WOOD

v.

ift. Whether the deed, figned, fealed and delivered, on the 30th of May, and acknowledged on the 14th of OWINGS. June, is an act of bankruptcy under the law which came into operation on the 2d of June.

2d. Whether the figning, fealing and delivery shall be confidered as going forward to the time of acknowledgment; or,

3d. Whether the acknowledgment fhall refer back to the time of the figning, fealing, and delivery.

The debtor, independent of the bankrupt act, may prefer one creditor to another. No creditor can prevent him, unless by taking out a commiffion of bankruptcy. This principle is acknowledged by all the ftate governments, and by the laws of England, in cafes not within the bankrupt law.

In the cafe of Hooper v Smith, 1 Bl. Rep. 441, one Hooper being bona fide indebted to his mother, in the fum of £.800, at 8 o'clock in the morning affigned and delivered to his mother, half his stock in trade, which was taken away immediately to his mother's lodgings. On the evening of the fame day he committed an act of bankruptcy. His affignees, by ftratagem, got poffeffion of the goods and fold them. The mother brought trover against the affignees, and recovered. Lord Mansfield, in that cafe, faid, that "a preference to one creditor, "especially by affigning only part of his goods, and to pay only part of the debt, has been frequently held to "be good; particularly in the cafe of Cock v. Goodfel"low, (the cafe of a parent and child,) Small v. Owdly "and others." 66 Suppose he had fold the goods in "queftion to John or Thomas, and, with that ready "money, had paid his mother part of her debt; would "that fale or payment have been void ?”

The courts of Virginia, Maryland, and Pennsylvania, have always recognized the fame principles. If the bankrupt law had never paffed, this deed would have been protected in courts of law and equity.

Is this a fraudulent conveyance under the bankrupt law?

The acknowledgment is neceffary for fome purposes, but not to constitute it a deed.

A deed is defined to be a writing on parchment, or paper, fealed, and delivered. Suppose a mortgage of lands, containing a covenant to pay money, be not acknowledged; it would not at law convey a legal title to the land, but it would be good as a covenant to pay the money; and would be good to pafs an equitable title to the land. Suppofe it contained a conveyance of land and chattels; it would be good as to the chattels.

This fhews that acknowledgment is not a neceffary part of the deed; but only that a deed, not acknowledged, will not pass a legal estate in lands, as to creditors.

But the act of Maryland, November session 1766. c. 14. §. 2, says "that no estate of inheritance &c. fhall pass "or take effect, except the deed or conveyance by which "the fame fhall be intended to pass or take effect, shall "be acknowledged before the provincial court &c. and "be alfo enrolled in the records of the fame county," &c. It must therefore be a deed before the acknowledgment. And by the fifth section of the fame act it is declared that every fuch deed fhall have relation, as to the paffing and conveying the premises, from the day of the date thereof; thereby evidently contemplating it to be a deed from its date. This fection was inferted because, by the former act of 1715, the deed took effect only from the time of its acknowledgment. But the law is the fame independent of the pofitive declaration of this act. 1. Bac. ab. 277. Bargain and fale, and 2. Inft. 674. 675. where Lord Coke, in his expofition upon the ftatute of 27. H. 8. c. 6, of enrollments, fays " And when the "deed is enrolled within fix months, then it paffeth "from the livery of the deed. And albeit, after the de"livery and acknowledgment, either the bargainor, or bar"gainee die before enrollment, yet the land paffeth by "this act," " And by the words of this statute, when "the deed is enrolled, it paffeth ab initio." And he cites the cafe of Mallery v. Jennings, determined in the common pleas, 42. Eliz. which was this; "one Sewfter was "feized of certain lands in fee, and acknowledged a re

WOOD

V.

OWINGS.

Woob

v.

OWINGS.

"cognizance to Turner, whofe executrix brought a feire "facias, upon the recognizance, bearing date the 9th. "November, 41. Eliz. againft Sewfter, and alleged him "to be feized of those lands in dominico fuo ut de feodo, the "day of the feire facias brought; and the truth of the cafe being difclofed by long pleading, was this; Sewfter, "7th November, before the recognizance acknowledged, "by deed indented, for money, had bargained and fold "the faid land to another, and the deed was enrolled "the 20th November following. The queftion was, "whether Sewster was, upon the whole matter, feized in "fee the 9th of November, the deed being not enrolled "until the 20th of the fame November. And it was

adjudged, una voce, that Sewfter was not seized in fee "of the land on the 9th day of November. For that "when the deed was enrolled, the bargainee was, in "judgment of law, feized of that land, from the delivery "of the deed. And it was refolved, that neither the "death of the bargainor, nor of the bargainee, before "enrollment, fhall hinder the paffing of the eftate. And "that a release of a stranger to the bargainee, before en"rollment, is good. So that it holds not by relation, be"tween the parties, by fiction of law; but in point of "eftate, as well to them, as to trangers alfo. And that "a recovery fuffered against the bargainee, before enroll"ment, (the deed indented being, afterwards, within the "fix months, enrolled) is good, for that the bargainee was "tenant of the freehold, in judgment of law, at the "time of the recovery. And non refert when the deed "indented is acknowledged, fo it be enrolled within the "fix months. And all this was afterwards affirmed for "good law by the court of common pleas, Trin. 3. Iac.

upon a fpecial verdict given in an Ejectione firma be"tween Lellingham and Alfop; and further it was there "refolved, that if the bargainee of land, after the bar"gain and fale, and before the enrollment, doth bargain "and fell the fame, by deed indented and enrolled, to "another; and after the firft deed is enrolled, within the fix months, the bargain and fale, by the bargainée, ❝ is good."

In 18 Viner 289 Tit. Relation, it is faid, "When two times, or two acts are requifite to the perfection of an

"act it shall be faid, upon their confummation, to receive "its perfection from the first."

If A. makes a deed to B. on the 30th of May; and another for the fame land to C. on the 1ft June, and acknowledges it the fame day; afterwards, on the 14th of June, he acknowledges the deed to B. this over-reaches the deed to C. and the acknowledgment of the deed to B. is not a fraudulent act.

Suppose A. makes a bona fide deed to B. for valuable confideration, on the 30th of May. On the first of June A. commits an act of treafon. On the 14th of June he acknowledges the deed to B. The land is not forfeited by the treason of A.

If an indictment had been found for forging this deed, and to fupport the indictment, evidence had been given of the forgery of the acknowledgment only, would that have fupported the indictment?

If a declaration upon this deed, ftating it to have been made on the 14th of June, had been drawn, would it have been fupported by producing in evidence, this deed figned, fealed and delivered on the 30th of May ?

This deed intends to convey chofes in action, and perfonal effects, as well as lands. As to the former the deed is good without acknowledgment; for as to the chofes in action, the deed without acknowledgment is an equitable affignment, and if acknowledged it would have amounted to nothing more

But if the affignees are entitled, they must take the bankrupt's eftate, fubject to all the equity of others. 2 Veazy, fenr. 585, 633. Cooke's bankrupt law, 203. Tayler v. Wheeler, 2 Vern. 564.

Courts of law will protect equitable rights; as in the cafe of Winch and Keeley, Term rep. 619, where the plaintiff having affigned his right of action to Searle, and having become bankrupt, was ftill held able to fupport the action for the benefit of Searle, notwithstanding the affignment of his effects under the bankrupt laws.

WOOD

v.

OWINGS.

WOOD

v.

And by the authority of ex parte Byas, 1 Atk. 124, if the affignees had received the money due to Robb, the OWINGS. bankrupt, they would have been obliged to pay it over to Wood, the plaintiff in error, inftead of receiving it from him.

The deed is not fraudulent in fe; and would not now be queftioned if the bankrupt law had not been passed. Although it is a deed of all his effects, yet it is not an abfolute deed, nor was it made on any fecret truft, or for his own benefit. The only thing which can be alleged againft it is, that it gives a priority to fome of his creditors, and this he had a clear right to do, both in law and equity. It was not made in fecret; it holds up no false colours, it enables him to receive no falfe credit. He might have fold the property for ready money, and paid any one of his creditors in full. But making a deed of truft, he has prevented a facrifice of his property, whereby it is competent to fatisfy a greater number of his credi tors, and he is himself rendered more able to pay the refidue of his debts by his future industry.

The committing an act of bankruptcy is, in law, confidered as criminal. The bankrupt law is, therefore, in this refpect, to be conftrued strictly. It ought not to be extended beyond the letter of the law. Cooke B. L. 67. Cowp. 409, 427, 428. 5 Term rep. 575. 7 Term rep. 509. Fowler v. Padget.

But however fraudulent the deed might have been, yet it was no act of bankruptcy, under the act of congrefs; because not executed after the ift of June; unless the acknowledgment can be confidered as the making of the And if it was not an act of bankruptcy, the title of the defendants in error fails.

deed.

Harper, contra.

The act of bankruptcy charged, is the making a fraudulent deed after the 1ft June, 1800. The counfel for the plaintiff in error having abandoned the fecond point which was made, and ftrongly contended for, in the court below, the only queftion now to be confidered is, whether the deed was made before or after the 1st of June.