2 Stew. 336 | Ala. | 1830
It is not material in disposin g
This case involves a question deeply affecting the commercial interest of this and other countries; one on which the opinions of Courts of high respectability have varied, and on which my own opinion does not strictly accord with the views entertained by some of the other members of this Court; and as this, is the first opportunity I have had in this Court, I avail myself of it, to express iny separate views on the question, though we are unanimous in the: conclusion respecting this case.
It may be doubted whether the exceptions, as taken, and allowed, fully explain the instructions given. It is-probable, from the language employed, that the idea conveyed, or intended to have been, was so fer different, as to have informed the jury if the consideration was sufficient, the contract bona fide, and the bill of sale recorded within the time mentioned, the fact of the vendor having remained in possession for- some time thereafter, did not, by legal construction invalidate tbe sale. This presumption is strengthened from the opposite- nature of the instructions prayed and refused, that the circumstance of
The suppression or detection of fraudulent conveyances is difficult, and often impossible under any system; and under the principles of the decision in Hobbs v. Bibb, I anticipate the greatest injustice in many cases. Whether the evils would be equal under the contrary doctrine, does not admit of as full demonstration by language, as from practical observation. Yet it will be admitted, that fair dealers would find no' difficulty in avoiding that an insolvent person person should, with their consent, have the use and possession of their honest acquisitions, under a contract absolute in its nature and terms and importing a contrary possession; and when there is no moral or physical incompetency in reference to the parties or subject of the contract. Nor would there appear to be any unreasonable rigor in a rule that would require of others, when it becomes necessary for any legitimate purpose to deposit or leave •their chattels in the possession ol one who may gain a spurious credit on tho faith of them, to express in the bill of
Contested facts on issues of fraud, as well as others, are proper for the consideration of juries; but “fraud is a question of law, when the facts are ascertained;” and whenever a contrary doctrine shall have been riveted on the community by judicial decisions, a great and momentous change will have been effected in the jurisprudence .of the country. When it shall be conceded that a fraudulent debtor, who can negotiate a private understanding with afriend to that effect, may execute an absolute conveyance of his property, prove a valuable consideration passing between them, and retain his property in despite of creditors; that he may thus enjoy his property, unless the .creditor can be so fortunate, under the covert agreement, as to unmask the artifice, and make proof to the satisfaction of a jury, that the consideration has been returned, or otherwise, that the contract was in fact designed to operate as a fraud on creditors; then it will appear, that the most matured legal doctrines of many of the most enlightened ages and countries, have been but visionary phantoms; that a host of English' Judges, who have illumined half the globe; that the entire Federal Judiciary of the Union; together with the Supreme Courts of two thirds of the •¡States, have long been in gross delusion; and that lately, Uhief Justice Savage, and his associates and reporter, have kindled a new light of instruction, more dazzling than any produced by the few who had preceded them on that side of the question.
The case to which we are thus indebted, is that of His-sell v. Hopkins.
Here, it is true, the language of the Court embraces the contested doctrine; for .the Chief Justice says, in reference to a contrary decision by Chief Justice Kent, in the same Court, “that the learned Judge, no doubt, intended to say, as in Barron v. Paxton,
But the more essential principles of the doctrine were not necessarily involved in that case; the avowed object of the contract, as shewn by the expressions of the instrument, was to secure the payment of a pre-existing debt; and was so considered by the Court who decided it; for the Chief Justice says, “the bill of sale was clearly a mortgage, payable on demand, and I can see no grounds for the imputation of fraud in fact; nor do I conceive the facts such as to constitute legal fraud. It is very distinguishable from Twyne’s case.”
He takes no notice of the cases of Edwards v. Harbin,
The reporter has subjoined to that case, a note in which he has enumerated a variety of exceptions to the rule; a sufficient number, as he thinks, to destroy it. This effort has been elaborate and ingenious; but to such as have' taken the trouble to examine the supposed exceptions, and test them by the true rule, they will appear less imposing. Exceptions are the consequence of all general rules, and do not necessarily impair their value. Several of the reporter’s collected cases are entirely consistent with the rule, not, however, according to his assumption ©fit, “that unless a change of possession follows immediately, it is not only evidence of fraud, but per se makes the sale fraudulent and void.” The rule as recognized by the cases already cited, of Edwards v. Harbin, and Hamilton v. Russell, and also of Dawes v. Cope,
Public sales, whereby notoriety is afforded of the change of title, and the proceeds are once applied to the benefit of creditors; or where, at least, the sale is made through the agency of an officer, so as to furnish indifferent evidence of the motive of the transaction, are, I think, on principle and the best authority, to be viewed in a different light, and must depend on the existence of fraud in fact. Nor can there be any doubt of the propriety of withholding the application of the rule of possession where the reason of it more obviously fails, as where the credit- or is knowing and assenting to the terms of the sate; where
It may however be here remarked,- that several of the' decisions relied on by the reporter, must be questioned;' among others the case of Brooks v. Powers.
It is remarked by Judge Story,
It is much less important to justice, whether the judge or jury determines the question, than that the lawshouldbe correctly administered. Yet, if the law and policy of the •country dictates the necessity of constructive fraud in relation to any transactions, I think no other can more imperiously demand it, than the case of an insolvent, who has absolutely convoyed his property at private sale, under an agreement that he shall retain it, and %vho has, by the permission of the vendee, continued the visible and reputed owner, and thereby acquired the means of continuing his credit; and also procured time to squander, or in some way place the proceeds beyond the reach of his creditors, if, according to the secret fact, any consideration was given. Under such circumstances, it is an outrage on common sense, to deny but that the debtor has the means of practising deception and fraud on the community, which otherwise he could not have. It is a fact, in its nature, often unsusceptible of proof, whether any or how many of the creditors have casually received information of the sale; and if the sale be void as to one creditor, whose debt is equal to the value of the property, the ef
The doctrine of constructive fraud, was directly involved in a case before the Supreme Court of New York, as late as 1827.
It is only deemed necessary farther to notice, that the case of Steward v Lombe,
Upon a full view of the subject, I conclude that the doctrine of constructive fraud, and of the necessity that the possession of chattels shall be consistent with the deed, at least as far as I have here advocated it, is fully sustained by all the higher Courts of England, by a very large majority of all the States of the Union, and by the uniform •decisions of our entire Federal Judiciary. I am therefore' of opinion, if the principles of the decision in Hobbs v. Bibb, be sustained, that they should at all times be restricted to the narrowest ground that will allow a discretion to the jury in determining that the constructive badge of fraud has been sufficiently explained; and that the judgment in this case must be reversed, and the cause remanded.
Reversed and Remanded.
Ante p. 54,
2 Cow 431.
Ante, p. 54.
2 Cowen 431.
5 John. 261.
2 T. R. 587.
Prec. in cu-285'
Cowp. R. 432.
4 Binn. 265.
15 Mass. R. 244.
1 Badger & Dev, 76.
1 Vesey,343.
1 Barr. 467.
Kent’s Com. 412, & Clow v. Woods, 5 Serg. and Rawle, 275.
1 Gall. 423.
Ante, p. 54.
Stutson v. Brown, Cow. 732.
7 Bissell v. Hopkins.
1 Brod. & Bing- 50&-