Cushwa v. Cushwa

Eccleston, J., delivered the opinion of this court. This is an action of ejectment to recover certain lands in Washington county, instituted by the appellees against the appellants. It is admitted that. John Cushwa, the elder, died seized of these lands, having executed his will devising them to his sou Benjamin, who took and held the same under the devise; that on the 14th day of November 1826, Benjamin executed a deed to his brother, John Cushwa, for these lands.

It appears in proof, that on the 26th of March 1839, Benjamin gave to his brother John a single bill for $4689.86, on which, after the decease of John, his administrators obtained judgment, and shortly afterwards Benjamin died, leaving the appellants, Isaac B. Cushwa, Ann E. Cushwa and Sarah Troup, his heirs at law. After the decease of Benjamin a scire facias against his heirs and terre-tenants issued upon the judgment, and a fiat was rendered thereon against the appellants. Under a fi.fa. upon this fiat the lands in controversy were sold, and the appellees purchased them; which sale was set aside on motion and a second fi.fa. issued. Under this writ the appellees became the purchasers at the price of $50.

A motion was made to set aside this sale also, which motion was pending at the trial of this cause below. The defendants offered in evidence the proceedings upon the application of Benjamin Cushwa as an insolvent petitioner, which commenced on the 19tlx of December 1826. The ob- ⁵⁰ feet of this offer was to show the time of the application, the appointment of John Cushwa as trustee, and the deed from Benjamin to John conveying his properly to him as trustee; that the deed of the 14th November 1826 was in fraud of the creditors of Benjamin, having been executed by him with a* view and under the expectation of becoming an insolvent petitioner, and that after the death of John, William Ditto was appointed trustee in his place. It is admitted that the- plaintiffs, John S'.

Cushwa and Elizabeth Brewer, (wife of the plaintiff, David Brewer,) aretft-e children and only heirs at law of John Cushwa, the brother of Benjamin. The plaintiffs claim under the deed of the 14th November 1826. The defendants say that deed is void, and the title of Benjamin passed under the insolvent proceedings to John, as-tr-ustee; and that after his decease, upon the appointment of William Ditto as trustee in the place of John, the title vested* in the new trustee. A deed which is fraudulent against creditors may be impeached for their benefit, but it is good against all others.

See the opinion C. J. Taney, in White, Warner & Co., vs. Winn and Ross, cited in 8 Gill, 501 . Such a deed cannot be successfully impeached by the parties to the fraud, or by their ^representatives or heirs at law. The defendants do not pretend to be creditors of Benjamin* Cushwa. Nor do they show any title in themselves by adverse possession-for twenty years or by any other means, but profess to rely simply upon being in possession at the institution of the suit, and insist that there is an outstanding title in-Wm.

Ditto, which is sufficient to prevent the plaintiffs from maintaining this action. It is also insisted in argument on-the part of the defendants, that they make no claim or defenceas heirs at law of Benjamin Cushwa. This position is obviously taken for the purpose of avoiding coming in conflict with; the principle which denies, not only to the party himself, the right to impeach his own deed for fraud in which he was a-participant, but also to those claiming under him adversely lathe deed. To allow such a defence as this under the circum ⁵¹ stances of this caso, would be a virtual repeal of the principle just stated.

The defendants do not exhibit a shadow of title; it is admitted they are, in fact, the heirs at lav/ of Benjamin Cuslnva, who executed the deed of the 14th of November 1826, under which the plaintiffs claim; and the only proof in defence is offered with the express design of showing that deed was a fraud upon the creditors of the grantor. The law so much abhors fraud and the courts have so pertinaciously refused to suffer a party, or those claiming under him, to reap any benefit, from his fraudulent transaction when the fraud is attempted to be set up, that we should feel ourselves to be violating wise and salutary principles, well settled, were we to sanction the present defence. The courts have repeatedly declined to suffer a grantor to rely upon the fraud, when, as plaintiff or complainant, he is claiming relief against the effect of his deed, or when, as defendant, he is resisting the claim of the grantee. The case of Stewart vs. Iglehart, 7 G. & J., 132, is one of the latter class of cases; and that of 'Freeman and Sedwick, vs. Sedwick, 6 Gill, 29 , is one of the former class.

In Stewart vs. Iglehart, the court allowed the children of Maria Stewart, one of the grantors, to impugn the deed only because she did not participate ia the fraud and was herself imposed upon; whilst the deed was allowed to have full force and effect against her husband, Joseph Stewart, the fraudulent, grantor, although he relied upon the fraud as a ground of defence. And notwithstanding Iglehart was held, in consequence of {saving notice, as standing in regard to his mortgage from Richard Stewart in the same condition which Richard did under the deed from Joseph Stewart and wife, still the complainant, (iglehart,) obtained a decree for the sale of Joseph’s life estate for the payment of the mortgage debt. Thus the grantor’s defence, founded upon fraud, was defeated, although it was necessary to sustain the claim against him under the deed in which the grantee participated in the fraud. In Freeman and Sedwick, vs. Sedwick, James Sedwick executed a deed to his brother, Joshua, for the purpose of de ⁵² frauding creditors.

Subsequently, an agreement was entered into between the parties, that Joshua should veconvey the property. There was no valid consideration for either instrument. After the death of Joshua, a bill was filed claiming a reconveyance; but the Court of Appeals finally dismissed the bill, because the original contract or deed was