| Sup. Ct. N.C. | Jul 5, 1798
The first thing to be observed upon is the execution upon Garner's judgment. Murray's goods and effects were all bound by that from the time of its teste, and he could not after that teste sell or dispose thereof so as to defeat the execution. No sale made pending the execution unsatisfied will be good to vest the property in the vendee unless eventually the execution shall become satisfied by some other means. As to what has been said respecting the want of possession, if it be necessary in the present case to resort to that circumstance, the want of possession is a strong badge of fraud. The property is placed in the creditor, the possession continues in the debtor, and by that means other creditor, perceiving no visible diminution of the debtor's effects, rest satisfied, and take no measure to secure their debts until perhaps the whole estate of the debtor is exhausted, whereas, should the creditor immediately take possession, other creditors would thereby have notice that the debtor's estate was wearing away, and apply for the discharge of their demands in time. It has this further ill effect, that the debtor still continuing in possession, and being reputed owner, obtains credit upon a belief that he is the owner, and so, by fault of the vendee, possesses the means of contracting debts without the means of paying them. But, in general, this want of possession is only evidence of fraud, which may be explained and repelled by contrary evidence; it is not absolutely conclusive, but it is only a strong sign of fraud, which by circumstances equally strong, tending the other way, may be overturned. In the present case the bill of sale to Donalson purports upon the face of it to be absolute, and to vest the whole property immediately in the vendee; where as in truth it is but a security for money, this also is a mark of fraud, for it is calculated to mislead and deceive creditors, and to make them believe that no part of the negro or his value is subject to their demand, when in fact it is otherwise. Indeed, the case cited *77 at the bar determines that an absolute bill of sale not accompanied with possession is fraudulent and void; though a bill of sale with a condition permitting the possession to remain with the vendor is not, because there such a possession is consistent with the deed, which upon the face of it discovers the truth to creditors, and cannot be said to intend a concealment of circumstances in order to deceive them. This doctrine is supported by a great number of decisions, and is built upon good reason. Where creditors are concerned, the transactions of the debtor in relation to the disposition of his property should exhibit their real situation and circumstances to the world, that every one who (60) is interested in them may know with certainty what has been done, and how to act. If they do not, but, on the contrary, are so constructed as to conceal circumstances which should be known, and to give a different appearance and coloring to the business than it really ought to bear, the presumption of fraud attaches to them in proportion to such concealment. With respect to the purchase made by Ingles from Murray, it has been urged that as between Murray and Donalson the property passed out of Murray; though supposing the conveyance fraudulent, it did not as to creditors; and that therefore a sale from Murray afterwards to Ingles could carry no property, however, a sale by the sheriff might have done it. I was at first very forcibly struck with the remark, but the cases cited from Bullers N. P. and from 5 Re., 60, have removed my doubts. These state that a contract which is fraudulent as to creditors is fraudulent also as to purchasers; and that if the purchaser has no notice without registration, his purchase is good; for if he has notice, he knows the contract to be a fraudulent one and void.
The jury could not agree, and a juror was withdrawn by consent.
Cited: McCree v. Houston,