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Burgess v. Everett.

every description, not exceeding three hundred dollars in value, ex empt from execution, in addition to property before exempt. The language of the section indicates no such intention; and had such been the intention, it would have been so easy and so natural directly so to declare, that it surely would have been done. It is only the owners of mechanical tools, team, or farming utensils, who are thus favored. And why make them the special objects of legislative favor in this respect? But one reason can be found for it, as it seems to me, and that reason is readily deducible from an inspection of the entire statute, and of statutes then and still in force in relation to the same *subject matter. It was to enable the [428 mechanic, the teamster, or the farmer, or whosoever else had these specified articles of property, and was using, or in good faith was intending to use them as instruments of labor, as means of support for himself and the family of which he was the head, to do so. To discard such a qualification of the language of the statute, would be to hold, that the merchant may hold mechanical tools, a team, or farming utensils, all for purposes of trade, and that the cominon gambler may bold bis team of gay horses exempt from execution, for the mere pleasure of his worse than worthless life, while an honest laborer, or man of legitimate and useful business, not happening to be the owner of these favored articles, would be deprived of all exemptions, except such as were provided by pre-existing laws. Such results are equally abborrent to our ideas of equal justice, and inconsistent with the evident policy of our laws on this subject. We can not believe such to have been the intention of the legislature.

From the proceedings which appear in the record subsequent to the ruling complained of, as well as in that ruling, the court below seems to have been of opinion, that the exemption of a team provided for in this section of the statute, applies only in favor of persons engaged in the business of agriculture. The language of the statute being, “mechanical tools, or a team and farming utensils,and the words “ team” and “farming utensils” being joined by the copulative conjunction, without anything in the punctuation to indicate their separation in the mind of the draftsman, the only serious doubt which the majority of the court entertain is, whether the legislature did not intend to confine the benefits of the section to two classes only, the mechanical and the farming. But, on the whole, as before indicated, we are of opinion that it includes the teamster as well. The presence or the absence of punctuation is of no weight

Burgess v. Everett.

in the interpretation of statutes——it being often, if not generally, the work of engrossing clerks of the legislative body. And here, the 429] *mere placing of a comma after the word " team,” would at once indicate to the mind of the reader a separation of the exempted articles into three instead of two classes. And, looking to the general scope and policy of our legislation on this subject, it seems to us reasonably apparent that it was intended to save to the head of a family his instrumentalities of productive labor. Mechanics, transport, and agriculture, are the three great departments of productive industry; they are alike necessary, and alike pursued in almost every neighborhood of every civilized community; and upless compelled to do so, we are unwilling to adopt a construction wbich shall descriminate between them.

We therefore bold, that if a debtor bring bimself fairly within either one, or two, or all three of these classifications, he is entitled to the exemptions named in this section.

But, whether we interpret this section in its broadest literal sig. nification, or restrict its application in the manner for which I have contended, we are all of the opinion, that the ruling of the court, in sustaining the demurrer to the petition, was erroneous. We think that the allegations of the petition demurred to, construcd with the liberality which the code (sec. 114) prescribes, and the proof which might have been introduced under it, might have brought the plaintiff fairly within the provisions of the statute when limited in its application, as a majority of the court think it ought to be. It is true, the averments of the petition as to the plaintiff's use of the team in question, are somewhat indefinite and uncertain; but the remedy for this was by motion to compel the plaintiff to "require the pleading to be made definite and certain by amendment," (code, sec. 118), and not by demurrer.

The judgment in the case, and the order of the court below sustaining the demurrer to the petition, will be reversed, and the cause remanded for further proceedings.

Scott, SUTLIFF, PECK, and Gholson, JJ., concurred. .

344

Webb's Adm'r v. Roff et al.

*LEWIS D. WEBB'S ADMINISTRATOR V. ANNA ROFF AND

OTHERS.

[430

A, being in embarrassed circumstances, and having received advancements oc

casionally from B, his mother, voluntarily executed his note to her for the amount, and secured its payment by a mortgage on his real estate. A afterward paid off all his creditors except the mortgagee, and some years thereafter died insolvent. The mortgagee assigned the note and mortgage to A's children, in consideration of love and affection. On petition by A's administrator to set aside the mortgage as fraudulent, and to sell the lands

to pay debts: Held1. That a mortgage is a conveyance within the statute of frauds and perjuries

of 1810. 2 That a conveyance, within the meaning of the statute, is void only as against

creditors. 3 That a conveyance made without consideration, by one indebted at the time,

can not be avoided by subsequent creditors, without showing actual fraud or a secret trust for the benefit of the grantor.

In error to the district court of Miami county.

The plaintiff filed his original petition in the court of common pleas, stating that the intestate died seized in fee of certain lands particularly described, situate in said county, and wbichi, owing to the insufficiency of the personal estate for that purpose, it was necessary should be sold for the payment of the debts of the intestate mentioned in the petition. It is further stated in the petition that said lands were subject to a certain mortgage executed by the intestate to Anna Roff, his mother, and duly recorded to secure to her the payment of his promissory note of one thousand dollars; and which had been by her assigned, with the mortgage, in consideration of love and affection, to the children of the intestate, and that said note and mortgage were designed by the intestate fraudulently to cover up and protect his property from his creditors; and that said note was in fact given without any consideration, and not designed to be collected. The petition *asks that said [431 mortgage be ordered by the court to be canceled, and the lands sold for the purpose of paying other debts.

The heirs of the intestate, and Anna Roff, are made parties defendant.

The answer denies that there are any debts of the estate existing, except those contracted by the intestate after the making of the

Webb's Adm'r v. Roff et al.

note and the execution and recording of the mortgage, and denies that the note and mortgage were made to defraud the creditors of the intestate.

The case was tried in the district court on appeal, and the petition dismissed.

A bill of exceptions sets forth the evidence in the case.

It appears from the record that the promissory note and mortgage were executed by the intestate on the 18th day of February, 1845, the note being made payable on or before the 17th day of September, 1848, and that the mortgage was duly recorded in March, 1845; that the intestate had, previous to that time, received money and property from his mother; that she had at different times since 1825, let him have money and property to the probable amount of $600 or $700; that at the time of the execution of the note and mortgage the intestate was in the possession of property to the amount of some $2,000 and upward, but was in somewhat embarrassed circumstances; that he owed some debts about home, which he said he could readily meet, but expressed some apprehension of being troubled by a debt of $400 which he owed in Virginia; that at the time of talking about the Virginia debt he spoke of owing his mother, and of making a deed or mortgage to her; and afterward said he had given her a mortgage. She testified that she had not expected to get the amount advanced to him, but that he saw fit, voluntarily, to give her the note and mortgage for what she had 80 advanced; and that she had, without any other consideration 432] than that of love and affection, about the time of *the death of her son, assigned the note and mortgage to his children.

It was in proof that at the execution of the deed a receipt was written upon it to be subscribed when satisfied; and at the trial it was proved that the same appeared to have been subscribed and the signature erased; and that from some vestiges of the letters remaining, the name might have been that of the mortgagee.

Various conversations of the intestate in relation to the mortgage, after its execution and shortly previous to his death, were also given in evidence, in which he expressed anxiety that his children should be provided for. But these conversations having been beld in the absence of the mortgagee, need not be here more fully stated.

The plaintiff's witnesses testified that the intestate was always esteemed a very honest man.

Webb's Adm'r v. Roff et al.

It was proved on the part of the defendants that the mother at one time advanced to the intestate something over $200 in part payment of the purchase money due from him for the premises mortgaged, he having bought the same unimproved for $500.

The proof also shows that all the debts of the mortgagor existing previous to the execution of the mortgage were fully paid in his lifetime.

The intestate is proved to bave had a somewhat expensive family of seven children to support; and to have been an invalid for the two or three last years of his life; and that he died March 30, 1852, insolvent.

The administrator proves that all the property, including the lands mortgaged, which sold for $1,500, will not pay more than seventy-five cents on the dollar to the creditors of the intestate.

At the trial, upon the proof made, of which the foregoing is a sufficiently full statement, the court gave judgment in favor of the defendants and against the plaintiff. The plaintiff thereupon filed a motion for a new trial, and *assigned for cause that the [433 decision was against the law and the evidence. But the court overruled the motion.

The plaintiff in error asks this court to reverse the judgment of the district court, for the reason that said court overruled his motion for a new trial, and rendered judgment in the case contrary to law and evidence.

Johnston & Jones, for plaintiff in error.
Morris & Smeltzer, for defendants in error.

SUTLIFF, J. It has always been held under the statute of frauds in this state, that a conveyance of land made to defraud creditors. is not necessarily void between the parties. Such a conveyance is only void as against creditors. Burgett v. Burgett, 1 Ohio, 469; Lessee of Douglass v. Dunlap, 10 Ohio, 162; Crumbaugh v. Kugler, 2 Ohio St. 373. By the common law and the statutes of Edward III. and Henry VII., as well as under the statute against fraudulent deeds, 13 Eliz., chap. 5, conveyances to defraud creditors were not held absolutely void. They have always been considered binding on the parties.

The mortgage in this case is to be regarded as a conveyance although a conditional one, and if fraudulent, equally subject to the

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