STAPLES, J. The only point of difference between Judge Christian and myself, in the present case, is in regard to the claim of homestead. He maintains that where a debtor has made a fraudulent conveyance of his property he is estopped to claim a homstead in such property after the conveyance has been annulled. as fraudulent and void as to creditors. I do not con cur in this view, and will briefly state the reasons. This question is one of the first impression in this state. In other states it has been often considered and decided. In New York, Pennsylvania and Indiana, it is held that a fraudulent conveyance by the debtor will bar him of all claim to the homestead exemption, while in other states the contrary doctrine is maintained. In Smyth on Homestead and Exemption, section 469, it is said, "The general rule seems to be, the fraudulent conveyance of the homestead by a bankrupt does not estop him from claiming such homestead in the premises after the conveyance has been annulled and decreed as fraudulent and void as to creditors." In support of this position the author cites a number of cases decided in the United States courts. See also note, section 238, of the same work. In the case of Sears et als. v. Hanks et als., 14 Ohio State R. 298, which seems to have been a well considered case, the court says: The rights of the plaintiff in this action are only those which belong to creditors seeking to set aside a voluntary conveyance of their debtor made in fraud of their rights, and to enforce their judgment liens against the property so conveyed. Their claim is not under or through the fraudulent conveyance, but adverse to it; and when at their suit it has been set aside and declared wholly void as against them, they cannot be allowed as creditors to set up this void conveyance against which they are VOL. XXVIII-92 1877. July Term. Shipe, Cloud & Co V. Repass & als. 1877 claiming, for the purpose of enlarging their rights or July Term. remedies against their debtor, or for the purpose of estopping him from the assertion of the rights which Cloud &Co he would otherwise have as against them. As between creditor and debtor the deed is simply void, and cannot therefore affect the rights of either. Shipe, v. Repass & als. In Crummer v. Bennet et al., 68 North Carolina R. 494, Chief Justice Pearson, delivering the opinion of the court, said: "The creditor treats the conveyance by his debtor as void and of no effect. Take that to be so, how can the creditor have any other claim against his debtor than he would have had if the conveyance. had not been made. The only legal consequence of a deed with intent to defraud creditors is, that although valid as between the parties it is void as to creditors. As to the homestead the creditor has no concern that matter will rest between the fraudulent donor and donee." There is another authority which, in my judgment, is entitled to peculiar consideration upon this question. I mean the opinion of Judge Dillon, an able judge, who has given the subject a very careful examination. In Cox v. Wilder, 2 Dillon R. 45, he uses this language: "He (the assignee in bankruptcy) claims that the deed is void as to creditors; and on this ground alone he attacks it, and upon this ground alone has he any right to the property. He says it is void as to creditors because fraudulent; and for this reason asks to be invested with the title which is fraudulently conveyed. He cannot claim under it, and must claim against it. When it is decreed to be fraudulent and void at his instance, how can it be set up to defeat the right claimed. Such a position involves this inconsistency, that it asks that the same instrument be held void as to creditors, and then in their favor held valid. * * * 1877. July Term. Shipe, V. Repass & als. This view does not make the estate any less than if the fraudulent conveyance had not been made, while the opposite view gives the creditor a profit out of the attempted fraud at the expense of the family, for Cloud & Co whose benefit the exemption is mainly, if not wholly, provided." No one can deny that there is great force in the observations of the learned judge. The same view is taken in the states of Alabama and Mississippi: In Vogler v. Montgomery, reported in 13 Am. Law Reg., N. S., 244; McFarland v. Goodman, 13 Am. Law Reg., 697; In Re Detert, reported 14 Am. Law Reg., page 166, and in other cases cited in Smyth on Homestead. One of the grounds taken against the doctrine of these cases is, that while the deed is null and void as to creditors, it is valid between the parties. The debtor having by the deed conveyed his entire interest has nothing upon which his claim of homestead can operate. It must be borne in mind, however, this is a controversy between the creditors on the one hand, and the debtor and fraudulent alienee on the other. What are the rights of the former in such a controversy? Simply to have the deed annulled; to be placed precisely in the same position they occupied before. Can they claim more. If the debtor has a valid claim. to the homestead as against them, before the execution of the deed, how is their condition improved by the deed? Their judgments are only a lien upon the property of the debtor. It is not competent for them, while selling that property, to insist it is not the debtor's property. The validity of the fraudulent conveyance as between the parties is no concern of the creditors. All that they can claim is, that as against them it can confer no rights upon anyone. If anyone 1877. July Term. Shipe, V. Repass &als. can set up the estoppel it would seem to be the fraudulent grantee. But in this case he asserts no such claim. But the creditors, through him, seek to approCloud &Co priate that the law does not allow them, nor the deed confer upon them. If the debtor makes a fraudulent conveyance of property in which he has a right of homestead under the constitution, what is it to the creditors, so far as the homestead is concerned. The injury to them is in the fraudulent conveyance of that to which there is no claim of homestead. When the conveyance is annulled, and they are restored to their own, they have obtained all that they can justly claim. They cannot be heard in one breath to say that the conveyance is a nullity as to them, and in the next to assert it confers upon them new rights because it is valid between the parties. Much was said in the course of the argument with respect to the policy of denying the benefit of the homestead exemption to a shuffling and dishonest debtor, who attempts to defeat the just claims of creditors by a fraudulent alienation of his property. It must be remembered that the law does not confine its remedial action to such conveyances as are tainted with actual fraud. Fraud in law, constructive fraud, when there is no mala fides, is also a ground for the annulment of conveyances at the suit of creditors. If the deed is voluntary, or if it be upon insufficient consideration, it is fraudulent and void as to creditors, however fair may be the motives of the grantor. The books are full of cases in which such deeds have been vacated without the slightest imputation of actual fraud or bad faith in either of the parties. The grantor, often supposing himself to be possessed of adequate means to pay all his debts, does precisely what the homestead law attempts to do-makes provision for his family. It turns out that his remaining estate, It is a sufficient answer to all this, that the right to the homestead rests upon no such technical and unsatisfactory distinctions. The constitution does not recognize them. This argument, founded on the policy of punishing the debtor for an attempted fraud, finds no support or countenance in that instrument. If the comfort and protection of the debtor were alone involved, there might be some force in the argument. But no one can look into the provision of our constitution and the adjudicated cases of other states, and fail to see that the primary object is to provide for the family. As was said by the supreme court of Ohio in Sears v. Hanks, 14 Ohio R. 498, 501, "the humane policy of the homestead act seeks not the protection of the debtor; but its object is to protect his family from the inhumanity which would deprive Shipe, Cloud & Co V. Repass & als. |