1 Ga. 157 | Ga. | 1846
By the Court
The complainant in this case filed his bill for the purpose of setting aside a conveyance of certain real and personal estate, made by Philbrick to Eastman, on the ground such conveyance was fraudulent, according to the provisions of the act of 19th Dec. 1818.
The complainant charges in his bill that Philbrick remained in possession of two of the negroes, and furniture after the sale, and occupied the house in Brown Ward, so soon as the same was sufficiently completed for that purpose. The complainant also charges, the property conveyed was held in trust for the benefit of the vendor, or persons appointed by him. The answers of the defendants admit the possession of Philbrick, but state, at the same time, he held such possession by rent and hire from Eastman, and the terms thereof. The answers positively deny all trust of any kind. On the trial of the cause in the Circuit Court, the presiding Judge charged the jury “that possession of the vendor, after the sale, was prima facie evidence of fraud; and unless explained, became conclusive : that the explanation of that possession, stated in the answers, was no evidence, because not responsive to the allegations, or interrogatories in the bill.” We think the court below erred in its charge to the jury, in stating the explanation in the answers of the defendants was no evidence, because not responsive to the allegations or interrogatories in the bill. There is no doubt as to the rule, when the defendant in his answer, insists by way of avoidance on any distinct fact, he must by evidence prove such fact, in order to make it available in his defence. But here, the complainant charges one of the defendants in possession of the property conveyed, as being prima facie evidence of fraud. The defendants respond, and say, true, he is in possession of the property, but holds the possession as the tenant of the vendee, paying him rent and hire therefor ; which rebuts the presumption of fraud. The defendants do not insist on any distinct fact by way of avoidance, but respond directly to the charge of being in possession, and explain how the vendor is in possession. The complainant contends, the defendants ought not to have the benefit of their explanation of the possession. Although he had interrogated them about it, they must tell part of the truth only ; or, if they do tell the whole truth in answer to his question, part only shall be received: so much only will be received, as will fix fraud upon them ; the explanation exculpating them must be rejected. We do not so understand the rule, as to exclude the explanation of the possession given by the defendants in this case ; the answers are responsive to the charge, that the vendor remained in possession of the property, explaining the nature of that possession : and not insisting .upon a distinct fact, by way of avoidance, with which they have not been charged or interrogated by the complainant. “The answer of the defendant is evidence for him, so far as it is responsive to the call in the 'bill for discovery, or connected necessarily with the responsive matter, or explanatory of it.” — Methodist Church of Cincinnati vs. Wood, 5th Hammond’s Rep. 284-5 ; Davis vs. Sperling, Russel and Mylne, 64 ; Lady Ormond vs. Hutchinson, 13th
The true meaning of a statute is generally and properly to be sought from the body of the act itself. — 1 Kent’s Com. 461. The great difficulty which has been felt in the minds of some in the construction of this statute, it is believed, has been in giving too much attention to the title and preamble, without carefully examining the enacting clause. The title of the act and the preamble are, strictly speaking, no parts of it. It is true they may assist in removing ambiguities where the intent is not plain, but where the words of the enacting clause are clear and positive, recourse must not be had to either of them. — 1 Kent’s Com. 460, 461. The United States vs. Fisher, 2 Crunch Rep. 358 ; Crespigny vs. Wittenour, 4 th Term Rep. 793. What conveyances does the enacting clause of the act declare shall be null and void, and fraudulent as against creditors ? Such conveyances only as shall be made by persons unable to pay their debts, in trust, <S;c. In order to make the conveyance void within ibo meaning of the statute, there musí bo a trust created for the benefit of the party making the conveyance, or for the benefit of some person appointed by him. This is manifest from the proviso in the act. In