CHAPTER XIV. RIGHTS AND LIABILITIES OF PARTIES AND PURCHASERS. Section 1. Validity of transaction as between original parties. 2. Right to impeach or rescind transaction as fraudulent. 3. Where parties are not in pari delicto. 4. Mutual rights and liabilities; effect of transaction as to property rights in general. 5. As to title subsequently acquired. 6. Adverse possession as between grantor and grantee. 7. Effect of setting aside conveyance. 8. Right to recover property fraudulently conveyed. 9. Effect of voluntary reconveyance. 10. Right to redeem property transferred as security. 11. Enforcement of fraudulent contract or conveyance in general. 12. Enforcement of fraudulent mortgage. 13. Enforcement of trust for grantor in general. 14. Purchase at execution sale for benefit of debtor. 15. Right to proceeds or profits. 16. Right to enforce payment of consideration. 17. Enforcement of note given as consideration. 18. Recovery by grantee of consideration paid. 19. Rights and liabilities of several grantees inter se. 20. Contribution between several grantees. 21. Rights and liabilities as to third persons in general. 22. Rights of maker of note fraudulently transferred. 23. As to creditors of grantee. 24. Rights and liabilities of grantees as to creditors and subsequent purchasers; as to creditors; as to property and proceeds thereof. 25. Right to require resort to other property. 26. Intermingled goods. 27. Increase or product of property generally. 28. Right to growing crops. 29. Several fraudulent transactions. 30. Possession of grantee adverse to creditors. 31. Right of grantee to attack execution sale. 32. Right of grantee to pay creditor's claim and retain property. 33. Personal liability of grantee in general. 34. Conveyances in name of third person. 35. Liability as to property never in possession. 36. Liability as garnishee. 37. Extent of liability in general. 38. Rents, issues and profits. Section 39. Interest. 40. Reimbursement of consideration and expenditures, indemnity and 41. Where conveyance is actually fraudulent. 44. Purchase of judgment against grantor. 46. Rights of grantees as bona fide purchasers. 47. Nature and extent of consideration in general. 48. Rights and liabilities of grantees as to subsequent purchasers. 49. Rights and liabilities of purchasers from grantee generally. 50. Rights and liabilities as to original grantor. 51. Rights and liabilities as to original grantee. 52. Rights and liabilities as to creditors of original grantor. 53. Mortgage or conveyance to creditors of grantor. 54. Rights and liabilities of bona fide purchasers from grantee gener ally. 55. Notice. 56. Consideration. 57. Rights and liabilities as to original parties. 58. Rights and liabilities as to creditors of original grantor generally. 60. Mortgagees and pledgees. 61. Creditors of grantee. 62. Purchaser from bona fide grantee. 63. Original grantor claiming under bona fide purchaser from grantee. Section 1. Validity of transaction as between original parties. -The statutes of 13 and 27 Elizabeth and statutes based thereon under which fraudulent and voluntary conveyances may be set aside, as a general rule, have no application to the parties to such instruments, or their representatives. As between the parties and their representatives such conveyances are expressly excluded from the operation of the statutes, which avoid transfers for the protection of creditors and bona fide purchasers only, and are left as they stood at the common law. The ancient and well known maxims that a right of action cannot arise out of fraud (Ex dolo malo non oritur actio), and that where both parties are equally in fault or in the wrong, the condition of the defendant and possessor is preferable (In pari delicto potior est conditio defendentis et possidentis), are the basis of the familiar rule that the parties to a ་ transaction tainted with fraud shall be left by the courts in the situation in which they have placed themselves, without aid from the courts. Hence, the general rule that a conveyance or transfer of property made to defraud creditors, though void as to creditors, is valid and binding on the parties thereto, their privies, assigns, and persons claiming under them, and conveys title as against all parties except the creditors of the grantor,1 or any one not affected 1. N. Y.-Moore v. Livingston, 14 How. Pr. 1; Jackson v. Cadwell, 1 Cow. 622; Osborne v. Moss, 7 Johns. 161, 5 Am. Dec. 252. U. S.-Collinson v. Jackson, 14 Fed. 305, 8 Sawy. 357; Randall v. Phillips, 19 Fed. Cas. 11,555, 3 Mason, 378. Ala.-Kirby v. Raynes, 138 Ala. 194, 35 So. 118, 100 Am. St. Rep. 39; Means v. Hoks, 65 Ala. 241; Pickett v. Pipkin, 64 Ala. 520; King v. King, 61 Ala. 479; Greenwood v. Coleman, 34 Ala. 150; McGuire v. Miller, 15 Ala. 394; Dearman v. Dearman, 4 Ala. 521. Ark.-Bell v. Wilson, 52 Ark. 171, 12 S. W. 328, 5 L. R. A. 370; Millington v. Hill, 47 Ark. 301, 1 S. W. 547. Cal.-Montgomery v. Hunt, 5 Cal. Ill.-Creighton v. Roe, 218 Ill. 619, 75 N. E. 1073, conveyance to defeat wife's right of dower; Cochonour v. Ratcliff, 223 Ill. 274, 79 N. E. 83; Moore v. Horsley, 156 Ill. 36, 40 N. E. 323; Springfield Homestead Assoc. v. Roll, 137 Ill. 205, 27 N. E. 184. 31 Am. St. Rep. 358; Harmon v. Harmon, 63 Ill. 512; Horner v. Zimmerman, 45 Ill. 14; DeWolf v. Pratt, 42 Ill. 198; Ward v. Enders, 29 Ill. 519; Davis v. Ransom, 26 Ill. 100. Ind.-Phenix Ins. Co. v. Fielder, 133 Ind. 557, 33 N. E. 270; Henry v. Stevens, 108 Ind. 281, 9 N. E. 356; Stout v. Stout, 77 Ind. 537; Garner v. Graves, 54 Ind. 188; Edwards v. Haverstick, 53 Ind. 348; O'Neil v. Chandler, 42 Ind. 471; Welby v. Armstrong, 21 Ind. 489; Moore v. Meek, 20 Ind. 484; Scott v. Purcell, 7 Blackf. 66, 39 Am. Dec. 453; Findley v. Cooley, 1 Blackf. 262. See Iowa.-McClenahan V. Stevenson, 118 Iowa, 106, 91 N. W. 925; Fordyce v. Hicks, 76 Iowa, 41, 40 N. W. 79; Mellen v. Ames, 39 Iowa, 238; Stephens v. Harrow, 26 Iowa, 458. Cloud v. Malvin, 108 Iowa, 52, 75 N. W. 645, 78 N. W. 791, 45 L. R. A. 209, grantees of real property cannot, to sustain the conveyance against an attack upon it as fraudulent by creditors of the grantor, assert that the property was originally purchased and paid for by them, and the title conveyed to the grantor merely for by the fraud, and is voidable only as against those who might be the purpose of preventing their creditors from reaching it; Mercer v. Mercer, 29 Iowa, 557. Kan.-Weatherbee v. Cockrell, 44 Kan. 380, 24 Pac. 417; Crawford v. Lehr, 20 Kan. 509. Ky.-Wickliffes v. Lyon, 28 Ky. 84; Tobin v. Helm, 27 Ky. 288; Adkins v. Adkins, 7 Ky. L. Rep. 686. Me.-Nichols v. Patten, 18 Me. 231, 36 Am. Dec. 713. Md. Stewart v. Iglehart, 7 Gill & J. 132, 28 Am. Dec. 202; Atkinson 1. Phillips, 1 Md. Ch. 507. Turner, 153 Mass. 534, 27 N. E. 671; Harvey v. Varney, 98 Mass. 118; Inhabitants of Canton v. Inhabitants of Dorchester, 62 Mass. 525. See Stratton v. Edwards, 174 Mass. 374, 54 N. E. 886, where a husband conveys property to his wife in trust for himself, and she conveys to third parties, her creditors cannot attack the conveyance; Lerow v. Wilmarth, 91 Mass. 382. Mich.-Wheeler Wallace, V. 53 Mich. 355, 364, 19 N. W. 33, 37; McMaster v. Campbell, 41 Mich. 513, 2 N. W. 836; Cool v. Snover, 38 Mich. 562; Millar v. Babcock, 29 Mich. 526. Minn.-Piper v. Johnston, 12 Minn. 60; Lemay v. Bibeau, 2 Minn. 291. lock, 156 Mo. 431, 57 S. W. 122; Larimore v. Tyler, 88 Mo. 661; Van Winkle v. McKee, 7 Mo. 435. Neb.-Martin V. Shears (1907), 110 N. W. 1010; Lewis v. Holdrege, 56 Neb. 379, 76 N. W. 890. Nev.-Allison v. Hagan, 12 Nev. 38. N. J.-Hildebrand v. Willig, 64 N. J. Eq. 249, 53 Atl. 1035; Schwalber v. Ehman, 62 N. J. Eq. 314, 49 Atl. 1085; Doughty v. Miller, 50 N. J. Eq. 529, 25 Atl. 153; Schenck v. Hart, 32 N. J. Eq. 774; Ruckman v. Ruckman, 32 N. J. Eq. 259; Garretson v. Kane, 27 N. J. L. 208; Osborne v. Tunis, 25 N. J. L. 633; Robinson v. Monjoy, 7 N. J. L. 173; Hendricks v. Mount, 5 N. J. L. 738, 8 Am. Dec. 623. N. C.-McManus v. Tarleton, 126 N. C. 790, 36 S. E. 338; Boyd v. Turpin, 94 N. C. 137, 55 Am. Rep. 597; Powell v. Inman, 53 N. C. 436, 82 Am. Dec. 426. Ohio.-Brown v. Webb, 20 Ohio, 389; Tremper v. Barton, 18 Ohio, 418; Barton v. Morris, 15 Ohio, 408; Douglass v. Dunlap, 10 Ohio, 162; Burgett v. Burgett, 1 Ohio, 469, 13 Am. Dec. 634. Or.-Bradtfeldt v. Cooke, 27 Or. 194, 40 Pac. 1, 50 Am. St. Rep. 701, when there is a consideration to support it. Pa.-Bonesteel v. Sullivan, 104 Pa. St. 9; French v. Mehan, 56 Pa. St. 286; Huey's Appeal, 29 Pa. St. 219; Drum v. Painter, 27 Pa. St. 148; Stoner v. Commonwealth, 16 Pa. St. 387; Sherk v. Endress, 3 Watts & S. 255; McGee v. Campbell, 7 Watts, 545, 32 Am. Dec. 783; Telford v. Adams, 6 Watts, 429; Hartley v. Mc 4 defrauded thereby. That a conveyance is fraudulent as to creditors is an issue that can only be raised by the creditors. An assignment of property by a judgment debtor to defraud creditors is good as against a receiver of the debtor's estate in supplementary proceedings, in so far as the receiver is the representative of the debtor. That an alleged contract transferring an interest in an estate did not contain a list of the property affected by it, and was not recorded in the registry of deeds, would not affect its validity as between the original parties, as such requirements are only for the protection of creditors. Where lands are exchanged, and one of the deeds is adjudged void as to the grantor's creditors, Anulty, 4 Yeates, 95, 2 Am. Dec. 396. See Haak's Appeal, 100 Pa. St. 59. R. 1-Hazard v. Coyle, 22 R. I. 435, 48 Atl. 442. S. C.-Mitchell V. Cleveland (1907), 57 S. E. 33; Broughton v. Broughton, 4 Rich. 491; Sumner v. Murphy, 2 Hill, 488, 27 Am. Dec. 397; Kid v. Mitchell, 1 Nott & M. 334, 9 Am. Dec. 702. Tenn.-Nichol v. Nichol, 63 Tenn. 145, a vendor cannot, for the purpose of conveying to his purchaser a good title, charge that a prior deed given by himself was in fraud of creditors and void; Jacobi v. Schloss, 47 Tenn. 385; Williams v. Lowe, 23 Tenn. 62. Tea-Stephens v. Adair, 82 Tex. 214, 18 S. W. 102; Lewis v. Castleman, 27 Tex. 407. Vt.-Martin v. Martin, 1 Vt. 91, 18 Am. Dec. 675. Va.-Ratliff v. Ratliff, 102 Va. 880, 47 S. E. 1007; Law v. Law, 76 Va. 527; Harris v. Harris, 23 Gratt. 737; Owen v. Sharp, 12 Leigh, 427; Terrell v. Imboden, 10 Leigh, 321; James v. Bird, 8 Leigh, 510, 31 Am. Dec. 668; Stark v. Littlepage, 4 Rand. 368. Wash.-Shoemake v. Finlayson, 22 Wash. 12, 60 Pac. 50. W. Va.-Poling v. Williams, 55 W. Va. 69, 46 S. E. 704; Thornburg v. Bowen, 37 W. Va. 538, 16 S. E. 825; Farmers' Bank v. Corder, 32 W. Va. 232, 9 S. E. 220; Love v. Tinsley, 32 W. Va. 25, 9 S. E. 44; Core v. Cunningham, 27 W. Va. 206. See Linsey v. McGannon, 9 W. Va. 154. Wis.-Gross v. Gross, 94 Wis. 14, 68 N. W. 469; Davy v. Kelley, 66 Wis. 452, 29 N. W. 232; Clemens v. Clemens, 28 Wis. 637, 9 Am. Rep. 520; La Crosse, etc., R. Co. v. Seeger, 4 Wis. 268. Eng.-Ex parte Bell, 1 Glyn. & J. 282; Shaw v. Jeffery, 3 L. T. Rep. N. S. 1, 13 Moore P. C. 432, 15 Eng. Reprint, 162; Curtis v. Price, 12 Ves. Jr. 89, 8 Rev. Rep. 303, 33 Eng. Reprint, 35. 2. Moore v. Mobley, 123 Ga. 424, 51 S. E. 351. 3. Bouton v. Beers, 78 Conn. 414, 62 Atl. 619. 4. Mitchell v. Cleveland (S. C. 1907), 57 S. E. 33. 5. Bostwick v. Menck, 40 N. Y. 383. 6. Walker v. Walker, 175 Mass. 349, 56 N. E. 601. |