Kane v. Roberts

G-rason, J., delivered the opinion of the Court. This suit was instituted by the appellees against the appellant for damages for the taking a piano, alleged to belong to the appellees. The piano was seized by the appellant as sheriff of Baltimore city, under a writ of fieri facias issued upon a judgment in the Court of Common Pleas of Baltimore city, which had been obtained by F. A. Sharrer & Son against Matthias Roberts. The proceedings show that the debt, for which the judgment was recovered, was incurred in 1812 by Matthias Roberts for a coffin and funeral expenses.

It further appears that on the 9th November, 1858, Matthias Roberts and wife executed a bill of sale to Henry T. Roberts which was duly recorded, by which they conveyed .to him certain personal property then contained in the dwelling house known and designated as No. 516 West Fayette Street, Baltimore, and among which was the piano, for the taking of which this ⁵⁹³ suit was brought. The consideration named in the bill of sale was fifteen hundred dollars. At the trial of the case the appellant offered to prove by Matthias Roberts, that he was insolvent at the time the bill of sale was executed, and that his creditors were clamorous for the payment of their debts ; that he explained his financial embarrassment to his brother, the said Henry T. Roberts, and asked his advice, and was advised by him to convey to him all his furniture and effects for the purpose of hindering and preventing his, Matthias’ creditors from seizing the same, and that said bill of sale was made in pursuance of that advice, but that the money consideration was not paid, and that he was not indebted to his brother in the amount named in the bill of sale, and that his brother never claimed the property conveyed, but that it remained in his possession. He further offered to prove that the debt to Sharrer & Son was contracted without any knowledge on their part of the bill of sale, or the circumstances under which it was executed.

This evidence was objected to by the appellees as inadmissible, the objection was sustained by the Court below and the appellant excepted, and the only question presented upon this appeal is whether a deed, that is fraudulent and void against the grantor’s subsisting creditors, is also void against subsequent creditors when there is nothing in the deed itself, and no evidence offered tending to prove that any fraud was intended against the latter. It was contended by the counsel for the appellant, that, while a voluntary deed which is merely fraudulent in law, can be impeached by subsisting creditors only, a deed that is