46 Ky. 368 | Ky. Ct. App. | 1846
This opinion, with the two cases preceding, was delivered et the fall term, 1846, by the present Chief Justice, at the close of the term, and suspended until this term.
This action of detinue was brought by Hughes against Kendall, to recover two slaves, a woman and her infant child, which Kendall had purchased under executions against John L. Prewitt the former owner, the father-in-law of Hughes; and the sole question involved in the trial was, whether the bill of sale under which the plain, tiff claimed these and other slaves, was fraudulent and void against creditors. Seven instructions were given as moved for by the plaintiff, and five as asked by the defendant, except that two of these last were modified by the Court, as will be presently stated. And the jury having found a verdict for the plaintiff, which the Court refused to set aside, the defendant brings the case to this Court.
Of the evidence we need not present a detail. It was of such a character as to authorize and require a strict scrutiny of the instructions in order to sustain the verdict.
Several of the instructions assume hypothetically that J. L. Prewitt made the sale with the intent of defrauding his creditors thereby, and that this intent was known to Hughes -at the time. The Court properly instructed the jury as moved for by the plaintiff, that the fraudulent intent of Prewitt could not affect him, unless he participated in it at the time of the sale. And the instructions asked for by the defendant, to the effect that if Hughes made , the purchase, knowing the fraudulent intent of
For such knowledge in the purchaser was not in itself conclusive evidence of his participation in the fraud, so as necessarily to make the sale void without regard to other circumstances: Brown vs Force, &c. and same vs Smith, (decided at the present term.) It may be that by the refusal to give these instructions as asked, and by so modifying them as to require as an additional condition essential to the conclusion that the sale was void, that Hughes should have made the purchase, to favor -or furthcr the fraudulent object of Prewitt, the jury may have been misled into the supposition that his knowledge of the fraudulent intent, was not alone sufficient evidence of his participation in it. But certainly the purchaser’s knowledge of the vendor’s fraudulent intent in making the sale, affords a presumption of his participation in that intent, which will authorize the conclusion that he-did so participate, unless the inference be repelled by circumstances tending to show that he had sufficient lawful inducement to make the purchase, or that lie took precautions against the intended consequences of the sales, or unless in some other way, the inference'is repelled by the facts of the case. It is true that the purchaser must make the purchase to favor or further the fraudulent intent. But his knowledge of the intent tends to prove that he did make the purchase to favor or further it, and is sufficient unless this inference be repelled by the other facts. The jury, under the circumstances above stated., may have supposed that it was insufficient to authorize a verdict against the sale, unless some other fact were established tending more directly to prove a design on the part of Hughes to favor or further the fraudulent object of Prewitt. If, therefore, the Court, after declining to instruct the jury as asked by the defendant, thought proper to instruct them in his own language as to the effect of -the purchaser’s knowledge of the vendor’s fraudulent intent, it would have been more safe to instruct them that -upon these facts they might find the sale void, and should Jo unless from other circumstances or under all the
The 6th instruction, to the effect that when two persons live on the same place, the possession in law of slaves, is in the person having the legal right to them, if true in the terms in which it was given, could have little bearing on the ease, unless to authorize the inference by the jury, that as the bill of sale transferred the legal right it also transferred the possession; whence they might also infer that no further change of possession was necessary to make the sale effectual, (so far as possession was concerned,) against all persons. This instruction was calculated to mislead. The principle of law by which the legal title to personalty, prima facie and constructively, draws to itself the possession, and under which the sale of personalty in the same house with vendor aná vendee, may be complete and pass the possession in law without any actual manu tradition, if applicable at all to a case involving the question of fraud, has no legitimate operation in a case where the parties in fact live separately, and the vendee leaves the property in the ostensible possession of the vendor. It amounts to nothing more in such a case that as between vendor and vendee, the title passed without actual delivery of possession. But in the question of fraud, the actual possession cannot be disregarded. The instruction as given, tends rather to confuse a jury and to obscure the real question in issue.
And of similar tendency is the first instruction which tolls them that if they find the slaves to be the property of the plaintiff, they must find for him. The slaves were
We think then, that this sixth instruction is liable to the objection that it rather colors or assumes too strong, the facts with regard to the residence of the Prewitts, and also to the objection that it introduces, with probable misleading effect, the principle of constructive possesucc , , rm ,, U 1 • VP J u sion before referred to. A rue, the whole is qualified by the condition that the jury should find that Hughes purchased, in good faith, and that the transaction, irrespec. tive of the possession, was fair and bona fide. We do not know precisely what idea was conveyed to the jury by the words expressing this condition. The instruction, however, seems to imply that the jury might determine the question of fraud without looking to the state of the possession, and that unless without regard to that fact, they should find the sale fraudulent, the circumstance that the possession was left with Wm. F. Prewitt, was immaterial, or that this was in fact, a sufficient change of the possession to answer the requisition of the law. But certainly there was no such conclusive evidence of good faith
The 5th and 7th instructions for the plaintiff speak of declarations of ownership by J. L. Prewitt after the sale, and of occasional directions by him to the slaves after they were delivered to Wm. F. Prewitt. The 5lh informs- the jury that such declarations were not evidence of fraud, &c., and the 7th informs them that if the jury believe from the evidence that Hughes purchased the slaves in good faith, and delivered them to Wm. F. Prewitt to keep for him, occasional directions to them by J. L, Prewitt while living in the same family with Wm. F., were not inconsistent with his possession and right, so as to constitute the transaction fraudulent, if otherwise it was fair and bona fide. Here again the facts as indicated in the instruction, do not properly characterize the real facts to which they probably intended to relate. J. L. Prewitt seems to have mortgaged some of the slaves after the sale, appropriated the hire of others, and received the proceeds of the labor on the farm. He concealed the slaves when, the officer came to levy the execution, ant?
It should be slated, that it does not appear that Hughes when he made the purchase, occupied or acquired to any extent the attitude of a creditor of J. L. Prewitt. And as in view of the nature of the question of fraud as being one peculiarly within the province of the jury, we think conclusive efficacy should not be given by the Court to the single fact that the vendee knew of the vendor’s fraudulent intent if it existed ; so on the other hand, wo are of opinion that no circumstance which tends to elucidate the intent of the parties should be withheld from the jury, but that all should be fully submitted for them to give such weight to each, and to draw such conclusion from the whole as they may deem proper, with such aid by the Court with regard to the legal effect of the facts as may be properly given.