Totten v. Brady

Robinson, J., delivered the opinion of the Court. The hill in this case was filed by the creditors of John C. Brady, to set aside two deeds made by him to his mother, Susan E. Brady, on the ground of fraud. The deeds were executed on the 14th September, 1874, the one in consideration of ten thousand dollars, and the other in consideration of twenty-five thousand. The burden of proof is upon the complainants to show that the deeds in question were made without consideration, or if made upon a good consideration, that they were executed by the grantor with a fraudulent intent, and that this intent was known to the grantee.

The fraudulent intent, and fraud of every kind is flatly denied by the defendants in their answers, and the proof in regard to it rests mainly on the testimony of the grantor and grantee, both of whom were examined as witnesses for the complainants. It seems that Samuel D. Brady, the father of the grantor died in 1869, seized and possessed of a large and valuable real estate, the latter embracing the lands conveyed by the two deeds now assailed. After sundry specific bequests and devises, the testator directed his executors, John C. Brady the grantor being one, to sell the rest of his estate, real and personal, and to distribute the proceeds among his children. To his wife, Susan E. Brady, he gave the option to take $15,000 in lieu of her dower in the real and her thirds in the personal property, and should she elect to take $15,000, the executors were directed to pay the same out of the proceeds arising from the sale of his property.

The power of sale under the will was never executed, hut in September, 1870, there was a family arrangement or settlement, whereby as part of that settlement, the lands mentioned in the two deeds now in controversy, were to he conveyed by the heirs to John C. Brady at a valuation of twenty-five thousand dollars. ¹⁷² This sum together with the valuation of the real estate taken by the other children, were charged to the executors in their administration account of February, 1871. No part of the $25,000, being the valuation of the lands to be conveyed to John 0. Brady under the family settlement, was paid by him, nor was he entitled to anything as distributee under the will, because the specific devise of the McNary farm and the amount due by him to his father, exceeded his distributive share. In payment however of the $25,000 he assumed to pay to his mother the $15,000 which she had elected to take, and the balance of the $25,000 was to be paid to his sister Kate B. Randall, on account of her distributive share.

The testimony shows beyond all controversy that these amounts together with the amount due his nephew, Louis B. Randall, exceed the sums of $10,000 and $25,000, the consideration set forth in the deeds from John 0. Brady to his mother, and which deeds are now assailed as fraudulent. It also appears that in pursuance of the family arrangement, the children and heirs-at-law of Samuel D. Brady, on the 30th of September, 1870, executed a paper purporting to convey to John 0. Brady the lands taken by him at the valuation of $25,000, and that this paper was delivered to Susan F. Brady, the mother, to be held by her until the payment by John C. Brady to her of the $15,000, and also the payment of whatever sums might be due Louis B. Randall in his own right and in the right of his mother Kate B. Randall, deceased.

Such then being the