Parsons v. McKnight

The demandant, having obtained a judgment against P. Nichols, duly levied his execution upon the tract of land now demanded. Nichols was formerly the owner of the premises, but had, prior to the levy, conveyed the same to Martha Me Knight. The question is, whether this conveyance is valid as against the demandant. No consideration was paid for the land, but Martha McKnight is a daughter of Nichols ; and if this was a fair advancement to a child, for the consideration of love and affection, it might be valid against a creditor of the grantor whose demand arose wholly from transactions subsequent to the conveyance.

But we are of opinion that this conveyance cannot be so considered. Nichols had commenced a suit against the de-mandant, and at May term, 1832, obtained judgment, which was afterwards satisfied. The demandant by our statute had a right to review that action for the purpose of recovering back the amount of that judgment, and also of obtaining his costs upon the former trial. The judgment and execution of Nichols were taken subject to this right, and he received the money of the demandant subject to a liability to pay it back, with interest, should the demandant review and prevail. The demandant sued out a writ of review, returnable November term, 1832, and it was entered in court prior to the time of the conveyance by Nichols. Under these circumstances the demandant is not to be regarded as a subsequent creditor. Roberts on Fraud. Con. 452, 459.

The debt of the demandant not only did not wholly originate in a contract subsequent to the conveyance, but it in fact originated fundamentally before that time — the suit upon which it was recovered was pending before that time and if it cannot be said to have been technically a debt at the time of the conveyance, it stands, so far as this case is concerned, in ..the nature and within the reason of one. As against all existing debts a voluntary settlement is presumed to be fraudulent. 3 Johns. Ch. Rep. 500, 504, Reade vs. Livingston.

*38There are, besides, strong circumstances to show that this conveyance was actually intended to defeat the demandant, should he recover in that suit. The conveyance is made shortly after the entry of the action of review ; and before the next term Nichols conveys another piece of land, thus divesting himself of all property in this state ; and he has not been here since. This is emphatically the case referred to by Roberts, where “ the very proximity of blood raises rather the idea of confederacy than affection.” Rob. Fraud. Con. 452; 1 Atkyns 481, Stileman vs. Ashdown; 1 Conn. Rep. 295, Fox vs. Hills; 18 Johns. R. 425, Jackson vs. Myers.

Judgment for the demandant.