Cooper v. Headley.

money paid into court, under such circumstances, from attachment.

It is the policy of modern legislation to facilitate the creditor in reaching the property of his debtor. It is admitted that the language of the statute is broad enough to embrace even money paid into court as the property of a plaintiff in a judgment. The courts have protected such property, not on the ground that it was not embraced in the language and meaning of the statute, but simply because, in their judgment, such property should be protected from the operation of the statute upon considerations of public policy.

I think this money may be attached, and that the court should protect the lien which has thus been acquired.

COOPER VS. HEADLEY and others.

H. applied to W. for loan of $1000. W. told him, if he would meet him on a certain day, with a bond and mortgage made out to one C., and would assign also to said C. a certain other bond and mortgage as collateral, he should have the money: they met, and W., telling H. that he had only $600, which he would pay him as soon as he could raise it, if he would deliver to him the bonds and mortgages; H. delivered the papers.

Held, that thereby H. made W. his agent to deliver them to C., and to receive the money from him.

A. S. Pennington, for complainant.

C. S. Leport, for defendants.

THE CHANCELLOR. The only question is, who must bear the loss occasioned by the dishonesty of William R. Winans? I think it is very clear that Winans must be regarded in the transaction as the agent of Headley, the defendant. He employed him, confided in him, and paid him for his services.

Cooper v. Headley.

The defendant applied to Winans, to borrow of the latter one thousand dollars. Winans finally told him, if he would meet him on a certain day, with a bond and mortgage prepared and made out to Richard P. Cooper, and would assign, also, to said Cooper a bond and mortgage of one Headley as collateral, he should have the money. They met. Then Winans told him he had only six hundred dollars, which he would pay him as soon as he could raise it, if the defendants would deliver to him the bouds and mortgages. The defendant consented, and delivered him the papers. By the delivery of these papers to Winans, the defendant made him his agent to deliver them to Cooper, and to receive the money from him. He did receive the one thousand dollars from Cooper, and delivered him the papers. It does not appear when the money was paid by Cooper to Winans, whether before or after the papers were received from Cooper; nor do I think it is material.

Again, the defendant paid him fifty dollars for his services in making the loan. This fact is inconsistent with the statement in the answer, that he thought the money was Winans'. There is enough in the account which he gives in his answer of his settlement with Winans to show that he understood he was not dealing with him as the principal who made the loan. He understood perperfectly well that Winans borrowed the money for him, and it was for his services as his agent in doing so that he remunerated him. The defendant insists that Winans was Cooper's agent. It is certainly very extraordinary, if the defendant so regarded him, he should have paid the agent of Cooper for the services rendered.

The complainant is entitled to a decree, and to be charged with the interest only which he actually received. The defendant had no authority to pay the interest to Winans.

Glenn v. Whipple.

ADMINISTRATORS OF ROBERT Glenn vs. GEORGE A. WHIPPLE and others.

It is no defence to a foreclosure that the mortgage was given to secure the purchase money, and that the conveyance was by deed containing covenants that the property was clear of encumbrances, and that the grantor's wife had survived her husband, and claimed dower in the mortgaged premises. An outstanding title against the land purchased is no objection to a decree of foreclosure; it must appear that there has been an eviction, or a suit commenced on such title.

H. J. Mills, for complainants.

D. K. Boylan, for defendants.

THE CHANCELLOR. This is a bill to foreclose, filed by the administrators of the mortgagee against the mortgagors and a party holding a subsequent encumbrance. The mortgagors, George A. Whipple and his wife, have filed their answer. They admit the mortgage, and the money due upon it, but set up that the mortgage was given to Robert Glenn to secure the purchase money; that he gave a warranty deed, with full covenants that the property was free and clear of all encumbrances, &c.; Esther Ann Glenn, his wife, did not join in the conveyance; that she survived her husband, and now claims her dower right in the mortgaged premises. The defendants ask the court to protect them against the encumbrance of the dower before permitting the complainants to enforce payment of the purchase money.

In the case of Van Waggoner v. McEwen and others, 1 G. C. R. 412, the Chancellor decided, that where a mortgage is given to secure the purchase money of land, an allegation of an outstanding title against the land purchased is no objection to a decree of foreclosure, aliter, if the purchaser is evicted, or an ejectment actually commenced against him. And in Shannon v. Marselis et al.,

Cook v. Johnson.

Saxton 426, the Chancellor says, where there is a mere allegation of an outstanding title or encumbrance the court will not interfere, but leave the party to his remedy on the covenant; but where there is an eviction, or even an ejectment brought, it will interpose. In this latter case, relief was granted because the encumbrance complained of was a mortgage; the mortgagee was before the court prosecuting his claim; all parties were present, and the court had jurisdiction so as to do justice and settle litigation between all the parties. It is true the widow, whose dower in this case is alleged to be an encumbrance upon the property, is a party to this suit, but not in her own right. She is one of the complainants, prosecuting as administratrix of her husband. She is not before the court in her individual capacity, and she claims nothing as his widow.

It will be found, upon an examination of the cases, that they do not go further than the cases I have referred to, Coster v. Munroe Manufacturing Co., 1 G. C. R. 467; Couse v. Boyles et al., 3 G. C. R. 212; Withers v. Morrell and others, 3 Edw. 560; Johnson and others v. Gere, 2 Johns. Ch. Rep. 546, carry the principle no further. The complainant is entitled to his decree.

HENRY COOK vs. WILLIAM JOHNSON and others.

An accommodation endorser, after the note had been protested, conveyed his farm in trust for his wife. The conveyance was without valuable consideration.

Held, that the conveyance was void as against complainant, the payee of the

note.

The defendant's denial, in his answer, of any intent to defraud his creditor, can avail nothing in view of the circumstances under which the conveyance was made. If its effect is to deprive the creditor of the payment of his debt, it is void under the statute and by the common law, independently of the statute.

Cook v. Johnson.

After protest, the endorser was as much a debtor as the drawer of the note; and the principle is, that if the party is indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to debts antecedently due; and no circumstance will permit those debts to be affected by the settlement, or repel the legal presumption of fraud. Where a man is endorser upon commercial paper, a voluntary conveyance is no better protection against such a debt, whether the paper is or is not due at the time of the conveyance, than against a debt contracted for the debtor's own benefit, and actually due and payable when the conveyance is made.

Where a voluntary conveyance-a settlement upon a wife or child-is made in contemplation of future debts, it is not bona fide, and will be set aside as fraudulent against such creditors.

The difference between existing and subsequent debts, in reference to voluntary conveyances, is this-as to the former, the fraud is an inference of law, but as to the latter, there must be fraud in fact.

A judgment creditor has a right to have a fraudulent conveyance removed from the premises by a decree in equity before selling the same under his execution.

E. W. Scudder, for complainant.

James S. Green, for defendants.

THE CHANCELLOR. However much I may regret that one of the defendants, who is a widow, should be deprived of the only property she has for the support of herself and children, I nevertheless cannot close my eyes to the fraud, which is so apparent in the transfer of the husband's property, in trust for his wife.

William Johnson was an accommodation endorser for one Tyson, on a note for $322.39, which Tyson gave to the complainant in payment for house furniture, which the complainant, who is a cabinet-maker, had sold him. When Johnson endorsed the note, on the 8th of September, 1856, he was the owner of some personal property and of a small farm in the neighborhood of Princeton. The note fell due on the 8th of February, 1857, and was protested for nonpayment. On the 14th of February, Johnson conveyed his real estate to Edward Stockton, in trust for his wife. On the 27th of February, he sold all