Opinion
(June Term, 1867.)
A purchase for value without notice, under a deed in trust in which some of the debts secured are fictitious, gets a good title, even against the creditors of the fraudulent trustor.
( Shober v. Hauser, 4 Dev. Bat., 91, and Brannock v. Brannock, 10 Ire., 428, cited and approved)
EJECTMENT, tried before Fowle, J., upon a case agreed, at Spring Term, 1867, of the Superior Court of STANLY.
No Counsel for appellant.
Phillips Battle, contra.
The lessor of the plaintiff claimed title to the land in dispute by virtue of a deed from the administrator of Evan Stoker, deceased, executed under a decree of the county court in a petition to make real estate assets. Evan Stoker claimed under a deed made by the trustee in a deed in trust executed by John Stoker. The deed in trust was executed and registered in March, 1856, and some of the debts mentioned as secured by it were fictitious; others were bona fide. Neither the trustee nor Evan Stoker, at the time of the purchase by the latter, was aware that any of the debts were feigned; and the sale was for valuable consideration.
The defendant claimed through one Kirk, a creditor of John Stoker, but not secured in the deed in trust. Kirk had bought at execution sale under a judgment obtained after the registration of the deed in trust.
Upon these facts his Honor instructed the jury to find for the plaintiff. Verdict accordingly; judgment, and appeal by the defendant.
1. A deed in trust securing debts, as well bona fide as fictitious, is not void. Brannock v. Brannock, 10 Ire., 428.
2. Since the act of 1842, Rev. Code, ch. 50, sec. 5, a purchaser for value and without notice gets a good title even if the deed (301) authorizing the sale embraces covenous debts only.
The question involved in this case is whether a purchaser for value and without notice, under a deed in trust which secures debts, some of which are fictitious, obtains a good title as against the creditors of the fraudulent trustor.
The case of Shober v. Hauser, 4 Dev. Bat., 91, decides that a purchaser without notice under a deed to secure a usurious debt gets no title. Brannock v. Brannock, 10 Ire., 428, is much to the same effect, except that the latter case sustains the validity of such a deed where some of the debts secured are bona fide.
After the decision in the case of Shober v. Hauser, and probably in consequence of it, an act was passed to save purchasers without notice under fraudulent trusts. Rev. Code, ch. 50, sec. 5. That act provides that no conveyance, or mortgage made to secure the payment of any debt, or the performance of any contract, shall be deemed void, as against a purchaser for valuable or other good consideration, by reason that the consideration of said debt is unlawful, if the purchaser had no notice of the unlawful consideration. This statute, and the case of Brannock v. Brannock, are decisive of this case.
There is no error.
PER CURIAM. Judgment affirmed.
(302)