *455showing considerations differing from those mentioned in them. The cases of Wesley vs. Thomas, 6 Har. & Johns., 24; The Union Bank vs. Betts, 1 Har. & Gill, 175 ; Wolfe vs. Hauver, 1 Gill, 84; Cole vs. Albers & Ringe, 1 Gill, 412, and the cases cited therein, place this question beyond all controversy. In the last case, the doctrine of the inadmissibility of parol proof, of a different consideration from that stated in the instrument, was fully maintained, though it was allowed to the party in that case to offer evidence of the same kind of consideration, varying only in amount from that expressed.

I am therefore of opinion, that if this deed of October, 1819, can be maintained at all, it must be as a voluntary settlement by a father upon his daughter,- in consideration of natural lov.e and affection.

Authorities of imposing weight are to be found in the books, that any indebtedness at the time of executing such a settlement, will avoid it. That the inference of fraud, thence deducible, is an inference of law, incapable of explanation, and, therefore, that any voluntary conveyance is fraudulent with reference to pre-existing creditors, though the grantor may have abundant means, independent of the property conveyed, to satisfy all his creditors. This doctrine, however, in all its strictness, does not obtain in this state, it being here conclusively settled, “that an indebtment at the time of the voluntary conveyance, is prima facie only, and not conclusive evidence of a fraudulent purpose, even with respect to a prior creditor, and that this presumption may be repelled by proving that the grantor or donor, at the time of the gift, was in prosperous circumstances, possessed of ample means to discharge all his pecuniary obligations, and, that the settlement upon the child was a reasonable provision, according to his or her station and condition in life. Worthington Anderson vs. Shipley, 5 Gill, 449. But though the rule is mitigated, still, if the grantor be shown to be indebted at the time of the conveyance, it is, prima facie, fraudulent with respect to creditors, and the burden is thrown upon the grantee of establishing the circumstances which shall repel the fraudulent intent. The deed stands con*456demned as fraudulent upon the rights of creditors, unless the facts, which may give it validity, are brought before the court by the grantee.

In this case, there can be no dispute, that Joshua Swan, the father, was indebted at the time of the conveyance. His single bill to Charles Sewell for $380, dated in 1816, is proof of this, and I think the presumption is, that the judgments recovered against him by Sewell and Murray in 1821, were for money due from him prior to the deed. But at all events, the amount expressed in the single bill must be assumed to have been due, and if so, with respect to this creditor, “the deed is, primafacie, fraudulent, and can only be supported by evidence -of the facts which repel this presumption.

The question then, is, does this record furnish evidence, that at the time of making this voluntary conveyance to his daughter, the grantor was in prosperous circumstances, possessed of abundant means to discharge his engagements, and that the settlement upon his danghter was a reasonable one.

In answer to the allegation of the bill, that the grantor continued in the possession and use of the property after the conveyance, the respondent, Mrs. Baxter, says, “that she admits that said Joshua Swan, did occupy said lands from the date of said deed up to the time of his death. That this respondent resided upon said lands during a large portion of said period, she believes for nine or ten years, and permitted her said father to occupy the same, as averred in complainant’s bill, because, her said parent was poor and afflicted, and because she was enabled to live without taking to her own use the profits of said lands. That the respondent never supposed that an act of kindness to a poor and aged parent, could in any degree impair her title under the deed aforesaid.”

Now, looking to this answer, it is not possible to suppose that the grantor of this property was in prosperous circumstances, with ample means to pay his debts. On the contrary, it appears, that he become dependant upon his daughter for a home and livelihood. This is the inevitable presumption from the answer, and there is no proof, or attempt to prove, that he *457held any other property. For aught that appears, he was absolutely destitute of means, and, therefore, viewing the deed as a voluntary one, it must fall, when set up against the claims of pre-existing creditors, even under the less stringent doctrine upon the subject established in this state.

But it has been supposed, that even if the defendants, Baxter and wife, cannot defend their title upon the deed of the 22d of February, 1819, they may rely with success upon that of the 28th of October, 1818, from Murray, the sheriff, to Joshua Swan, by showing, that the consideration money paid by the latter to the sheriff, was the money of Mrs. Baxter, as alleged in the answer. That is, that upon such proof, a trust would result to the party whose money actually paid for the property. It has been contended by the complainant’s counsel, that parol proof is inadmissible to establish the fact of such payment, and the evidence is excepted to as inadmissible. The exception, however, in my opinion, cannot be maintained. Resulting trusts implied by law, from the manifest intention of the parties, and the nature and justice of the case, are expressly excepted from the operation of the statute of frauds, and the fact of payment may be established by parol proof. 4 Kent’s Com., 304, 305; Dorsey et al. vs. Clarke et al., 4 Har. & Johns., 551. But though it is competent to the party to prove the fact of payment by parol, yet, it is indispensably necessary that it should be made out by plain, direct and unequivocal evidence. In stating the rule, Chancellor Kent says, “when an estate is purchased in the name of A. and the consideration money is actually paid at the time by B. there is a resulting trust in favor of B., provided the payment of the money be clearly proved.” But I do not find, in this case, that clear evidence which is required to make out a resulting trust, and even if the evidence was stronger than it appears to me to be, I should hesitate to give it the effect of engrafting a trust by implication upon this deed, in view of the subsequent deed of the 22d of October, 1849. If the money paid for the land was the money of Mrs. Baxter, and a trust resulted to her in consequence thereof, it is difficult to conceive a satisfactory reason for taking a deed of the char*458acter last mentioned. Why, if she furnished the purchase money, should she take a deed from her father for the consideration of natural love and affection ? Why did not the deed express the true consideration, with explanatory recitals, showing the facts, as they are now alleged to be ? These are questions which naturally suggest themselves, and the difficulty in giving satisfactory answers to them is calculated to create suspicion of the fairness of the transaction.

The real difficulty, as appears to me, in granting the relief prayed by the bill, results from the long time which has elapsed since the execution of the .deed complained of. If the grantee had been in possession of the property, claiming it as her own from the date of the deed, until the bill in this case was filed, and had relied upon that possession in her answer as a bar to the relief prayed for, it might probably have been regarded as presenting a very formidable objection. But so far from doing this, the answer admits, that Swan, the grantor, continued to occupy the lands from the date of the deed until his death in 1842. The answer further says, it is true, that the respondent also resided on said lands during a portion of the-time, but this occupation was not exclusive according to the-admission of the answer, and if the evidence be referred to, there-is certainly strong grounds for supposing, that the grantor possessed and held the land as his own, or, at all events, that he was by no means controlled in his enjoyment of it by the grantee and her husband. The evidence unquestionably does not make out a clear case of possession by the defendants, Baxter and wife, so as to enable them to set up that possession as a defence. The proof of possession by the grantor, at least creates a doubt, as to who was in the actual possession, and in my. opinion, the weight of evidence is in favor of the possession of the grantor, at least for several years before his death. Sewell purchased from the sheriff in 1824, and took from him a deed in 1831. At that time, Swan was certainly living upon the property, and exercising unquestioned acts of ownership over it. It does not appear whether Sewell, the purchaser at the sheriff’s sale, asserted his title, earlier' than 1839, but on the 15th of April, of that year, Swan took from him a lease, as appears by *459■an indenture signed by them both, for ninety-nine years, at an annual rent of fifty-three dollars, thereby, in the most formal manner, acknowledging his title. Sewell, the lessor, died in the year 1848, having, by his will, executed shortly before his death, devised the property to the complainant in this case, who, in the year 1849, filed the present bill, and the question to be considered is, whether there has been such laches and delay as will preclude his right to be relieved. Looking to the admissions of the answer in reference to the occupation of the property by Swan, the grantor, and to the evidence, independent of the answer, I am not prepared to say that there has. The devisor, under whom he claims, purchased the land, as the property of Swan the father, and took from the sheriff a deed in 1831. Swan was then certainly in possession, and under such circumstances, and exercising acts of ownership over it, which might well induce Sewell to believe in the validity of his title. In the year 1839, the lease was executed, being a clear recognition by Swan of his lessor’s title at that time, and the possession of Swan down to 1842, when he died, under the lease from Sewell, cannot be used against him, because Swan then held, as the tenant of Sewell. Upon the death of Swan in 1842, the defendants, Baxter and wife, take possession and deny the title of Sewell, but the period which intervened from that time to 1849, when the bill in this case was filed, is too brief to prevent a successful assertion of complainant’s title, if in other respects it is free from objection.

I think it is, and will, therefore, sign a decree vacating the deed of the 22d of October, 1819, so far as relates to the property purchased by Charles S. Sewell from the sheriff, and which was devised by the former to the complainant, and the deeds of the same property from Baxter and wife to James Parlett and others.

[An appeal was taken in this case, which is still depending.]