7 Johns. Ch. 68 (1823 Ch.)
There does not appear to be much doubt, as to the fraudulent intentions of the defendant, P.; and there would be no difficulty as to relief against him. But the object of the suit, is to preserve and enforce the claim of the plaintiffs to a lien, for the purchase money, upon the land, which they contracted to sell to the defendant, P.; and the defendant, M., comes forward, in opposition to that lien, in the character of a bona fide purchaser, for a valuable consideration, without notice of the plaintiff’s claim, before the pendency of this suit. The real controversy is, whether the defendant, M., be entitled to sustain that character.
There is, probably, due to the plaintiffs about 1100 dollars, with interest from the 1st of February, 1817; and a reference will be necessary to ascertain the precise amount.
The defendant, May, avers, that the deed to him was executed and delivered on the 1st day of March, 1819; and the subpoena and injunction in the case, were served on the 9th of March, 1819. Part of the consideration for the purchase by May, is averred to have been paid at the time of the execution and delivery of the deed, by the transfer and delivery to Palmer of several promissory notes, given by William Eaton to May, and which are alleged to have been good and valid. But another part of the consideration, viz. 100 dollars, was not paid until the 20th of March, 1819; and 527 dollars and 72 cents, not until the autumn of 1820. These payments were made, not only after the pendency of the suit, which was notice in law, but after actual notice of the claim of the plaintiffs must be taken to have been received. They were, therefore, payments made by the defendant, M., in his own wrong, and his character of a purchaser will not protect him. A plea of a purchase for a valuable consideration, without notice, must be with the money actually paid; or else, according to Lord Hardwicke, you are not hurt. The averment must be, not only that the purchaser had not notice, at or before the time of the execution of the deeds, but that the purchase money was paid before notice. There must not only be a denial of notice before the purchase, but a denial of notice before payment of the money. (Harrison v. Southcote, 1 Atk. 538. Story v. Lord Windsor, 2 Atk. 630.) Even if the purchase money be secured to be paid, yet if it be not in fact paid, before notice, the plea of a purchase for a valuable consideration, will be overruled. (Hardingham v. Nicholls, 3 Atk. 304.)
Whether the deed to May was actually and truly executed and delivered, and the notes of Eaton assigned in part payment, on the 1st of March, 1819, or at a subsequent day in March, after the service of the subpoena and injunction, is a point greatly litigated; and there is much contradiction in the testimony; and the character of some of the witnesses has been sharply assailed and defended. It is one of those questions of fact, involved in so much doubt, that a feigned issue, to have that fact settled by a jury, seems to be dictated by sound discretion.
I shall, accordingly, award a feigned issue to the county of Madison, to ascertain the fact, whether the deed from Palmer to May was executed and delivered on the 1st day of March, 1819, or at some other, and what subsequent day in that month; and I shall reserve the question, whether the plaintiffs have a lien on the lands, for the residue of the purchase money, and also the question of costs, and all other questions, until the issue shall have been tried, and the cause brought to a further hearing thereon.
Decree accordingly.