Eells v. Day , 4 Conn. 95 ( 1821 )

Hosmer, Ch. J.

The case presents three questions for determination.

1. The judgment upon which the defendant’s execution issued, and by the levy of which the defendant claims title to the land in question, is insisted by the plaintiff to be fraudulent. It was obtained on a book debt, the items of which were spread over a number of years. The fraud in the judgment, if it existed, was founded on the book debt; for if that was really due, the objection falls to the ground. To shew that it was fraudulent, the plaintiff offered evidence to prove, that at the time a writ was taken out, for the collection of the debt on book, the defendant obtained two other attachments on promissory notes, given without any consideration, and to cover the property in question. This testimony, thus offered, was rejected; and the propriety of this decision raises the first question in the case.

If it had been material to prove a fraudulent purpose in relation to the notes merely, the evidence, undoubtedly, would have been admissible. But that was not the point before the court. It was specifically this; whether the book debt was fraudulent. It is no legitimate consequence, that the debt on book was fictitious, because the notes were without consideration; nor could any fair or reasonable presumption be deduced from such premises. The case of Preston v. Griffin, 1 Conn. Rep. 393, has established this principle; “that it is not competent to prove, that other conveyances, made at other and different times, were fraudulent, to raise a presumption that the sale in question was fraudulent; but conveyances of other property, made at the same time with that in question, may be given in evidence in order to shew a combination to dispose of the property with a fraudulent intent; or to shew, that a bona fide consideration was not paid for the whole; or it may be shewn, that any one of these contemporaneous conveyances was fraudulent, to shew, or raise a presumption, that the conveyance in question was fraudulent.” The analogy is perfect between contracts not contemporaneous and conveyances of the same description; and the legal result, necessarily, must be the same. If, instead of bringing his action on book debt, the defendant had founded it on a bond or note, executed ten years before the attachment, no one would pretend, that the contracts fraudulently made at the date of the attachment, would furnish any proof relative to the antecedent security. Between this case and the one before the court there is not the slightest difference. The previous security cannot be affected, by a subsequent fraud; and the fact that writs of attachment were instituted, at the same time, on the book debt and on the notes, furnishes no evidence applicable to the former. The book debt might be perfectly fair, and the creditor bring his suit for it, at the time when he preferred other suits on invalid securities.

It has been argued, that the object of the testimony offered, was, to shew a combination for the purpose of defrauding creditors; and if such testimony were relevant, the competency of it could not be disputed. The real objection is to its relevancy; and on the plaintiff it devolves to shew, that mere proof of combination would invalidate every claim put in suit. I cannot accede to this principle; and am satisfied, that the validity of the book-debt cannot be impaired, or affected, by such testimony. I have dwelt at greater length than was necessary on this point; as the second objection made is unquestionably fatal to the defendant’s title.

2. The land levied on was not in the return on the execution, either located or described. The town in which the land lies, and a description of it, by metes and bounds, are indispensible requisites. It is unnecessary to have recurrence, for the requisites in this particular, to the doctrine of Westminster-Hall, or to that of the other states; although the same certainty is, I believe, universally required. Sparrow v. Mattersock & al. Cro. Car. 319. Pullen v. Birbeak, Carth. 453. Barnes & al. v. Billington & al. 4 Day 81. 86. It is said by Holt, Ch. J. in the case in Carthew, “If upon an elegit the sheriff deliver a moiety of an house without metes and bounds, such return is ill, and shall be quashed for uncertainty.” In this state, the uniform and immemorial usage, so far as I can ascertain it, has ever been to return the property levied on, by pointing out its location, and giving it definite boundaries. Precise certainty in this particular is necessary, that the creditor may know his land, and be free from the hazard of needless litigation on this subject; and that others, who are interested in making enquiry, by an examination of the records, may acquire accurate information. The cases cited relative to the description necessary in deeds, and in the action of ejectment, have no bearing on this question, as they depend on very different principles. The return, in relation to the land in question, is in these words: "One other lot, containing four acres and one hundred rods, be the same more or less.” The town in which it lies, and the boundaries, are both omitted; and therefore, the return is fatally defective.

3. The charge of the judge on this point was, undoubtedly, incorrect; and it is unquestionably clear, that the defendant has no title to the premises demanded. Notwithstanding this, he contends, that from the motion it appears, the plaintiff has no title; and if so, there is no ground to set aside the verdict in his favour. This leads to a consideration of the third point made in the case.

The plaintiff claims title under the levy of an execution on the land in question, as being the property of James Day. To substantiate a title in James Day, the plaintiff offered evidence to prove, that Day purchased the lot of John Waterman, and paid for it; but he adduced no proof, that Day had received a deed from Waterman; and it was admitted, that no such deed appeared on the records of the town. The substance of the transaction results merely in this; that Day has a right, if he can prove the contract of Waterman, to recover damages of him, for the non-performance of his agreement; or to enforce a specific execution of it, in chancery; but that he has no legal title; and, of consequence, that the plaintiff took nothing, by the levy of his execution.

Peters, Chapman and Brainard, Js. concurred.