MANHATTAN ALBANY, 47,000 dollars. Her endorsements of the notes were, at most, January, 1818. contingent debts, and might never become certain. The maker of those notes was, at the time, perfectly solvent. Subsequent debts are not to be taken into consideration, in case of settle ments, or conveyances, by way of family provision. (Rob. on Fraud. Conv. 18, 19. 24. 451, 452, 453. 1 Bro. C. Rep. 90. 2 Atk. 13. 3 Co. 81. b. 2 Ves. 10. Amb. 598. 2 Ver. n. 491.) v. OSGOOD. [* 165] 3. The notes were usurious and void. If a person receives illegal interest before it is due, and this is made part of the original contract for the loan, it renders the security void. (Ord on Usury, 102. Floyer v. Edwards, Coup. 114. Cro. Jac. 26.) 4. The charge of the judge was incorrect. Whether the original contract was a loan of money on receiving the discount or not, was a question of fact for the jury to decide; but the judge charged the fact positively, that the notes were not usurious or void. (New-York Fire Insurance Company v. Walden, 12 Johns. Rep. 613. 1 Bos. & Pull. 144.). *Slosson and T A. Emmet, contra. All the estate of Mr. Osgood is devised to his wife, who is made sole executrix; and she is the legal debtor, in respect to the estate devised to her. His debts, therefore, must be taken into consideration, on the inquiry into the effect of a voluntary conveyance. Mrs. Osgood died largely indebted. [Here the counsel entered into an examination of the statement and accounts given in evidence, by which it appeared that she owed, at the time of her death, beyond the amount of her estate, above 29,000 dollars; and, including the bonds, about 42,000 dollars.] Even if the petition and statements exhibited to the surrogate are rejected, there is sufficient evidence of the insolvency of Mrs. Osgood. Admissions which go to charge the persons making them, are evidence as to third persons. (Phillips's Ev. 191, 192, 193. Doe v. Robson, 15 East, 33.) The petition was presented by the legal representatives, the executors of Mrs. Osgood. She ordered her executors to pay all her debts. It was their duty so to do, and for that purpose they applied to the surrogate for an order for the sale of the real estate. Precise evidence of the insolvency, or indebtedness, is not requisite; it being merely a collateral fact. If a person greatly indebted makes a voluntary conveyance to his children, his being in debt at the time is evidence of legal fraud, which vitiates and avoids the conveyance, to all intents and purposes, as against his creditors. A total insolvency need not be shown. Such conveyances, being to delay, hinder, and defraud creditors, are void as to them. In such case, the law adjudges the legal estate to remain in the debtor, so as not to pass under the devise, or voluntary conveyance. immaterial whether the debt is as principal or surety, as maker or endorser, or whether due or to grow due. The object of the statute against fraudulent conveyances is, to keep the estate of ALBANY, MANHATTAN V. OSGOOD. [* 166 ] the debtor for his creditors, and for them only; avoiding the conveyance as respects them, but leaving it to stand as to other January, 1818. persons, (Twine's case, 3 Co. 81. b. 5 Co. 60. 2 Vesey, 11. 1 Atk. 15. 1 Vesey, 27. Rob. Fraud. Conv. 17, 18. 459, 400.) The fraud need not be pleaded. The lands conveyed become assets in the hands of the heir. (Dyer, 295. b. p. 16. Jenk. 295. case, 45. Shep. Touch. *65, 66. 2 Saund. 7. n. 4. Rob. Fraud. Conv. 596.) The only case which countenances a contrary doctrine is that of Parslow v. Weedon, in 1718, (1 E. Cas. Abr. 149. s. 7.) determined by Lord Macclesfield, whose decision excited great surprise and dissatisfaction among the bar at the time. That case is not regarded as authority, but as a dictum merely of Lord Macclesfield, (Prec. Ch. 520. note. Jones v. Marsh, Cases Temp. Talbot, 64.) In Jackson v. Burgott, (10 Johns. Rep. 457. 463.) the Court say that no estate passes to the purchaser by the fraudulent deed. "Such fraudulent estate is as no estate in judgment of law." Where a devise is to an heir, he may be charged both as heir and dev-`· isee. (2 Saund. 7. n. 4.) Discounting a note at the legal rate of interest is not usury. In Lloyd v. Williams, (2 Wm. Bl. 792.) Blackstone, J., said that interest might as lawfully be received beforehand, for forbearing, as after the term had expired, for having forborne ; and that it was not to be reckoned as merely a loan for the balance; otherwise, every banker in London who takes five per cent. for discounting bills, would be guilty of usury. The act passed at the last session, allowing banks to discount notes for more than 60 days, at 7 per cent., shows the sense of the legislature on this point. Discounting is merely deducting the interest from the amount, at the time of the loan. (1 Bos. & Pull. 144. 2 Term Rep. 52. 1 Campb. N. P. Rep. 177. 2 Campb. N. P. Rep. 33.) S. Jones, jun., in reply, insisted that if the answer of one defendant in chancery did not charge his co-defendant, by parity of reasoning, the admission of one heir could not charge his co-heirs. That in estimating the amount of debts, the bonds and mortgazes cannot be taken into the account. But whatever may be the effect of the conveyance, it so far changes the legal descent of the property, that the defendeats cannot be charged, as heirs, for assets by descent. The case of Parslow and Weedon has never been overruled. The deed was not absolutely void, but merely voidable. If the grantee had sold the land to a bona fide purchaser *ignorant of the fraud, such conveyance would be valid. (a) The deed is good against the parties, and the heirs and devisees of the grantor, and against creditors, until they come in to set it aside. At the time of Mrs. O.'s death, there was no question as to (a) Sed vide Hildreth v. Sands, 2 Johns. Ch. Rep. 35. [* 167] ALBANY, the validity of the conveyance. In Jackson v. Burgott, the January, 1818. grantor was still living. Besides, Mrs. O. does not devise these lots to her children, but recites these conveyances, and then devises the residue of her estate. The grantees did not take as heirs, for there were other children. MANHATTAN V. OSGOOD. [* 168] If it is part of the contract to pay the interest in advance, it is usury. A person may lawfully stipulate for the payment of interest weekly; for then there is no interest paid, until after for bearance. YATES, J., delivered the opinion of the Court. The executors, as the legal representatives of the deceased, had exhibited the statement under oath, and filed it, with the petition, in the surrogate's office, with an intention of obtaining an order to sell the real estate, but which was, afterwards, abandoned. It appears to me that the executors, of all others, were the best informed on the subject, and were competent to make admissions sanctioned by their oaths; particularly as to a collateral fact. Those documents were, therefore, properly admitted in evidence, (a) as stated in the case, for the purpose of showing the testator's indebtedness, on the 31st of May, 1814; and unless a mistake had been made in the statement, which might have been shown on the trial, it must be entitled to great weight. (1 Phillips's Ev. 192. 15 East, 34, 35. 4 Johns. Rep. 461.) The executors were certainly competent to know the fact, and the evidence appears to me to be the highest of which the nature of the case is susceptible. It goes to show, most decidedly, the fact of insolvency at the date of those deeds; nor would the result be different, if the estate of the husband, and the bonds alleged to be executed by him, were excluded. It is evident, then, that the situation of Mrs. Osgood, at the date of those conveyances, rendered *them void, as regards the plaintiffs in this cause; and the law is well settled, that if a party executes a voluntary conveyance, indebtedness, at the time, is evidence of fraud; and where such indebtedness is to the extent shown in this case, it is sufficient to render the conveyances inoperative and void, as to creditors. That part of those debts had originated in consequence of endorsements by Mrs. Osgood, for her son, does not alter the case, in construction of law; and the testimony clearly shows that she could not have been solvent at that period; and that long before the date of the conveyances, she was, from time to time, wholly dependent on her credit for funds. It was, then, illegal for her, while those embarrassments continued, to convey to her daughters. (3 Coke, 81. b. Twine's case, 1 Atk. 15. 94. 2 Atk. 600.) If, then, those conveyances were fraudulent and void, the fee remained in Mrs. Osgood, and, as to her creditors, it was the (a) Vide Johnson v. Beardslee and others, ante, p. 3. JACKSON V. ROBINS. same as if she had never conveyed. (3 Rep. 78. b. Dyer, 295. ALBANY, pl. 16.) The title to the estate must, consequently, be governed January, 1818 by her last will and testament, by which, after sundry bequests and legacies, she devises to her children, parties to this issue, all the rest of her estate, both real and personal. The lots for which the void conveyances were given constitute a part of that residue, and, of course, must be held by them under this devise, and be equally liable for the payment of the debts of the deceased, with the other real estate of which she died seised, and are assets by devise. There is no ground for the allegation that the notes are usurious, for it cannot be questioned that it has been the uniform practice of all banking institutions, since their establishment, to exact the payment of interest in advance; and it would be an alarming principle to introduce, that all paper thus held should be usurious and void. The law, however, does not require such a decision. It supports a different and more salutary principle, and more conducive to mercantile convenience, by allowing bankers to receive the interest in advance. (2 Bl. Rep. 792. 1 Bos. & Pull. 144. 2 Term Rep. 52.) The Court are, therefore, of opinion, that the plaintiffs are entitled to judgment. Judgment for the plaintiffs. [* 16o ] JACKSON, ex dem. LIVINGSTON and others, against Where A. de vises all his es tute to B., his wife, her exec utors, administrators, and as case of B.'s wise, then to THIS was an action of ejectment for lands in the town of Walkill, in Orange county. The cause was tried before his honor the chief justice, at the Orange circuit, in September, 1815. The special verdict stated, that on the first of January, 1771, signs, but in William Alexander, commonly called Lord Stirling, was seised death, without of a certain tract of land of about 3,000 acres, in the county of disposing of it Ulster, now in Orange county, of which tract the premises in by will or otherquestion are part. Lord Stirling died seised, in the spring of his daughter, B., 1783, after having made his will, dated January 29th, 1780, devise, the enwhich contained the following devise: "I give, devise, and be- tire fee, and the queath, all my real and personal estate whatsoever, unto my dear subsequent limwife Sarah, to hold the same to her, her executors, administra- daughter is contors, and assigns, but in case of her death, without giving, de- sequently void. vising, or bequeathing by will, or otherwise selling or assigning Where an ad verse possession has commenced takes, under the itation to the (a) in the lifetime of the ancestor, the operation of the statute of limitations is not prevented by the title de scending to a person under legal disability, as a feme covert, &c. (a) Vide S. C. 16 Johns. Rep. 537. JACKSON V. ROBINS. ALBANY, the said estate, or any part thereof, then I do give, devise, and January, 1818. bequeath, all such estate, or all parts thereof as shall so remain unsold, undevised, or unbequeathed, unto my daughter, Lady Catharine Duer, the wife of the Honorable William Duer, Esq., of the state of New-York, to hold the same to her, her executors, administrators, or assigns." Catharine Duer, who, after the decease of her husband, William Duer, married William Neilson, and Mary, the wife of Robert Watts, were the daughters and co-heiresses of the testator. Lady Stirling, died in March, 1805. In 1771, Anne Waddell recovered a judgment in the Supreme Court of the province of New-York, against Lord Stirling, for 77901. debt, with damages and costs. In 1775, the executors of Anne Waddell revived this judgment by *scire facias; and after the death of Lord Stirling, in October vacation, 1787, they again issued a scire facias against the heirs and terre-tenants of Lord Stirling, whereon Robert Watts, and Mary, his wife, and Catharine Duer, the heirs of Lord Stirling, alone were summoned, and in January term, 1788, judgment passed against the persons thus summoned, by default; a fi. fa. was issued to the sheriff of Ulster, under which he sold the premises in question, with other lands, to John Taylor, and executed to him a deed, dated the 10th of June, 1788. On the 30th of April, 1794, Taylor granted the premises to Harlowe, who entered and took possession. Harlowe afterwards conveyed them to the defendant's father, from whence they descended to the defendant as his heir at law. [ * 170 ] This cause was argued at a former term, by J. Duer for the plaintiff, and J. Emott, and S. Jones, jun., for the defendant; and, again, in October term last, by Duer and T. A. Emmet, for the plaintiff, and S. Jones, jun., and Slosson, for the defendant. (a) Several of the points discussed in this cause were, also, raised, in the case of Jackson, ex dem. Livingston, v. Delancey, (11 Johns. Rep. 365-376.) which was affirmed in the Court of Errors. (13 Johns. Rep. 537-560.) The plaintiff's counsel contended, 1. That Catharine N.,.one of the lessees, had a right of entry on the premises in question, under the limitations contained in the will of Lord S.; and to show this, they insisted, that Lady S. took an estate for life, with power to sell or devise in fee, and that Catharine N. took in remainder; but admitting that the word estate in the will of Lord S. gave Lady S. the fee, yet there was a good exccutory devise to Catharine N. 2. That the right of entry of C. N. was not barred by the sale of the lands made by the sheriff of Ulster. 3. That her entry was not barred by the statute of limitations. (a) The reporter did not hear the second argument, and as the Court did not enter into an examination of the points discussed, it is not thought necessary to state any part of the arguments of the counsel. |