author: By the Court, Pratt, J.

text:
    Pierson, Sheriff, &c., plaintiff in error, vs. Manning et al., defendants in error.
    A voluntary assignment for the benefit of creditors, containing a clause that the real estate conveyed by it shall not be sold by the assignees, until all the personal property and assets assigned shall be exhausted, unless with the consent of the assignor, not being an unconditional assignment, is therefore fraudulent and void in law as against creditors not preferred or not provided for in the assignment.
    It is a well settled principle of law that assignments of this class shall definitely fix the rights of the parties beneficially interested, and that nothing shall he loft subject to the discretion or future control of the assignor.
    Where an assignment provides for a part only of the creditors, and contains no provision for the application of any surplus, remaining after the payment of the creditors specially provided for, such surplus must, at law, revert to the assignor; consequently, the instrument contains, by implication, a resulting trust for the future benefit of the assignor, which renders the assignment fraudulent and void, as against creditors unprovided for.
    If an assignment by a debtor in failing circumstances, is so drawn that it must in its execution tend to hinder or delay creditors unprovided for, in the collection of their debts, the legal presumption is, that it was so framed with that intent.
      "The law presumes every man to intend the legal consequences, which must naturally flow from his own voluntary acts.” Sections land 2, Chap. 80, R. S., were not intended to apply to trustees under voluntary assignments by insolvent debtors. Such trustees are not tona jidc purchasers for a valuable consideration, within the meaning of these sections.
    Section 4, Chap. 82, R. S., providing that the question of fraudulent intent, shall be deemed a question of fact, has no application to a case where the evidence of the fraud, or the fraudulent intent of the assignor clearly and fully appears on the face of the assignment. Where an attachment was levied upon the goods included in an assignment to trustees for the benefit of creditors, before an acceptance of the trust by them, it was determined that the attachment held the goods as against the assignment.
    Where an assignment is fraudulent as to any of its provisions, it is void in toto as against creditors who are entitled bylaw to take advantage of the fraud.
    Case reserved, from the Circuit Court for the county of Branch.
    This was an action of replevin, originally brought in the Branch County Court, by the defendants in error, against the plaintiff in error.
    The declaration was in the usual form, for the unlawful detention of certain enumerated goods, wares, and merchandize: to which the plea of general issue was interposed, together with notice that the goods in question were seized by virtue of a writ of attachment issued out of the said County Court, at the suit of J. E. Earle, against one Horatio H. Smith, &c.
    On the trial of the cause, the plaintiffs below proved and submitted in evidence,- amongst other things, an 'assignment in writing from the said Horatio H. Smith, to the said plaintiff's below, bearing date the 26th day of March, A. D. 1849, by which the said Smith assigned to them his entire stock of goods, all book accounts, notes, judgments, and all other personal property in trust:
    First. To pay in goods at retail prices, certain outstanding due-bills.
    Second. To pay the expenses of selling the goods, collecting the •debts, and of repairing, renting, and taking care of the real estate conveyed under the assignment.
    Third. To pay themselves the sum of $1,250.
    Fourth. To pay Masterton & Bostwick, of the city of New York, the sum of $1,847, and interest.

      Fifth. To pay H. "W. Barnes & Co., of the city of New York, the sum of $1,328, and interest; and M. and B. Fowler, and M. and B. Fowler & Co., the sum of $495, and interest.
    The instrument then contains a provision in the words following:
    “All the personal property hereby assigned, to be applied for the purposes aforesaid, and to be entirely exhausted, before the real estate deeded to the said trustees subject to the trusts of this instrument, is resorted to for carrying out said trusts, unless with my consent.”
    The deed executed by Smith conveying the real estate under the provisions of the assignment, was also proved and read in evidence.
    On the defense, the attachment under which the goods were seized by the defendant below, as sheriff, &o., together with his return thereto, and the affidavit upon which the attachment issued, were severally proved and read in evidence, and by which it appeared that the said attachment was duly issued on the 6th day of April, A. D. 1849, the goods ' seized, and personal service made on Smith the same day.
    The record of the judgment recovered by Earle under the attachment, was also proved and read in evidence on the defense, and by which it appeared that a judgment for $368 36, was rendered on the 16th day of April, A. D. 1849.
    The cause upon the evidence was submitted, and the County Court on the 10th day of September, A. D. 1850, rendered judgment for the plaintiffs below. The defendant below sued out a writ of certiorari, and removed the judgment and proceedings into the Circuit Court, where, on the return, the following, among other questions, were raised and reserved by the Circuit Judge for the opinion of this Court, viz: 1st. “Was the assignment, executed by Smith to Manning & Co., a valid instrument?” 2d. “Was the assignment so accepted by the assignees, as to prevent the attachment becoming a lien on the goods ? ”

      If. K. Clarice, for plaintiff in error,

      S. J. M. Hammond., for defendants in error.

      In tho recent case of Nicholson vs. Leavitt, decided in the New York Court of Appeals, ^February Term,-1853, it was determined that an assignment containing a clause authorizing the trustees to sell upon credit, was fraudulent and void, by reason of its tending to delay creditors.
      This case, as well as all the .authorities upon this branch of the law, is cited in a valuable treatise upon assignments, by A. M, Burrill, Esq,, Counsellor at Law, published by J. S. Yoorhies, N. Y., 1853.

   By the Court, Pratt, J.

The assignment of Smith, under which the plaintiffs below claimed the goods in controversy, is fraudulent and void on its face, and must be so adjudged. It is not an unconditional assignment by the assignor, for the benefit of all his creditors; and it is therefore fraudulent and void in law, as against creditors for whom he made no provision. Great and well founded doubts have always been entertained by Courts generally, in this country, in relation to sustaining voluntary assignments by insolvent debtors at all, which give a preference to the claim of one creditor over that of another; and such transfers of property, by debtors in failing circumstances, have only been sanctioned by Courts in most of the States, where the surrender and transfer is, in fact, entirely unconditional. In Maine, New Hampshire, Connecticut, Georgia, and New Jersey, preferences in voluntary assignments by insolvent debtors, are inhibited by statute.- In Ohio and Pennsylvania,' such preferences are entirely disregarded, and the property assigned, inures by statute to the benefit of all the creditors of the assignor, in proportion to their respective debts. There is certainly great reason in this rule of law; and it is difficult to perceive how any other rule on the subject, could, in justice and equity, be adopted by statute; as any other, must necessarily, often lead to fraud and gross injustice to honest individual creditors. Yet, in those States, where no such prohibitory statutes have been enacted, insolvent debtors have been tolerated by judicial decisions, both at law and in equity, in mating unconditional asssignments of all their property, with classifications, and preferences. (5 Cow. R., 580; 11 Wend. R., 187; 3 Devereux R., 126, 134; 4 B. Monroe R., 296, ’7; 7 Peters R., 609, 614; 2 Barb. S. C. R., 9; 2 Binney R., 174, 186; 11 Alabama R., 689; 2 Comstock R., 365; 7 Paige R., 568; 5 John. R., 335; 2 Conn. R., 633; 17 Verm. R., 311; 8 Leigh R., 416; 10 Paige R., 223; 4 Barb. S. C. R., 546; 6 Hill R., 365; 10 Watts. R., 223, 244; 2 John. Ch. R., 565, 576; 8 Paige R., 417; 1 Sandford R., 251.) But in the case under consideration, the assignor has not made an unconditional assignment and transfer of his property, for the benefit of those creditors whom he did prefer; but expressly provided by a clause contained in the assignment, that the real estate conveyed under it, should not be sold by the trustees, until after ail the personal property, goods, and other personal assets, were exhausted, without his consent. The assignment with this special clause, is not in facf^ nor in judgment of law, unconditional. The assignor, in virtue pf the instrument, has not ipso-fa,clo parted with his interest in, and right of control over, all the property which he assumes to assign. It is no matter what the effect of this provisión in the end, may he; that is not a question to he determined here. But, is this reservation of right, on the part of the assignor, to control the trustees in relation to a sale of ' the realty, repugnant to the settled rules of law ? And- if so, then does it render the instrument fraudulent and void, as against creditors for whom no provision was made ? These are the important questions to he judicially determined in this case — questions which must he determined by the law, and not by any extrinsic facts that may, in the abstract, exist.

That the assignment, by reason of this special reservation, is conditional, is certain, and cannot admit of a doubt; and that Earl, the plaintiff in the attachment is a creditor of the assignor, unprovided for, conclusively appears by the case. The instrument is therefore fraudulent and void, as against him, or -any other creditor of the assignor, not preferred. (Grover vs. Wakeman, 11 Wend. R., 187; Mackie vs. Cairns, 5 Cow. R., 580; Seaving vs. Brinkerhoof) 5 John. Ch. R., 329; Austin vs. Bell, 20 John. R., 442; Goodrich vs. Downs, 6 Hill R., 438; Barney vs. Griffin, 2 Comstock R., 365; Gazzam vs. Poynts, 4 Alabama R., 374; Wiswall vs. Ticknor et al., 6 Ib., 179.) Other authorities might be cited in support of this position, but it must be unnecessary. It is a well settled general principle of kw, that the assignment in this class of cases, shall definitely fix the rights of the parties beneficially interested, and that nothing shall be left subject to the discretion or future control of the assignor.

But there is another legal fatality to this assignment, appearing on its ” face. The assignor transfers all his property, including his real estate, his entire stock of goods,* notes, accounts, judgments, and other evidences of debt, not for the benefit of all of his creditors, but ostensibly for the benefit of three mercantile houses in the city of New York, maldng the firm of one of these preferred houses, his assignees. And yet, the assignment contains no provision whatever, for the appropriation by tlie trustees, of any surplus property or funds which may-remain in their hands, after payment of the particular debts specified, either to the payment of Earl, or any other creditor unprovided for. Such surplus, therefore, whatever the amount may be, must at law, revert to the assignor; and nothing but the interposition of a Court of Chancery can arrest the reversion. Consequently, by legal implication, the instrument contains a resulting trust, for the future benefit of the assignor. This also renders the assignment fraudulent and void in law, as tending to hinder and embarrass creditors not provided for, in the collection of their debts. Such is clearly the inevitable effect of it, and brings the case within the letter and spirit of the statute on this subject, and must be conclusive as to the invalidity of the assignment. If not conclusive, the provision of the statute in relation to fraudulent transfers of property, with intent to hinder and delay creditors in the collection of their debts, had better be abolished, and save all further trouble and expense. But, in argument, it was contended that there is no evidence in the case, of any intent on the part of the assignor, to hinder, delay, or defraud creditors; and that if there was, the assignees, without notice of such intent, could not be affected by it.

The provisions of our statute for the prevention of frauds, are taken from the New York statute, and are divided into three chapters, viz: 80, 81, and 82. Chapter 80 is entitled Of fraudulent conveyances and contracts relative to land.” This chapter in the first place and especially, provides for the protection of prior and subsequent purchaser's for a valuable consideration, and then makes other provisions touching the revocation of conveyances, and also provision in relation to contracts, leases, &c. Chapter 81 is entitled “Of fraudulent conveyances and contracts relative to goods, chattels, and things in action;” and contains the general provisions in relation to sales, and conveyances of personal property, the filing of chattel mortgages, &c. Chapter 82 is entitled “ General provisions relating to fraudulent conveyances and contracts.” Section 1 of this chapter, provides that “every conveyance or assignment in writing, or otherwise, &c., made with intent to hinder, delay, or defraud creditors, or other persons, of their lawful suits, &c., as against the persons so hindered, delayed, or defrauded, shall be void.”

A careful examination of the provisions contained in these three •chapters of the statute, must, in view of the very clear and explicit language in which each' provision is expressed, satisfy the most obtuse mind of the real intent of the Legislature.. The provision contained in sections 1 and 2 of chapter 80, was intended to apply to purchasers, and not to trustees under voluntary assignments by insolvent debtors. Trustees, under voluntary assignments, are neither prior or subsequent purchasers, for a valuable consideration, within the meaning of these sections, nor could they have been so considered or intended by the Legislature. Of this, section 1, of chapter 82, furnishes conclusive and irresistible proof. By this section, the Legislature, for the first time, makes provision in relation to assignments intended to hinder, delay, or defraud creditors, and not in relation to conveyances made to defraud prior or subsequent purchasers for a valuable consideration, unless the Legislature absurdly intended to enact the same provision twice over, by incorporating it into chapter 80, and also into chapter 82, in language entirely different in fact and in meaning, both in common and legal parlance.

Section 1 of chapter 80 provides that “ every conveyance of any estate, made with intent to defraud prior or subsequent purchasers,” &e., “shall be void.” Section 2 of the same chapter is a qualification of section 1, and expressly protects subsequent purchasers for a valuable consideration, without notice. But not so in chapter 82, there is no such protection provided for assignees in section 1, or in any of the succeeding sections, nor'are assignees or trustees named in the chapter. The language of section 1 is too clear and explicit to be misunderstood: ‘‘Every assignment,” &c., “made with intent to hinder, delay, or defraud,” &c., “shall be void.” Who is it that makes the assignment? It is the assignor, and not the trustee, who makes it. It is the assignor) and not the trustee, who is the debtor, and whose creditors are to he" affected by it. It is often the case that the trustee resides at a distance from the assignor, and knows nothing of the transaction until after the execution of the assignment. If not residing at a distance, being usually a friend of the assignor, the trust is accepted without much, if any thing, being said to him on the subject. And if the provision of the statute contained in sections 1 and 2 of chapter 80 is to be, by vague construction, and in violation of explicit language and common sense, applied to trustees under voluntary assignments, by fraudulent debtors, then the entire law on the subject had much better be abrogated at once, as under such a construction, it is but a mere mockery — a fraud calculated merely to delude and mislead honest creditors in pursuing and seeking justice at the hands of their dishonest and fraudulent debtors; for, as a general proposition, not in one ease out of five hundred, could affirmative proof be adduced to show, that, in fact, the trustee accepted the trust with a fraudulent intent, or that he had knowledge of such intent on the part of the assignor. But by a rational and legitimate construction of the statute, it is clear, that the Legislature has designedly left assignees under voluntary assignments, where reason and common sense, and where justice and equity places them', on the ground of naked trustees, having no real interest in the transaction, and not as bona fide purchasers for a valuable consideration. They are not in fact purchasers. They never agree or intend in fact to become the purchasers of the property assigned. They never in fact pay, or intend to pay one dollar for it. With this construction of the statute, every provision of it is rendered reasonable and operative, and the question of fraud in this class of cases is left entirely open between the debtor and creditor, where, by every principle, human or divine, it ought to be left, and where, beyond all controversy, the Legislature intended to leave it. The proposition is not to be tolerated, that men having no interest in the transaction, but being merely the passive instruments by the choice of the fraudulent debtors, are, by a visionary construction of the statute, to shield such debtors and their property from the reach of honest bona fide creditors, on- the ground that they were not informed by the debtors, in the presence of witnesses, at the time of the execution of the assignment, that it was intended thereby to perpetrate a fraud upon some one or more of their creditors.

That a transfer of property under a voluntary assignment, although fraudulent in law or in fact, is valid as between the parties when the creditors of the assignor submit, and do not take the necessai-y steps provided by law to set it aside or otherwise avoid it, is not controverted. The statute settles this question, and no judicial decision is necessary to give it a construction. It is the creditors of the assignor whom the Legislature intended to protect, and who are in explicit terms protected by the act. ■ “Every assignment” says the statute, “made with intent to hinder, delay, or defraud creditors, shall, as against the creditors so hindered, delayed, or defrauded, be void.” Ko language could be more definite or certain. The protection of creditors was the sole and only object which the Legislature had in view, in the enactment of this provision. And if trustees, selected by fraudulent debtors to carry out their assignments, are to be adjudged bona fide purchasers for a valuable consideration, then this provision of the statute must be rendered entirely nugatory, and instead of furnishing the least protection to. the creditor, will inevitably become an impenetrable shield to the fraudulent debtor, behind which he may retire with the passive instrument of his own choice, and bid defiance to his honest creditors. Section 5 of chapter 82, has been referred to for the purpose of giving a construction to this provision, but there is nothing in that section conflicting in the least with the view here taken. It should be recollected that chapter 82 is entitled, “General provisions relating to fraudulent conveyances and contracts,” and that section 5 of this chapter merely provides, that “none of the provisions contained in either of the three chapters shall be construed to effect or impair the title of a purchaser for a valuable consideration.” This section, therefore, neither establishes a rule, or declares a principle differing in the least from any established or declared by the preceding sections, but is, in terms, a mere qualifica- . tion of other sections preceding, and expressly applies to'the provisions contained in chapters 80 and 81, and must have been more particularly intended to guard the provisions contained in those two chapters against any false construction by reason of the general provisions, as there is no section in chapter 82 making any provision whatever relative to title, or purchasers for a valuable consideration. In view of the language and object of section 5, it is most extraordinary that even an inference should have been drawn from it, as a prop to the absurd doctrine, that trustees under voluntary assignments by fraudulent debtors, are, in judgment of law, to be deemed bona fide purchasers for a valuable consideration. The doctrine, upon the face of it, is an absurdity, and repugnant to every principle of justice, honesty, and morality.

That there are some few decisions to be found in support of the proposition is not denied, but they were not authorized by any thing contained in the English statutes for the prevention of frauds, either in the 13th or the 27th of Elizabeth; nor were they founded upon any settled principle of the common law, and they ought not to be recognized as authority upon the point. It often becomes necessaiy in construing statutes, to resort to principles of the common law, but never when a statute is clear and explicit, being neither ambiguous or uncertain as to its true intent and meaning; and when a statute is thus certain, no judicial decision can change it or over-ride it upon the ground of either interest or policy. But there are decisions which clearly sustain the view here taken of the statute. In (5 John, Ch. R. 329; 3 Wharton, 485; 4 Ib., 500; 5 Watts & Serg., 145; 1 Barr, 101; 3 Ib., 136; 20 Pick., 321; 4 Scam., 14; 11 Alabama, 881, 1068, & 1084;) it is held that assignees in trust for creditors are not bona fide purchasers for a valuable consideration, and that they have no other rights than the assignors had.

If an assignment by a debtor in failing circumstances, is drawn in such a manner as that it must necessarily, in its execution, tend to hinder or delay creditors unprovided for in the collection of their debts, then the legal presumption arising upon the face of the instrument, is, that it was so framed with that intent. Ho other presumption could legally arise upon it. “The law presumes every man to intend the legal consequences which must naturally flow from his own voluntary acts,” and every man is held responsible accordingly.

Why did the assignor, in the case under consideration, make a conditional transfer of his real estate ? The legal presumption is, that he, at the time, supposed his personal property, including his entire stock of goods, notes, accounts, judgments, and other evidences of debts outstanding, would be sufficient to pay the creditors preferred; and that the real estate, being in this manner placed beyond the immediate reach of other creditors, would ultimately revert. And why did he not, in assigning all his property, real and personal, for the benefit of a part of his creditors only, make provision for the payment of Earl out of any surplus property or funds remaining in the hands of his trustees, after satisfaction of the debts specified? The legal presumption is, that be did not intend to have the surplus thus appropriated; hut designed at some future day a reversion of it, thereby securing its future use and benefit to himself. Such are the presumptions arising on the face of the assignment; no other' legitimate inferences can be drawn from the premises; and there is no evidence in the case, rebutting these presumptions, or tending in the least degree even, to repel them.

It has been repeatedly decided by Courts of the highest character and standing in this country, that an assignment by a debtor in failing circumstances, for the benefit of a part of his creditors only, containing a resulting trust, is absolutely void in law, as against creditors unprovided for, whether there shall be in the end any surplus in fact, or not. And it can make no difference either at law or in equity, whether the instrument contains such a resulting trust, in terms, or by implication of law; the effect to those creditors to be affected by it would be the same. These decisions ate numerous, and have been made upon principle, which has become established, as a rule at law and in equity; the reason or justice of which cannot be controverted or successfully assailed.

It was also in argument contended, that by section 4 of chapter 82, the question of fraud is made a question of fact, and that without proof of the fact, the assignment cannot be adjudged fraudulent. This, by a species of illegitimate construction, is carrying that provision of the statute entirely beyond what the Legislature ever intended, or it will legally bear. It is not to be presumed that the Legislature intended, by this simple provision, to make such a radical reform as to turn principles of law into questions of fact, nor does it in fact or inferentially do so. In that class of cases where the assignment is unconditional, and in other respects legally unexceptionable on its face, it would, of course, become necessary for the party alleging it to be fraudulent, and seeking to avoid it on that ground, to resort to extrinsic facts and proof aliunde the assignment, in support of the allegations. Such extrinsic proof, however, is not necessary, nor is it required by the statute or any known rule of law, where the evidence of the fraud, or of the fraudulent intent of the assignor clearly and fully appears on the face of the instrument. In the case now before the Court, it does appear on the face of the instrument, that the assignment was not absolute and uncon ditional, and that it contains, by legal implication, a resulting trust. These are not extrinsic, but matters constituting- part and parcel of the instrument itself, and, therefore, legal questions arising upon the face of it; questions which must be judicially considered and determined in giving the instrument a legal construction. Such legal construction is for the Court, and not the jury. In giving such legal construction, it becomes necessary for the Court to examine every part and provision contained in it, and to apply thereto the law of the case. The law, when so applied, settles the question of its validity at once. By this legal test it is found to be obnoxious to the law of assignments, and void on its face. This result is announced by the Court as a legal construction of the instrument, and as a judicial decision in the ease. Such decision is equally binding upon the jury as the parties, and while it remains unreversed, is legally decisive of the question. And if decisive, what remains to be submitted to the jury for then- determination.? Nothing. The assignment is void, it has been judicially so decided. After such decision by the Court upon the validity of the instrument, to submit the matter to a jury for their affirmance or reversed, or to require extrinsic proof of fraud in fact, would be a mockery of legal proceedings, and render the trial of the cause farcical and ridiculous. Section 4 of chapter 82 requires no such proceedings. It provides, merely, that the question of fraudulent intent shall be deemed a question of fact; that is to say, the fraudulent intent, when it becomes material in a cause shall not be inferred without some proof. That is all there is of the section. It neither abridges the legal power or duty of the Court in this class of cases, or changes the rules of law touching the legal construction of voluntary assignments by fraudulent debtors.

But it is said that the assignment; although on its face obnoxious to law, constitutes only prima facie evidence of fraud, and may be rebutted by extrinsic proof. How rebutted by extrinsic proof ? By what kind of extrinsic facts could an assignment void on its face, by reason of the illegal provisions contained in it, be rebutted, either by the assignor or the assignee ? They are both parties to the instrument, and are legally estopped from denying any of the express stipulations it contains. But, suppose that as in the case under consideration, no proof of any kind is offered on the trial, to rebut the legal presumption arising on the face of the assignment, must the question still he submitted to the jury, and does the statute render a proceeding so absolutely absurd, necessary ? It certainly does not in terms, or by any rational construction of the language employed. Where the instrument is not void on its face, and extrinsic facts are proved for the purpose of establishing the fraud, evidence to rebut such facts, or the legal presumption arising thereon, is undoubtedly admissible. In such a case, the question of intent would be a question of fact, and not of law, and would legitimately •come within the spirit of the provision of the statute, and the evident intention of the Legislature.

Section 4 of chapter 82, is a literal copy of a section contained in the revised statutes of the State of New York, under which repeated decisions have-been made by the Courts in that State, and in which, voluntary assignments have been adjudged fraudulent and void in law, upon their face.

In Grover et al., vs. Wakeman, (11 Wend., 187,) the bill was filed to set aside an assignment, on the ground of fraud. The assignment was„voluntary, with classifications and preferences, and provided for the payment of creditors designated in the second class, upon condition that they would receive, in full satisfaction and discharge of their respective debts, such proportion as could be paid by the assignees of the property, after payment of the creditors' in the first -class. The assignors and trustees answered the bill, denying that the assignment was fraudulent, or made with a fraudulent intent. No proofs were taken, and the case went to hearing on bill and answer; and the Chancellor decreed that the assignment was, upon its face, fraudulent and void. On an appeal to the Court of Errors, the decree of the Chancellor was affirmed, 15 to 5, on the ground of the condition, in relation to the creditors named in the second class. In Webb vs. Daggett (2 Barb. S. C. R., 9,) which was also a case in which a bill was filed to set aside a voluntary assignment, on the ground of fraud, in which the assignor had preferred the payment of a fictitious debt, Justice Harris, in delivering the opinion of the £ourt, says: “ The Court is bound to consider that the assignment was executed with a fraudulent intent, and to declare it illegal and void, as against such creditors £¿3 seek to avoid it.” In Berry vs. Riley, (2 Barb, S. C. R., 307,) which was a case of voluntary assignment, for the benefit of such creditors only, as would become parties to the instrument, and containing a provision for the payment of any surplus to the assignor, the Court declared the assignment fraudulent and void. In Strong vs. Skinner, (4 Barb. S. C. R., 546,) the assignment was voluntary for the benefit of certain preferred creditors, and contained a clause authorizing the trustee, in his discretion, to alter the order of the preferences specified, and without any provision for other creditors, contained a stipulation for the re-assignment of any surplus. The Court, in the decision of the case, say: “Each of these provisions, renders the assignment fraudulent and void on its face.” In Sheldon vs. Dodge, (4 Denio, 217;) which was an action at law, involving the validity of a voluntary assignment by an insolvent debtor, the Supreme Court held that the provision contained in the assignment, authorizing either the assignor or trustees to declare any future preferences, rendered the instrument fraudulent and void in law; and that it was for the-Court, and not the jury, to pass upon the legal effect of such provision; and that the submission of it to the jury, to determine whether it was-inserted with a fraudulent intent, was error, and accordingly reversed the judgment below. In Goodrich vs. Downs, (6 Hill, 438;) which is-another of this class of cases Justice Bronson, who delivered the opinion in the case, says: “It would be strange, indeed, if there was any thing for the jury to pass upon, when the Court can see that the deed of assignment is void upon its face.” In Barney vs. Griffin, et al., (2 Comstock, 365;) another of this class of cases, the bill was filed to set aside the conveyance of certain real estate under assignment, by an insolvent debtor, for the benefit of certain preferred creditors. The assignment contained a clause authorizing the trustees to sell at public or private sale, for cash, or upon credit; and also contained a resulting trust. The answer admits the assignment, but denies all fraud in fact, or in intention. The Vice Chancellor, on the bill and answer, declared the assignment upon its face fraudulent and void in law. The defendants appealed to the Chancellor, who affirmed the decree; they again appealed to the Court of Appeals, where the decree was again affirmed, and the assignment 'declared void upon its face. The Court, in the decision of the case, say, “that voluntary assignments, by insolvent debtors, which give preferences among creditors, can only be supported when they make a full and unconditional surrender of their property; that they can neither make terms nor reserve any thing until after all their creditors are satisfied; that the assignment cannot he made good by showing that there will be no surplus for the debtor after paying-the preferred creditors. And that an insolvent debtor cannot, under-. * color of providing for creditors, place his property beyond their reach in the hands of trustees of his own selection, and take away the right of creditors to have the property converted into money without delay; and that a conveyance which takes away that right, comes within the very words of the statute, and is a conveyance to hinder and delay creditors.”

These decisions under the New York statute, were made upon principle, and are founded in reason and common sense — the only basis of correct legal rules or sound common law. That there are some few decisions to be found conflicting with them, is not disputed. But the-question is, are they sound law ? If they are not, then they ought .not to be adopted or recognized as such. The single decision of any Court, ought not to be deemed conclusive, as a precedent established forever; although final upon the parties, it should not and does not conclude other parties having rights involving the same question. It is an eler mentary principle in jurisprudence, well understood, that erroneous decisions are not to be regarded as law. The decisions in several of the States have been made under statutes differing, in many respects materially from our own, and are not therefore, any guide on the subject. In view of the recent decisions in the State of New York, it is unnecessary to review the former conflicting decisions, involving frandulent assignments by the old Court of Errors in that State. There are many decisions by Courts of common law jurisdiction, that never were sound law; decisions, the origin of which may be traced to some dictum merely, which has been inadvertently or improperly thrown by some Judge,, into the decision of a cause; or which may be traced to some antiquated adjudication, founded in error or prejudice, and which, by the light and reason of the present day, would appear absolutely absurd; or which maybe traced to some case, where the Court, instead of boldly meeting the question involved, and deciding it upon principle, assumes to bo governed by some analogous case, which, as found on examination,. entirely fails to sustain the decision. Such cases are, and ever have been productive of much evil. The profession, and especially the younger members of thé bar, are often deceived and misled by them, their clients involved in hopeless and expensive suits at law and in equity, which are not unfrequently ruinous in their consequences. And the sooner all such cases are separated from decisions based upon correct legal premises, and entirely discarded by Courts and the profession, the better it will be for the country generally.

Where an assignment is fraudulent, as to any of its provisions, it is void in toto as against creditors who are entitled by law to take advantage of the fraud. This principle is universally adopted, and is too well established to need any reference to authorities, in support of it.

The views and suggestions of the late Justice Sutherland, on the subject of voluntary assignments by insolvent debtors, are worthy of all commendation. He says, “it is time that some plain, simple, but comprehensive principle should be adopted and settled upon this subject. In the absence of a bankrupt law, the right of giving preferences must probably be sustained. Let the embarrassed debtor, therefore, assign his property for the benefit of whom he pleases; but let the assignment be absolute and unconditional — let it contain no reservations or conditions — let it not extort from the fears and apprehensions of the creditors or any one of them, an absolute discharge of their debts, as the consideration of a partial dividend — let it not convert the debtor into a • dispenser of alms to his own creditor — and above all, let it not put up his favor and bounty at auction, under the cover of a trust, to be bestowed upon the highest bidder. After the maturest reflection upon 'this subject, I have come to the conclusion that the interest both of the debtor and creditor, as well as the general purpose of justice, would be promoted by confining these assignments to the simple and direct appropriation of the property of the debtor, to the payment of his debts. The remnants of many of these insolvent estates are now wasted in litigation, growing out of the complex or suspicious character of the provisions contained in these assignments. One device after another to cover up the property for the benefit of the assignor, or to secure to him, either directly or indirectly, some unconscientious advantage, has from time to time, received condemnation. But new shifts and devices are still resorted to, and will continue to be so, until some principle is adopted upon the subject, so plain and simple, that honest debtors cannot mistake it, and fraudulent ones will be deterred from its violation, by the certainty of detection and defeat.”

These sound views of Justice Sutherland, have since been adopted by the Courts of the State of New York, and of several other States. They should be adopted and acted upon by Courts every where, unless inhibited by statute. No views ever expressed upon the-subject, are more clear, just, or appropriate. They are evidence of that high regard for honesty, and fair dealing, which ever marked the career of that able and distinguished jurist. The Courts of this State are not inhibited from adopting them by any provision of the statute. On the contrary, they are clearly in accordance with both the letter and spirit of our statute, which must be sustained by Courts, or a direct and open encouragement given to chicanery and fraud in the business transactions of the country. ,

There is one other question presented by the case, equally fatal to the assignees, so far, at least, as the interest of Earl, the attaching creditor, is concerned. There was no acceptance of the trust by the assignees in fact, until after the. goods had been seized under the attachment.

The assignees reside in the city of New York, and were not present at the time of the execution of the assignment. It was executed by Smith, and delivered to the attorney of the assignees in Branch County, on the 26th day of March, 1849. On the 6th day of April, thereafter, the goods were attached. On the trial of the cause the assignees introduced and read in evidence their own letter to their said attorney, dated on the 16th day of April, and in which they say; “we wrote to you under date of the 6th of April, instant, since which time we have twice telegraphed you, the last time accepting the assignment, and desiring you to write us fully upon the matter, and we would then give you instructions how to act in future. We could not tell from your letter to us how we were preferred, but, it is explained in a letter to Bostwick & Masterton from Mr, Smith, in which Mr. Smith states that in the 5th article, the ‘pro rata’ refers only to H. W. Barnes & Co., and Messrs. Fowlers; we supposing all the time, it referred to all the creditors mentioned in the assignment — we are now pretty well satisfied,” &e.

This letter of the assignees is explicit; and furnishes conclusive evidence that they did not in fact accept the trust until after the goods were seized under the attachment of Earl. A further implication arising from the language of this letter, is, that on the first information received from their attorney on the subject, they were dissatisfied with ■the terms of the assignment, and refused to become trustees under it, ■and that they did not in any manner signify their acceptance until after ■the 6th of April. The goods, therefore, according to their own written statement, introduced in evidence by their attorney, were legally'in the custody of the sheriff under the attachment, before their acceptance of the trust; hence the assignment is inoperative as against Earl, the attaching creditor, he having acquired a prior valid lien upon them.

That there must be an acceptance of the trust by the trustees before the assignment can take effect, is unquestionable. It is true that in some cases it has been held that where the trustees were not present, their assent for the purpose of giving effect to the transfer of the property might be presumed; this presumption, however, is not conclusive, but may be rebutted, and in the case under consideration, is rebutted by the letter of the assignees. In Lawrence et al., vs. Davis et al., (3 McLean, R., 178,) the Court held, “that in making a voluntary assignment of property, the assent of two parties was necessary to its validity as in every other case of contract, and that a debtor could not ohange his relation to his creditors by merely making an assignment of his property to them.” In Crosby vs. Hillyer, (24 Wend., 280;) the assignment was executed and delivered to the trustee, who hesitated and delayed to accept the trust; during the time of his hesitation and delay an execution was levied on the property. The Court held that the execution attached before the assignment took effect; that the trustee merely taking the assignment into his hands and retaining it, amounted to nothing; that there must be an acceptance, and that a delivery without an acceptance was nugatory. These cases are applicable, and decisive of the question.

There were several other questions of minor importance presented, but as the decision of those already considered disposes of the entire case, it is deemed unnecessary to examine them.

Let it he certified to the Circuit Court for the County of Branch, as the opinion of this Court, that the assignment is void, and that the judgment of the Branch County Court should be reversed.

.CASES ARGUED AND DETERMINED ‘IN THE SUPREME COURT QP THE STATE OF MICHIGAN. JANUARY TERM, 1853. present: HON. WARNER WING, Presiding Judge. HON. SANFORD M. GREEN, HON. DAYID JOHNSON, ' HON. JOSEPH T. COPELAND, HON. GEORGE MARTIN, ¡.Judges. HON. SAMUEL T. DOUGLASS, HON. ABNER PRATT, HON. CHARLES W. WHIPPLE,,


source: Caselaw Access Project

author: By the Court, Copeland, J.

license: Public Domain

text:
    The People vs. Plumsted et al.

    Where tlie owner of premises which have not been previously selected by him as ahomeatcadj conveys the same without the concurrence of his wife, such conveyance is valid without her signature, and is not affected by the provision of section 2 of the act approved March 25,1848, entitled an " act to exempt a homestead from forced sale in certain cases.”
    ’The mere ownership and occupancy of premises, is not sufficient to constitute the same a homestead, under the act of March 25th, 1848, unless there has been an actual selection and choice of the premises as such, by*the owner and occupant.
    ' Case reserved from Wayne Circuit.
    About tbe 10tR May, 1850, tlie Husband of one Anna GoooH, owned and occupied a dwelling House, on a farm in Plymouth, Wayne county, on wHicH He and His wife Had resided from tHe time of tHeir marriage in 1847, to tHe day above named; on wHicH day, GoocH sold and conveyed the farm to Plumsted, one of defendants, but the wife did not join in the conveyance, or in any way release her right in the premises, or consent to the conveyance. After the sale, Gooch continued to occupy the dwelling on the farm with his family, until July following, paying the rent of the dwelling from May 11th, to July 3d, 1850, but the wife did not consent to, or concur in such payment. On the 3d July aforesaid Gooch deserted his wife, left the house, and has not since lived with his wife. A few days after Gooch leff^ his son, by Gooch’s authority, and with his fathers’ and another team, came to the house, packed up, and loaded upon the teams nearly all the household furniture, and took it away, leaving none of the family there save Anna. When one of the loaded teams was driving out of the yard, Anna followed into the road, and asked to get on, but was prevented by the person driving. Plumsted and the other defendant were present at the house when the teams were loading, and when Anna followed the team into the road; and at that time they went into the house, without the consent of Anna. Upon failing to get on to the team, she returned to the house and sat down upon the door-step; and afterwards, upon the invitation of Plumsted, went into the house and sat down upon a settee. Afterwards she insisted upon her right to remain in the house, and refusing to go out on the request of Plumsted, she was forcibly carried out by defendants, upon the settee, into and across the highway, in front of the house. Upon attempting to return, she was prevented by force, menaces, and threats of the defendants.
    The defendants were indicted on complaint of Anna Gooch, at the January term, 1851, of Wayne Circuit, and tried at the May term, 1852, of said Court, and the jury, by special verdict, found the facts above. Whereupon, the Circuit Judge reserved the question, whether the defendants were guilty or not guilty, for the opinion of this Court.

      Lothrop é Duffield, for the people.

      O. I & E. O. Walker, for defendants.
   By the Court, Copeland, J.

Was Anna Gooch in the legal possession of the premises described in the indictment, at the time she was expelled therefrom, by the defendants ? An answer to this inquiry will he decisive of the case. If decided affirmatively, the defendants, under the finding of the jury, are guilty. If negatively, they must be acquitted; for there is no pretense I believe, that they made use of more force than was necessary, to remove Mis. Gooch from the house.

The special verdict finds that Anna Gooch was a married woman, the wife of one Benjamin Gooch. At common law, therefore, even admitting that, she was in the actual and quiet possession of the house at the time of her expulsion, the legal possession was in her husband, and should have been so alleged in the indictment. (Rex vs. French, Russ & Ryan, 490; Rex vs. Wilford et al., Ib., 517; Rex vs. Smyth, 24 Eng. Com. Law, 279; Regina vs, Whitehead, Ib., 255; Roscoe Cr. Ev., 355.)

But at common law, Mrs. Gooch could in no sense be regarded as being in the possession of the house, or as having even a colorable right to remain there. Her husband had sold and conveyed the premises to the defendants, and their furniture, by his direction, had been moved, from the house: Mrs. Gooch leaving it herself at the same time, with the evident intention of proceeding along with the furniture, and apparently, was only prevented from doing so by the person having charge of one of the teams, refusing her request to get on to the same. Immediately, upon the house being thus'vacated, the defendants went into possession of it, and subsequently invited in Mrs. G., the latter having returned from the road to the house, and sat down irpon the door-stop. Clearly, then, the defendants must' be regarded as being in the actual, peaceable, and legal possession of the house, unless the principles of law applicable to the facts found, have been changed by some provision of our statute. It is said that such a change has been made — that the relative legal rights and relations of husband and wife, as they have existed for ages, have been swept away by our homestead exemption act; that notwithstanding her coverture, and the deed of her husband to the defendants, Anna Gooch was still possessed of such rights in the premises conveyed, as entitled her to the possession. This right is claimed by virtue of act No. 109 of the session laws of 1848; the deed from Benjamin Gooch to the defendants having been made prior to the adoption of our present constitution., The first section of the act of 1848 provides, “that a homestead, consisting of any quantity of land, not exceeding forty acres, and the dwelling house thereon, and appurtenances, to be selected by the owner thereof, and not included in any town plat, or city or village, or instead thereof, at the option of the owner, a quantity of land not exceeding in amount, one lot, being within a recorded town plat, city or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of this State, shall not be subject to forced sale on execution,” '&c.

Section 2 further provides, that such exemption shall not extend to any mortgage thereon, lawfully obtained; but such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same. In construing statutes, Courts will give them such a construction as will carry out the intention of the Legislature, where that intent is obvious, and where it is practicable to do so. That intent is to. be gathered from a view of the whole statute; by comparing one portion with another — the text with the context — by considering the occasion and the necessity of the law — the mischief felt, and the remedy sought — these may all be brought into requisition, in arriving at the intention of the law-giver, where the language he has made use of, is doubtful or ambiguous, ( Cokes Inst., Vol. 1, pages 30, 31, 32; Plow. Com,., 57, 205, 464; Datchus vs.. Esty et al., 19 Vt., 139; U. S. vs. Fisher et al., 2 Cranch, 358; U. S. vs. Freeman, 3 Howard, 556.)

But where the language is clear and explicit — where it is free from doubt, no other than a literal construction should be given to it, “The current of authority at the present day,” says Mr. Justice Bronson, “is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose either of limiting or extending their operation; Courts cannot correct what they may deem either excesses or omissions in legislation.” ( Waller vs. Harris, 20 Wend., 562.)

By keeping in view these well established rules of construction, I apprehend no great difficulty in arriving, at what I trust may be regarded as a reasonable and practical construction of the statute under consideration.

The first section of the act provides a method by which a houses holder may hold exempt from execution, a homestead not exceeding in quantity, forty acres of land, or if in a city or village, a quantity not exceeding one lot, at the option of the owner, &c. But it seems to bq left, and I think very properly, entirely in the discretion of the owner; clearly a matter of choice on his part, whether he will avail himself of the provisions of the act or not. If he would do so, he must be active in the matter himself; he must select his homostead; otherwise none can be exempted. And such selection, to become effectual under the first section alone, would have to be made before levy and sale — nonq could be made subsequently. And the makers of the law evidently took this view of it; for by the third section they expressly provide that where a levy is made upon lands and tenements of a house-holder, whose homestead has not yet been selected under the first section, and set apart by metes and bounds, that it may be done subsequent to such levy. So, by analogy of reasoning, the owner, if he would avail himself of the provisions of the second section, must select his homestead before alienation. Such is almost the literal import of the language used. “Such mortgage or other alienation of such land” (that is, land selected by the owner, as provided in the preceding section) “shall not be valid unless signed by the wife,” &e.

To hold an alienation by the owner void, without such prior selection, would not only render the second section uncertain and ambiguous, but would be going counter to known rules of construction. It would render void and nugatory, the sentence — “to be selected by the owner thereof;” a sentence of as much significance and importance, as any part of the act. It is a sound rule of construction, that every clause and word of a statute, shall be presumed to have been intended to have some force and effect. Opinion of the Judges of Mass., (22 Pick, 573; Hutchen vs. Niblo, 4 Blackf., 148.)

Again, it may be observed as a reason for regarding ownership and occupancy alone, as insufficient to constitute an exemption — as a reason for requiring an actual selection — an active choice on the part of the owner — that the act says the quantity of land that may be exempted, shall not exceed forty acres, &c. So that the size of the homestead— the quantity of land it contains, and its description, can only be ascertained by the selection to be made by the owner. A debtor may be the owner and occupier of but forty acres of land, but which may be worth many thousand dollars. A portion of it may be sufficient for all his purposes of a homestead; arid being a just and honorable man, as well as a kind and affectionate husband and father, he is willing to select but a portion for that purpose, and allow the balance to be appropriated in payment of his debts; or he may own and occupy a thousand acres of land; how, in that case, shall it be determined how much, or what particular portion of the thousand acres shall constitute the homestead, unless the owner makes the selection ?

It is true, that the view I am taking of the second section, may be regarded as adding but little, if at all, to the rights and benefits secured by the provisions of the first. An answer to that is, that it was intended to add but little. That the provisions of the second section are but secondary to those of the first. And it will be observed on reference to the other sections of the act, that they all have reference to the provisions of the first section — exempting the homestead from forced sale on execution — that is also the title of the act.

It may here be well to inquire, perhaps, what could have been the object of the Legislature, in inserting into the act the few lines contained in section two. This act, exempting a homestead, was passed for the benefit of householders in embarrassed circumstances — to secure to such as are in debt, a home for themselves and families. This object it is true, may be effectually secured, under the provision exempting such home from forced sale on execution. But the idea may very naturally have suggested itself to the law-giver — that notwithstanding a homestead might be selected by the debtor, and be thus exempt from forced sale, still, that the vigilant, ever-active, and persevering creditor might, by constant importunity — by appeals to the debtors sense of justice, or to his honor — or possibly by some less honorable means, induce his debtor to make a conveyance of the homestead he had already deliberately selected for the benefit of his family, and one that, upon cool reflection, after the immediate irresistible influences operating upon him, had passed away, he might himself wish to avoid. Hence, the additional shield thrown around the selected homestead, by the provision of ■the second section — that such conveyance shall not be valid unless signed by the wife.

It has been said that the intention — the object of the law, was to secure a homestead to the wife and children of the debtor, without regard to the wishes, and ^independent of any act of his — that a homestead may be exempted under the act without any selection — or in case the husband should neglect or refuse to select, and a selection should be deemed necessary, that the' wife might select. In regard to all that, it is sufficient to remark, that no such intendment can legitimately be deduced from the language of the act; and if such was the intent of the Legislature, the provisions of the law are entirely inadequate to effect that object; and the Court would be departing widely from its proper sphere of duty, should it attempt to carry out such an intention.

But even if the language of the act was such, as would admit of our giving it that construction, unless it was clear and positive, I think we might well pause before doing so. It would be an innovation upon the principles, both of the civil and common law, relative to the marital relations, to say the least of it, of the most doubtful expediency. The policy of the common, civil, and divine law, makes the husband and wife legally, but one person, of which the husband is the head, and which makes the wife dependant upon her husband. May it not well be feared that whatever may lessen that dependence, by investing the wife with legal rights and privileges, independent of her husband; by giving her a control over his property, that may be exercised contrary to his wishes, and what he may believe their mutual interests may require may tend to rend asunder the ties that in all Christian countries have bound them together, embitter and sever the domestic relations, and tend to sap the foundations of civil society.

Let it be certified to the Circuit Court for the county of Wayne that it is the opinion of this Court, that under the finding of the jury, the defendants should be discharged.


text:
    Wisner vs. Farnham et al.

    To entitle a party to hold 40 acres of land exempt from execution as provided by the homestead law, (Sess. L. 1848, 124,) he must both own and occupy the premises sought to he exompted.
    A. conveyed to B. certain premises, to enable B. to purchase goods for the joint benefit of both, who, if B. succeeded in the purchase, were to become partners. B. foiled to purchase the goods, and a judgment creditor of A., who had sued his claim before A. conveyed, levied upon the premises: Held, that the conveyance was fraudulent and void as against the judgment creditor.
    The defendant conveyed certain premises without liis wife’s signature. A judgment creditor of the defendant levied upon the premises, and filed a bil in aid of his execution. It was contended that as the wife did not join in the conveyance, the deed was void, under the homestead law of 3848, and that she was entitled to be protected in the enjoyment of 40 acres of the land, tinder that law. But it was held, that if she had any equitable interest in a homestead to be selected from the premises, it could not be adjudicated in that suit, but that she must join her husband in a cross bill, and so bring her claim before the Court.
    Appeal from the Oakland Circuit Court in Chancery.
    The bill in this cause was filed in aid of an execution at law, in which the complainant states that on the 8th day of August, 1850, he recovered in the Genesee Comity Court, a judgment against defendant, Joseph S. Farnham, for 8525 21, damages and costs; that the same was rendered on two certain promissory notes, &c.; and that on the 4th day of September, thereafter, an execution was issued and delivered to the sheriff, who, for want of goods and chattels, levied the same on certain real estate, &c. m

    The complainant then charges that the said Joseph S., was the owner of said real estete, and that on the 6th day of June, 1849, he conveyed the same without any consideration, to the defendant James L. Farnham, by deed, which was acknowledged and recorded, with the intent to defraud, &c.; concluding with the usual prayer for relief in this class of cases, &c.
    The answer is joint and several, and by which the defendants admit the rendition of the judgment, &c., — the execution of the conveyance without any passing consideration, but allege that they had entered into an arrangement, by which the said James L. was to go to New York, and if possible, purchase a stock of goods; that in case he succeeded, they were to enter into a co-partnership in trade; and that the conveyance was executed in order that the said James L. might* if necessary, use the real estate as security in the purchase of goods. But that the goods were not purchased, and consequently no partnership was entered into, and that therefore, on the 27th day of September, 1850, the real estate was by the said James L., re-conveyed to the said Joseph S., by deed, executed by the said James L. and wife, admitting that the said premises were occupied during the time by a tenant, who paid rent therefor to the said Joseph S. It is then alleged by the said Joseph S., that he had moved with his family, upon the premises, and had given the sheriff notice that he claimed forty, acres of the same, which he designated as a homestead exemption, under the provision of the statute; aid that the deed executed by himself to the said James L., was void, on the ground that it was not executed by his wife.
    A replication to this answer was filed, and proofs taken in the cause, and a decree granted for the complainant, from which the defendants appealed.

      M. Wisner, complainant, in person.

      Ciofoot é Drake, defendants.
   By the Court, Pratt, J.

In this cause there is no real ground upon which the decree in the Court below, can be reversed or altered.

It is true,'that the bill is not as full and particular in every respect, as bills usually are in this class of cases; still, it is sufficiently so in matters of substance, to make a case that authorized the Court below to' grant the relief sought under it.

Tn view of the facts in the case, it is entirely immaterial whether the conveyance of Joseph S., to his brother James L., was, for the reason assigned by them in their answer, void or not, as the premises were re-conveyed to him, by deed, executed by James L. and wife, before they filed their answer. That the conveyance from Joseph S. to James L., was fraudulent and void, as against the complainant, is evident. On this point, the admission of the defendants in their answer, that there was no passing consideration for the conveyance — that the grantee took no p'ossession of the premises — and that the grantor continued to receive the rents, furnishes at least, prima facie evidence, that the conveyance was in fact fraudulent. But the testimony of Johnson and Jewell is conclusive. ■ They both testify that the deed was executed for the avow- . ed purpose of preventing the collection of the notes upon which the complainant recovered his judgment. That on the application of one of these witnesses, to purchase the farm, in presence of the other, both .of the defendants admitted that such was the object of the conveyance, . and that there was no other consideration for it. Neither of the witnesses are in any manner impeached, or their testimony controverted. That deed, therefore,” upon this ground alone, must be adjudged fraudulent and void.

By the answer, a special defense is interposed by Joseph S., as to forty ■ acres of the land. It becomes necessary, therefore, to examine and determine the merits of this question. He alleges that he removed from Genesee county upon the premises with his family, designated forty acres of the farm as a homestead, and gave the sheriff' notice of such designation, and that he claimed" so much of the land levied on, to be exempt from sale under the execution. These, allegations are not responsive to anything contained in bill, and ño proofs appear by the transcript to have been taken in support of them. But, by a single glance at the pleadings and proofs, suspicion is at once thrown over the whole ground of this special defense. There is an appearance of dishonesty upon the very face of it. The facts are, as presented by the case, that after the levy of the execution and filing the bill, the defendant, Joseph 8., procures the re-conveyance, moves upon the premises, designates the forty acres, gives the sheriff notice, and then answers the bill, setting up 'these facts as his special defense. From them, it may fairly be inferred that he became satisfied that his conveyance of the premises to James L,, would not stand before a legal investigation; hence, conceived the idea of protecting, if possible, forty acres of the land from sale, under the statute exempting homesteads, and therefore resorted to these rapid and successive movements for that purpose, before answering the bill, which appear more like movements in continuation of his original fraudulent intent, than they do like those of honesty and fair dealing. But independent of this view of the subject, is he legally entitled to the exemption claimed? The statute provides, “that a homestead, consisting of any quantity of land not exceeding forty acres, and the dwelling house thereon, &c., owned and occupied by any resident of this State, shall not be subject to forced sale on execution,” &c. (S. L. 1848, p. 124, § 1.) At the time of the levy, and for some time after the bill was filed, Joseph S., the defendant in the execution, was not the owner or occupant of the premises. He had conveyed them to James L., and was a resident of another county, and by. the provision of the statute, which is clear and express, he cannot legally claim such exemption, unless he was both owner and occupant; such being the express condition upon which the law protects a debtor, in the enjoyment of his homestead. On the argument of the cause, it was contended on the part of the defendants, that Joseph S. was legally entitled to the exemption sought, under the provision of the third section of the act referred to. This position, however, is untenable. By no legitimate construction of the language of this section, independently, or in «connection with the other sections of the act, does it provide for a different class of exemptions than those provided for jn the first section ; but provides merely, that where the homestead has not been selected and set apart before the levy, it may be designated by notifying the officer at the time of making the levy, of what he regards his homestead, clearly having reference to the homesteads exempted by the first section. It was also contended that it was the intent of the Legislature by the. act, to protect the wife, especially, in the use and enjoyment of a homestead; that the conveyance of Joseph S., not having been executed by his wife, was ■void, and therefore, she still entitled to protection in this case. This position again, is unsound. The conveyance being void by reason of not having been executed by the wife,' cannot have the effect to change the provision of the statute,' or the'facts in the case. It is the homestead owned and occupied by the citizen,, that is protected; and neither at the time of the levy or at the time of filing the bill, were Joseph S. and wife, or either of them, the owners and occupants of the premises in question. But if the facts were otherwise, and the wife had an equitable interest in a homestead, selected, or to be selected from the premises, it could not be adjudicated and settled here, in this cause. The wife is not a party in this - suit; and if in fact, she has such an interest, which does not appear by any evidence in this cause, she should have joined, with her husband, and brought it up before the Court by a cross bid.

As to the deed of conveyance executed by Joseph S. to James L., being ipso jwre void, on the ground of not having been executed by the wife, it is a question which it is not necessary to determine in this case.

No errors appearing in the case, the decree of the Court below must be affirmed with costs.


author: By the Court, Wing, P. J.

text:
    Hill vs. Lafayette Insurance Company.
    Under the act of 1851, pages 311 and 312, it was not intended by the Legislature that where a case át law had been tried by the Judge below, parties should be at liberty to have it re-heard in this Court. The G&art are to judge of the ease as if it was an application for a new trial, and to ascertain from the whole record whether the Circuit Judge manifestly erred, either in his conclusions upon the facts, or in respect to the law applicable to the* the case.
    Whether witnesses can he receivable to state their views in relation to the materiality of facts withhold-from insurers, at the time of the execution of the policy, quercl Whore the fact of a pending litigation affecting premises insured, was not communicated to the insurer by the insured, at the time of executing the policy, it was held the omission, to disclose did not vitiate the policy.
    Case from tbe Wayne Circuit. •
    This was an action brought in the Wayne Circuit Court to recover $1600 on a policy of insurance made by defendants on one-third of a mill at Ann Arbor.
    The insurance was effected through an agent of defendants, at Detroit. The policy contained the following clause: “And the assured covenants and engages that the representations given in the application for this insurance, contain a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property insured, so far as the same are known to him, and material to the risk, and that if any material fact or circumstance shall not have been fairly represented, or if he shall have made, or shall hereafter make any other insurance on said property, without the knowledge and consent of said company, or if the said property should be removed without necessity, to any other place, or if the situation or circumstances affecting the risk thereupon, shall be, so altered or changed, by or with his advice or consent, as to increase the risk thereupon, or said property shall be sold, or if this policy shall be assigned without the consent of the company, or if the assured shall make any attempt to defraud the said company, that in every such ease the risk hereupon shall cease and determine, and the policy be null and void, unless confirmed by a new agreement thereupon written, after a full knowledge Of such facts .and circumstances:
    “And it is further agreed, that in case there should be any other insurance made, as aforesaid^ on the property hereby insured, whether prior or subsequent, that the assured shall be entitled to receive on this policy no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon.”
    On the 1st of October, 1851, the policy being still in force, the mill was, destroyed by fire, and the usual notice and proof thereof furnished defendants.

    It appeared on the trial, that on or previous to December 19, 1848, G. D. Hill, and E. and J. White, were partners in trade, by the name of Hill, White & Co.; that said Whites were each seized in fee of one-third of the mill, and G. D. Hill held the other undivided one-third, under a bond or contract, made to him by one Hooper, dated, acknowledged, and recorded September, 26th, 1848, conditioned for the conveyance of said interest, on the payment of §1,625, as therein specified, the last payment falling due in eighteen months from the date; and payments to the amount of $436 92, being indorsed at the date; that on said 19th December, Sackett & Co., creditors of Hill, White & Co., attached all the interest of the members of the firm in said mill, recovered judgment, and all of said interest was sold on execution, under said judgment, and bid in by Sackett & Co., and not being redeemed, a sheriff’s deed was delivered to them, and recorded September 10, 1850. That on the 30th of December 1848, Hill, White, & Co., made an assignment of all their property for the benefit of creditors to one T. C. Cutler. Under the assignment, the Hooper contract with G. D. Hill, passed into the hands of Cutler, who accepted the trust, and took posséssion of the mill,- and on the 1st of September, 1849, leased it to plaintiff. In June, 1850, Hooper called on Cutler, and on G. D. Hill, and on Maynard, (the individual assignee of G. D. Hill,) and notified them that unless they paid the balance due on his contract to said G. D. Hill for the one-third of said mill, he should sell the same to some one else, and they all declined paying, and the Whites directed Cutler to pay-nothing more, and on the 23d day of July, 1850, Hooper quit-claimed said one-third to plaintiff.
    In December, 1850, Sackett & Co. filed their bill in chancery against plaintiff G. D. Hill and others, (not joining Cutler, the assignee,) claiming title to the whole of the mill under their attachment proceedings; among other things, praying that an account might be taken of the balance of the purchase money remaining due on Hooper’s contract to G. D. Hill, and that plaintiff might be decreed to release to Sackett & Co. all his claim on being paid the balance due on said contract. Plaintiff filed his answer, March 20,1851, denying the complainant’s title as set up in their bill, and the suit remained pending at the trial of this cause. No replication was proved to have been filed. The fact of tha pending litigation was not communicated to the defendants’ agent at the time of effecting the insurance. It appeared by the testimony of three witnesses, who were and for several years had been insurance agents in Detroit, that the fact of a pending litigation respecting the title of property was material to tire risk, and that such fact,'if known, would either increase the premium, or lead to a total rejection of the risk; that such fact was regarded among insurers as material to a risk; and, on cross-examination, said witnesses gave as reasons why such fact was material, that the assured might be tempted to fire his property, or, in ease of accidental fire, be less disposed to make exertions to put it out, or less vigilant to guard against fire.
    It appeared that at the time Hooper called on Hill and others for the balance of his contract, there was due on it between $1200 and $1300, and the premises thereby contracted were worth about $3000. It also appeared by the testimony of a witness who was an insurance agent at Ann Arbor, that the fact of the pending litigation was material, but the reason was the possibility that the assured might, out of revenge or interest, fire the property as in case of over insurance.

      The Court below held, that on the'foregoing facts, it did not appear that the pending litigation was a -fact' so material to the risk, that its non-communication by the plaintiff would vitiate the policy, to which the defendants excepted, and the Court gave judgment for the plaintiff.
    - L. Bishop, for plaintiff.

      Lothrop & Duffield, for defendants.
   By the Court, Wing, P. J.

Shis ease was tried by the Circuit" Judge of the Circuit Court of. Wayne County, and was brought to this Court for the purpose of review, under the provisions of the law of 1851, pages 311 and 312, and presents the question how far the Court will go in reviewing the decision of a Circuit Judge.

It appears to us, from an examination of the statute, that it was not intended by the Legislature that parties to suits in Circuit Courts, should be at liberty to have a case at law reheard in this Court, upon the merits, in the same manner ás in the Circuit Court, (except that the. proof is spread out in the record,) otherwise it would be like an appeal in chancery, where the case is to be reheard upon the merits. "We think that the Court are to judge of the case as if it were an application for a new trial, and that in this ease, the Court is to ascertain from an inspection of the whole case, whether the Circuit Judge manifestly erred either in his conclusions upon the facts, or in respect to the law applicable to them. , .

The ground of defense to this action, and upon which the defendants refused to pay the amount insured, was, that the property was encumbered by litigation at the time the policy was executed, that this fact was material to the risk; that-plaintiff did not disclose it to defendants at the time the policy was executed, and, therefore, that the defendants were not hable on the policy.

To establish this defense, the defendants introduced three witnesses, who. were permitted to swear that “the fact of a pending litigation respecting the title of property, was a fact material to the risk, and that such fact would, if known, either increase the premium, or lead to a total rejection of the risk; that such fact was regarded among insurers as material to the risk, because the insured might be tempted to fire his property; or in case of accidental fire, be less disposed to make exertions to put it out, or less vigilant to guard against fire.”

It is manifest that this evidence, if it is to be taken precisely as given, governs the case, both as to the law and the facts, and that the jury or the Court have only to find in the language of the witnesses.

•As a general principle, witnesses are not receivable to state their views on matters of legal and moral obligation, nor on the manner in which other persons would probably be influenced, if the parties acted in one way rather than in another; for whether a particular fact is, or is not material, is a question for the juiy to decide, under the circumstances. (1 Green. Ev., § 441; 2 Ib., § 397.) Neither can a witness be

asked what would have been his own conduct in the particular case. But in reference to this class of cases, it appears to he unsettled, both, in England and in the United States, whether witnesses can be receivable to state their views in relation to the materiality of facts withheld from insurers, at the time of the execution of the policy. The following cases are opposed to the reception of such evidence: (3 Burrows R., 1905.; 1 Holt. N. P., 243; 5 Barn. & Adolphus, 840; 2 M. & W., 267.) The following cases favor its reception: (1 Arnold on Insurance, 571; 2 Starkie's R., 229; 4 B. & P., 151; 4 East., 590; 10 B. & C., 527; 10 Bing., 57.)

In this countiy, the following cases are opposed to such evidence: (2 Green. Ev,,§ 397; 1 Ib., § 441; 7 Wend., 72; 17 Ib., 137, 164; 4 Denio, 311; 23 Wend., 425.) In favor of its admission, are (Kent's Com., Vol. 3, p. 484, in note; Muer on Insurance, 683, ’4, and note, page V80.)

Mr. Smith, in his Leading Cases, 1 vol. pages 544,545, (Am. edition by Hare & Wallace,) after citing and discussing all the English cases upon this point, remarks, that “such being the state of the authorities, the question of admissibility can be hardly, even now, considered as settled. The difference is, however, perhaps less upon' any point of law, than bn the application of the settled law to certain states of facts; for, on the one hand, it appears to be admitted that the opinion of witnesses possessing peculiar skill, is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance ; in other words, when it so far partakes of the nature of a science as to require a course of previous habit or study, in order to tho attainment of a knowledge of it; while, on the other hand, it does not seem to he contended that the opinions of witnesses can he received when the inquiry is into a subject matter, the nature of which is not such as to require any particular habits or study in order to qualify a man to understand it.” The author proceeds: “Now the question of materiality in an assurance, seems one which may possibly happen to fall within either of the above two classes; for it is submitted that it may happen in cases of sea policios, that a communication, tho materiality of which is in question, may he one, respecting tho importance of which, no one except au underwriter, can, in all probability, form a correct 'Conclusion.” And see the remaining portion of tho note.

Judge Duer, in a note to his treatise on Insurance, page Y8C, says; “these (last) remarks in truth concede the question at issue, for it is not contended that the evidence ought to he received, except in cases where the knowledge and experience of underwriters give a peculiar value to their opinions.”

Let us apply these principles to this case. The witnesses state that the fact of a “pending litigation was material to the risk;” the reason given, js, that, “if known to tho insurer, it would have increased the premium, or led to a total rejection of tho risk, because tho assftred might he tempted to fire his own building or neglect it, &c.

It appears to me that the reason given by these witnesses, shows that it is not a question of science or skill, or which requires peculiar habits or experience to enable a person to perceive or understand it. It is a mere deduction of reason from a fact, founded upon the common experience of mankind, that a man may be tempted to do wrong, when placed in circumstances where his cupidity may he excited. A jury does not need evidence to convince them that this may he tho effect. As well might a, Court receive tho evidence of judges and officers of Court against a man indicted for a crime, that men generally act as the prisoner is cha"ged to have done when placed under the like temptation and circumstances. A hare suggestion to the jury of the very well understood connection between such a condition of things and its ordinary result, -would enable them to apprehend the matter in all its bearings, and it would not need the testimony of witnesses to guide their minds to a proper conclusion as to its effects upon the risk. It is a matter addressed to the jury, which they must decide,, and the evidence, whatever it may be, is not conclusive upon them. (Arnold on Insurance, 441; 2 Greenleaf’s Ev., § 378; 1 Ib., § 441.) Here the witnesses swear that the fact disclosed, “would have increased the risk,” &e. This, the jury is to determine under all the circumstances of the case. The additional fact stated by the witnesses, viz: that “such fact was regarded among insurers as material to the risk,” cannot be a conclusive effect upon the case, for its legal effect must be dependent upon the ascertainment of the previous fact, which lies at the bottom of the whole matter, viz: whether, in the particular case, it was material to the risk; otherwise the secret opinions of insurers would govern and make-a law for each case, and defeat all insurances. We do not pretend to lay down any rule, we have only endeavored to ascertain whether the. rules applicable to the evidence in this case, give to it any peculiar and' conclusive effect, and we think they do not.

Independent of the evidence, the question of the materiality of the-fact of the pending litigation is fairly presented; but assuming that the evidence was admissible, we are of the opinion upon the whole case as presented, that the pending litigation disclosed in this ease, was a fact which, in the present state of the law upon this subject, and the' practice of insurers, as evidenced by the cases, did not affect the risk.. We do not say in general terms, that such a fact may not be, in some cases, material to the risk; but we think that this fact is not so obviously connected with the true description of the property insured, as that the failure on the part of the assured to make a voluntary disclosure of it to the insurer, should avoid the policy.

The statements of the witnesses must be taken with some qualification; they cannot be understood as meaning to say, that the mere fact of litigation, and having no reference to its character, is in all cases, and under all circumstances, material to a risk, for it is easy to suggest cases of so trifling a character, that they could have no bearing upon the risk; whether they would or would not affect the mind of the insurer is to-be judged of by the jury, and is not to be assumed by the witnesses; for it is the fact to be demonstrated by the verdict of the jury, and their conclusions must be dependent to some extent, upon the nature and importance of the litigation. In many cases no judgment could be formed of its importance, without an examination into complicated matters involved in the litigation, which could not be done without a trial of the cause. It may be fair to assume in a given case, that litigation would be a matter material to the risk; but in a case like this, where its character is so easily understood, it cannot be assumed that ora investigations are to end with a knowledge of the fact that there was a pending litigation in regard to the property, not voluntarily disclosed by the assured.

. On looking into the books we do not find a case where it has been held that a pending litigation, not voluntarily disclosed by the assured, avoids the risk. Applications to insurance agents are usually made out on' blanks, furnished by them. These applications contain a list of questions to be answered, referring to every fact that is supposed to be material to the risk, or in reference to which, the insurer wishes information. The fact not disclosed, and which is complained of in this case, is a collateral matter; and if it is not, it would be so esteemed by every honest man. It would not occur to any one but a knave, that facts, which would lead the insm’er to speculate upon the probability of his integrity, but which did not relate to the trae position of the property, would have any influence upon his mind. His attention is not drawn to considerations which have relation to the qualities of his own heart, but which do not bear upon the true description of the property and the objects that surround it.

■ It is true, that a case like that in (17 Wend. R., 366, ’7,) might well call for a voluntary disclosure. An insurance was effected on a store; the insurer was subsequently informed that the store of the assured had been repeatedly burned, and he was suspected of having burned his own store; this led the insurer to insure his risk; in doing so he did not disclose to his insurer this fact, of which he had recently been informed by a friend, and which was the immediate cause of his procuring the re-insurance; that was a manifest hazard, and it was held ■to avoid the policy.

That'the usual questions were put to tho insured in this case, is manifest from the covenant in the policy. The insured engages that the representations made in tho application for tho insurance, contain a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property insured, so far as the same are known to him, and are material to the risk, and that if any material circumstance shall not have been fairly represented, tho policy shall bo void. A man might well infer from this covenant, that the last clause related to the fairness of the representations already made, rather than to those that might have been forgotten, or that did not relate to the actual condition of the property. ’ It is, however, true, that the rule of law applicable to such, cases, requires disclosures of material facts, independent of any covenant. Then where shall an honest man look for a guido/in such cases? The law furnishes no tolerably accurate rule, which will enable him to ascertain what is the limit of the necessary disclosures to be made by him. It is objected that tho pending litigation was not disclosod; hut suppose a litigation about some other interest in the same mill, between other parties, or in relation to an adjoining building, or any one of the buildings in a block, or contiguous to, or more or less remote from, tho property insured, hundreds of possible cases might he supposed, which might affect the risk, or which might affect the mind of the insurer had he known it, which, it might never occur to the insured, had any necessary or probable connection with the risk.

It will be observed that it is of no importance whether the fact not disclosed, and which is claimed to he important, was known to the assured, or whether the omission to give information of it, results from design, or from ignorance of the materiality- of the fact, or the duty of disclosing it t'o the insurer, it is enough that the insurer has been misled, and has thus been induced to enter into a contract, which, upon correct and full information, he would either have declined, or would have made upon different terms.

All men conversant in such matters know that in England, and in most of the United. States, the interest of the insured in the property insured need not he disclosed. It is sufficient that the subject matter of the insurance and the nature of the -risk are set forth in the policy •without stating the nature or character of the interest for which the insurance is intended as a protection, unless inquiry is made. (2 Am L. Cases, 450.) In the case of Bixby vs. the Franklin Insurance Company, (8 Pick, 86;) it was held, that the nature of the interest held by the insured need not be disclosed'to the insurer, unless specially inquired by him; and even when the insured, in answer to an inquiry made by the insurer, had represented the house as his own, without stating that it was mortgaged for nearly the whole of its value, and that the equity of redemption had been levied on under an execution, on which it was soon afterwards sold, it was held that this statement, even if it was not substantially true, had no bearing on the risk insured which the law would recognize, and therefore would not discharge the insurance.. This decision is in accordance with the rule of law as held in England, Massachusetts, and New York. The probability, growing ■out of the facts stated in the ease last cited, of a temptation to destroy the property was much greater than in the case before us.

The Courts of the United States, in (2 Pet., 25;) and subsequently in (10 Pet., 507;) have held that the assured must correctly disclose his interest in the property insured, and so in Illinois. (1 Gil, 286.) These cases' proceed upon the ground that a greater or less .amount of interest in the thing insured, would present stronger or weaker temptation to the assured to burn or neglect the property.

•We are persuaded that in many cases, litigation in which property may be involved, might present a strong temptation to the insured to burn it, and, therefore, this might materially affect the risk, and yet as the fact that it was not disclosed, has never hitherto (so far as we can discover,) been deemed a defense to an action on a policy, we should, with much hesitation, admit the validity of such a defense, since it would operate as a snare to the insured. If it is true, as stated by the witnesses, that litigation increases the risk, why, among the many pointed questions put to the insured, is this not included ? If litigation increases the risk to the insurer, it should not be left for them to take advantage of it as they might see proper under the general obligation imposed by the law, or the covenant for the assured to disclose it, but thoy should mako it the subject of distinct inquiry, of the insured.

It is admitted by Mr. Duer, page 388, that tbe rule of law, (also embraced in the covenant,) is ambiguous; and he says, page 390, “the ■ most reasonable opinion is, that those facts only, are necessary to be ■ disclosed, .which, as material to the risk, considered in their own nature, a prudent and experienced underwriter would deem it proper to consider.” . But there is no process of reasoning, that can enable the assured ■ to'judge of the possible or probable influence on the mind of the un- -• derwriter, of circumstances, that in reality are extrinsic to the risk.

We are disposed to adopt the views expressed in 2 Am. L.' C., page 460, that every purpose of justice and convenience must must be answered, by leaving it open to the assurers to demand such information, when they think it necessary, either by particular inquiries,' or general clause or interrogatories contained in the policy or proposals. •

This cause came before the Court on a case made under the provis- - ions of Sec. 19 of act No. 179 of session laws of 1851, and was argued by counsel; and upon consideration thereof, and full deliberation ■ being thereupon had, it is considered by the Court, that the finding -of the said Circuit Court was in all respects legal and proper, and that the , plaintiff recover of the said defendant, his costs in this Court, to be ■ taxed.