and his notes held by Truman Starr, given up and cancelled. The origi nal power of attorney from Truman to Ephraim Starr was retained, under which sales had been made by Ephraim as attorney for Truman, and moneys received and accounted for. He relies upon his discharge under the insolvent laws of New York, as discharging him from liability on his covenant to Nathan Starr, upon which the proceedings were had. He denies all fraud, and all secret trusts, in making the conveyance.

Truman Starr's answer is substantially the same. Griswold in his answer states, that he knew nothing of the facts charged, further than that Ephraim Starr was indebted to him, and that he had received a conveyance of land in payment from Truman Starr, in pursuance of an understanding between Ephraim and Truman at the time the conveyance was taken by Truman of the land in dispute.

At the hearing, the complainant adduced an authenticated transcript of the proceedings and discharge of Ephraim Starr, under the insolvent act of New York, from which it appeared, that Truman Starr and Giles Griswold were petitioning creditors.

The defendants produced the deed from Ephraim Starr to Truman Starr, which bore date May 1st, 1817, and had on it a certificate of its acknowledg. ment by Ephraim Starr, before a Master in chancery, September 10th, 1817. It also had on it the certificate of the acknowledgment by Mrs. Starr, dated September 17, 1818. Her name inserted in the body of the deed, and her signature are in different ink from the other parts of the deed, and the ink appears to correspond with that in the certificate of her acknowledgment; it was recorded before the attachment issued.

Copies of the power of attorney from Truman to Ephraim Starr, and an agreement of counsel as to sales made by Ephraim in the name of Truman, under that power, were also produced. The deed from Truman Starr to Giles Griswold was executed after the attachment issued.

Whittlesey, Lyman, Brush and Fitzgerald, for defendants.

Kelley and Grimkey, for complainants.

By the COURT.

The complainant claims title under a sale upon execution, founded on a judgment rendered at law, in action of covenant commenced by attachment.— This judgment cannot be here controverted. It is conclusive that Ephraim Starr owed him the debt, for which it is rendered at the time stated in the proceedings, and places him in the attitude of a creditor, entitled to contest the fairness of the title which the defendant set up to the land in dispute.

This title is a deed of conveyance from Ephraim Starr to Truman Starr, dated May 1st 1817. The deed is produced, and upon inspection, it appears to have been acknowledged by Ephraim Starr upon the 10th of September, 1817, and by his wife on the 17th of September, 1818. The wife's name and signature being inserted in ink different from that of the writing in the body of the deed, and corresponding with that of her acknowledgment. It is evident, that although two deeds are spoken of in the answers, there never was but one

executed. The same deed made and acknowledged by Ephraim Starr in 1817, was executed by Mrs. Starr in 1818. There is no reason to presume that the master in chancery, taking Ephraim Starr's acknowledgment, antedated hist certificate. And this must have been done, if the deed produced was executed after Ephraim Starr's discharge, as stated in the answer.

The defendants all insist, that the first deed was executed in May, 1817, to secure the debts due from Ephraim Starr to Truman Starr and Giles Griswold. The date of the deed corresponds with this statement, and the court being satisfied that there was but one deed, and that this is it, the right of the defendants, Truman Starr and Giles Griswold, depend upon the validity of this deed.

The court agree with the defendant's counsel, that the re-delivery of the deed did not re-convey the title. That re-delivery is of no other importance, than as one of many circumstances elucidating the character of the transaction. The deed is absolute and indefeasible, the consideration for which it was given must have arisen at the time of its execution. If given in payment of an existing debt, there must have been an agreement that the debt should be extinguished. If the debt subsisted, and was really due, after the deed was made, there was no consideration.

It is distinctly admitted by all the parties, that the debt was not extinguished, but remained due between them. Truman Starr presented himself a petitioning creditor for account of this very debt. Giles Griswold did the same with respect to his. Both made affidavit that his debt was due to him, which could not be the case, if it had been paid by the conveyance of the land in question. Ephraim Starr in his answer, distinctly states that it was in September, 1818, that the notes, evidences of the debt, were given up and cancelled upon the delivery of the pretended second deed. Truman Starr states the same thing. The avowed object of making the alleged second deed, was to discharge this debt, which Ephraim felt a moral obligation to pay.

The deed, if operative at all, was operative from May, 1817. At that time, and until September, 1818, the parties to it shew that it was without consideration. And being so, the grantee held the title in trust for the grantor. It was not recorded, and there is no evidence, except the allegation in the answers, that it ever was in the power of the grantee before September, 181; and how long it was in his power, if ever, is not alleged.

The suggestion in the answer that Truman gave up the deed to become a petitioning creditor, is in every view of it most lame and impotent. If the transaction had been in good faith, the execution of the deed extinguished the debt. The re-delivery, or giving it up, could not revive the debt, unless there was a contract that it should do so. Such a contract would have vested an interest in Ephraim which he was bound to put in his schedule for the benefit of his creditors. Nothing of this kind was done. If the debt was paid by making the deed, Truman Starr was guilty of both fraud and perjury in presenting himself a petitioning creditor. If the debt was revived by agreement when the deed was given up, Ephraim Starr was guilty of perjury and fraud too in not assigning it for his creditor's benefit. But if the conveyance was voluntary, upon no secret trust distinctly expressed, the conduct of the parties is more consistent than it could be upon any other supposition.

The circumstance that Ephraim Starr, the grantor, continued to exercise

control over the property, and sell and dispose of it, receiving the purchase money, and making conveyances, is an additional badge of trust and fraud. It does not essentially change the character of this part of the transaction, that Ephraim acted under a power of attorney from Truman. That power was created at the time of the conveyance, and continued unrevoked after the return of the deed to Ephraim. Like the deed itself, it was kept a secret until it became necessary to use it to enable Ephraim to enjoy the benefit of the land.

It is another strong and unfavorable circumstance, that the deed, though unrecorded, was permitted to remain for so great a length of time, in the hands of the grantor; and was a second time brought out, not at the request of the grantee, but upon the motion of the grantor, and the consideration got up, that of a debt discharged by the proceedings under the insolvent law, upon the petition of the grantee.

All the principal facts of the case unite in convincing a majority of the court, that the deed was originally made voluntarily and without consideration, and that the object was to cover the land from creditors, and save it, that it might be enjoyed by the grantor. That this trust was not formally declared or expressed between the parties, is no reason why it cannot exist. The law is not to be evaded by contrivances of this nature. A trust, tacitly created, is more difficult to reach than one that is expressed; but when it is ascertained the same consequence is attached to it.

Giles Griswold is in no better situation than Truman Starr. His title rests upon the same deed, which was never operative. And although he was no party to the original transactions, yet, he acquired no interest in the lands until the conveyance was made to him. He could not enforce the parol trust in Truman Starr, if there were no doubt of its existence. And his deed is made since the land was attached, and since a right was commenced in the complainant. Both deeds must be decreed fraudulent and void.

Judge BURNET's dissenting opinion.

I dissent from the opinion of the court in this case, principally, because the defendants, Truman Starr and Giles Griswold, have expressly denied the fraud imputed to them, and their answers have not been contradicted by a single witness.

They were creditors of Ephraim Starr, for money lent, to a greater amount than the estimated value of the land, and whatever might have been the fraudulent views of Ephraim Starr, or the imposition practised by him, on his creditors, these defendants are not infected by it. Fraud must be proved, it cannot be presumed. The facts from which unfavorable inferences might be drawn, against these defendants, appear to be satisfactorily explained. They may all be true, and they perfectly innocent. On such grounds, I cannot agree that the complainant, who is an after creditor, has a right to wrest from them their tabula in naufragio, and effect, for his own exclusive benefit, the same object, which he alleges is a fraud in them. Their equity, to say the least of it, is as strong as that of the complainant. It is prior in point of time, and they have the law on their side. Equity being equal, the law prevails. Prior est in tempore, potior est in jure.

The deed first executed, and delivered by Ephraim to Truman, was for a

valuable consideration. It was made before his application for the benefit of the insolvent laws of New York, and when he was at liberty to prefer one creditor to another. The execution and delivery of this deed, vested the legal title in the grantee, and the conveyance was complete. As the land was not received in full discharge of the debt due to Truman, and to Griswold, it was perfectly consistent with the nature of the transaction, that the notes of Ephraim should be retained, until the proceeds of the land should be ascertained. When that was done, the amount was to be credited, and the residue, if any, would have continued a subsisting debt.

The re-delivery of the deed to Ephraim, did not divest the grantee of his title, or render the conveyance void, and the fraud that might have been practised afterwards, on the bankrupt laws of New York, could not relate back, so as to avoid a conveyance previously made, in good faith, and for a valuable consider. ation.

The second deed may be considered as a nullity, because there was no interest in the grantor that could be conveyed by it, and I cannot discover how the validity of the first deed can be affected by the subsequent conduct of the parties, in relation to third persons, who had no interest, or concern in the transaction.

COURCIER ET AL. v. GRAHAM.

What covenants are independent, dependant and mutual.

In covenant greater strictness is required in pleading than in most other actions. Non est factum, puts nothing in issue but the execution of the instrument declared upon.

Non est factum, it seems, is such a general issue as will authorize a notice of special matter under the statute.

No continuance of possession for any time less than where the statute of limitations would operate to bar a recovery in ejectment, is sufficient to warrant the presumption of a deed.

Where a vendor covenants to make an indisputable title, he must make out a complete connected paper title.

A deed attested by one witness, since 1825, does not convey the legal title.

The value of merchandise agreed upon between the parties, is the proper rule of damages where no fraud is alleged, and where one party has furnished the merchandise, and the other party has neglected to do some specific act in payment therefor, according to the terms of the contract.

The plaintiff stipulated to deliver to the defendant merchandise to the amount of 11,418 dollars thirty-two cents, upon account of the purchase of the land; and from time to time when thereto required, within one year from the date, to de. liver to the defendant or his order any further quantity of merchandise, as he or his agent might select, to the amount of dollars, further on account of the land.

The price of the land was to be fixed by three persons living in Cincinnati, to be chosen by the parties within six months; Graham covenanted that if he ap. proved the price fixed he would at the end of one year from the date, by a good and sufficient deed of conveyance and assurance in the law, well, and sufficiently, grant, convey, and assure the land to the plaintiffs, in fee simple, clear of all incumbrances, and at the same time deliver the possession of the premises to them, they sccuring to be delivered on demand to the defendant, or his order,

such goods suitable to the Cincinnati market, at a fair price, as he may choose, to the amount of any difference beyond the amount of goods and merchandise then actually received.

The declaration contains a single count. After reciting the substance of the covenant, and avering the delivery of the 11,418 dollars thirty-two cents amount of goods, it alleges that the plaintiffs have "at all times since the making the said article, been ready and willing, when legally required, and upon reasonable request made by said Graham or his order, to deliver to him or his order any other and further quantity of goods, wares, and merchandise, which he, the said Graham, or his agent, might select, when the same should be selected on account of the aforesaid tract of land agreeably to the provisions and stipulations contained in said article. And the plaintiffs further say, that since the execution of said articles they have at all times been ready and willing, in pursuance to the terms thereof, to receive a good and sufficient deed, &c. and to pay or deliver to said Graham, or to secure to be delivered to him or his order on demand, such goods, suitable to the Cincinnati market, at a fair marketable price, as he or they may choose, to the amount of the difference, &c. And they further say, that since the execution of the articles, and since the expiration of the year therein mentioned, they have at all times, at the period in said articles contemplated, been ready to receive possession of the premises in the said article described. And in fact they say their covenants have been kept and performed. And they further in fact say, that although the period of one year, mentioned in said articles, at the end of which the said Graham, by his covenant, should have conveyed the said land, has long since elapsed and gone by; and although the said tract of land has been long since valued, and the price fixed to the same, and the said valuation approved by said Graham, yet said Graham, well knowing the premises, and well knowing that he had and did receive the goods and merchandise in said articles specified, amounting in value to 11,418 dollars 32 cents, and that the said plaintiffs had well and faithfully fulfilled and performed all and singular the covenants and agreements on their part in this behalf to be kept and performed; nevertheless, said Graham has not executed and made to said plaintiffs a good and sufficient deed, nor hath he delivered possession, nor hath he secured to be paid the value of the said goods and merchandise; wherefore his covenants he hath not kept, but hath broken the same," &c.

The plea is non est factum, without an affidavit, but accompanied with a notice stating an offer to perform a tender of the deed, bad quality of the goods &c.

The plaintiffs gave in evidence the covenant declared upon, and proof of the delivery of the merchandise stated in it. They also gave in evidence a letter from Graham to the plaintiffs, dated at Philadelphia, Oct. 20, 1818, stating that he had approved the price fixed by the valuers, and intended to comply with the contract; and submitting for consideration a connection of the paper title, and a conveyance from himself to the plaintiffs; and remaking it was doubtful whether he could tender a performance at any other time than the end of the year, and adding, "I am ready either now or then to perform what is necessary; and remarking also, that the deed from Symmes to Dayton, under whom the title was derived, was not among the papers but should be supplied.