author: Saffold, C. J.

text:
    J. A. MILLER versus THOMPSON, H. D. MILLER versus THOMPSON, and HUFFMAN versus THOMPSON.
    QUESTIONS IN THIS CASE.

      Upon the validity of a voluntary conveyance, to children, from, a father.

      As to the effect of a child's marriage, upon such conveyance.

    I, A voluntary conveyance of property, executed by a father, to his children, he being indebted at the time of executing the same, is void in respect to all previous creditors of the parent.
    •2. Whether such conveyances are void, with respect to the subsequent creditors of a parent, will depend on the intent with which they are executed.
    ,3. Where such conveyance is made to a daughter, who after-wards marries, and the property passes, not into the husband’s possession, but remains with the grantor; it will be held, void as to previous creditors; and the husband can take no title to the property conveyed, as against them.
    In these several cases, trials of the right of property taken upon execution, were had, in the Circuit Court of Autauga, on claims instituted by the plaintiffs in error.
    In the execution, Thompson was plaintiff, Henry Miller and Charles P. W. Miller defendants. The property in question consisted of slaves, one to each of the claimants.
    The facts essential to a history of the case, were presented by a bill of exceptions, and were the same in each of the cases; except so far as the contrary js shewn, in the conclusion of this statement. They were as follow:

      The plaintiff in execution proved, that the property was levied on. at the plantation of the defendant in execution, being then in his possession.— The claimants proved that, in March, 1829, the defendant in execution executed to them, (they being his children,) deeds of gift, for the slaves, one to each of them, which deeds were duly recorded in the clerk’s office of the County Court; that, at the time of executing the same, the defendant, Henry Miller, the principal debtor was possessed of other property, amply sufficient to pay all his debts; that it consisted of twenty-one slaves, worth eight thousand dollars — lands, worth two thousand five hundred dollars — mills, worth three thousand dollars, and horses, cattle, household furniture, &c., worth eight hundred dollars.
    On the part of the plaintiff in execution, it was further proved, that, at the time the defendant in execution made the deeds to these chilren, he also gave to these, and others of his chilren, all his slaves, except one, who was aged and infirm ; that, at the time of doing so, he was indebted to the plaintiff in execution, the debt which is the foundation of the execution, under which the levy was made, and other debts, amounting, in all, to about five thousand dollars.
    Upon this evidence, the claimants prayed the Court, to instruct the jury, that a voluntary conveyance, by a father to his child, the father being indebted at the time, was not fraudulent, per se, but, was a fact to be left to the jury; and, if he had a sufficiency of other property, to pay his debts, at the time of the voluntary conveyance, it was not such a circumstance as would, of itself, authorise the presumption of fraud: which charge the Court refused to give; but instructed the jury, that the first matter they had to consider, was, whether the defendant in execution, at the time of the voluntary conveyance, was indebted to the plaintiff in execution? If he was, it made no difference what amount of other property he had — the deed of gift was, as to him, fraudulent and void,y>er se.

      ■ In the last stated case, in which Huffman is claimant, the facts were the same ; also, the charge of the Court — except, as follows: that, the conveyance being from the same donor, the defendant in execution, the gift was made to his daughter Ann, then a minor, who, about one year afterwards was married to said Huffman. *

    In reference to this case, the Court was further requested to charge the jury, that if a father indebted at the time, mate a voluntary conveyance to his daughter; and the father, over and above the property given, has a sufficiency of property to pay all his debts, and his daughter subsequently marry, before a levy made upon the property, her husband is a purchaser for a valuable consideration; and, as such, should be protected — that, though the conveyance, as to the daughter, whilst sole, might be deemed fraudulent and void; yet the husband was entitled to claim, as a purchaser. All which the Court refused to charge; but, (in addition to the above instructions, which apply equally to all the cases,) charged, that if the father had made the deed of gift, in contemplation of the claimant’s marriage with his daughter, and, it afterwards took place, the husband would be protected,[as a purchaser; bnt, that if the gift was made to the daughter, before marriage, and without the same being then in contemplation, the husband, who might afterwards marry her, under the expectation, that the property was hers, was not entitled to be considered as a purchaser, so far as to be protected from the original consequences of such voluntary conveyance. To all which the claimants, (so far as related to each,) excepted.
    They here assigned, as cause of error, that the Court refused to charge the jury as requested; on the contrary, charged as above stated.
    Argued by Mr. Goldtlmaite, for the plaintiffs in error; and, by Mr. Barg an and Mr. Peck, for the defendants.
   Saffold, C. J.

I will first examine the subject, in reference to the cases, in which the Millers are the claimants, and the other so far, only, as the same principles are equally applicable to it — leaving out of view, for the present, the effect of the mariage, on the latter.

The inquiry is presented, whether it is competent for a father, who is a debtor at the time, to make a, voluntary conveyance of a portion of his property to a child, or children, so as to vest in them a valid title against the claim of his pre-existing creditors; though he retain at the time sufficient other property to pay his debts; or whether such conveyances are, in legal contemplation, fraudulent and void, as against such creditors?

So much of our statute of frauds, as is considered applicable to these questions, is in the following language —that every gift, grant, or conveyance of lands,” &c. or of “goods or chattels,” &c. “by writing or otherwise/’ “had, made and contrived, of malice, fraud, covin, collusion, or guile, to the end or purpose to de lay, hinder or defraud creditors of their just and lawful actions, suits, debts,” &c. “shall be from henceforth deemed and taken only as against tjie person oí persons, his, her or their heirs,” &c. “ w\iose debts, suits,” &c., by such means, “shall, or might be, in any wise disturbed, hindered, delayed or defrauded, to be clearly and utterly void,” &c. The import and effect of this statute is understood to be the same as that of the English statute of 13th Elizabeth, as far as they apply to this-principle, and both are considered as declaratory of the common law.

That a voluntary conveyance, i. e. one not founded on a consideration deemed valuable in law, of all a debtor’s property, or of so much as must unavoidably “delay, hinder, or defraud ” his existing creditors, is fraudulent and void as against them, all must admit. The only doubt appears to be, whether such conveyance of the debtors property, and what proportion, will be free from this objection.

We may readily imagine the great difficulty and embarrassment, that must necessarily result from the adoption of the latter principle. One consequence must be, that all trials of the right of property thus conveyed, may involve inquiries, respecting the amount and validity of all claims and demands against the donor; of the amount and value of the property he possesses and claims, and the sufficiency of his title to the same. If, however, it be found,, that such is the settled law, we, as a Court, without power to alter it, have only to acquiesce in the principle, and expound it accordingly.

It is insisted, on the part of the claimants, that the principle has been so settled, on good authority. In support of the position, are cited, various decisions; among others, some made by this Court, under its former organization. The first case relied upon, is that of Toulmin vs. Buchanan's Ex'ors.

It is true, that, if we are bound to adhere to the principles of that decision, it justifies the position assumed, to its fullest extent.

The gift,„in that case, was from Caller to his son-in-law, several months after his marriage, and at a time when it appeared that the donor was/'much embarrassed by debts — much moré than he was able to pay.” The Court held, that if Caller had made a gift of all bis estate the law would declare it fraudulentperse, and void against the creditors. ' But, as the gift was of part only, it was prima facie, in advancement of the marriage, which is deemed, in law a valuable consideration; and that it was not void or fraudulent per se, but, a circumstance, which, if corroborated by other circumstances, might have authorised the jury to infer fraud.

' The principle declared on that occasion, obviously requires further consideration. Since that, and the other decisions referred to, of this Court, all the members have been changed, except myself. How far I may have concurred in that opinion at the time, is not recollected, or material to my purpose. We should proceed with reluctance, in any case, to overrule a principle of decision, once declared by the highest tribunal of the State, and which may have had its influence on the community : yet, we regard it as a solemn duty, to do so, if we discover it to be manifestly erroneous, and of a highly mischievous tendency. Should it therefore appear, upon examination of the authorities, (as I think it will,) that this decision is opposed to the current doctrine of the highest tribunals, it can have no binding influence upon us.

It is also to be observed, that this Court has long since departed from the principle of that decision, without expressly overruling it. We did so, in the case of Cato vs. Easly, which has been referred to, on the part of the defendant in error. This latter case, too, has a direct application to these under consideration.

There, a voluntary conveyance was executed by a mother, then a widow, to her children. At the time of the conveyance she owed the debt, for the satisfaction of which, the suit, (which was in Chancery,) was instituted. The property was held subject to the debt, the language of the Court being, that it was a “ legal inference, that a voluntary conveyance, made by one indebted at the time, is, as against such creditors, fraudulent and absolutely void.”

A case equally applicable to these under consideration, and mainly relied on, by the counsel for the defendant in error, is that of Read vs. Livingston.

In that case, which related to a voluntary family settlement, the Chancellor reviewed numerous authorities, both English and American, with his usual ability. He decreed, that a voluntary settlement, after marriage, by a husband, in favor of his wife, by means of a deed in trust, was fraudulent and void, against all the donor’s antecedent creditors : and that, without regard to the amount of the existing debts, or the extent of the property settled, or the circumstances of the party. But that, with regard to debts, contracted subsequent to the settlement, he intimated, that the presumption of fraud, arising in law, from the party being a debtor at the time, may be repelled, by circumstances: as, that the antecedent debts were provided for, in the settlement, or otherwise secured; that, if the presumption of fraud, were not so repelled, subsequent creditors might impeach the settlement, by shewing antecedent debts, sufficient in amount, to afford reasonable evidence of a ■fraudulent intent; for, as on the one hand, showing -an antecedent debt, however small or trifling, is not sufficient to render the settlement fraudulent and void — so, on the other hand, the subsequent creditor, to impeach it, is not obliged to prove, that the party was insolvent at the time.

The views of the Chancellor, and the authorities he quotes, subject all voluntary settlements or conveyances, whether in favor of the wife or children of the donor, to the same rules; and, the principles he has thus recognised, appear to me, to be as just, reasonable and consistent, as the very difficult and complex nature of the subject, will admit of.

Among the variety of cases, on which he rests his opinion, he notices tire case of Townsend vs. Windham, wherein Lord Hardwick said, that he took it, that “ a man, actually indebted, and 'conveying voluntarily, always meant to defraud creditors.”- — ■ The Chancellor, (Kent,) understands Lord Hardwick, by these expressions, to mean, that this was the conclusion of law, which was not to be gainsayed.— He quotes, with approbation, the further remarks of the latter, that he knew of no case, where a voluntary conveyance to a child, by a man indebted at the time, was not set aside, for the benefit of creditors; but, that such conveyance, without any badge of fraud, and, by a person not indebted at the time, would be good, though he afterwards'became indebt' ed. That, though an unfortunate case may arise, in respect to children, for whom párents are bound, by nature to provide,, it is impossible, to say, the considetion in respect of them, is of so high a nature as that of paying just debts; and, therefore, the'Court never preferred them to just creditors. «

Chancellor Kent also sustains the,doctrine of Taylor vs. Jones. There, a settlement, after marriage, was made on the wife and children; and was held, under the statute of' 13th Elizabeth, to be fraudulent, not only in respect to anterior, but, also, subsequent creditors — for the reason that the debtor continued in the possession of the property settled : and, the statute was held, to extend equally to the subsequent creditors, who were delayed or defrauded.

The master of the rolls further observed that, “it was not material, in that case, what the circumstances of the father were, at the time of the settlement, any further than as evidence, to show if he was in indigent circumstances, that it was made with an intent to commit a fraud.”

He also remarked, in allusion to the sympathy, which is often appealed to, and excited, in cases of this kind, in favor of the objects of the conveyance, ‘that he had' “ great compassion for wife and children ;• yet, on the other side, it is possible, if creditors should not have their debts, their wives and children may be reduced to want.”

A case perhaps as favorable to voluntary settlements as any to be found of equal authority, (unless it be the one to which I first referred,) is that of Salmon vs. Bennett. The question there presented related to the validity of conveyance of land from Sherwood to his son,' in consideration of natural affection only, and which land the son had conveyed to the defendant, with knowledge of the deed to the son. In the examination of the case, that court assumed the fact of an existing indebtedness by the father, at the time of the conveyance to the son, so that the question was, whether, notwithstanding the conveyances, the land was subject to the payment of Sherwood’s debt. The judgment of the court sustained the conveyances. The Court held that there was a distinction in cases of voluntary conveyance between the children of the grantor and strangers; and that mere indebtedness at the time, will not, in all cases, render a voluntary conveyance, void, where it is a provision for a child; that an actual or express intent to defraud need not be proved, for this would be impracticable, in many cases where the conveyance ougnt not to be established, and the fraud may be collected from the circumstances of the case: that, if there be no fraudulent intent, and the grantor be in prosperous circumstances, unembarrassed and not considerably indebted, and the gift a reasonable provision for the child, leaving ample funds unencumbered for the payment of the grantor’s debts, the voluntary conveyance to the child, will be' valid against existing creditors. But, if the grantor be considerably indebted and embarrassed, and on the eve of bankruptcy; or if the gift bo unreasonable, dispro-portioned to his property, and leaving a scanty provision for his debts, the conveyance will be void, though there be no fraudulent intent.

Chancellor Kent, in reviewing this case, remarks, that the Court did not refer to authorities in support of their opinion, and, perhaps, they did not intend to fallow strictly, the decisions at Westminster Hall, under the statute of 13th Elizabeth — “ That he had not been able to find the case in which a mere voluntary conveyance to a wife or child, has been plainly and directly held good against a creditor existing at the time.”

The grounds on which the County Court rested their decision, appear to me to furnish a full illustration of the vexation and uncertainty which I have advanced against the principle recognised by that decision. They admit that a conveyance may be void without any fraudulent intent in the parties to it; of course, then, it must be so pronounced by way of instructions from the court to the jury, yet, the validity of the conveyance is to depend on the complication of facts enumerated in the opinion; the enquiry must be encountered on evidence adduced — what constitutes prosperous circumstances? what embarrassment? what considerable indebtedness? what a reasonable provision, proportioned to the grantor’s property? and what a scanty provision for the payment of his debts? And, according to the principles of the decision, all other circumstances, which, in reason and justice would be entitled to equal weight in ascertaining the tendeney of the gift, must also be investigated. Under a practice of this kind, I think we might expect a different rule of right frorii each several trial, and that it would be impossible to establish any thing like certainty or uniformity of title, under voluntary conveyances. It would appear, however, from the facts of record in the cases before us, that the plaintiff in execution might safely abide these tests. But the contrary doctrine which has been stated, appears more salutary and is best sustained by the number and weight of authority.

In Burnet vs. Bedford Bank, the Court of that State held, in reference to a voluntary conveyance from a father to a son; that in such cases, where there is no fraud in fact, the deed is good against subsequent creditors, and against all persons but suchas were creditors at the time.”

Numerous other cases referred to and commented on by Chancellor Kent, in the case of Read vs. Livingston, appear to me to place the principle of the decision in that case, beyond a question.

In the case of Sexton vs. Wheaton, the Court of the United States, in an opinion delivered by Chief Justice Marshall\ sustains, substantially, the same doctrine. In that case Wheaton had executed a post nuptial voluntary settlement on his wife, of a house and lot: at the time of making the settlement he was not indebted, but, shortly afterwards engaged in trade, and failed; after which, Sexton, a subsequent creditor, filed his bill in Chancery to subject this property to the payment of his debt, on the ground that the conveyance was fraudulent, and therefore void as to creditors. The decision of the court was, that such settlement, made by a man who is not indebted at the time, upon his wife, is valid against subsequent creditors. That the statute of 13th Elizabeth, avoids all conveyances not made on consideration, deemed valuable in law, as against previous creditors. But that it does not apply to subsequent creditors, if the conveyance is not made with a fraudulent intent.

■ In the District of Columbia, where this trial was had, the statute of 13th Elizabeth was considered in force, and the conveyance in question subject to its influence; and which, as I have said, is but the same as our statute of frauds.

In the case referred to, the Chief Justice remarked, that, “in cdnstrueing this statute, the Courts have considered every conveyance, not made on consideration deemed valuable in law, as void against previous creditors;” that th.ey fell within the proscriptive influence of'the statute against deeds devised, &e. to the end, purpose, and intent, “to delay, hinder or defraud creditors;” but that, with respect to subsequent creditors, the application of the statute appeared to have admitted of some doubt.

He quotes with approbation the declaration of Lord Hardwicke, in Walker vs. Burrows, made in reference to the English statute, “that it was necessary to prove that the person conveying was indebted at the time of making the settlement, or immediately afterwards, in order to avoid the deed.” — ■ After reviewing various other decisions, he observes, that, from these cases, it appears that the construction is completely settled, in England. We believe the same construction has been maintained in the United States. A voluntary settlement in favor of a wife and children, is not to be impeached by subsequent creditors, on the ground of its being voluntary.”

The-effect-of this decision, then, as well as of others examined, is an explicit denial of validity to voluntary conveyances, as against previous creditors; and to leave them, in respect to subsequent creditors, lo depend on the intent and peculiar circumstances attending them.

The consequence is, that in the two cases, in which the Millers are claimants, the judgments of the Circuit Court must be affirmed.

In support of Huffman’s claim, it is contended, that, though the conveyance from the father to the daughter might, while she remained sole, be deemed fraudulent and void; yet that, after the marriage, the husband was entitled to claim, as a purchaser.

It is also insisted, that there is, in law, no such distinction, as was recognised by the Circuit Judge’s instructions to the jury, between gifts, made in contemplation of the particular marriage, and others, with out that inducement, but, for the general advancement of the daughter.

The counsel has cited authorities on these points, which render them, at least, plausible, and entitle them to deliberate consideration. But, before noticing the case mainly relied on, it is necessary to remark, that notwithstanding the subsequent marriage, the slave in question, does not appear ever to have gone into the use or possession of the son-in-law : that the contrary inference arises from the fact, as stated in the history of the cases, that this negro, as well as the others, was' levied on, at the plantation of the defendant in execution, the same being then in his possession. Our understanding of the fact is, that the father continued in the use and possession of this, and all the other negroes conveyed to these claimants, to the time of the levy.

If we should infer that the father and his sons, (they being single, so far as we know,.) lived together, as part of the same family, so that the posses-* sion of one was equally the possession of the other— the same reason or explanation does not apply to the son-in-law. It, therefore, results, that so far as the want of possession is material, in other cases, his title is obnoxious to this objection.

But, in answer to this objection the counsel' refers to the case of Hobbs vs. Bibb, as authority of this Court, that want of possession does not, in any case, founded on valuable consideration, render the conveyance fraudulent and void.

It is proper to notice, that in the case referred to-, the conveyance was admitted to have been founded on a valuable consideration, which existed or passed at the time of its execution ; and that, though the possession was not changed, as imported by the deed, the failure was attempted to be accounted for, by means of a contract of hire entered into between the parties at the same time. The decision of the Court was, that the possession of personal, property, remaining with the vendor, was presumptive evidence of ownership in him ; but, that this presumption might be rebutted, by proof: that such possession was only presumptive evidence of fraud — not fraud, per se:

There, the opinion was, that the want of possession, in case of absolute conveyance, was a presumption of fraud. What proof would be sufficient to rebut it, is left indefinite : whether evidence of a valuable consideration, alone, would be required, or that, together with a hiring or something tantamount, does not appear. If any thing more than the valuable consideration be necessary, Huffman’s claim, if so much be conceded to it, would he deficient in the balance.

But, the views of this Court, as entertained near the same time, but afterwards, were better defined, in the case of Moore vs. Ayres. There the same principle was involved, when, as well as in Hobbs vs. Bibb, the doctrine was investigated very fully, by the Court, on elaborate argument of counsel.

I decline entering into particular comments on the opinions delivered, in those two cases, deeming it sufficient to refer to them, for the reasons and authorities on which they rest. In the case, of Moore vs. Ayres, my own views are expressed at length, in which I concurred with the then majority, in the result, under the peculiar circumstances of the case.

In this latter case, the decision was, that where the vendor remains in possession of personal property after a sale, it is not sufficient, as against creditors, that the consideration be bona fide, and the bill of sale recorded. But, it must appear, that the sale was not made “to hinder or delay creditors;” and this is to be determined by the jury, from all the circumstances.

The opinion of the Court, in both the cases, was delivered by the then Chief Justice. In the latter, he remarked, that “it never was contended, but possession remaining unbroken with the vendor, was, at least, a circumstance from which fraud must be inferred, if it was not explained.” This was said, in reference to a conveyance on valuable consideration. Whether this declaration is entitled to the ef-feet of varying or qualifying the principles of the decision in the former case of Hobbs vs. Bibb, may be worthy of consideration. A consequence of it would appear to be, that if “possession does not accompany and follow the deed,” in the true acceptation of these terms — that is, if the possession be inconsistent with, and not subservient to the object of the conveyance, the same must be found by the jury, under the instruction of the Court, fraudulent and void, unless the failure be satisfactorily explained; though there be no other objection to the conveyance.

We do not intend, on this occasion, to express, either our approbation of, or dissent from the decisions, made in the cases of Hobbs vs. Bibb, and of Moore vs. Ayres; yet, the remark is due, that the latter was influenced, in a great degree, by the former, and the former, by the case of Bissell vs. Hopkins, by the Supreme Court of New York; and, that the Court of New York, in a still later case, Stulson vs. Brown, departed from the principles of their earlier decision.

The last mentioned case involved the validity of an absolute bill of sale, for one half of a sloop, founded on a valuable consideration. The only objection urged against it was, that possession did not accompany and follow the deed. The Inferior Court had decided, that “the bill of sale was fraudulent, as to creditors in judgment of law, and refused to' suffer the case to go to the jury.” The Supreme Court affirmed the decision, on the same ground.

The authority mainly relied on to 'sustain Huffman’s claim, is the case of Sterry vs. Arden. In that case Arden and wflfe had executed a voluntary conveyance of real estate to their daughter, then sole. She afterwards married against his consent; in consequence of which he sold and delivered the same estate for a valuable consideration, to' Verplank, who, at the time had no actual notice of the former con-' veyance. Whether his information amounted to constructive notice was questionable; but the Chancellor considered it sufficient to have put .him upon inquiry. It appeared that, at the date of the voluntary conveyance, Arden was free from debt, and that there was no intention to defraud any one; the circumstances satisfactorily showed this, and that the conveyance was intended purely for the advancement of the daughter. It was also evident that a main inducement for his afterwards selling to Verplanlr, was to defeat the expectations of his daughter and son-in-law; the property appearing to have been a strong induce-, ment on his part for entering into the marriage.

It was ruled by the Chancellor, that a voluntary conveyance, intended as a settlement for a child of the grantor, was void as against a subsequent purchaser, for a valuable consideration, with only implied notice of the pre-existing deed, by the statute of frauds.— But he maintained that such deed might be rendered valid, by matter ex post facto, as by some valuable consideration intervening; and that the subsequent marriage in that case, which occurred prior to the second conveyance, was entitled to that effect, in as much as the husband was induced on that account to marry the daughter: that, under these circumstances, the first conveyance ceased to be voluntary, and became valid against the subsequent bona fide purchaser, for the valuable consideration. He also held that it made no difference whether the particular marriage was in contemplation at the time ef the voluntary conveyance or not.

The fact that the grantor was not indebted at the time of the voluntary conveyance, was considered an important feature in that case. In reference to the facts, the Chancellor said, it was “ the case of a fair voluntary conveyance, made by a father to bis daughter; he not appearing to be indebted at the time, and a subsequent sale made by him, with intent to defeat that'settlement, but made for a valuable consideration, and to a purchaser chargable only wdth notice in law.” In applying the law, he observes, “It is the constant language of the books, and of the courts, that a voluntary deed is made good by a subsequent marriage, and a marriage has always been held to be the highest consideration in law.” Throughout the decision, however, the fact of Arden not being a debtor at the time of the voluntary conveyance, is kept steadily in view, as a leading consideration.

From this decree an appeal was taken to the Court of errors, where the same was unanimously affirmed.

In the latter Court, the case is entitled Verplank vs. Sterry, There, also, the circumstance that the grantor was not a debtor at the time, from which , ’ alone the legal inference of fraud in the voluntary conveyance could have arisen, had extensive influence on the decision. Spencer, J., whose opinion is mainly relied upon in this case, after alluding to the facts, used this language, “How then can it be maintained, that if a father, in consideration of blood, make a bona fide settlement on his child, at a time when he is not indebted, this transaction shall be deemed void; and that it shall be taken for granted, contrary to the real truth and fact, that it was with intent to deceive such person as should afterwards purchase the estate, even with full notice of the bona fide conveyance? As well might it be said that the set-Üement on a child is void as to future creditors, as that it. is void as to future purchasers. He considered it of but little importance whether the subsequent purchaser was chargeable with implied notice of the first conveyance or not. In other parts of his opinion, as well as in these quoted, he laid particular stress on the grantor’s exemption from debt, at the time of the voluntary conveyance.

In this ca.se the facts are considered essentially different from those in the case reviewed; so much so as-to.fall within the different principle of law. The circumstances of Miller, the grantor, having been considerably indebted at the time of this conveyance; of the property conveyed being personalty, and no delivery of it, or known cause to prevent its being done, or any explanation of the non-delivery; of the conveyance having been voluntary and absolutely void for twelve months after its execution as against this creditor— these facts present this as a case very different from the other. They subject it to the principle therein recognised for the protection of pre-existing creditors; under which Verplank was not permitted to occupy a more favorable position than that of subsequent creditors.

But another decision of the same Court, in which the decree referred to was rendered, sustains the latter principle even more explicitly. It is that of Roberts vs. Anderson. There, the controversy arose between Roberts, a creditor, and Anderson, a purchaser, for a valuable consideration, or who professed to be such, under Sarah Johnson, the grantee of Griffith, the debtor; the conveyance from the.latter to her being fraudulent.

The Chancellor explains the difference between the effect of the statute of 13th Elizabeth and 27th Elizabeth, both which, with the proviso alluded to, are consolidated into our statute of frauds, which I have already noticed so far only as relates to creditors, independent of the proviso. He remarks, that the latter statute was intended to protect bona fide purchasers, without consideration, or voluntary grantees; that this intention is equally fulfilled, whether the conveyance for a valuable consideration comes from the voluntary grantee or grantor. He says, if there be no creditors, the title of the grantee is good until there comes a bona fide purchaser, from the grantor, for a valuable consideration; until then, no person’s rights are affected, but when that happens, the deed as to such purchaser is to be set aside. If, however, the voluntary grantee shall have sold in the mean time, to a bona fide purchaser, he is justly to be considered as standing in the grantor’s place, and that what was done by such grantee, was done by his grantor, and such purchase will stand good. Under this statute, the first purchaser for a valuable consideration, whether he takes his conveyance from the voluntary grantor or his grantee, will have the preference; for the sole object of the statute was to protect such purchasers from voluntary conveyances; which, as to them, are fraudulent.

But, he continues, the statute of 13th Elizabeth, (which is, in effect, the same I have quoted from our statute of frauds,) was intended to protect creditors from fraudulent conveyances; and here a different rule of construction prer'ails. “The original deed, from a debtor, to a fraudulent grantee, is utterly void, as to creditors — and, as to them, the grantee can make no conveyance, for he has no title as against therm The statute, in its enacting clause, operates on the deed from the fraudulent debtor; the proviso in the act applies to the original conveyance from the debt- or, and saves it, when made to a dona fide purchase^ for a valuable consideration.” Further, he says — ■ “But though the debtor, himself, may,fraudulently, on his part, convey toa dona fide purchaser, for a valuable consideration, yet, his fraudulent grantee cannot — for, it is understood, that the proviso, in the Pith Elizabeth, does not extend to such subsequent conveyance; The policy of that act would be defeated by such extension. Its object was to secure creditors from being defrauded by the debtor; and, the danger was, not that he would honestly sell for a fair price, but, that he would fraudulently convey, upon a secret trust between him and the grantee^ at the expense of the creditors.

If the debtor sells, himself, in a case, where the creditor has no lien, and sells for a valuable consideration, he acquires means to discharge bis debt, and it may be presumed he will so apply them. If his fraudulent grantee be allowed to sell, the grantor can not call those proceeds out of his hands; and, the grantee can either appropriate them to his own use, or to the secret trust upon which the fraudulent coif veyance was made.

There is more danger of abuse, and that the object of the statute would be defeated, in the one case, than in the other. The fraudulent grantee has no title, as against the creditors: the deed* as to them, is utterly void ; and the subsequent conveyance from him would, as against creditors, have no foundation.

As a farther, and decisive objection to Anderson’s title, in the case mentioned, the Chancellor rested on the fact, that Sarah Johnson, the voluntary grantee, never was in possession, as owner, under the. fraudulent deed. That, as there were no false lights held out to deceive the world, the case was not within the reason and policy of any rule, calculated to protect a Bona fide purchaser. That the purchaser, under the voluntary grantee, was presumed to know the fact, that she was not in possession, as it existed before his eyes; and, it was sufficient to put him upon inquiry, as to her pretended title. That he was not entitled to be considered as a Bona fide purchaser, for a valuable consideration, without notice — he had notice, that there was no possession accompanying the deed, and he paid only a nominal consideration.

The foregoing views are believed to furnish a sound exposition of the principles of law, which are alike applicable to the case under consideration, and to shew, that the objections to the validity of Huffman’s title, as previously stated, are insuperable.

We are unanimous in this opinion. The judgments in all the cases must be affirmed.

       1 stew. 67

      2 Stewart 214

       3John.ch 481

       2Ves.1.

       2Atk. 600.

       1 Days C. Rep N. S. p. 525

       11 Mass R 421.

      b 8 Wheat. Supreme 229.

      1 Atk.94.

       2 Stew. 54

       2 Stewart 386

       2 Cow.431

      7 ib. 732.

       1 John ch R. 261

       12John.R. 536

      3 John Ch. R. 372


source: Caselaw Access Project

license: Public Domain

text:
    CATOE versus HARRISON.
    QUESTION IN THIS CAUSE.

      'Upon the return of an officer executing scire facias.

    1. That no return appeared on a scire facias issued'against a defaulting witness, held to be sufficient error to reverse a judgment rendered thereon.
    In error from Clarke Circuit Court.
    In this case a judgment was rendered against the plaintiff in error, on scire facias, as a defaulting witness. The scire facias did not appear, from any return thereon, ever to have been executed; and upon this assignment the cause was brought into this Court.

      Porter, for the plaintiff in error.
   Saffold, C. J.

This was a proceeding on scire facias, to subject the plaintiff in error to the forfeiture of one hundred dollars, as a defaulting witness in a civil suit, in which Harrison was a party. On the second April, 1833, the latter obtained the judgment ni. si. on which the sci. fa. issued: the latter bears date the seventh day of November, 1833, returnable to spring term, 1834. On the 18th of April, 1834 the judgment was made absolute.

The assignments of error are—

1. It does not appear that the sci. fa. was served on the defendant, Catoe.
2. That a term intervened without any proceedings, whereby a discontinuance was created.

1. It is found on reference to the record that there is no return, by any officer on the sd. fa. It is true, that in entering np the judgment, it states, by way of recital, or what had preceded it, as the foundation, of the judement then being rendered, that Catoe had shewn "no sufficient cause on a scire facias issued and served upon him.” This, however, not, being a necessary part of the judgment, so far us relates to the service of the sd, fa., and it being a matter which the law requires should appear in the form of the officers return, over his proper signature, the statement of the fact by the clerk is deemed insufficient. This is considered a fatal error in the proceedings, and one which rupersedes the necessity of any examination of the other point presented by the qs* signments,

ILet the judgment be reversed,


text:
    HARDING versus EVANS.
    QUESTION IS THIS CASE.

      As to the liability of an administrator individually.

    1. An administrator purchasing goods, for the use and benefit of an estate, is personally responsible to the vendor; and an action for the price thereof lies against him, in his individual capacity.
    This was an action of assumpsit in Perry Circuit Court., where Evans declared against the plaintiff in error, in a count for goods, sold and delivered. The pleas were non-assumpsit, payment, set-off, and the statute of limitations.

    On the trial, the defendant relied upon evidence, that he was the administrator of one Alston; and that the goods, to recover the price of which the action was brought, had been purchased by him, in that capacity, for the use and benefit of the estate.
    The Court, in reference to this proof, charged the jury, that the defendant was personally liable, and the action well brought — which was excepted to, and, in this Court assigned as error.

      Mr. Erwin, for the plaintiff in error; Mr. Ciarla, for the defendant.
   Saffold, C. J.

This being an action of assump-sit, brought by Evans, to recover the price of corn, fodder, oats, &c. sold and delivered by him., to Harding, the latter pleaded, and urged as his de-. fence, that, at the time of purchasing the articles, he was administator of the estate of Alston, and was cultivating and carrying on the plantation, belonging to the estate; and that part of said supplies was purchased 'for, and applied to the the maintenance and support of the plantation; and that, therefore, he was not chargeable with the same, individually, as sued, but, only in his capacity of administrator, as aforesaid. The Court being requested so to charge the jury, refused to do so: on the contrary, instructed them, that if the articles were purchased by the administrator, after the death of his intestate, though for the use and benefit of the estate, still, the purchaser was responsible, in his individual capacity — that he was so chargeable, without any note or memorandum in writing, this (not being a ease, within the statute of frauds. This charge, and the refusal to instruct otherwise, is the cause assigned for error.

The principle is too clear, to require illustration, that the purchaser of articles, while exercising the trust of administrator, is no less responsible for the same, than if he held no such appointment, regardless of the use to which he may apply them.

It is contended, however, that the statute, making it the duty of administrators, to continue the cultivation of the plantation, during the residue of the year in which the intestate died, should vary the principle, and make the expenses of the plantation a direct charge against the estate, not against the personal representative.

In this case, it does not appear, that the articles were purchased for the support of the plantation, during any part of the year in which the intestate died. But, if it did so appear, neither the statute referred to, or any other principle of law, would relieve the administrator from liability for the articles purchased by him. The statute provides a sufficient indemnity to the administrator, in cases of this kind — (and which is, perhaps, only the same that he could have claimed under the common law) — that all expenses in continuing the plantation, may be deducted from the amount of assets which may come into the hands of the administrator. The account for these would be subject to allowance, by the Orphans’ Court, as other charges and expenses, in the management and settlement of the estate.

There was no error in the judgment below, consequently the same is affirmed.


author: Hitchcock, J.

text:
    CAIN versus MATHER.
    QUESTION IS THIS CASE.

      If demurrer to a declaration, reaches a question as to whether attachment lies.

    1. Under a demurrer to a declaration filed in fin attachment case a question cannot arise as to the propriety of the claim under which the process issues — the declaration on its face containing a substantial cause of action.
   Hitchcock, J.

This was a writ of error from the Circuit Court of Madison County. There' was a demurrer to the declaration by the defendant, which was sustained in the Court below, upon which judgment was rendered for the defendant.

The ground of the decision of the Circuit Court appears to be, that as the defendant is stated in the declaration to have been attached h} his goods and chattels, and, as the declaration'states the plaintiff’s cause of action to be to recover damages for the false warranty of a quantity of jewelry, and thereby sounds in damages only, that the attachment does not lie.

We do not think this question is raised by the pleadings in this case. A general demurrer brings only to the notice of the court, matters of substance to the declaration, and though it appears by the de-< claration, that the defendant was attached by his goods, it may be, for aught that we can know, a judicial attachment, which extends to all kinds of actions. We cannot look behind the declaration, which contains a substantial cause of action.

As to the point upon which the Court below is supposed to have sustained the demurrer, the case' having been argued exparte, there being but two judges competent to set in the case* and as it cannot arise in the farther prosecution of this case* we do not deem it proper to consider it.

Let the judgment be reversed and the cause remanded.

Hopkins, J., not sitting in this case, having beeii bf counsel below.


author: Hopkins, J.

text:
    CARROLL versus MEEKS.
    QUESTIONS IN THIS CAUSE.

      Does debt lie against the maker of a note, by the bearer.

      Whether, the action being debt, the judgment can be entered, as in assumpsit.

      As to the right of the bearer of a note, to sue the maker thereon, there being an intermediate indorsee, between the bearer and his assignor.

      The competency of a payee and indorsee of a note, to testify in an action by a bearer, against the maker.

      1. The action of debt will lie, upon a promissory note, made payable to bearer, by the bearer, against the maker.
    2. That a judgment is entered informally, as in assumpsit, the action being debt, is no cause of reversal in error — the judgment being for the proper amount declared on.
    3. Where a note, payable to bearer, is declared on, as having been transferred by the payee, to the plaintiff, and the note shows an indorsement to an intermediate party; it will be presumed, that the note has been returned by the indorsee, to the payee, and, by him delivered to the bearer — so far as to authorise the latter to sue thereon, in his own name.
    4. The bearer of a promissory note, which has been transferred to him, by delivery, may well maintain an action thereon, against the maker, without setting out a title through any intermediate assignments.

      5. In an action against the maker of a note, by the bearer, the payee is not competent to prove the making of the note — under the plea of non est factum.

    6. But an intermediate indorsee who returns the note to the payee, before the latter delivers it to a bearer, is a competent witness for the plaintiff, in such an action.
    This was an action of debt in Wilcox Circuit Court, commenced and prosecuted by the defendant in error, as the bearer of a promissory note. The note was payable to John Owen, or bearer, and, by Owen, endorsed to Peter Armstrong; and the declaration of the plaintiff contained an averment, that the note had been transferred, by delivery, by the payee, to the plaintiff. The pleas were, the statute of limitations and non est factum; and under these issues, a verdict and judgment were had for the plaintiff.
    On the trial below, the defendant objected to the introduction of the note, as evidence of the demand, on the ground, that it was, prima, facie, the property of Armstrong, the indorsee; but the Court overruled the objection. Owen, the payee of the note, and Armstrong, the indorsee, were then introduced, to prove the making of the note; and, they both gave testimony, notwithstanding the objection of the defendant, to their competency.
    It was assigned for error, in this Court — first, that the judgment rendered in the cause, was informal, being in the nature of assumpsit: secondly, that debt did not lie against the maker of a note, in favor of the hearer: thirdly, that the plaintiff could not sue as bearer of the payee, there being an intermediate indorsee: fourthly, that Owen and Armstrong were incompetent as witnesses, to prove the making of the note; and, that the Court erred, in overruling the objection made to their competency.
    Argued by Porter, for the plaintiff in error; and Mr. AiJdn, for the defendant.
   Hopkins, J.

In this case an action of debt was. brought by the defendant against the plaintiff in error, upon a promissory note, which the declaration avers was made by him, for value received to one Owen or bearer. The right which Meeks showed to the suit, was as bearer of the noté. Two pleas were filed to the action, one of the statute of limitations, and the other was non est factum, to which issues were taken.

Upon the trial of the issues, in the Circuit Court of Wilcox county, the plaintiff in the action produced the note, with an indorsement upon it, made by Owen to one Armstrong; and proved the making of the note by Owen, the payee, and Armstrong the in-dorsee.

To the note, as evidence, and the competency of fhe witnesses, the defendant objected, and to the opinion of the Court, which overruled the objection, he excepted.

To the first assignment of error, which denies the right of the bearer to maintain an action of debt upon the note, we deem it sufficient to say, that the note is an original promise by the maker, to pay any person who shall become the bearer of it. The right, therefore, of the bearer to the action, is the same which he would have had if the word bearer had been omitted, and the note had been made payable to Meeks, instead of Owen. Of his right in the latter case, there could be, we think, no doubt.

The next assignment, questions the sufficiency of the judgment, because it isin assumpsit. The judgment, though informal, was for the precise amount of the principal and interest due upon the note, and bound the plaintiff in error to pay no more, than an accurate judgment in debt would have done.

As the judgment has the same effect that a proper one would have, we could not reverse it, upon the ground, that it is in assumpsit.

The other questions to be determined, arise from the bill of exceptions. The first is, does the indorsement upon the note, show that it is the property of the indorsee, and, therefore, that Meeks has no right to the action ?

A note, payable to bearer, passes by delivery; and the holder need not make a title, through any assignment — but may claim, merely as bearer. If he ..acquire it by delivery, from the indorsee of the payee, he may sue, upon the direct promise which the note contains, to pay the bearer. The indorsement would have no more effect upon the in favor of the bearer, than the promise in the note, to the payee, has.

As the latter promise does not prevent the transfer of the note, by delivery, no reason is perceived, why the assignment of the benefit of the promise, should.

In this case, the bearer, in his declaration, unnecessarily makes title to the note, by a delivery, from Owen, the payee. If Owen had brought this action, as payee, he could have maintained it, upon the presumption, that the note had been returned to him, by the indorsee.

As the declaration contains an averment, that the payee assigned the note, by delivery to the which is not denied by either of the pleas, the presumption, that the indorsee had returned the note to the payee, and, that it was his property, when he delivered it to the bearer, is as reasonable as it is, in the cases, in which it has been admitted.

But, we think the Court erred, in admitting the evidence of the payee, to prove the making of the note. If the jury had found the plea of Carroll, by which he denied that he made the note, to be true, the bearer would have had a right to recover back the consideration which he paid Owen, for the delivery of the note. Owen was interested, therefore, in preventing such a verdict as would fix a liability upon him.

If Armstrong the indorsee, had parted with his interest in the note, by a return of it to Owen, before the latter passed it, by delivery, to Meeks, he was a competent witness.

For the error, in admitting the evidence of Owen, let the judgments be reversed and the cause remanded.

      1Porter15

       1 Mason R 243

      1 Stewart Rep. 154; 3Wheaton 182

      2John.455


text:
    STONE versus DENNIS.
    QUESTIONS IN THIS CASE.

      The effect of an agreement to arbitrate a claim, upon the right of action thereon.

      Whether covenant lies for the breach of a contract, contemplating a copartnership.

      As to the breach of covenants difficult to be performed.

      As to the plea of performance of covenants.

      Excuse for breach of covenant — how far available, in mitigation of damages.

      1. A covenant in an agreement, to submit matters of difficulty, arising thereon, to arbitration, does not preclude a party from a right of action, for a breach thereof — -no arbitration pending at the commencement of the suit, and no award being had.
    2. Where parties enter into covenants, which contemplate a future co-partnership, an action for a breach, may be maintained at law, by either of the parties, for a breach committed by one, before the co-partnership has commenced.
    3. And, it seems, that covenant is sustainable, even in the case of a co-partnership, for a breach of any article, which either party covenants to perforin.
    4. A party, covenanting, on sufficient consideration, to perform - acts, not, on their face, impossible, illegal or. immoral; and, no showing being made, that these results haye accrued — will be held to their performance, notwithstanding the difficulty attending them, or the hardship of the particular act.
    5. One sued for breach of covenant, cannot, under the plea of covenant performed, avail himself of the difficulty of performing his covenant, in excuse.
    6. Where a party covenanted to perform certain acts, necessary to effect the building of mills on his own lands, and it appeared, that the covenant contemplated a canal to be cut, on adjoining lands — -it was held, in an action against him, for a breach of his covenant in abandoning the contract, that he was not entitled to prove, in mitigation of damages, that the adjoining lands were owned by strangers — no other evidence appearing in the cause to explain the particular effect intended, and, under the facts, the testimony appearing isolated and' irrelevant;
    in error from Mobile Circuit Court.
    This action was covenant, bj Dennis, and was instituted for the recovery of damages, for a breach of an agreement entered into, between the parties.
    The declaration charged, that Stone and Dennis entered into a covenant, dated the 21st February,-1831, by which it was recited, that Stone, having, before that time, purchased a tract of land, for the sum of two thousand dollars, and being desirous to erect certain saw-mills thereon, had engaged Dennis-to superintend the building thereof, and to carry them on, when built. Stone obligated himself to furnish negroes at fifteen dollars per month, and pay all expenses for their support — to pay overseer, &c. and to pay the necessary workmen, and for the necessary tools, &c. That Dennis was to superintend the building of the mills, and, when done, he was to superintend the carrying on of the mills. That when the mills were done, the whole amount of the expenses was to be ascertained, and Dennis was to be charged with one third of the amount, including the price of the land, for which he yyas to have a credit of one, two and three years. That he was to be entitled to one third of the profits, which should go towards the payment of the amount due by him; and he was to be liable, also, for one third of all losses.
    It was also provided, that, if either party should become dissatisfied, he should give notice to the oth-er; and, each party obligated himself, to appoint an
      an arbitrator within five days after notice — that if the arbitrators disagreed they should appoint, an umpire, and that these arbitrators should settle and adjust all differences ; and it was expressly understood that in the event of the failure of either party to appoint his arbitrator within five days after notice, or failure of either party to comply wilh his agreement, the party in default should pay to the other one thousand dollars as liquidated damages, and each bound himself to the other iu the penally of one thousand dollars.
    The plaintiff averred that Stone had broken his covenant, in failing to provide hands, See. See. — that he, Dennis, had performed his contract on his part; that on the fifth of September, 1831, he gave notice to Stone that he was dissatisfied; and that each parly did appoint, one arbitrator; that the two arbitrators could not agree, and that they mutually selected an umpire who would not serve — so that no award was nude. The plaintiff averred, therefore, that the covenant was broken.
    The defendant, Stone, demurred to the declaration. The demurrer was overruled : he then pleaded, 1st, performance; 2d, that the plaintiff failed to perform.
    On the trial, the defendant took a bill of exceptions — by which it was shewn, that Stone commenced the work in February, 1831, and furnished eight or nine negroes, and a white man to superintend them. It was proved that it was necessary to carry into effect the building and completing the mills, to conduct water from eight mile creek, about the distance of three or four miles, to the place where the mills were tobe built, by means of a canal from eight mile creek to the mills. It was proved that the defendant had abandoned the work in June.
    The defendant offered to prove that the lands on both' sides of the creek belonged to private individuals, as well as the lands through which the canal would have to pass, and over which neither the plaintiff or defendant had any control.
    This evidence the Court rejected — and to this, the defendant excepted.
    The plaintiff in error, insisted — ■
    That the Court erred in overruling the'demurrer*
    That the parlies having stipulated for a particular remedy, in case of disagreement, they were confined to that remedy, and must pursue it.
    That if the remedy provided by themselves, had not been available, and this without the faultofStone,. that he was not liable to an action; that Dennis should abide by his contract, and by his remedy ;■ and if insufficient he should abide the loss.
    That as it was found impossible to build the mills without committing trespasses on the lands and rights of others, Stone had the right to abandon the contract.
    That in such a case, Stone was not bound to go beyond what he expressly undertook to do by his covenant ; and an illegal act, could not, by implication, be added to his contract.
    Argued by Mr. Stewart, for the plaintiff in error, and Mr. Goldthwaite, for defendant.
   Hitchcock, J.

This was an action of covenant, brought by the defendant in error, against the plaintiff, to recover damages for the breach of a contract entered into between them. The declaration sets out the contract at large ; it. is very long,, and contains many provisions, not necessary to be noticed in this investigation.

The substance of so much as is necessary, is as follows, to-wit: That Stone being desirous of erecting certain saw mills upon a tract of land he had then recently purchased, situated between Bogue Homo and Chickasaw Bogue, at a place called the Ship Landing, in the county of Mobile, had, for that purpose, engaged the services of Dennis; that Stone was to furnish as many negroes as he conveniently could, to be employed in preparing to build said mills, until they should be fully completed, and to continue them thereafter during the period of the agreement, at the rate of fifteen dollars a month, by the year, as hire, and also the necessary workmen, and all the moneys and funds requisite for the support of the negroes, and to pay the wages which might be contracted to be paid by the parties, to such overseer and workmen, as they might jointly think proper to employ in the execution and completion of of the said mills ; and likewise for alldand very kind of materials, useful and necessary in the construction and completion of the same; also all necessary working tools and implements to be employed thereat; the whole amount of which expenses to be borne and paid by Stone in the first instance, including the sum of two thousand dollars, the price and value of the land, which was supposed to contain about one thousand acres : that so soon as the said mills should be completed and put in operation, the whole cost of the work should be ascertained, one-third part of which, including the land should be charged to Dennis, who should from thence become interested, to that amount in the properly, and who should have that share in the profits, and bear that proportion of the losses, which might happen ; that the payments for this third interest, should be in three annual instalments, without interest. The contract further provides, that after paying the sums to be due, he should be entitled to purchase, an interest of one-third in the negroes, furnished by Stone, upon payment of which, he (Dennis) should be entitled to a quit claim deed to the lands and mills, and a warrantee title to the slaves to the extent of his interest. There was, however, a reservation in favor of Stone, of the use of fifty acres, for the purpose of a brick yard, and the use of the-slabs sawed, and timber not fit for saw logs, for fire wood for the brick yard, free of charge to Stone. The contract furl her stipulates, that in case Dennis should be discharged from the superintendance of the waler works, ihen being erected by the city of Mobile, and for whom he was then engaged, he should contribute his whole and undivided attention to 1 lie erection arid construction of the said mills, superseding thereby the employment of an overseer, in which event Dennis was to be paid at the rate of six hundred dollars per an-num. In consideration of which covenants on the part of Stone, Dennis covenanted to give, from time to time, the necessary attention and superiniendance> in the construction of the works, free of any charge, (except in case of his becoming overseer as aforesaid) ■and that upon the completion of the works, he was to superintend them free of charge, except for his board, .which should be at the expense of the establishment. It was further stipulated, that in. case of any disagreement between them, as to the settlement of the accounts for the expenditures in erecting and completing the mills; or in case either party should become dissatisfied with the other at any time, the dissatisfied party should notify the other, in writing, of the cause or causes of such dissatisfaction, and of his desire of having the same adjusted— upon which, arbitrators should be chosen, one by each party, within five days after such notice, to whom the case should be referred; and in case of their disagreement, they should choose an umpire, who should settle the con troversy. It being agreed that in case either party should fail or refuse, for five daj’s, 1o nominate as aforesaid, his arbitrator, he should forfeit one thousand dollars as stipulated damages.

The plaintiff avers, that he performed his part of the agreement, as far as he could; that he was discharged by the corporation of Mobile, and devoted about ten months to the constructing of a canal to supply water for the mills; and, that he was, at all times, ready and willing to have fully complied with his part of the contract; but, that Slone did not furnish as many hands as he conveniently could, and, that he finally withdrew them all. and abandoned the work entirely. He further states, that, being dissatisfied with Stone, he notified him, under that part of the agreement, by which they were to refer the case to arbitrators ; that two were chosen, who could not agree in their award, and that they could not agree in the choice of an umpire; and that, consequently, the case could not be settled in that way: and he claims damages, by suit, for the, alleged breaches, by the defendant, of his part of the covenants.

To-this declaration, the defendant pleaded — first, performance of his covenants; secondly, failure, by the plaintiff, to perform his part of the covenants; upon which pleas, issue was joined. It does not appear that any demurrer was filed; but there is an entry upon the record, at Ihe Spring Term, 1833, of the Court, that the defendant’s demurrer to the plaintiff’s declaration, was overruled — at which term a trial vas had, and a verdict was given in favor of the plaintiff, for eight hundred dollars, and judgment thereon was entered.

At the trial of the cause, a bill of exceptions was taken by the defendant, which states, that it was proven, that, in pursuance of the contract, Stone commenced the work, in February, 1831, furnished as many as eight or nine hands, as many as he conveniently could, and a white man, to superintend them. That it was necessary, for the purpose of carrying into effect the building and completion of the mills, to conduct water from Eight-mile Creek, about the distance of three or four miles, to the site, on which the mills were to be erected, by means of a canal, from said Eight-mile Creek, to said mills.— It was further proved, that the work was abandoned by Stone, in the month of June following. That the defendant then offered to prove, that the lands, on both sides of Eight-mile Creek,' belonged to private individuals, and that neither Stone nor Dennis had any control over the same. That he further offered to prove, that a part of the lands, through which the canal must necessarily run, also belonged to,'and was the property of private individuals, and over whom neither Stone or Dennis had any control; but, that the Court refused to permit this proof to go to the jury, to which the defendant excepted.

The counsel for theplaintiff in error has contended that the judgment should be reverted—

First — on the ground, that the demurrer to the declaration should have been sustained; and,
Secondly — that the evidence offered, and rejected, should have been received.

As to the first ground, he has made two points.

1. That, the parties having stipulated, to refer the matters which might grow out of the contract, to arbitrators, to be selected by themselves, had each, thereby, precluded himself from resorting to any other tribunal, and, that, if the remedy proved insufficient., he must abide the loss.

2. That the contract involves, necessarily, the settlement of partnership accounts, and, that, consequently, no action will lie, at law, for damages.

1. These points are not pressed with much earnestness, but, if they were, it is quite evident, they cannot be sustained. In relation to the first point, it is clear, that a party, by agreeing to submit his case to arbitration, does not loose his remedy at law, unless, at the time of the commencement of his suit, there is an arbitration pending, or an award has actually been made; and a contract, absolutely to waive one’s right to go to law, is void, as against public policy.

., ... In this case, neither party was m fault: no awards could be'obtained from the arbitrators; and there no pretence, why the plaintiff should not be heard, in a Court of law. Besides this, if there could any doubt, upon general grounds ; in this ease there could be none, for each party has stipulated a penalty, which he would be liable to pay, in case he should refuse to arbitrate.

2. As to the second point, it does not appear, that there are, or can be, any partnership accounts between these parties, the contract having been abandoned before the completion of the mills. Dennis did not, in fact become the partner of Stone. There was, it is true, a partnership ultimately contemplated, but none had actually grown out of the contract.— But, even if there was a partnership existing, yet, the action of covenant can be sustained, for a breach of any article which the party had covenanted, to perform.

2. In relation to the second point, the rejection of the evidence offered by Stone, it is contended—

First — That it was good, under the plea of performance, to shew the compliance of all that Stone could perform — or, rather, to shew a good excuse for not performing; and,
Secondly — If it was not good, for that purpose, it was good, in mitigation of damages.

1. As to the first point, sundry propositions are assumed, such as—

First — If the foundation of the covenant fails, all the stipulations under it, fail.
Secondly — -If the covenant require things, unlawful to be done, the covenant is void.
Thirdly — If the nature of the duty varies, then then the obligation ceases.
Fourthly — When the consideration ceases, the liability ceases.

To support those positions, numerous authorities are referred to. But, as it is conceived by the Court, that, though the propositions all contain good law, yet, as they do not apply to this case, it is not necessary, further to refer to them.

Where a contract does not contain, on its face, any thing impossible illegal or immoral, and where there does not appear to have arisen any thing subsequent to the making of it, which renders it so, and it is founded upon a sufficient consideration, the party making it is held to its performance. It is the duty of contracting parties, to provide against contingencies: they are presumed to know, whether the completion of the duty they undertake, be within their power. Therefore, to excuse them from the performance of their contracts, they must bring themselves within some one of the above provisions.— Without it, however hard the case may be, the party is held to his contract.

In the case under consideration, the ground is, that the party is absolved from the obligation of this contract, because a part of the land, through which this canal was to pass, and the banks of the creek from which the supply of water was to be had, belonged to third persons.

A supply of water from this source, was evidently contemplated when the contract was made. It is .admitted, that the construction of the canal was embraced within the contract; and, that Stone was to furnish the hands, funds and materials, to construct

it. He must have contemplated this contingency, and should have provided for it.

There is nothing illegal immoral or impossible, so far as appears, to prevent it. It does not appear, that there was any refusal, by the proprietors, or application to them, for the purchase of the land, or of a right of way; and, even if it did appear, that the performance of this contract had become impossible, from this cause, it would not absolve Stone from his contract. He had undertaken to furnish means to build those mills, and a supply of water was a necessary ingredient in this contract. He knew of this necessity, had deliberately contracted with Dennis, to accomplish it, and, if it should subsequently appear, that he was prevented, by the refusal of the proprietors of the land, to grant the privilege, he must abide by the consequences, and is answerable, in damages, for his failure.

Dennis was to furnish nothing, by his covenant,, except his personal superintendance; and, if he chose' to hold Stone to his contract, be could not set set up" this kind of impossibility, in avoidance of his lia--bility.

But, even if this defence could have been made available by Stone, in any event, it certainly could not, under the plea of performance: this defence-can only be. made, where the- defendant has actual-ly done all his contract calls for; and if he has an excuse for his non performance, he must admit the breach to have been committed, and plead, specially, .in what he is dischraged.

There is no general issue, in covenant, such as-f^ere i-n assumpsit, which will let in an equitable-defence, but the party is held strictly to his plea.— There was, therefore, no error, in rejecting this evidence, on the first ground taken.

2. Was it good, in mitigation of damages ? The propriety of the exclusion of the testimony, in this view of the case, did not, at first, appear to me, so clear. Ad mitting the breach to have been established by the plaintiff, his recovery sounds in damages, and where they are not stipulated, or do not necessarily appear, from the circumstances of the case, the parties are at liberty to go into evidence, to ascertain the amount — each party, therefore, must have the privilege of giving evidence — the plaintiff to enhance, and the defendant to mitigate.

It is, however, a principle of law, well established, that a party, seeking, in a revising Court, to reverse the decision of the inferior Court, must present his case, in such a manner as to enable the appellate Court to see in what the error consisted: the judgment of the Court must be invoked, upon some principle of law, which is shown to have been violated, by the Court, whose judgment is impugned. It is not sufficient, that the judge may have erred, it should appear that he has erred: facts should be so presented, as to enable the revising Court to apply the law to them ; and, to do this, the relevancy of the testimony to the point to be established, must be made to appear — otherwise, the higher Court may make an improper application of the law to the facts, or of the facts, to the supposed law of the case; and hence, wander into errors, equally great as those which are sought to be corrected.

Haying premised these remarks, let us inquire to what point before the Court below, the evidence could be made to apply. The bill of exceptions does not profess to state that it contains all the evidence given, neither does it allude to there being any other. It states certain facts to have been proven, and then states, that the defendant proposed to prove certain other facts, which he now says, were intended to go in mitigation of damages. Would the facts, offered and rejected, taken in connection with, those stated to have been proven, have aided the jury, in their estimate of damages? They clearly would not.

It was proven that a canal, three or four miles long, was required. This, it has been shewn, it was the duty of the defendant to have constructed. What aid could the other facts, to wit, that the lands were owned by third persons, give the jury, in ascertaining how much Dennis was entitled to, for his damage ? Without other facts, such as the cost of the whole property, the amount to be paid, for the right of way, the probable amount of the profits or of the losses of the mills, and many other facts, which it is easy to imagine, none of which are stated to have been introduced by kthe plaintiff, and none off which were offered to be proved, by the defendant, (so' far as we are advised,) how could the jury act advisedly, by being left to decide upon those which were offered and rejected? The jury would have been perplexed, and probably misled, by such testimony; and, it is not sufficient, for this Court to be told, that probably other testimony would have followed this, if it had been admitted, which would have shown its relevancy.

The defendant should have presentad, at least, so. much of his testimony, as would have enabled the Court below to judge of its relevancy; and, until he did so, the Court was bound to eiclude iff A party is not at liberty to require a Court to admit testimony, having no apparent relevancy, upon the suggestion, that he has something behind, that will bring out its relevancy : and, for the same reason, he cannot urge upon this Court, the supposition of er-; ror, in the Court below, when he does not shew in what the error consists.

In the case before us, Dennis had two grounds, upon which to' rely, for damages: first, his loss of time, during which he was actually employed ;■ and, secondly, his loss of profits, by the non-completion of the mills, by Stone’s default.

Now, the evidence offered and rejected, could not be applicable to the first; and, for ought that ap--pears, no evidence o'f the latter, was offered by Dennis, at all — and, if it had been admitted, could not have varied the verdict.

If we were, therefore, to reverse and remand this case, with instructions to admit this testimony, what benefit could accrue to the defendant? If none is shewn here, then no cause of reversal is shewn, by its rejection. The rights secured to the plaintiff, by this verdict, are not to be disturbed; unless we are satisfied they have been acquired at the expense of the rights of the defendant: and this, it is his duty to shew, before he can get relief at our hands.

This case has been brought here, to correct the errors of the Court below. We ask what those errors are; and, they must be shewn : we are to presume in favor of the decisions below, unless they are shewn to be erroneous.

A bill of exceptions ought to be on some point of law — either in admitting or denying evidence, or a challenge, or some matter of law, arising upon a fact, not denied, in which either party is overruled by the Court, And, there would have been, in case, much stronger grounds, for reversal, if the judge had allowed this testimony to go to the jury— as it might be said, with great truth, that irrelevant testimony had been admitted, which might have had <an improper influence upon the minds of the jury.

If, however, this Court is permitted to indulge in ■conjectures, as to the object of this testimony, I should say, judging from what is stated in the bill of exceptions, that it was not offered, or intended to be used; in mitigation of damages, in the Court below, but in support of the plea of performance, or, in avoidance of the contract — to either of which, it has been shewn, that it cannot apply. It is not stated, in the bill of exceptions, to what purpose it was offered. It has. been, with much ingenuity of argument, attempted to be fastened upon some one point, by having been successively applied to all the points; to none of which, however, does it appear to the Court to have any legitimate application.

It is, therefore, the opinian of the Court, after an investigation of all the points made in the case, that, the judgment be affirmed.

      1 Wil. 1291 2 Bos & Pul.

       Gow, 96.

       chitty on Con.14

      1 Term R 312

       chit Pl.524-Lit.cases 135.

       2 Caine’s Rep. 169


text:
    HOUPT versus Adm’rs of SHIELDS.
    QUESTION IN THIS CASE.

      The effect of the act of 1806, (exempting the representative of an estate from suit, within six months after letters,) on the statute of limitations.

      1. In an action against an administrator, on a claim against the estate of his intestate, the period elapsing, between the time of grant of letters, and'the expiration of the six months, during which he may not bo sued; are not to be embraced within the time relied on, to sustain a plea of the statute of limitations.
    This was an action of assumpsit, in Washington Circuit Court, bj the plaintiff in error, to recover of the administrators of Shields, for work and labor, done and performed for the intestate.
    The pleas were non-assumpsit and the statute of limitations. Issue was taken, on the first plea, and to the last, a replication, that the cause of action had accrued within three years, six months and nineteen days, next preceding the issuance of the writ.
    It appeared, that Shields died on the 25t)i April, 1830; and, that letters issued to the defendants, on the 15th May, 1830. The Court below sustained a demurrer to this replication, and a judgment was rendered for the defendants — from which Houpt prosecuted his writ of error to this Court.
    The cause was argued by Porter, for the plaintiff in error, and by Mr. Goldthwaite, for the defendants-

      For the plaintiff, it was contended, that the replication was good, because the plaintiff could not bring his action, until there were representatives of the estate ; and, as nineteen days had elapsed before the grant of letters; and, as, during the ensuing six months, the administrators were exempt from suit, under the statute of 1806 — these periods could not be embraced within the time relied on, as a bar, under the statute of limitations.—Douglass vs. Forrest, 4 Bing. 686; 1 M. & P. 663; Hutchison, Ex’or vs. Tolls, 2 Porter, 44. That, no fault was in the plaintiff, in as much as there was no person to sue. — Jolife vs. Pitt, 2 Vern. 694; Webster vs. Webster, 10 Ves. 93.
   Hitchcock, J.

This case is reversed and remanded, it being considered by the Court to come within the principles of the decision of this Court, in the case of Hutchison, Ex’or vs. Tolls.

      2Porter44


text:
    OVERTON, Ex’or versus Ex’ors of MORRIS.
    QUESTION IN THIS CASE.

      Fraudulent and void purchases of a debtor's estate, by ' his friends, for the object of assisting him; as against creditors.
    I. Where one, in insolvent circumstances, against whom a suit was pending for a large amount, had his property sold, under a trust deed; and the property was purchased by his friends and delivered to him; and, by the debtor, delivered to his son, who was of limited means, and taken into another Stale — it was held that, tinder the circumstances, there being no proof of a bona fide sale to the son, that the transaction was fniudu-lent, as against the creditor in whose favor the suit was pending: and a decree in Chancery was rendered, appropriating the property in the hands of the son’s executor, to the pay ment of the judgment.
    This was a bill in Chancery, filed in Lawrence Circuit Court, by Jones against Evans, the executor of Nimmo Morris, and others; and subsequently prosecuted by Overton the executor of Jones, against the present defendants, executors of Evans.
    The bill charged, that Jones had prosecuted a suit, in one of the Chancery Courts of Virginia, against Dabney Morris, the father of Nimmo ; that, on the 20th June, 1829, he obtained a decree against Dabney Morris, for fifty-seven thousand, four hundred aud thirty-six dollars, and thirty-six cents, with interest; which decree was afterwards made final, and the further sum of eleven thousand, three hundred and one dollars, awarded to the complainant: that, on these decrees executions issued, which were severally returned, nulla bona; and, that the said Dabny Morris was entirely insolvent. That, pending this suit, a sale was made, by a trustee, of certain slaves of the said Dabney Morris, under a deed, of which some were purchased for the said Dabney, by one Spencer and one Miller; and by the said Dabney, delivered to his son, Nimmo, who brought them to the State of Alabama, for the purpose, as was charged, of avoiding the just claims of the complainant. That Nimmo Morris was a young man, without the means of purchasing such a lot of slaves: that he had died insolvent, with the said slaves, (except one,) in his possession. — And, the bill prayed an account, &c.
    Evans, in his answer, denied the allegations of the bill; admitted the insolvency of Dabney Morris ; the limited means and youth of his son Nimmo: that Nimmo knew of his father’s insolvency, and of the pendency of the suit against him; and called for proof.
    The proof was, that said slaves, named in the bill, had been sold, as charged : that Spencer and Miller purchased them, for the purpose of assisting and relieving Dabney Morris: that the son, Nimmo, was not able to make a purchase to the extent of these slaves; and that they were removed, by him, to the West.
    Under these facts the bill was dismissed — -and a writ, of error taken to this Court.
    Argued by Mr. Ormond, for the plaintiff in error, and by Mr. Smith, for the defendant.
   Hitchcock, J.

The facts of this case, so far as the matters, in the bill, answer and exhibits, can 'properly be noticed, appear to be, that sundry negroes, the property of Dabney Morris, which were under a deed of trust, to secure sundry creditors, were sold at public auction, by the trustee; that one of the negroes was purchased at said sale, by one Pitman C. Spencer, for the said Morris, who retained the possession of the said negro, under an agreement, that he should pay the bond, which Spencer gave to the trustee. That Spencer never claimed any property in the said negro, by virtue of said sale, though he had, subsequently, to pay the money. That sundry others of the negroes were purchased at said sale, by one Anderson P¡ Miller, a brother-in-law of said Morris, who gave his bond, also, to the trustee, for said negroes, which bond he paid. That said negroes were put in the possession of said Morris, who subsequently, (a short time after the sale,) sent them, by his son, Nimmo Morris, to Alabama; the sale being made in Virginia, where all the parties lived. That Nimmo Morris was a son of the said Dabney Morris. That, at the time of this sale, Dabney Morris was notoriously insolvent; and that one Lew Jones, the complainant’s testator, was, at the time of the sale, prosecuting a suit, in Chancery, in the Richmond District, Virginia, by which he subsequently obtained a decree to a large amount, over fifty thousand dollars. That the negroes were sent to Alabama before this decree was obtained. That, at the time of the sale, Dabney Morris contemplated a removal, either to Alabama, or to Texas. That Nimmo Morris was, at the time of the sale, a young man of no property, but of good character, and who had just completed a course of medical studies.— That Miller stated, on the day of the sale, to the trustee, that he “intended to purchase some of the negroes; that he was disposed to assist Dabney Morris.” That Nimmo Morris retained possession of the slaves in Alabama, until his death, the date of which does not appear. Tnat John Evans qualified as executor; and that he reported the estate insolvent, and, on the first May, 1831, sold the negroes, by order of the Orphans’ Court of Lawrence county. That, among the claims allowed against the estate of Nimmo Morris, is one in favor of A. P. Miller, for one thousand six hundred and twenty-eight dollars; the amount of a note, with interest upon it, of two years and four months, amounting, to two hundred and twenty-seven dollars and eighty cents.

A bill of sale was executed, by the trustee, for the negroes, to A. P. Miller. There is none proven to have been given by Miller, to Nimmo Morris; nor is there any proof of a sale, except what is to be inferred, from the allowance of the claim, in his favor, by the Orphans’ Court; though a fraudulent sale is charged in the bill — which sale is admitted by the executor; but, which is denied, by him, to have been fraudulent.

Spencer, who bought one of the negroes, in answer to an interrogatory, states, that “Miller purchased, at the sale, a lot of negroes, which lot of negroes was purchased for Dabney Morris, in w'hose possession they were put; and that they were sent, by him,' to the western country, by his son, Nimmo Morris.

The bill charges the whole proceedings, by Miller and the two Morrises, relating to the negroes, to be fraudulent and void; and prays, that the proceeds of the sales cf the negroes, which are now in the hands of the executor of Nirnmo Morns, should be applied to the payment of the decree, in his favor, against Dabney Morris. The Chouit Court dismissed the bill, at the heaving, from which a writ of error is taken, to this Court.

Although there has beer, a groat deal of controversy, as to the doctrine of fraud, per se, in the sale of personal chattels, when possession does not accompany and follow the sale, there has been no question; but that, when it does remain with the vendor, it is such a badge of fraud, as will, unexplained, establish the fraud, and set aside the sale, in favor of the. creditors of the vendor.

In this view of the case, we will examine the one now under consideration. The insolvency of Dab-ney Morris, and his expectation soon to have a very large decree rendered against him, rendered it unsafe to hold property in his own name — that which was under a deed of trust was about to be sold by the trustee on a credit — one of his friends purchases in a part of it, for his use, under an agreement, that he shall pay the price, when it becomes due. It is not pretended by this purchaser, that he ever acquired any title. The other purchaser declares, at the sale to the trustee, that he intends to purchase, as he is disposed to assist the debtor. He does so, and gives his bond, takes a bill of sale, and, in both instances, the property remains in the possession of the debtor, and is permitted to be, by him, removed to a distant part of the Union; beyond the control of the party, and without the jurisdiction of the Court, in which, the decree is about to be rendered. This property is taken off, by the son, and is subsequently found in the possession of his executor; the son having died insolvent, having been proven never to have been worth any thing; and the only evidence of his title, at all, is the allowance, by the County Court, of a claim, for an amount perhaps equal to the value of the negroes. No proof having been given, of the time when, or actual amount of the purchase: no bill of sale, (the common evidence of title,) or other evidence, being adduced, to establish the sale. No contract of hire between the purchasers and thedebtor, is pretended ; and, no explanation is offered; to shew why the sale, if it was so, was made to the younger Morris — the avowed object of the purchaser, at the sale, having been to assist the debtor.

Under these facts, what would a jury be apt to say, if the question was left to them, whether the object of the parties was not to defeat the liability of this property, to the expected decree in favor of Jones.

I lay out of view the alleged sale, by Miller to the younger Morris — there is no positive evidence of it: he was in no circumstances to buy. It is not pretended, that it had taken place before he left Virginia; and, the fact, that neither Miller nor Morris can claim it, without increasing the risk of subjecting it to the debt of Jones, shews, sufficiently why the sale to him is insisted upon : for, leaving this out of view, we must conclude, that he either gave the property to Dabney Morris, that he resold it to him, or, that the purchase was a mere cover — the price of the purchase having, probably, been paid by .Dabney Morris, or at least a promise given, to do so, as was done, in the purchase made by Spencer.

The counsel for the defendant in error, has referred to the case of Kid vs. Rawlinson, as being precisely in point. There, the purchase was made, at sheriff’s sale, of the debtor’s goods, and cash was paid for them; and, they were suffered to remain in possession of the debtor, at the same place, to enable him to carry on his business. The defendant being soon after taken in execution, executed a bill of sale to the judgment creditor, who took possession of them. The purchaser gave notice to the creditor, of his title. They were subsequently sold by the creditor ; and the question left to the jury, was, whether Kid, the plaintiff, had purchased the goods, with a view to defeat any execution, by any creditor of the debtor; and, the jury, being of the opinion the purchase was not made with that view, gave a verdict for him.

Lord Eldon, in his opinion, says — “The goods were purchased at a public sale, by a person, not a creditor, and were then lent to the original owner, for a temporary and honest purpose.” And he considers it the same as if the money had been advanced, to enable the debtor to buy the goods, and the bill of sale to stand as a security: so, he says, the jury considered it.

In that case, the money was advanced : in this, no money was paid, at the time of the sale. In that case, it does not appear that the debtor was insolvent; in this, it does. In that case, the property was lent, and so expressed, for a temporary purpose, and remained in the same place; in this, it does not appear, whether the object was a loan or a gift, and it was very soon removed beyond the reach of the ere-ditors, by the debtor, and a sale to an insolvent son, set up, but not proven.

There does not appear to be any thing in this case, lik.e the one referred to; except, that the sale was public, and the pnrchaser not a creditor. The subsequent conduct of the parties, does not explain the transaction, so as to redeem it from the suspicions, which are attached to such cases.

If Miller bought the property for Dabney Morris, as is very probable, under the expectation of his paying for it, as Spencer did — then, like the case of Spencer, he acquired no title to it, though he may have had to pay the price himself — and, he must suffer for his kindness. If he made a bona fide purchase, and afterwards loaned it to Dabney Morris, for a temporary and honest purpose, he has failed to make that fact appear.

The possession, then, having remained with Dab-ney Morris, without a sufficient explanation, to rescue it from the suspicions which the law attaches to the case, we think the decree must be reversed ; and a decree rendered against the defendant’s executor, for the amount in his hands, which proceeded from the sales of the negroes in question — with the costs of the proceedings in the Court below, and in this Court, to be paid out of the other assets in the hands of the executor.

      2 Bos. & Pal. 59.