Borland v. Mayo

Jan 15, 1845

Reporters:
Before:: Collier

COLLIER, C. J.

1. It was clearly competent to permit the plaintiff below to prove the value of the slave, at the time of the trial. The claimant, by the regular interposition of his claim, became the custodian of the property, until the question of the slave’s liability to the satisfaction of thefieri facias, should be determined. If the decision was favorable to the claimant, then his bond would become inoperative; but if otherwise, the bond remains in full force, as the statute declares “ it shall be conditioned for the forthcoming of the property, if the same be found liable to the execution, and for the payment of such costs and damages as shall be recovered,” &c. “ And if the claimant shall fail to deliver the same, or any part thereof, when required by the sheriff,” it shall be the duty of the sheriff to indorse the failure on the bond, and return it to the clerk, &c.; whereupon the bond shall have the force and effect of a judgment, and execution shall issue against the claimant and his surety, for the value of the property not delivered, as assessed by the jury. [Clay’s Dig. 211, § 52; 213, §§ 62,64.] The latter section directs, that when the jury shall find the property subject to the execution, they shall find the value of each article separately, but does not, in so many words,provide, that they shall be governed in their estimate, by the value at the time the trial takes place, yet, we cannot doubt that the plaintiff may offer proof to show, what the property was then worth. This conclusion necessarily results from his right to have the property to satisfy his execution, and if it cannot be had, or the claimant will not return it, then he is entitled to the value assessed. Whether the plaintiff may not elect to prove the value at the time of the levy, if the property has afterwards depreciated, or been entirely destroyed, we need not consider.

2. It was not allowable for the claimant, to prove by a creditor of the defendant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in execution, what the latter said to the creditor as an inducement to him to accept the claimant as his debtor, instead of the defendant. Such declarations were no part of the res gestae, which the plaintiff was impugning, but related to a transaction subsequent in point of time to the sale to the claimant, and which the plaintiff did not controvert.

3. The consideration of the note on which the plaintiff’s judgment was recovered, was not a question in issue, and could not be controverted in a proceeding of this character; the evidence then adduced to this point was unnecessary, and should not have *112been admitted by the Court. But we are unable to discover how the claimant could have been prejudiced by its admission, unless it be conceded that the consideration, viz: services as an overseer, were so meritorious as to overreach and invalidate the sale. This has not been pretended. Noinjury, therefore, resulting from the evidence, its admission furnishes no sufficient ground for the reversal of the judgment.

4. Where the question is, whether a sale of property on long credits, is fraudulent, it is allowable to show the inadequacy of the price, by showing the difference usually made between cash and credit sales, with the view of proving that the amount agreed to be paid, was less than the property would have sold for on the time given. It cannot be objected that the law fixes the rate of interest, and therefore, the true difference in price is, the addition of the interest to the cash value for the term of credit. There certainly should not be a greater difference, yet, if according to the usual mode of dealing, parties are not thus restricted, the vendor may enforce the contract, if he makes a fair sale, where the difference is more than interest, unless it is obnoxious to the law against usury. The evidence upon this point was, then, properly received.

5. The Court did not admit the declarations of Walker, made previous to the sale to the claimant, without qualification, but the jury were informed that they were to consider them so far as they went to contradict the testimony which Walker had given, in his examination; but the claimant could not be affected by them, unless he was connected with his vendor in the consummation of a fraud. As to the first purpose for which they were admitted, their competency cannot be disputed ; and as it respects the second, viz: to show that the sale was fraudulent, under the qualification laid down by the Court, we think their admissibility is equally defensible. The declarations of a conspirator are admissible against his fellow. [Phil. Ev. C. & H. 177, and cases cited.] So, where there is proof tending to show fraud, on the part of the purchaser of property, and a community of design with his vendor, it has been held, that in a contest between the former and the creditors of the latter, the declarations of the vendor are admissible against his vendee. [Clayton v. Anthony, 6 Rand. Rep. 285; Reitenbach v. Reitenbach, 1 Rawle’s Rep. 362.] And it has been decided, where the vendor is left in possession of property, *113and exercises acts of ownership over it after sale, this proves a combination to defraud creditors, and the declarations of the vendor are evidence against his vendee. [Wilbur v. Strickland, 1 Rawle’s Rep. 458; Willies v. Farley, 3 Car. & P. Rep. 395; 2 Phil. Ev. C. & Ii.’s notes, 178, 601-2.] The testimony recited in the bill of exceptions shows, that the integrity of the transaction between the defendant in execution, and the claimant, was at least questionable, and that there was no ostensible change of possession. This being the case, the proof of Walker’s declarations, comes within the principle upon which the authorities cited rest, and are admissible against his vendee, if competent evidence under the circumstances. The form of the claimant’s objection to the evidence we are considering, indicates, that he did not object to it because it tended to impeach the credit of the defendant in execution, by showing that he had made other statements ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the facts to which he testified, without first inquiring of him, whether he had made such statements. [Lewis v. Post & Main, 1 Ala. Rep. N. S. 69; 2 Phil. Ev. C. & H.’s notes, 771 to 775.] But it was expressly admitted, that it was allowable to give evidence of Walker’s declarations, so far as they contradicted his testimony; and as to the further object proposed by such proof, what we have said will make it sufficiently clear, that its admission was placed, by the Court, on the true ground.

6. It was competent for the plaintiff to inquire of a witness, whether he ever knew Walker to act as the claimant’s overseer, for the purpose of countervailing the testimony of Walker, who had affirmed such to be the fact, and also to show that there had been no delivery of the property in question to the claimant* True, such evidence may not be entitled to great weight, yet it was pertinent, and entitled to more or less consideration, according to the opportunities which the witness possessed for acquiring knowledge upon the subject.

7. Evidence of what Walker said about the horse he previously allowed an overseer, employed by Borland, to have, at an agreed price, was properly excluded. If those declarations were admissible, Walker was prima facie a competent witness, and could himself have been called on to relate them. They constituted no part of the res gestae, viz: the witness’ employment and service as overseer, or purchase of the horse from Walker *114on the claimant’s account, but they were post factum statements, and according to all principle were properly excluded.

8. We can discover no objection to the admission of the evidence,to showthatthe claimant wasgreatly indebted in September, 1840, when the sale was made to him, of the entire estate of the defendant in execution. Such testimony,it is true, might not establish a fraud, yet, in connection with other facts,the indebtedness of the claimant might exert a controlling influence. No matter what may be the extent of one’s property, prudent men, who are indebted, are less disposed to make heavy purchases, even on time; especially if they do not expect, or intend to realize by a re-sale.

9. What we have said about the seventh objection to the testimony, is conclusive upon this point. But it may be said in addition, that if the Court had misapprehended the law, in rejecting the evidence, its decision would furnish no ground for the reversal of the judgment. The plaintiff in execution opened the case, and laid his testimony before the jury. The claimant then introduced his evidence, and the plaintiff rejoined; after the trial had proceeded thus far, it was a matter of discretion with the Court, whether any other evidence should be adduced. It was at this latter stage of the cause, when the testimony we are considering was offered.

10. The view taken of the fifth objection will show, that the evidence of Walker’s continued possession of the property which he conveyed to the claimant, was such as to make the declarations of the former evidence against the latter. We do not say that it was sufficient to negative the conculsion, that the possession was changed, but that there was proof on the point, which the jury should have considered, cannot be questioned. The declarations of the vendor were only admissible upon the hypothesis, that he retained the possession, or himself and ven-dee were co-workers in the purpose to defraud; and the Court perhaps so instructed the jury, if not, it was proper to call the attention of the Court to it, and pray such a charge.

We will now briefly consider the several charges to which the claimant excepted: — ■

1. This charge affirms, that if a debtor in failing circumstances makes a transfer of his property to a third person, which is intended, both by the vendor and vendee,to prevent what they con*115sidered a sacrifice, by sale under execution, and thus enable the vendor afterwards to give a preference to his own proper credi* tors, over those to whom he was liable as a surety, that such transaction is a fraud upon the creditors, who are hindered or delayed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the collection of their demands. There can be no question but an assignment made under such circumstances is inoperative, by the second section of the statute of frauds, which expressly declares, that every gift, grant or conveyance of goods or chattels, by writing or otherwise, made and contrived of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder or defraud creditors of their actions, suits, debts, &c, shall be utterly void. [Clay’s Dig. 254.] If the vendor had reserved to himself, by a stipulation on the face of the deed, the right to direct the appropriation of the money, such stipulation would have been void against judgment creditors, and the legal conclusion must be the same, although the deed is silent upon the subject, if the sale is the result of a fraudulent combination between a failing debtor and a third person, to defeat the creditors of the former.

2. The terms of the contract between Walker and the claimant, contemplated an immediate change of possession, and if there was not an actual and bona fide delivery of the property to the claimant, in order to maintain a title against the creditors of the vendor, it devolved upon the claimant to show some special reason, or excuse, for the retention of the possession by the vendor. The fact that the vendor married the vendee’s daughter, and the family of the latter required the services of the slaves, &c. furnished no sufficient excuse, so as to repel the legal inference of fraud. This point is explicitly adjudged in the Planters’ and Merchants’ Bank v. Borland, 5 Ala. Rep. 531, and cases there cited.

3. If the sale to the claimant was void ab initio, for fraud, in-ferrable from the inadequacy of the consideration, by the length of credit given, or for other cause, it could not acquire validity agianst the vendor’s creditors, although the vendee might pay a sum beyond the purchase money stipulated, and even before the expiration of the term of credit agreed. The fraud of the transaction did not prevent the parties from rescinding it, and making another contract, bona fide, before liens attached; and the charge does not deny such to be the law, it merely asserts, that if the sale *116was fraudulent against creditors, in its inception, it still continued so, although the vendee shall have made the full payment.

4. What we have said upon the first charge, is equally applicable to this, and shows that the Court, in giving it, did not misstate the law.

5. The mere fact, that the conveyance from Walker to the claimant, transferred all Walker’s property, does not of itself warrant the inference that the latter was aware of the insolvency of his vendor. A man may sometimes be induced to sell all his visible estate, preparatory to a removal from the country; and the fact that he provides for the payment of a large amount of debts, by substituting the credit of his vendee for his own, may not proceed from his inabili;y to pay otherwise. He may find it for his interest to sell on time, because a purchaser cannot be obtained, who is prepared to pay the cash, or by giving credit, a better price may be had. Besides, he may know that it is possible for him to relieve himself from debt, by using the paper of his ven-dee. And the vendor may thus act,though he has a large amount of cash, which he supposes it will be more beneficial for him to use in some other way.

No such inference can be drawn from the fact, that in this case, a large amount of the purchase money, was payable from seven,to twelve years after the sale. The vendor is usually compensated for giving long time, and hence, if he thus sells, it neither proves his solvency, or insolvency. The written transfer only evidences such a contract as we have described, and does not, when taken alone, or in connection with the fact supposed, show that the claimant knew his vendor was insolvent, when he purchased from him.

The fact of the relationship of the vendor and vendee, the con- ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍• tiguity of their residence, and the actual insolvency of the former, perhaps, would have authorised a jury to presume, that the claimant was aware of Walker’s situation; the charge does not rest the presumption on these grounds, but alone upon the purchase of all the vendor’s property.

In Yates and another v. Carnsew, 3 Car. & P. Rep. 99, the question arose under the statute of 46 George III, ch. 135, whether a party dealing with a trader, knew him to be insolvent. The defendant there had for nearly two years been buying goods of the bankrupt at prices vastly below prime cost, and Lord Ten-*117Urden said to the jury, “it is for you, as men of business, to say, whether the defendant could go on dealing with a man in this way, for so long a time, without knowing that he was insolvent. There is no doubt, that for the sake of getting ready money, great sacrifices are often made, in one or two transactions, by solvent men, but the strength of this case, on the part of the plaintiff, is, there were, not merely one or two dealings between these parties, but a continued series of them,” in two several years. Here, the vendee’s knowledge of the vendor’s insolvency was presumed from extensive purchases of goods, repeatedly made, during a long period of time, at prices far below cost; while, in the case at bar, the Court was required to instruct the jury, that if the claimant purchased all the property of the defendant in execution at one time, it might be legitimately inferred that he was aware of his vendor’s insolvency. Such a conclusion, we have seen, cannot be predicated of the premises.

6. This charge assumes, that if a father-in-law purchases from his son-in-law, who is in failing circumstances, all his property, including lands, slaves, horses, cattle, hogs, household furniture, &e., the relationship of the parties will cause the transaction to be viewed with suspicion, and if other suspicious circumstances were shown, its tendency would be to establish a fraud. The law is not laid down too stringently against the claimant. The connection between the vendor and vendee, the embarrassment of the former, and sale of all his property, certainly should cause the transfer to be looked on with suspicion, and if there were other circumstances making its fairness questionable, then all taken together, should be considered by the jury, as adverse to the vendee, upon an issue of fraud vel non.

7. Inadequacy of consideration, where the vendor is greatly indebted, is recognized as a mark of fraud. In this charge the Court says nothing more than so to declare the law. True, it might not be sufficient per se, to authorize a sale to be annulled, unless the disparity between the true value of the property, and the price paid, or agreed to be paid, was so great as to strike the understanding at once, with the conviction, that such a sale never could have been made bona fide. But it may be a mark of fraud where the difference is not so great, and when other circumstances are associated with it, they may be conclusive.

8. What has been said in respect to the first and fourth charg*118es, is applicable to this. It merely affirms, that if the facts be such as are supposed, then the conveyance would be fraudulent because intended bj^ both parties, to delay and hinder creditors in the collection of their debts. That such a conclusion is a necessary sequence, if the facts are affirmatively shown* we think will not be seriously questioned.

9. This charge, we think, cannot be supported. It assumes, that although the claimant may have been influenced by honesty of purpose, in purchasing the estate of the defendant in execution, yet if the object, or tendency of the purchase was to place the property beyond the reach of the vendor’s creditors, and thus hinder and delay them, the transaction was void, by construction of law. Now, every man may sell his property in good faith, if neither creditor nor other person has a lien which is opposed to such a light; and this, although the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍consequence may be to defeat creditors in the collection of their demands. If the vendee has meditated no dishonest purpose, but has acted with fairness, his purchase can’t be pronounced void, at the instance of the vendor’s creditors, merely because its “tendency” was to defeat or delay them. The claimant cannot be injuriously affected by the fraud of the defendant, unless he participated in it, or can, by legal construction, be connected with it in some offensive manner. If, in speaking of the effect of the sale, the word object alone had been used, or object and tendency, instead of connecting the two latter by the disjunctive “ or,” then the instruction would have been proper; but these terms could not have been employed because it was hypothetically admitted, that no fraud or dishonesty of purpose was attributable to the claimant, In declaring, that if either the object or tendency of the purchase was to defeat the vendor’s creditors, then the same was void,it is sufficiently shown, that the Court did not correctly state the law.

10. For the reasons stated in considering the first, fourth and eighth charges, this is unobjectionable.

We have thus considered the numerous points made upon the record in this cause, with as much brevity as we could, in order to make ourselves intelligible. The great and unnecessary length to which the bill of exceptions is drawn, admonishes us of the propriety of again declaring our disapprobation of a practice, which causes bills of exception to be surcharged by the statement in extenso of all the evidence adduced, as well oral as documen*119tary. Such a practice is productive of benefit to no one — it imposes increased labor upon the counsel; the case, instead of being divested of every thing extraneous is mystified, and a heavy draft is made upon the time of the appellate Court in denuding it, that it may be seen what are the questions intended to be revised.

The points made being severally considered, recapitulation is unnecessary, and we need only add, that the judgment of the Circuit Court is reversed, and the cause remanded.