I have seen this case cited here and there, supposedly the genesis of the now familiar concept that a transfer of property with actual intent to delay, hinder or defraud creditors may be avoided. But yesterday I stumbled on Prof. Bob Lawless’s post on Credit Slips about this fascinating new law review article by Northwestern Law Professor Emily Kadens, entitled New Light on Twyne’s Case. The article is here. She writes, “Twyne’s Case today stands for the point that even transfers made for good consideration can be fraudulent if they were made with the intent to defraud other creditors. ”
The facts are surprisingly familiar. In 1600, the undersheriff of Hampshire, Brian Chamberlain, is instructed by a creditor to execute a writ and seize property of one John Pearce. When he gets to Pearce’s farm, he is told the sheep, the cattle, grains, “leases,” and everything else is owned by John Twyne, not John Pearce. Twyne was a cousin of Pearce and a man of some stature and wealth. There is a confrontation over the next two-three days (called a “riot” in the legal papers of the time) but when the dust settles, nothing is removed from the farm. It seems that months earlier, Twyne agreed in writing to pay certain of Pearce’s debts in exchange for a transfer of Pearce’s property to Twyne. Possession of the property remained with Pearce, apparently not unusual since it wasn’t that easy to move sheep, cattle and grain and the arrangement provided that if Pearce came up with the money, he would get his property back. The paperwork of course was confusing, contradictory in places, incomplete and the “deeds” may have been back-dated. But the court later agreed that “Twyne gave greater consideration than the total worth of Pearce’s property.” Read more…
