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Pierce v. Goldsberry.

is not to the debtor's advantage to pay the debt for the purpose of stopping the interest; and, moreover, that it is not beneficial to the creditor to obtain a contract which will continue his investment for a definite period for the sake of the lawful interest. But when it is borne in mind that in every commercial country men and moneyed corporations are constantly seeking to loan money for definite periods, for the profit derived from interest, and that they grow rich by the operation, and that debtors frequently seek the opportunity to pay their interest bearing debts before maturity in order to save interest, it will not be very apparent that where the creditor bars the right of payment to him at the maturity of the obligation, by a new contract, and continues the investment at interest for an additional deftinite period, payable at the expiration of that period, he will derive no benefit from the performance of the new contract. The benefit of such a contract to the creditor is, that he continues the loan for a specified time, when without the contract the debtor might lawfully pay at once, and thus stop interest. So that it might as well be contended that an original contract of loan for a given time at lawful interest shall not bind the lender to wait for his money until the lapse of the time stipulated. The consideration for the performance is in the one case precisely as valuable as in the other.

These considerations seem to have been wholly overlooked in both the cases mentioned, which are adverse to the views we entertain. In the case in 5 Blackf. they were not suggested in argument, and the opinion in that case indicates that they escaped the attention of the eminent judge who delivered it. Indeed, that case did not necessarily call for a decision of the question, the pieading being bad, according to authority, for the reason that it did not show that the agreement to give time was for a definite period. There is reason to believe that the question did not receive very full consideration. The authorities do not seem to have been examined, nor was there any argument

McCaw and Others v. Burk and Another.

which could aid the court. The case in 11 Wend. 312, seems to have been decided upon the authority of Philpot v. Briant, 4 Bing. 717, and the manuscript case stated in Chitty on Bills, 413, n. (Y); and it is exceedingly difficult to determine from the opinion in the New York case, or, indeed, in Philpot v. Briant, the process of reasoning by which the conclusion was reached, if, indeed, it was reached, that the agreement to give time was without consideration. That both cases were correctly determined is obvious enough. In the New York case there was no agreement to give time—and surely that was enough-and in the English case the promise on which the forbearance was given was void by the statute of frauds. Such cases can be of but slight weight, and surely should not control when both principle and respectable authority are found to be adverse to them.

Judgment reversed, with costs; cause remanded, with directions to overrule the demurrers.

ELLIOTT, J., dissented.
R. P. Davidson and W. D. Wallace, for appellant.
W. C. Wilson, for appellee.

31 56 133 296

McCaw and Others v. BURK and Another.

PRACTICE.-- Weight of Evidence.—Where there is a conflict in the testimony,

this court will not reverse a judgment on the weight of the evidence. CONVEYANCE.—Consideration.--A deed of conveyance of real estate is good

between the parties thereto without any consideration. VOLUNTARY CONVEYANCE.— Trust.-Where a husband voluntarily conveys real

estate to his wife, or a father to his child, no trust arises in his favor, but the presumption is that the conveyance is intended as a provision or advancement. This presumption is not conclasive. The onus of removing it

iz upon him who insists that a trust exists. SAME.-- Marriage.—The owner in fee of certain real estate conveyed the same

McCaw and Others v. Burk and Another.

in fee, his wife joining in the deed, to his brother, who, having received the title for such purpose, immediately conveyed in fee to the wife and minor daughter of the original grantor. Both deeds were voluntary, the former expressing a consideration in a certain sum, the latter none. After the deeds were recorded, the daughter intermarried with one who had knowlcdge of the deeds and believed her to be the lawful owner of the land so conreyed to her. The daughter died, leaving one child, the only issue of such

marriage; and the child died, leaving its father its sole heir at law. Held, in a suit by the surviving father of such child for partition, the original

grantor still retaining possession, that no trust resulted to such grantor un

der the deeds. Held, also, that the marriage of the daughter made her a purchaser for a val

uable consideration, and it would be a fraud upon her husband to withdraw

the estate passed to her. Held, also, that the plaintiff was entitled to possession of the land so conveyed

to said daughter.

APPEAL from the Marion Circuit Court.

GREGORY, J.-Prior to the 12th of June, 1860, William McCaw, one of the appellants, was the owner in fee of some two hundred and forty acres of land in Marion county. On that day he conveyed the land, his wife joining in the deed, to his brother, Nelson McCaw, and Nelson and wife immediately conveyed the land to the wife and two daughters of William.

Shortly after these deeds were executed, one Ray obtained a judgment against William McCaw for several hundred dollars, upon which execution was issued to the sheriff of Marion county, who levied upon, duly advertised, and sold twenty acres of the land to satisfy the execution; and the appellee Hosbrook purchased the twenty acres, paid his money, and received a sheriff's deed therefor. None of the parties, Ray, Hosbrook, or the sheriff, knew at the time of the sale that McCaw had put the property out of his hands. In a short time thereafter Hosbrook informed McCaw of his purchase, and wanted to know when he could have possession. McCaw then told Hosbrook, that the land did not belong to him, McCaw, but to his wife and children; that he had conveyed to them some time before the judgment

McCaw and Others v. Burk and Another.

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and sale; that the deeds were bona fide; and that he, McCaw, had no sort of title to, or interest in, the land.

Hosbrook commenced a suit to set aside the deeds, on the ground that they were made to hinder, delay, and defraud the creditors of William McCaw. McCaw appeared, and filed the general denial, and had the case continued on his affidavit, in which he swore, that he could prove by one Todd that the deeds were bona fide and made for a valuable consideration, and that these facts were true.

Burk, the appellee, on the 11th of March, 1862, married Eliza J. McCaw, the daughter of William, and one of the grantees in the deed from Nelson.

Burk knew of the deeds—they were upon record-and believed her to be lawful owner of one third of the land. On the 24th of April, 1863, Mrs. Burk gave birth to a living child, the issue of the marriage, and died a few days afterwards, leaving her child and her husband surviving her. On the 11th or 12th of May, afterwards, the child died, leaving the father, Jacob J. Burk, its sole heir at law.

Burk compromised with Hosbrook, the latter consenting to take a share of the land from the former and waiving his right to recover on the sheriff's deed. Accordingly, Burk conveyed a moiety of his interest in the land to Hosbrook, and Burk and Hosbrook immediately commenced a suit for partition of the lands. William McCaw was made one of the defendants. It is not charged in the complaint that he is the owner of any portion of the land; but that he is in possession of eighty acres thereof. The other one hundred and sixty acres were then, and had been for years past, in the possession of William's mother, who lived with him, and had a sort of life estate in the one hundred and sixty acres, and received the rents for her support.

The complaint is in the statutory form. William and Maria each answered by the general denial; and Nancy, a minor, pleaded the same issue by guardian ad litem. William filed a second paragraph of answer, setting up, that the deeds from himself and wife to Nelson McCaw and

McCaw and Others v. Burk and Another.

from the latter and wife to the wife and daughters of William, were only intended as a mortgage to secure Maria (the wife) for a debt due to her from William; that the former was the owner in her own right of certain other lands which could be readily sold, and that William, being in debt, wanted to sell her lands to raise money to pay his debts; that Maria consented, and thereupon William made these deeds as a mortgage to his wife and two daughters, to secure a debt due his wife alone; that William thereupon consulted Robert L. Walpole, an attorney, who advised him that he could redeem his land from these deeds, at any time, by paying the wife what he owed her, and that when he had done this the land would revest in him discharged of all claims and incumbrances; that, at the time the deeds were made, Walpole drafted an instrument in writing which set forth the object of making the deeds, and recited that upon payment of the debt due his wife by William, the lands should revest in him, William; that the instrument was signed by Nelson McCaw, Maria McCaw, and R. L. Walpole, and left with Walpole, and is lost; that the two daughters only held the land in trust for William; and that Burk had notice of the trust.

To this paragraplı of the answer Burk and Hosbrook each replied the general denial, and also a special reply, in which it is averred, that the deed from William and his wife to his brother, Nelson, was upon its face an unconditional deed in fee simple, without any condition or trust other than that Nelson should convey the lands in fee simple to the wife and children of William, to be held by them as tenants in common, in equal shares, in fee simple; that Nelson conveyed the lands accordingly; that Eliza was then a minor; that on the 11th of March, 1862, Burk married said Eliza, supposing her to be the owner in fee simple of an undivided third part of the land by deed then of record, and without any notice or knowledge that the deed to Eliza and others was subject to any trust, or mortgage, or defeasance whatever; that on the 24th of April, 1863, Eliza

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