Abbildungen der Seite
PDF
EPUB

Fraudulent Conveyances.

shall purchase the same lands, tenements or hereditaments, or any rent, profit, or commodity out of them, shall be from henceforth deemed and taken (only as against the person or persons, his, her or their heirs, &c., whose debts, suits, &c., thereby shall or might be in any wise disturbed, hindered, delayed, or defrauded) to be clearly and utterly void, any pretence, &c., to the contrary notwithstanding. And, moreover, if a conveyance of goods and chattels be made, and not on valuable consideration, it shall be taken to be fraudulent within this act, unless the same be by will or deed proved and recorded as therein directed, or unless possession shall really and bona fide remain with the donee. And where any loan of goods and chattels shall be pretended to have been made to any person, with whom or those claiming under, possession shall have remained for five years, without demand made and prosecuted at law, the same shall be taken, as to creditors and purchasers, to be fraudulent within this act, unless the same be by will duly proved and recorded. By the section it is provided that this act shall not extend to any lands, goods, chattels, &c., which shall be upon good (i. e. valuable) consideration, and bona fide lawfully conveyed.

A fraudulent intent seems to be the test of the act, and a valuable consideration will not protect a deed executed with such intent. (a)

An absolute sale of chattels, not accompanied and followed by transfer of possession to the vendee is per se fraudulent and void as against creditors of the vendor; yet there are some exceptions, where it may be explained. (b)

An important decision has been lately made upon this act to the following effect: A fraudulent intent of the grantor against one of his creditors is fraudulent against all, and that no distinction exists between prior and subsequent creditors; thus, A, expecting to be held responsible as security for a sheriff, fraudulently conveyed away land, with the purpose thereby to avoid such responsibility and afterwards became indebted; and it was held, that the conveyance was fraudulent and void as to this subsequent creditor, inasmuch as it was fraudulent and void at the time it was made, and could never become valid. (c)

(a) Briscoe v. Clark, 1 Ran. 213.

(b) Mason v. Bond, 9 Leigh. 181. (c) Hutchinson v. Kelly, 1 Rob. 123.

Effect of Death upon the Rights of Creditors.

8. Effect of Death upon Rights of Creditors.

Limitations. In any suit against an executor or administrator for the recovery of a debt due by his testator or intestate upon an account, it is the duty of the court to strike from the account every item thereof, which shall appear to have been due five years before the death of the testator or intestate. (a) It will be observed that the terms of this law extend only to open accounts, and not to settlements or assumptions by the testator or intestate within five years. (b)

Suits upon the bonds of executors and administrators, as persons in a fiduciary situation, are limited as mentioned under title "Limitations."

The equity of sec. 10 of general act of limitations is extended to executors, &c.; so that if an action of assumpsit be brought in proper time, but the plaintiff or defendant die before judgment and the limitation run out, the executor or administrator may bring a new action, provided he does it within a reasonable time, which, from analogy to the statute, is probably one year. (c)

The statute of limitations does not begin to run against a claim asserted for the estate of a deceased person, till the qualification of an executor, &c. (d)

If there be several executors or administrators, an acknowledgment to take a debt already barred, out of the statute, must be made by all. (e)

Bail.—The words of the act allowing bail as of right do not extend to executors and administrators. But where the suit is upon a personal promise of the executor or administrator, or in debt on a judgment suggesting a devastavit, or upon the executor's or administrator's bond, in all which cases the executor or administrator is directly responsible, bail may be directed, upon proper affidavit made, according to the act. (f)

Judgment. The general judgment against an executor is de

(a) R. C. c. 128, § 16,

(b) Brooke v. Shelby, 4 H. & M. 266.

(c) 2 Lom. Ex. 376; Brown v. Putney, 1 Wash. 302.

(d) Hansford v. Elliott, 9 Leigh. 79; Clark v. Hardiman, 2 Leigh. 347. (e) 2 Lom. Ex. 421.

(f) Ib. 409; 2 Tuck. Com. 234.

Effect of Death upon the Rights of Creditors.

bonis testatoris; and this is the judgment given where the executor, &c., has not made himself personally responsible. But a judgment de propriis will be given, where the executor has promised to answer any debt or damage due by his testator out of his own estate. But such promise must be in writing, (a) and for good consideration as assets in his hands or forbearance to sue on part of the creditor. (b) And where forbearance is the consideration, it seems that without a writing, an executor, &c., is liable, where he promises to pay the debt of his testator. (c) A judgment quando assets acciderent is given where the executor pleads plene administravit, and the jury find for him thereon.

Assets. What shall be assets in the hands of the executor, &c., remains as at common law, being in general the personal estate or whatever the executor, &c., may demand by suit, except so far as altered by these provisions of the statute.

If any person die after the 1st day of March, the servants and slaves of which he was possessed, employed in making a crop, shall be continued on the plantation until the last day of December following, and their crops shall be assets. If decedent die on or after the 1st day of March, all the emblements of his land which shall be severed before the 31st day of December following, shall be assets: but all such emblements growing on the land at that day, or at the time of decedent's death, if that event happen after the 31st day of December and before the 1st day of March, shall pass with the land to the heir. (d)

Where any person shall die seized of lands held for the life of another, and shall devise the same, all the interest of the deceased in such lands shall be assets in the hands of such devisee; and if no such devises be made, such lands, for the residue of the term, shall be assets in the hands of the heir, as special occupant; and if there be no special occupant, it shall go to the executors or administrators, and be assets in their hands. (e)

Lands. At the common law, a bond binding the heirs is a lien on the heir, who in default of personal assets is bound to discharge it out of the real assets of the obligor, provided real assets

(a) R. C. c. 101, § 1.

(c) 3 Mun. 59; 2 Tuck. Com. 139. (e) Ib. § 61.

(b) Taliaferro v. Robbs, 2 Call. 258.

(d) R. C. c. 104, §§ 53, 54.

Effect of Death upon the Rights of Creditors.

317

have descended. This doctrine has been extended by an act passed in 1842, which charges upon lands, &c., all debts due by specialty (whether binding the heirs or not); and also by simple contract, provided they be evidenced by writing, signed by the debtor or some person legally empowered by him. (a)

At the common law also, the heir could release himself from all liability upon his ancestor's obligation, by a bona fide alienation of the lands descended before action brought. To prevent this, it has been enacted that where any heir at law shall be liable to pay the debt of his ancestor, in regard of any lands, &c., descending to him, and shall sell the same before any action brought, such heir at law shall be answerable for such debt or debts, in any action or actions of debt to the value of the said land so by him sold. (b)

Nor by the common law was land in the hands of a devisee liable for the payment of bonds of the devisor binding the heirs. But the statute declares the devise in such cases, so far as concerns the creditors, to be void. (c)

The before recited act of 1842 (d) enacts, that where any person shall die seized of or entitled to any estate or interest in lands, tenements or hereditaments, or other real estate, which he shall not by his last will and testament have charged with or devised subject to the payment of his debts, the same shall be assets. The phraseology of this act is very general, embracing all estate or interest which a person may have in any real estate whatever. So that in general terms, whatever real estate a person leaves at his death is liable for all of his debts which are evidenced by writing.

Administration of assets.-The dignity of debts is in the following order:

1. Funeral expenses and expenses of administration, and debts due to the state or United States.

2. Debts due by the testator or intestate, as guardian, curator, or committee to a ward, idiot, or lunatic, or their representatives. (e)

3. Debts of record, being by judgment or recognizance.

(a) Acts 1841-42, c. 98. (d) Acts 1841-42, c. 98.

(b) R. C. c. 105, §6.

(c) Ib. §§ 1, 2, and 3.

(e) R. C. c. 108, § 12; ib. c. 104, § 60.

Remedies to recover Debts.

4. Debts evidenced by specialty or writing, signed by the testator or intestate. An act passed in 1831 directs that, in the administration of the personal assets of decedent's estates, debts due by specialty and promissory notes or other writings signed by the decedent or some other person by him or her thereunto lawfully authorized, shall be regarded and taken to be of equal dignity, (a) and the act of 1842, before referred to, declares what shall be real assets, and then directs that they shall be administered, in courts of equity, ratably for the payment of all the just debts of the decedent, as well debts due on simple contract as on specialty, provided that no debt which is not evidenced by writing signed by the debtor or some person legally empowered by him, shall be charged on the real estate by virtue thereof. Simple contract debts in writing are thus put on an equality with specialty debts, by the one act as to personal assets, and by the other act as to equitable assets.

5. Debts by simple contract, not evidenced by writing.

6. Judgments or bonds, voluntarily confessed or given by testator or intestate, not for valuable consideration.

9. Remedies to recover Debts.

Courts and time required to obtain judgment.—The Circuit Superior Courts of Law and Chancery sit twice a year, and the County and Corporation Courts sit four times a year, in every county and corporation. These courts have concurrent jurisdiction in all matters in equity, and also at law, where the amount in controversy is more than fifty dollars, and also in actions of detinue and trover; and in suits at law, where the amount in controversy is less than fifty and more than twenty dollars, the County and Corporation Courts have sole jurisdiction. (b) Writs in the Circuit Superior Courts are returnable either to the first day of the next succeeding term, or to some previous rule day; and in the County and Corporation Courts, to the first day of the next succeeding term alone. (c) Rules, in both these courts, are held in the clerk's offices on the first Monday of every month, (d) except where such court commences its session during the week

(a) Sup. R. C. c. 160. (b) R. C. c. 71, §7; Sup. R. C. c. 109, §§ 22, 23.
(c) R. C. c. 128, § 70; Sup. R. C. c. 212, §2.
(d) R. C. c. 128, § 69.

« ZurückWeiter »