Canda v. Powers. was made. After he became entitled to judgment, Allen proposed to him to accept a conveyance of the farm in satisfaction of the claim on the notes, and he did so. There is no evidence whatever worthy of the name to inculpate the complainant in the imputed design of hindering, delaying or defrauding the creditors of the Tottens, or any of them, by means of the conveyance of the property in question to him. He was the creditor of the Tottens for goods sold by him to them, to the amount, he swears, of $3,442 65, when the deeds to Allen and his wife were made. The three notes, each for $1,000, which the former gave to the Tottens as part of the consideration of the deeds, were, soon after they were given (Totten says it was within thirty days), endorsed by Mrs. Totten over to the complainant and credited on her account on his books. The complainant says that Totten brought them to him, and said that he, Totten, had them, and that the complainant had better take them, and the complainant says that as he thought it was only a short time they had to run, he would take them, and did so accordingly. After they became due he brought suit upon them, and then Allen proposed through Mr. Smith, the complainant's lawyer, who had sued him and Mrs. Totten upon them, to convey the property to him, with the stock and implements on the farm, in satisfaction of the notes. He appears to have consented to take them with considerable reluctance. Allen swears that when he approached the complainant on the subject and made the offer, the latter demurred, saying in substance, that he wanted no farm, but wanted his money. He also says that the complainant told him he would rather have the money than the farm, and that if Allen would give him the money for the notes he would give him $1,000 worth of any materials in his, the complainant's, line of business, in his yard. The complainant says he told Allen he would rather have the money than the farm, that he did not want the farm, that he had no particular use for it, but Allen said that his interest in the farm was worth more than the amount of his indebtedness to the complainant on the notes. He also says he told Allen that he would rather have the money in his business, a great deal, than to have the Canda v. Powers. farm, and that any time when Allen would pay him he could have the farm, or something like that. Before he took the property he directed his attorney to come to this state and search the title, and the latter did so. He says his lawyer told him the title was good, and the deeds were perfectly good, that he had drawn them. He adds that the lawyer told him the deeds were just as good without Totten's signature as with it, that the law on that subject in New York was the law here. Though in one of the deeds (that for the tract of about thirty acres) the consideration is said to be "$1,000, to be delivered in building materials, and the further sum of $1" (the consideration in the other is stated to be $7,000), he swears that that was not the consideration at all, but that the money due him from Allen on the three notes was the sole consideration. He also says that the lawyer who drew the deed is responsible, and not he, for that statement of the consideration in the first-mentioned deed. The proof is that the deeds were intended to be absolute, unconditional conveyances to him for the consideration of the amount due on the three notes. Nor is the allegation that the deeds from Mrs. Totten to Mr. and Mrs. Allen were fraudulent, proved. They were not without consideration, as already appears. Allen swears that when he gave the notes he expected to be able to pay them at maturity, with the promised assistance of his brother, in which he was disappointed. Mr. Smith, the lawyer who drew the deeds, testifies that the notes were given in order that the Tottens might give them to the complainant on account of their debt to him, and that the farm was put into Allen's hands so that the complainant might thus have the security of it through the deeds from Allen and his wife, but it is quite clear from his testimony that the conveyance of the farm to the complainant was not in contemplation when the notes were given. Indeed, he says as much. It appears from his own admission that his recollection of the transaction is not clear. His age, when he testified, was eighty-two years, and he says his recollection is impaired. Totten testifies that the conveyance to the complainant was not contemplated in the conveyance to the Allens. The complainant swears that he took the notes on his knowledge of Allen (he Canda v. Powers. says he knew he was a very industrious man), and some inquiries that he made in regard to his responsibility, and that he did not then know that the farm had been conveyed to Allen, and never heard of it until after the notes had matured and he was engaged in trying to collect the money due on them. The fact that the conveyance to the Allens was to both of them, husband and wife, is some evidence that it was made to them for their own benefit. The proof does not establish the allegation of fraud against Allen. But had there been fraud in the conveyance to the Allens, the complainant's title, he being innocent of the fraud, would not be affected by it. Phelps v. Morrison, 10 C. E. Gr. 538. The Allens had no legal title when the attachment was issued, but they had an equitable one. The allegations in the answer, that the deeds to them were not given until after the attachment had been issued, and that the certificates of acknowledgment were fraudulently antedated, are not only not either of them supported by proof, but both are disproved. When the attachment was issued, the Tottens, in equity, had no title to the farm. They had, for a valuable consideration, parted with all their interest in it to the Allens, and though the conveyances which they made were void in law, they will be upheld in equity. The attachment bound only their estate in the property at the time it was issued, and therefore if they had, in equity, conveyed away all their estate, it, in fact, bound nothing. That the defendant had notice of the conveyance to the Allens before he recovered his judgment, is clearly proved. Totten testified on the trial in the attachment proceedings, in the presence of Powers, that the farm had been conveyed to Allen; that it belonged to Allen. The defendant, in his answer, states that Totten testified on the trial that he had had the farm conveyed to Allen, and that it was done after the beginning of the attachment suit, but there is no proof to sustain this version. It is clear, then, that Powers had notice of the conveyance to Allen before he recovered judgment. in the attachment. He therefore, by the sale under the executions, acquired the legal title only, and he holds it subject to the equitable title of the complainant. The complainant is entitled to the relief prayed for in his bill, and he is entitled to costs. Bonham v. Bonham. EZEKIEL E. BONHAM et al., executors &c., ย. ANN BONHAM et al. Where the payment of vested legacies was postponed by the operation of another clause in the testator's will, for the benefit of his widow, until after her death-Held, that the legatees were ratably entitled to interest on their legacies from the expiration of one year after testator's death. Question as to interest upon legacies. On written stipulation of counsel as to facts. Messrs. Voorhees & Cotter, for the executors. Mr. H. A. Fluck, for the legatees. THE CHANCELLOR. By the decree in this cause it was adjudged that the payment of the general legacies should be postponed until after the death of the testator's widow. Bonham v. Bonham, 6 Stew. Eq. 476. She is dead. The surviving executor has settled his account. He has paid all the general legacies except two (of $200 each) to Whitfield Bonham and his sister, Sarah J. Brink. Those which he has paid he has paid without interest. He has in his hands a balance of $1,458.17, out of which the two legacies above mentioned are to be paid. The legatees demand interest thereon, at the legal rate, from the expiration of one year after the death of the testator, and the question submitted for decision is whether they are entitled to it or not. Their legacies were given to them "as they should become of age," and there was a limitation over in case of their death before attaining to majority. They were both of age, however, at the death of the testator. The legacies, therefore, were vested, and according to the rule, were payable at the end of one year from the death of the tes 38 420 7OL 589 McEvoy v. Trustees. tator. The fact that it was necessary, in order to carry out the testator's intention in regard to the support of his wife, to postpone the payment of the general legacies until after her death, in nowise affected the character of the legacies. It did not make them contingent legacies. They bore interest from the time when they would have been payable but for that necessity. But so did the other vested pecuniary legacies. The estate, however, is not sufficient to pay the interest in full upon all of them, and the executor has paid no interest on any of them. In view of the deficiency of assets to pay interest in full on all, there must be a ratable payment of interest to all. The two legatees are therefore entitled to their ratable proportion of interest, but only to such ratable proportion, and the others are still entitled to receive their PATRICK MCEVOY บ. THE TRUSTEES OF SCHOOL DISTRICT NO. 8, IN THE COUNTY A subpoena to answer a bill to foreclose a mortgage was inadvertently made returnable on Sunday. It was duly served more than ten days before the returnday, and no answer filed or appearance entered.-Held, that the return-day could be amended so as to make it returnable on the following Monday, and a decree pro confesso be entered thereon. Bill to foreclose. Motion for decree pro confesso. Messrs. Wallis and Edwards, for the motion. THE CHANCELLOR. The subpoena to answer in this case was tested April 14th, it was served on the 18th (fifteen days before the return-day) and was made returnable May 4th, which was Sunday. The 1 |