38 Ala. 63 | Ala. | 1861
The folllowing are among the uncontre- ■■ verted facts in this case: That Mr. Sink was the owner of „ John, the slave in controversy, up to July'7th,. 1857 ; that v on that day he executed a deed of trust to Win. B. Milton, ■■ trustee, conveying--the slave vto him,fin trust to secure .a large debt to Mrs. Maria A. Milton; that the slave remained in the possession of Mr. Sink, in Dallas county, until March ,. 21st, 1859, when, in .part payment of the debt to Mrs. "Milton, Mr. Sink conveyed the slave to her by bill of sale, and the possession,-then went to Mrs. Milton, who still regained him in Dallas-countys -until she sold and delivered him to Mr. Kiug^also of the.oame county; that before the said 21st March,,1859, Frothiegham, Newell & Co. recov- . ered a ) udgment, in said Dallas'county,-against Mr. Sink, .- ■.and sued out an execution upon it, and placed it in .the ,• hands of the- sheriff for collection; that from that time, t. until the slave JJohn was seized by the sheriff of Dallas, ; said execution was regularly renewed from term to term, .and kept in the hands .of said sheriff; and that, up to that ¡«time, the slave.was owned in said county, and was regu- . larly in it at least once a week. On these plain facts,, the • execution in favor of Frotliingham, Newell & Co. operated ; a lien on said slave John, from the time it first went into ,. the sheriff’s hands, unless Mrs. Milton’s title can relate i-back, and rest cm the deed of trust of July, 1857.
The deed of trtísí conveyed the'family residence and house servants, three in number, belonging- to- the said Sink; also, all the notes and accounts due the firm of Sink & Milton; “and also the'stock of goods now on hand, ■or hereafter to be purchased by the said firm of Sink '& Milton, for the purpose of carrying oh the business in which said-firm is now engaged'; but it is expressly-■ understood and agreed, that the interest in said accounts,’-notes, claims, debts, stock of goods of said firm now on band,' and to be purchased as-aforesaid, and herein transferred and conveyed, is the interest which the pá-rty -of the first part shall have in them, after the payment of all .the partnership debts of said Sink & Milton now contracted,'or hereafter to be contracted for the purpose of carrying om-said, partnership business as aforesaid.” The •'deed-.then: provides, that Mr. Sink was to- retain possession of said real and personal property until'January 1st, 1S61; — he ..paying interest on the first of January, T85’9 and 1860. ".-The law-day of the deed is fixed at January 1 st, 1861, — near three and a half years after its date, and three years after the maturity of the debt secured. There is a provision in the deed, that'if any creditor attempted to subject Mr. Sink’s interest in the mercantile establishment to the payment of bis debts, then Mr. Milton was directed to wind up the mercantile establislunent; and further, if Mr.- Sink failed to pay the inter-
This deed, then, provides for the continued enjoyment, by Mr. Sink of his property for three and a half years, and the continuance of his mercantile business by selling, buying, selling again, and again reinvesting for a like period,, without any noticeable change in his business, or tho manner of conducting it; this, too, .by,an insolvent debtor* dealing with one who had -notice, of his insolvency. We, hold, that the case made by this record is not distinguishable in principle from Ticknor v. Wiswall, 9 Ala. 305 ; Constantine v. Twelves, 29 Ala. 607 ; and Price v. Mazange, 31 Ala. 701. In each of those cases, the deeds were pronounced fraudulent as against creditors and the present transaction must receive the like condemnation.
The charge of the circuit ..court is strictly in accordance ■ with our .views, and the judgment, must be affirmed.