23 Ala. 801 | Ala. | 1853
The question of fraud calls for and justifies great latitude in the admission of evidence. The proof made by Benning, when attacking the bona fides of the deed in trust made in favor of Mrs. Nelson, that two deeds were made at the same time, by the same grantor, to the same trustee, that the grantor was the father of the trustee who was a minor at the time, and that the two deeds embraced all the property of the grantor in this State at the time, and that he was then embarrassed with debt, was properly admitted as relevant to the issue touching the bona fides of the trust deed upon which the claimant relied. These things of themselves might be easi
The determination of this point settles the main question in the case, that raised by the refusal of the court to instruct the jury as requested by the counsel for Benning, the plaintiff in execution.
No doubt the principle contended for by the counsel for the claimant, is true: that the deed in trust in favor of Mrs. Nelson, wife of the defendant in execution, being evidently for the benefit of that lady, her assent to its provisions is and ought to be presumed. Numerous eases in our court and elsewhere go to establish this doctrine.—Lockwood v. Nelson, 16 Ala. 294; Kinnard v. Thompson, 12 Ala. 487; 11 Wheaton 73; 16 Peters 139.
But that principle will not avail in such a- case as the one presented by the charge requested by the counsel for plaintiff in execution and refused. That case is this : If you (the jury) believe from the evidence that this deed in trust, made in favor of Mrs. Nelson, was made “to hinder, delay and defraud creditors j” that both the grantor and trustee concurred in that design, and that no actual assent was made to it, or benefit claimed or taken under it, by the cestui que trust, Mrs. Nelson, until after the lien of the plaintiff’s execution had attached upon the property, then you must find for plaintiff in execution.
The principle of law here involved was fully considered and settled in the case of Townsend v. Harwell, 18 Ala. 301. None of the precedents met the case, but the argument of the present Chief Justice we consider sound, and that case will be followed in this instance. The argument in brief may be stated thus : The statute declares positively, that a deed “ made to hinder, delay and defraud creditors,” shall be void, except as against bona fide purchasers for a valuable consideration. To this it is replied, that the beneficiary of a trust deed plainly beneficial to him, where he is a creditor of the grantor, is a bona fide purchaser for a valuable consideration, and as the law presumes the
It comes then to this : If a jury should find the fact to be, that a deed was made by the grantor with intent “to hinder, delay and defraud creditors, the law will not presume the assent of a beneficiary to such a deed, however much it might really be for his benefit, because this would be to put it in the power of the grantor, by the aid of a legal presumption, to make valid his own fraudulent deed- Such a deed can only become valid by the actual assent of the beneficiary in some form. Until such actual assent, any creditor may levy or attach, and hold in defiance of the deed. The charge which was asked only embodies this principle, and should have been given.
The charge which was given, as we construe it, only asserts the proposition, that, if the deed oí trust in favor of Mrs. Nelson was bona fide,, and upon good consideration, it could not be affected by fraud in the other deed, if the jury should even believe the other deed to be fraudulent. There was no error in this. The wording of the charge may leave room to object that the court was assuming the facts, but it will not fairly bear that construction.
For the error in refusing to charge as requested, the judgment is reversed, and the cause remanded.