Doe d. Lank v. Hiles , 9 Del. 87 ( 1869 )

The Court,

Oilpin, G. J.,

charged the jury, that in the first place, so far as the formalities merely of the deed from Aaron P. Osmond and his wife to their son, Caleb Osmond, were concerned, they should be satisfied from all the evidence before them, under the facts and circumstances proved in regard to it on both sides, that it was not only signed, sealed, and duly acknowledged before a competent officer' by the grantors named in it, but also that it was actually delivered by Aaron P. Osmond, the father, in his life time to Caleb Osmond, his son, and if they were not satisfied of that fact from all the evidence which had been produced in the case, it would be sufficient of itself to determine it, and their verdict should be for the plaintiffs. But if they should be satisfied of that essential fact in the case, then the court was bound to say to them upon the question of law purely which had been raised and discussed by the counsel in relation to the construction, operation and effect of such a deed, which it was admitted had not been recorded until more than seven years after the date of it, and of the provisions of the statutes referred to in regard to it, that if they were satisfied from the evidence that the mortgages executed after the date of it to Maria Harley and to James Riddle, by the deceased, Aaron P. Osmond, were taken by them without any knowledge of that deed until afterward, or that any of the other debts standing against him at the time of his death, and for the payment of which his administrator was authorized by the Orphans’ Court to sell his real estate, and for the payment of which he did sell it pursuant to that authority, were contracted by him after the date of that deed with such creditors, and that they were fair creditors of his and had no knowledge or notice of it until after such debts were so contracted, then and in that case also their verdict should be for the plaintiffs; for if such were the facts of the case, the deed would be in contravention clearly of the manifest design and policy of the statute providing for the sale of the real estate of deceased persons by their executors or administrators for the payment of their debts, and the provision of the statute referred to requiring a deed to be recorded in the proper office within one year after the sealing and delivery of it, if it was not strictly contrary to the literal terms of those statutes; and it would consequently be null and void and of no effect as against the mortgagees mentioned and the other creditors of the deceased for the payment of whose debts the tract of land in question was so sold as a part of his real estate by his administrator and was purchased by the lessors of the plaintiff, because Caleb Osmond, the grantee in it, could take no title by it from his father, Aaron P. Osmond, the grantor in it, under such circumstances, that would avail against such mortgagees and creditors of the latter, for the payment of whose debts it was sold to the lessors of the plaintiffs by his administrator pursuant to the order and' decree of the Orphans’ Court made for that purpose; for under that decree and by force of the statute they take directly all the estate, title and claim which the deceased at the time of his death had to the tract in question, and which, of course, at that time was complete and absolute so far as this case is concerned, if the deed to his son was null and void as against his creditors for the reasons stated. If, however, the jury should not be satisfied from the evidence that such were the facts in the ease, then their verdict should be in favor of the defendants.

The plaintiffs had a verdict.