36 Ky. 111 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
This-bill was filed by John Laughlin, to enjoin perpetually the enforcement against him of a forthcoming bond, executed by h.im, as the surety of George Snyder; for the delivery of a negro woman and her infant child, taken in execution as the property of Snyder, under a judgment of the Clarke Circuit Court, in favor of Ferguson.
Besides other allegations, which, being denied and not sustained by the slightest proof, need not be stated, the bill alleges, that the negroes were not the property of, Snyder, nor subject to the execution, but that .they belonged to one John Grimes, who had bought' them from, and then hired them to, a certain Samuel Smedley, by whom they were hired to Snyder; that Snyder had them in possession merely on hire when the execution was levied and the delivery bond taken; and that, the term of. hire having expired between the date and maturity of the bond, Grimes had -taken them to his own house in another county, so that they could not be delivered according to the requisitions of the bond; that an execution on the bond had been levied on the complainant’s property; and that Snyder being entirely insolvent, so that he could not be made to refund, &c. the complainant was without remedy at law, and only relievable in equity. -
By an amended bill, Grimes and Smedley are made defendants, and the complainant — alleging that the negroes were taken out of Snyder’s possession, and beyond the jurisdictional limits of the Court, by the combined action of Snyder, Grimes and Smedley, without his knowledge or consent, and when they knew of the
Ferguson, the creditor under whose execution the seizure was made, contends that the negroes were subject to levy and sale for the satisfaction.of his debt.
On the hearing, the injunction was dissolved, and the bill dismissed as to all the defendants: and the complainant appeals to this Court — alleging that the Circuit Court erred, either in not perpetuating the injunction, or in not decreeing in his favor according to the prayer of the amended bill.
If the allegations of the original bill, in relation to the ownership and possession of the negroes and the causes of a non-compliance with the bond, were sustained by' the evidence, there could be no doubt that the surety ought to be relieved from the legal consequences of its breach. And the only question would be, whether he should be relieved by injunction, or by a quashal of the bond in the common law court to which it wds returned. In the cases of Hagan vs. Tobin, 5 Dana, 264, and Sadler vs. Glover, 5 Dana, 551, this Court recognized the power of the Chancellor, under certain circumstances, to relieve the surety against the enforcement of a forthcoming bond. But, in those cases, there was npt only an ability, but a bona fide attempt and offer to comply with the bond, which was frustrated, in the one case, by the evasions of the sheriff, and in the other by his refusal, under a mistaken sense of duty, to receive the property. And as the jurisdiction, as recognized in those cases, should perhaps be considered as properly founded on these peculiar circumstances — we do- not regard them as direct authority for the interposition of a court of equity in the present case, in which, upon the facts
We do not, however, deem it necessary to decide the question of jurisdiction in this case; because, from a consideration of the evidence, we have been brought to the conclusion, that the negroes in question were subject to the execution of Ferguson. There was, there-r i x* jc n i*i u fore, a proper foundation tor the bond; which was obligatory both in law and equity. And the fact that Snyder surrendered the negroes to other partied, who so disposed of them that thev could not be delivered by him or his surety — though it may account for their nondelivery — furnishes no excuse for -it, either to the principal or his surety. It is hot, indeed, contended,'nor could it be with any show of reason; that, if the negroes were liable to the execution, their removal, by the act or consent of Snyder, presents any ground for relieving the surety from the legal consequences of a breach Of the bond/ But it is strenuously maintained in argument, that the negroes were, in good - faith, the property of Grimes, as alleged in the bill, and were not liable to the execution against Snyder. And as this is the'important point in the case, it seems proper to advert with some
Although, when these writings were executed, Smedley had no' pretence of title to the negroes, and his bill
With regard to the matter of fact — it is entirely clear that, notwithstanding the bill of sale, the negroes remained in the actual possession of Snyder, until, after having been removed with his family to the county of Clarke, they were there seized by the sheriff, under Ferguson’s execution, on the 11th day of December, 1834; and having been then left in Snyder’s possession, in consequence of the forth coming bond, they so contmued.until Christmas'(1834,) when Grimes, with the assent of Snyder, removed them to his own house in the county of Bourbon; where he was soon met by Smedley,. who paid him the four hundred dollars, and .had the woman conveyed to.Louisville, and sold for five hundred and eighty seven dollars. The child remained with Grimes, in consequence of sickness, of which it soon after died. Grimes states in his deposition, that in the morning of the day on which the writings were executed,, the negro woman was shown to him, and he was told to take her, but he did not do it. He also states that he.refused to hire her to Snyder, and that, upon the execution of the writings, he directed and expected Smedley to take possession of her, she being immediately on his way home. Smedley says he hired her to Snyder; but that, as she had been mortgaged, and not sold, to Hickman, an immediate change of the possession was not deemed necessary. ■
There was not then even a momentary ,change of the-possession in fact; and the double hiring, by Grimes to Smedley, and by him to Snyder, which as between these
In the same case (page 714,) the doctrine is asserted, and it seems entirely reasonable, that the vendee, having acquired the possession under íiis purchase, must have enjoyed it so as to show that the delivery to him was not merely formal or colorable, before he can safely transfer it to one who was concerned in the contract of sale. In the annunciation of this doctrine, no exception .is made of the case in which the re-transfer of the possession by the vendee to the vendor, may be under a contract of hire. Nor do we perceive any ground, consistent with the objects of the rule, on which to place an exception in the case of a hiring, which would not apply with equal force to the case of a loan and every other bailment, and therefore, to every case in which the vendor retains, or immediately re-acqüires, the possession with the assent of the vendee. • The form in which this assent may be expressed, and the inducement to it, are alike immaterial. The fact that, notwithstanding an absolute deed transferring the title, the visible possession and substantial use of the thing sold remain with the former owner, is, in judgment of law, conclusive evidence of fraud as to creditors and purchasers; and as, under this inexorable judgment, neither the existence of a valuable consideration, nor of an actual intention to sell, can be proved with the effect of redeeming the sale from condemnation for legal fraud (Goldsbury vs. May, and Hundley vs. Webb, ubi supra;) so the fact, that the vendor’s possession is held under a contract of hiring, even if actual payment were secured, since this fact does not change the state of the possession, but only tends to prove the fairness of the original sale, must be
In the present case, however, there was no actual payment of hire, and not even an absolute promise to pay; but the obligation to pay was dependent upon the failure of Smedley to re-purchase the negroes, on terms considered by him as highly advantageous, and which turned out to be*so. And to decide that the hiring, in in this case, was either equivalent to an actual possession on the part of the vendee, or dispensed with it, would, in our opinion, be a virtual abrogation of the rule to which we have adverted.
But it has been settled by repeated decisions of this Court, that the principle which avoids an absolute sale unaccompanied by the possession, as fraudulent per se with respect to creditors and purchasers, applies only to sales by private, voluntary contract, and not to coercive sales made under execution. Greathouse vs. Brown, 5 Mon. 282; Kilby vs. Haggin, 3 J. J. Marshall, 213; Hundley vs. Webb, Ib. 653-4; Breckinridge vs. Anderson, Ib. 713. And it is contended that, as this sale was made in discharge of a debt due by Snyder, for the coercion of which an execution, which bound his right to the property, was actually in the sheriff’s hands, it is to be considered as in the nature of a coercive sale; that, being an effectuation of the object of the law by act of the parties, it is entitled to the same regard as if made by the officer of the law, and that for these and other similar reasons, it should, like an actually coercive sale by the sheriff, be exempt from the application of the principle stated. But whatever analogy may be supposed to exist, in some respects, between this sale and one made by the sheriff under execution, it will be found, upon examination of the cases just cited, that their is no analogy whatever with regard to those circumstances, belonging to a sale under execution, which form the chief ground of excepting it from the general principle.
In the case of Greathouse, &c. vs. Brown, (5 Mon. 282,) the only one of these cited in which the grounds of discrimination between the class of sales to which the
No inference can properly be founded upon this apparently casual use of these terms which are obviously intended — hot to point out any new grounds of distinction — but merely to refer to those which had been previously settled.
The true distinction established by the cases, is between a sale made by the vendor or his individual agent, which, in the absence of physical.coercion, is properly a voluntary as well as a private sale, and one made under a legal madate and by the officer of the law, and which is, therefore, properly a coercive sale. And it is because a sale of the latter class 'is made under command of the law, and not under the mere will of the owner; by the act of the law, through its officer, and not by the individual act of the par.ty or his agent, and with that fairness and publicity which the law requires and expects from its officer, and not merely before such witnesses as the owner may provide — -that the law so far confides in it, as not to pronounce it conclusively void upon the mere fact that the possession remains with the former owner — although this fact may be a badge or evidence of fraud even in a sale under execution.
The sale to Grimes being the private, voluntary act of the vendor — though made for the satisfaction of an
It has not been contended in argument, that the sale to Grimes was not an absolute one. But it may be ProPer to remark, that even if it were conceded that the writing simultaneously executed by him could have the eh"ec^ imposing a condition upon his title, or converting the sale, as between the parties, into a mortgage; even this concession would not aid the sale as against creditors: first — because the condition was not inserted iQ the deed by which the transfer of title was evidenced; Hundley vs. Webb, 3 J. J. Marsh. 649; and, second — because, if it had been, the déed was not recorded; and wood policy dictates, and the law requires, that when the title of personal property is by contract separated Irom Ihe possession, the public, shall be notified of it by an enrollment of the contract. Flowers vs. Sproule, 2 Marsh. 57. But we are of opinion that the writing from Grimes to Smedley, was but a covenant to sell, or, at most, was a conditional sale, and had no effect upon the previous sale to Grimes.
With regard to the mortgage to Hickman: we are of up that it was extinguished, so far as relates to the negroes in question, by the sale and transfer to Grimes, under the circumstances which have been stated. It could not, therefore, either justify the continuance of possession in Snyder, as seems to have been supposed by Smedley; nor — although the mortgage deed was duly recorded — could it protect the negroes from any execution against Snyder. The very object and intent of Hickman’s verbal release, or agreement to release, was to enable Smedley, acting in reality for Snyder, to invest Grimes with the absolute title. This was fully ac-comphshed by the bill of sale to Grimes, upon valuable consideration. And the mortgage title did not in fact subsist as an independent one for a moment afterwards. Nor was there in the transaction itself any ground on which a Court of Equity could or should consider the mortgage either as not extinguished, or as capable of future resuscitation. Smedley’s undertaking to save Hick
The death of the negro child, which occurred before the appointed day of delivery, was of course a sufficient excuse for its non-delivery; and if no other property had been covered by the bond, or if all the rest had been
A decree is, however, claimed against these parties, or some °f them, on account of their “having taken off the negroes from Snyder’s possession;” but the principie on which such a decree could be placed, has not been disclosed in argument. The complainant did not, by ... entering into the forth coming bond as surety, acquire any right or interest in'the property itself. The object of the bond was to authorize Snyder to retain the pos
There might be a case in which the Chancellor would interpose to restrain the removal of the property; but no such interposition was sought in 'this case. There might also be cases of a fraudulent combination of the principal debtor and others, to subiect the surety to loss by a removal of the property, m which, after having been compelled to pay the debt, he would be entitled to
But the bill does not charge any fraudulent combination for the purpose of injuring the complainant. The inference from the original and amended bill, is, that, in taking possession of the negroes, Grimes was asserting, as he and the complainant also believed, his legal right of ownership — the assertion of which, as they supposed, would protect the complainant from loss, instead of subjecting him to it. We are of opinion, therefore, that the complainant has not shown that he is, or will be, entitled to any relief against,Grimes or Snyder; or that he could have had any decree against Smedley, at the hearing; or that there was any ground for retaining the bill as to him, after going into a full hearing without objection.
Wherefore, the decree is affirmed.