18 Ala. 625 | Ala. | 1851
1. The cases of Garrett v. Rhea, 9 Ala. 134, and Henderson v. The Branch Bank, 11 ib. 855, are conclusive to show'that the court did not err in permitting the copy of the execution to be read in evidence, without further proof than the return of the sheriff showing that it was a copy.
It is made th'e duty of the sheriff, when he levies on property to which a claim is interposed, if the execution shall have issued from another county, to make out a copy of the execution and return the same with the affidavit and bond, to the Circuit Court of th'e county in which the levy is made, and to return the original to the court from which it issued. — Clay’s Dig. 213, § 63. The copy thus returned by the sheriff becomes one of the papers in the cause and authorises the court to proceed and try the right of property, without other proof that it is a correct copy than the sheriff’s return.
2: The leading facts touching the merits of this case may be thus stated: Robert J. W. Crockett, the defendant in execution, owned the slaves in-controversy, a tract of land, and other personal property. Ih 1842, the sheriff of Montgomery county levied two executions on all his property, both real and personal/ At the sale Dr. Brown bought the slaves, and paid for them two thousand dollars, and received a bill of sale from the sheriff, Goldthwaite bought the land, and Joseph D. Hopper bought most of the other property. Goldthwaite gave Robert J. W. Crockett the privilege of selling the land, allowing him to retain all that he might get for it over the amount that he, Goldthwaite, had given at sheriff’s sale and ten per cent thereon. Under this arrangement, the land was sold to Pinkston, who paid Goldthwaite the amount he gave at sheriff’s sale, and ten per cent thereon, and in addition gave his note to Crockett for $680. In consideration of this purchase by Pinkston, Crockett procured for him a release of his wife’s dower to the land, without which Pinkston would not have made the purchase. Hopper, who bought most of the personal property, except the slaves, sold
If, however, the purchase with the joint funds was not intended to defraud the creditors of the insolvent debtor, then a different rule would apply, and the creditors would have to resort to-a court of equity to separate the interest of their debtor from that of the purchaser, for they could subject the debtor’s interest only to the satisfaction of their demand ; for if the purchaser did not intend to commit a fraud, in producing the confusion of interest in making the purchase and taking the title in his own name, then there is no principle of law that will subject his interest to-the satisfaction of the debts of the creditors of the insolvent debtor.
Let us apply these principles to the second charge given by the court to the jury. The substance of this charge is, that if any part of the purchase money paid to Thomas Brown belonged to R. J. W. Crockett, and Elijah Crockett knew it, then the slaves were liable to the execution. This charge rendered it unnecessary for the jury to consider the intent with which the purchase was made, and assumes as a legal conclusion that the slaves were liable to the execution, if any portion of the purchase money belonged to R. J. W., and this was known to Elijah Crockett, without regard to the intent with which the purchase was made. But we have seen that to render the slaves liable, the purchase having been made by Elijah and the title made to him, it must appear either that the entire purchase money was paid by R. J. W., or if there was a confusion of interest by reason of the purchase being made with the joint funds of both Elijah and R. J. W. Crockett, then it must further appear that the purchase was so made with the intent to defraud the creditors of R. J. W. Crockett. The charge, therefore, rendered it unnecessary for the jury to consider of a material inquiry, to wit, the intention with which the purchase was made.
3. We think it clear that the testimony of Pinkston was admissible. He stated facts and circumstances, from which an inference might be fairly drawn that a portion-of the purchase money paid Dr. Brown was paid by, or belonged to R. J. W. Crockett.
4. The claimant introduced Joseph D.. Hopper, who proved that he purchased at the sheriff’s sale all, or -nearly all of the personal property, except the slaves, and also, that he conveyed a portion of the property so purchased to Elijah Crockett at the request of R. J. W., and without any consideration moving from Elijah to him, but that before he did so, he had sold enough to reimburse himself in the amount of money he paid at sheriff’s sale, less eighty or one hundred dollars. The plaintiff, on the cross examination of Hopper, proved that he had charged R. J. W. Crockett, the defendant in execution, with this sum of eighty or one hundred dollars, and had brought it forward in a settlement he subsequently had with him. t'fo this testimony, brought out on the cross examination, the claimant objected, but his objection was overruled. It is-not necessary to decide whether the testimony objected to would have been admissible, had it been brought forward as independent proof, and not in reply to what had been proved by Hopper on his direct examination. But inasmuch as the claimant himself proved the transfer from Hopper to Elijah Crockett, it is evident that the plaintiff had the right to enquire into all the facts and circumstances connected with the transfer, and consequently there was no error in admitting this portion of the testimony of Hopper.
It is unnecessary to notice the question raised in the argument, respecting the right of Mrs. Crockett to require compensation from her husband for releasing her right to dower in his lands, for the question is not raised by the record. The general rules, however, on this subject will be found in the case of Hoot et al. v. Sorrell et al., 11 Ala. 386.
For the error we have pointed out in the second instructions,, the judgment must be reversed and the cause remanded.