1 Ala. 237 | Ala. | 1840
— By the second section of the act of 1807, it is enacted that, “ if-any person who may be a witness in any cause, depending in any of the said courts, shall be under the necessity of leaving this territory before such cause is to be tried, or even before it be at issue, upon oath thereof being made before any judge or justice of the eourt wherein the cause is depending,'such judge or justice is hereby empowered to lake the deposition of such witness, etc.” [Aik. Dig. 126.]
The suggestion on which the deposition read on the trial, was taken, is recognized by the statute as authorizing the taking of testimony in that manner. And in the absence of any thing appearing to the contrary, we must intend, that every es
In respect to the charge to the jury, it seems to suppose that every formality, essential to the validity of the deeds, offered by the respective parties, had been observed ; and the only inquiry for the jury was, whether they were not fraudulent for matter extrinsic. Both deeds, must, in the aspect in which they are presented, be regarded as operative against the donor, or vendor, and the only question is, which is entitled to a preference as between the parties in this case. Though the deed to the plaintiff may have been executed with a fraudulent intent, still it might have been enforced against the party making it. The same may be said of the defendant's deed — -and both are void, as against creditors and bona fide purchasers. But there is no law which invalidates the first, in favor of a purchaser coming after it, who cannot show his purchase to have been made in good faith.
A fraudulent deed then, being valid against the party making it, cannot be defeated by a subsequent vendee, whose purchase was conceived in fraud. A.ll title having passed from the vendor by the first deed, he had none to transfer by the second, and consequently the second vendee, who stands in the same predi
The view taken by the circuit court was induced, we suppose, by the influence which the maxim in pari delicto melior est conditio defendentis was supposed to exert. That maxim is confessedly salutary; but it does not reach to a case like the present. ■ — A fraudulent vendor, we have seen, cannot avoid his own act; and if it were allowable for him to do it indirectly by a subsequent conveyance, equally obnoxious to honesty, it would only be necessary for him to commit one act of fraud, to defeat another. But on this point, it is sufficient to say, that the plaintiff is entitled to recover, as against one showing no better title than himself — that the defendant did not set up a better title, and that not being a purchaser, within the meaning of the statute of frauds, the defendant cannot sucessfullv resist a recovery.
The consequence is, that the judge of the circuit court erred in his charge to the jury — and the judgment is, therefore, reversed and the cause remanded.