At the common law the agreements or promises named in both statutes were binding, although unwritten and unsigned. These statutes provide that, to be operative to bind the party making them, the promises and agreements named must be evidenced by a written instrument signed by the party to be affected. The general rule in regard to alleging in pleading matters affected by such statutes is well stated in 4 Bac. Abr. 655. as follows: "If a statute makes certain circumstances necessary to the validity of an act, which was valid at the common law without such circumstances, this does alter the manner of pleading which was used before the making of the statute;" instancing that 29 Car. 2, e. 3, requires a tenant for years to assign his term in writing, but that such assignment, being good by parol at the common law, may be pleaded without alleging it to be in writing. In 1 Chit. Pl. 304, it is said: "The nature of the promise still remains the same in the eye of the law, which does not admit of any distinction between verbal and written agreements, except where the latter are under seal; and it should seem that the provisions of the statute only affect the rules of evidence, and not those of pleading." Yet, on page 534, the same author says: "Thus, in a declaration on a promise to pay the debt of another, in consideration of forbearance, it is not necessary to show that the promise was in writing, according to the statute of frauds, but it is said to be otherwise in a plea." In a note a quare is suggested, and Peacock v. Purvis, 2 Brod. & B. 362, is cited. All the authorities, so far as observed, agree that in a declaration it is not necessary to allege that such agreements are in writing; and it has been so held by this court in Hotchkiss v. Ladd, 36 Vt. 593.

The only case I have found for the statement by Mr. Chitty, “but it is said to be otherwise in a plea," is Case v. Barber, Ld. Raym. 816. The action was assumpsit, and the defendant pleaded tnat the cause of action had been adjusted and settled, in part, by an agreement between the plaintiff, defendant, and defendant's son, by which the son agreed to pay a certain portion of the debt at a future day; and that the son had offered to pay the same, but the plaintiff refused to receive it. To this plea the plaintiff demurred; the case does not say whether generally or specially. The plea was held badFirst, because no consideration for the son's promise was alleged; and, secondly, because it was not alleged that the son's promise was in writing; the court holding that unless the son's agreement was in writing, the plaintiff could have no remedy thereon; "and though upon such an agreement the plaintiff need not set forth the agreement to be in writing, yet when the defendant pleads such an agreement in bar, he must plead it so it may appear to the court that an action will lie upon it; for he shall not take away the plaintiff's present action, and not give him another upon the agreement pleaded." In regard to this case, in a note to Steph. Pl. *376, it is said: "It is to be observed that the plea was at all events a bad one in reference to the first objection. The case is, perhaps, therefore, not decisive as to the validity of the record." In Peacock v. Purvis, 2 Brod. & B. 362, on which the quare is raised in the note to Chitty, the defendant pleaded, among other things, a sale of the property on a fieri facias by agreement, without alleging that the agreement was in writing, as required by statute. The plaintiff demurred to the plea. There was another question whether the substance of the plea was a defense. The court do not allude to the fact that the agreement was not alleged to have been in writing, but assume that the plea was good in that respect, and discuss at length the other question, and hold the plea bad in substance. Generally, the same degree of certainty is required in a replication as is required in a plea. While in the text both Mr. Chitty and Mr. Stephens, by a qualified expression, state that while it is not necessary, in a declaration, to allege that such an agreement or promise is in writing, where the writing is only required to evidence the agreement or promise, and not to make the agreement or promise legally binding, yet, in the note on the text, doubt

is suggested in regard to the doctrine of the text, and the case in 2 Brod. & B. supra, seems to have disregarded the decision in Ld. Raym., from which the doctrine of the text seems to have been taken.

Whatever may be said in regard to a plea, it is not apparent, on principle, why an allegation which would, confessedly, on both principle and authority, be sufficient in a declaration, should not also be sufficient in a replication. In this state of the common-law authorities it can hardly be said to be established that such an allegation is necessary in a plea. All the text-book writers fully recognize the general doctrine as stated by Mr. Stephens, *374: "With respect to acts valid at common-law, but regulated as to the mode of performance by statute, it is sufficient to use such certainty of allegations as was sufficient before the statute."

This general doctrine is applicable to the replication, so far as it is wanting in allegation, that the defendant's agreement to waive the benefit of the statute of limitations was in writing, and seems to have been adopted by this court as applicable to a plea in Carpenter v. McClure, 37 Vt. 127. If a remark by REDFIELD, C. J., in Patrick v. Adams, 29 Vt. 376, looks like a recognition of the contrary doctrine, it is to be observed that it was hardly required for the decision then made, and appears to have been made without examination. There is no valid reason why one rule should be applicable to a declaration and another to a plea or replication. A plaintiff ought not to be allowed to call a defendant into court and compel him to answer matter in a declaration as sufficient in law, which he would not be legally bound to reply to if interposed against him by plea; nor can any good reason be assigned why the defendant should be held to answer matter as legally sufficient in a declaration which would be insufficient in a replication. In either case he may answer that the alleged agreement is not in writing, or may traverse and object to the evidence if not in writing. We think the general doctrine applicable to the replication under consideration; and that if the defendant would conclude the plaintiff on the pleadings, rather than object to the proof of the agreement by parol on a traverse of the replication, he should have rejoined that the alleged agreement was not in writing.

The judgment is reversed, the demurrer overruled, the replication adjudged sufficient, and the cause remanded.

(60 Vt. 478)

STILL et ux. v. BUZZELL.1

(Supreme Court of Vermont. Orange. January 28, 1888.) 1. FRAUDULENT CONVEYANCES-RIGHTS OF PARTIES INTER SE.

The orator and oratrix executed to the defendant a deed absolute in form, but in fact a mortgage, for security to the defendant for paying certain incumbrances on the land deeded; and also to cover the property, and prevent other creditors from attaching it. Held, that the orator and oratrix were entitled, on payment of the amount due the defendant, to a decree that the defendant should redeed the premises, although, as against other creditors, the deed was fraudulent and void.2 2. SAME-DUTY OF GRANTEE TO ACCOUNT FOR RENTS AND PROFITS.

And in such case where the orator rented a part of the premises, and the defendant notified the tenant that he must pay the rent to him, and assumed and maintained possession of that part of the premises; held, that defendant should account for the rents and profits which he ought to have received from the use of it.

Appeal from chancery court, Orange county; WALKER, Chancellor. Bill in equity praying that the defendant be ordered to redeed certain lands described in the bill, and for an accounting of rents and profits. Heard on

1 Reported by Senter & Kemp, Esqs., of the Montpelier bar.

A fraudulent conveyance is valid, as between the parties thereto, Claflin v. Lisso, 27 Fed. Rep. 420; Atwater v. Seeley, 2 Fed. Rep. 133; Barrows v. Barrows, (Ind.) 9 N. E. Rep. 371; Henry v. Stevens, Id. 356. That a fraudulent conveyance will not be set aside at the instance of a party to the fraud, see Barrows v. Barrows, (Ind.) 9 N. E. Rep. 371; Wier v. Day, (Iowa,) 10 N. W. Rep. 304; Battle v. Street, (Tenn.) 2 S. W. Rep. 391.

v.12A.no.3-14

bill, answer, master's report, and exceptions thereto. Decree for the orator, and defendant appeals.

S. B. Hebard, for the orator.

Being in possession, and asserting his right to the rents, the defendant is liable for the reasonable rents and profits since he so took possession, and was bound to use reasonable diligence in realizing from the premises. White v. Maynard, 54 Vt. 575; Shaeffer v. Chambers, 6 N. J. Eq. 548; Sanders v. Wilson, 34 Vt. 318. The case discloses no reason why the general rule that the prevailing party recovers cost should not be followed. The orator and oratrix prevailed in the sole issue in the case, and should be allowed costs. Day v. Cummings, 19 Vt. 496; Weston v. Cushing, 45 Vt. 531.

John H. Watson, for defendant.

The master has found that the deed was given to defendant as security, but that the main object of the transaction was to recover this property, and prevent other creditors troubling the orator and oratrix. Here, clearly, was a fraudulent conveyance, participated in by both parties. There is no doubt but what such conveyance would be void as against creditors, and would be set aside in a suit properly brought for that purpose, but such a conveyance as between the parties must stand. That "a right of action cannot arise out of fraud” is a maxim of long standing. In Holman v. Johnson, Cowp. 343, in discussing this principle, Lord MANSFIELD says that it is not for the sake of the defendant that he is allowed to make this defense, "but it is founded in general principles of policy, which the defendant has the advantage of. * * * The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff." See Harvey v. Varrey, 98 Mass. 118. In Roberts v. Jackson, 1 Wend. 478, the court, by SAVAGE, C. J., says: "The rule is that, if a party will convey away his property with the intent to defraud his creditors, the law will not aid him when he subsequently seeks to recover it back." Rowland v. Martin, 6 Atl. Rep. 223; Bump, Fraud. Conv. 442-447; 1 Pom. Eq. Jur. §§ 397, 401, 402, 2 Pom. Eq. Jur. 916, 940, 941. The fact that said conveyance was in part for a valid purpose will not aid the complainants. The unlawful design vitiates the entire instrument. 1 Jones, Mortg. § 627, says: "If one of the purposes of making a mortgage was to put the property out of the reach of the mortgagor's creditors, although the principal purpose of the parties was to secure a bona fide debt of the mortgagor, it is nevertheless void as to his creditors." See, also, Schmidt v. Opie, 33 N. J. Eq. 138; Crowninshield v. Kittridge, 7 Metc. 520; Bump. Fraud. Conv. 41, 486, 487, and cases there cited. The law relative to fraudulent conveyances likewise applies to rents and profits. Bump, Fraud. Conv. 238.

Ross, J. The master has found that the deed of the Miller lot, though absolute in form, was, between the orator and oratrix and the defendant, given to secure the defendant for taking up the Miller notes then resting upon the premises, which the defendant agreed to do, and did subsequently do, and to cover the property, and prevent any other creditors from troubling them. The bill is brought to compel the defendant to redeed the premises; the complainants claiming that they had paid the defendant the entire debt secured by the deed. The defendant contends that he has not been paid what the deed was given to secure, and that, if he has been, the complainants are rem.

ediless, because the deed was given and accepted to prevent any other creditors from troubling them.

Upon the facts found by the master, the debt secured by the deed had not all been paid at the time the bill was brought, but had been at the time of the hearing, by the use of the mortgaged premises. The complainants do not offer, in the bill, to pay the defendant any balance which might be found due him on full accounting. This is necessary in a bill to redeem, if the orator would avoid the risk of a balance being found against him. Strictly, the bill must be framed to the circumstances that exist when it is brought, and the orator must recover, if at all, upon the allegations of his bill when applied to the circumstances then existing. In this view, even if the master's findings are approved, the orator and oratrix would not be entitled to relief without amendment of the bill. But as such amendment would affect no rights now, unless it influenced the question of costs, the court of chancery would probably have allowed it to be made, without terms; hence this question is somewhat unimportant.

The only contention bearing upon whether the mortgage debt had been paid, when the master heard the case, is whether, upon the facts found, the defendant is to be charged for the use of the premises from the spring of 1881. The controlling facts on this subject are that in the spring of 1881 the orator let the pasture to Perry Bacon. The defendant notified Bacon that he must pay the rent to him, and Bacon thereupon abandoned the pasture. The defendant then, or before then, turned some stock into the pasture, and the complainants understood that he had taken possession of it. After that year, no one had possession of the pasture except the defendant, who turned in oxen; but when, or how many, did not appear. We think these facts show that the defendant not only assumed control of the pasture in 1881, as against Bacon, but took possession of it himself, and was thereafter accountable for the rents and profits which he ought to have received from the use of it. After what he did in 1881, if he would divest himself of liability for the use of the pasture, he should have notified the orator that he surrendered the possession to him. No claim is made that the amount allowed by the master is too great, if the defendant is liable to account for the use of the premises during those years. This left, at the time of the decree, a balance due from the defendant, which he was decreed to pay to the orator and oratrix.

We think the court of chancery properly disposed of the item of $21 paid the defendant by the son of the orator. The decree on the accounting between the parties on the facts found was correct in amount, and in form, if the bill had been formerly amended to adapt it to the circumstances as they existed, when it was brought.

Can the defense prevail because the deed was given and taken absolute in form, not only to secure the defendant for paying the Miller notes, which were about to be foreclosed, but to cover the property, and prevent other creditors from troubling the orator and oratrix? In other words, can the defendant set up his own fraud, entered into with the complainants, to defeat their other creditors? If he can, then the statute to prevent fraud, in equity, even, can be made the means of a fraud; for in that case the defendant can receive payment in full for the debt for which the deed was given, and still hold the premises conveyed as security for the payment of that debt. Sections 1955 and 4155, R. L., both declare that fraudulent and deceitful conveyances of lands, etc., "shall, as against the person whose right, debt, or duty is so intended to be avoided, his heirs or assigns, be utterly void." These provisions of the statute have at common law, and generally, been held to make the contracts good and enforceable between the parties, and only void as to creditors whose right, debt or duty is attempted to be avoided. The opinion in Carpenter v. McClure, 39 Vt. 9, is a full and careful consideration of this subject. That case holds that a note given for such a purpose, between the

parties, was valid and enforceable at law. In the case at bar the contract between the parties, as found by the master, is a mortgage, and he has further found that the complainants have paid it in full. They are entitled to the premises freed from any claim on the part of the defendant; for that was the legal effect of the contract between them. Under the decisions of this court, the deed, though absolute in form, could be shown, as between the parties, to be a mortgage. Without objection or exception, the deed in this case was shown to be only a mortgage between the parties. It was valid as such between them, though void as to any other creditors of the complainants. It was valid between them as a mortgage, and will be enforced as such, especially when a refusal to enforce it as such, under what had been done under it, would make it an operative fraud, in the hands of the defendant, upon the orators, or allow him to take advantage of his own fraud upon others to defraud the orator and oratrix.

The defendant claims that the decree was erroneous in regard to costs. This court rarely disturbs a decree in chancery solely on the question of costs. Costs in chancery are largely, in the discretion of the court, dependent upon the circumstances of each case. We should be slow to reverse a decree upon a question of costs alone. This court has not been furnished with a copy of the defendant's answer, but the decree plainly indicates that in that the defendant claimed to hold the premises for debts which were not secured on them, and that he failed in the defense he undertook, and for that reason was refused costs, and the orator allowed costs, on the false issues which he raised in his answer. If this was so, the court properly refused him costs, and allowed the orator costs.

Decree of the court of chancery is affirmed, and cause remanded, with right in the orator to ask leave to amend his bill in the particular indicated, on such terms, if any, as the court of chancery may impose.

(60 Vt. 54)

FARR v. PUTNAM et al.1

(Supreme Court of Vermont. Orleans. February 2, 1888.) GUARDIAN AND WARD-TISBURSEMENTS-LIEN ON WARD'S ESTATE-WAIVER.

The orator was guardian of an insane person, who died leaving an unsettled estate. One of the defendants was appointed administrator, and the guardian, supposing that the estate was ample to pay all just claims against it, permitted the defendant administrator to assume possession and control of all the ward's estate both real and personal, and to sell and dispose of the same, understanding that his claim against the estate as guardian would be preferred and first paid out of the avails of said estate. By reason of depreciation the avails of the estate were found to be insufficient to pay the debts, and the orator brought his bill claiming an equitable lien on the estate of the deceased ward to the amount of his guardianship account, and praying to foreclose the same. Held, that if the orator ever had such lien he had lost it by waiver when he consented to let the estate go into the hands of the administrator.

Appeal from chancery court, Orleans county.

Bill in chancery brought by the orator to subject an estate in the hands of his ward's administrator and other defendants to a first charge or lien for the payment of the bills found due him on settlement of his guardianship account. Heard on bill, amended bill, answers of the several defendants, report of special master, and exceptions thereto. Decree pro forma that the bill be dismissed, with costs. The master reported, among other things, that on the ninth day of January, 1877, Hyrcanus Farr was duly adjudged to be an insane person, incapable of taking care of himself, and the orator was appointed his guardian, and accepted the trust, and performed the duties thereof until the death of said Hyrcanus on the seventeenth day of August, 1878; that after the death of said Hyrcanus the defendant Putnam was ap

Reported by Senter & Kemp, Esqs., of the Montpelier bar.