1 Shan. Cas. 132 | Tenn. | 1859
delivered the opinion of the Court:
The complainants, in these various attachment hills and petitions, consolidated, are citizens of New York and Philadelphia, and creditors of defendant Powell, for larg e quantities of drugs and medicines sold to him in the summer of 1858.
The charges are, that Powell and Wells formed a fraudulent scheme to impose upon complainants by getting their goods in the name oí the former, an inexperienced young man, then just twenty-one, under the pretence of setting up a drug store in Nashville for a legitimate retail business, and then breaking and appropriating the proceeds for which they might be able to sell them, to their own use, and entirely avoid the paying for them. That in pursuance of this scheme, after opening most of the drugs, though not all, and selling a few months, the whole stock, in gross was sold out to defendant James, who is charged with complicity in the fraud, and is the uncle of Powell, for a feigned or greatly inadequate consideration, and the possession delivered to him. This was done about the 1st of September, 1858. Soon after that, those bills were filed, and the drugs, &c., then on hand, attached. The whole amount of the purchases in the eastern cities from complainants and others, was about $16,000.
T here is no doubt,' and it is distinctly admitted in the argument, that the intention of Powell from the first was to perpetrate a gross fraud, to the full extent that it is charged. He declines to answer the bill, and disclosed
The extent to which James should be made liable presents more difficulty. The proof is not quite sufficient to implicate him in the original fraud, so as to make him responsible with the other two, for the whole debt. Yet it is manifest that the purchase 'of the drugs from his nephew Powel, was designed to aid him in his dishonest purpose to defraud his eastern creditors. He pretended to pay him in a large tract of land in Mississippi at $15 per acre, worth not more than five, if so much, and $2,000 towards his local and home debts in his own time. Some of them he has paid, and perhaps, assumed others. James, in his answer, states 'the consideration to have been $12,265; paid by 676 acres of land in Mississippi at $15per acre, $10,140 ; cash down $125; and $2,000 to be applied to his local debts. He says his motive for buying was that he discovered Powell was addicted to drinking and gambling, and that the land would be better for his creditors than the drugs, which were in danger of being lost in his hands on account of his want of skill, and reckless habits. It is presumed
The Chancellor ordered an account upon this branch of the case to ascertain the value of the goods that went into his possession under the pretended purchase, and made him accountable for those taken by the attachment, as well as such as he had before sold or disposed of since his purchase. To this last part of the decree objection is made, and the case of Tubb v. Williams, 7 Humph., is relied upon. It is true there is a remark in that case, on page 371, that:
“ The statutes of Elizabeth, and our acts of 1801, enable the creditor to subject the specific property, fraudulently conveyed, while in the hands of the fraudulent decree of*199 vendee, to the satisfaction of his claim, but they do not enable him to claim the proceeds of such property.”
The case is not reported, yet it is in the distinct recollecttion of one of the present members of the court, that soon after that decision now relied upon, was fully considered and reversed, or regarded as a dictum. It never could have been the law. If it were so, a fraudulent douse or vendee could always avoid responsibility by an immediate sale of the property; with the proceeds in his pocket. Could it be possible that James, by a sale of the drugs on the next day after his fraudulent purchase, with the notes of his vendor in his possession for $12,000, would be protected against the honest creditors of Powell ?
That part of the decree, then, by which James is required to account to complainants for the portion of ■ the goods disposed of by him, or his agents, previous to the is guanee of the attachments is clearly correct. In taking the account on this branch of the case, the amount the goods were estimated to be worth by the parties at the time of the sale, will be taken as prima facie correct as against James. That is he will be held accountable for the $12, 00@ worth of goods, except so far as he has delivered them over under the decree, unless he ean show that there was a mistake as to their quantity and value, or some other legal cause to be exhonerated.
But in this part of the decree there is an error in favor of defendant James. He is to be allowed a credit for whatever he may have paid for said Powell since his purchase, and before the levy of these attachments. We do not understand thi3 to be the rule in eases where a sale is set aside, as in this case for actual or positive fraud. If that were so it would be entirely unavailing to creditor to set
It is said in argument that in this case tbe decree of tbe Vice Chancellor allowing tbe fraudulent vendee to be discharged to tbe extent of any payments to tbe bona fide debts of bis vendor was affirmed. It will be found upon examination of tbe final decree, that such is not tbe case, but that part is omitted and a credit allowed only for permanent improvements and taxes paid out.
In Boyd v. Dunlap, 1 John. ch. 482, tbe same doctrine is restated thus: “ A deed, fraudulent in fact, is absolutely void, and is not permitted to stand as security for any purpose of reimbursement or indemnity; but it is otherwise with a deed obtained under suspicious or inequitable circumstance, or which is only constructively fraudulent.” He cites tbe case of Sands, and other cases, to sustain tbe position. We are referred to tbe cases of Ames v. Blunt, 5, p 22; Grover v. Wakeman, 11 Wendall 186, and our own case of Peacock v. Tompkins, Meigs Rep. 330, in support of tbe rule, that indemnity will be allowed to tbe fraudulent vendee for payments actually made to tbe creditors of tbe vendor. Those are all cases of assignment for tbe benefit of creditors, and^where tbe fraud was held to be constructive, and not actual. But independent of that,' and though tbe distinction seems to have been disregarded in some of tbe cases, we are not prepared to admit that tbe same rule would apply to absolute sales which are found to be void for fraud. In cases of assignment in trust for tbe benefit of creditors, we have followed tbe case of Peacock v. Tompkins, and have also recognized tbe doctrine of Boyd v. Dunlap, as laying down tbe proper rules on this subject. (
But it is by no means certain that in any case where a sale and purchase is set aside in favor of the creditors, because it was made to hinder and delay or entirely defeat them in the collection of their debts, that any'claim for money advanced to, or for .the vendor can be reimbursed. If this were so, the remedy would be of no avail to eredi-
The decree of the Chancellor is also right in setting aside for the benefit of complainants the deeds of conveyance from Powell to James for his interest in remainder in the estate of his father, after the death of his grandmother-The sale was made for the price of $4,000, on a credit
With the modification suggested in this opinion, the decree will be affirmed, and the cases remanded for further proceedings. The costs will be paid by defendants.
Decree affirmed.
Prauduleut conveyance, or sale or gift absolutely void as against creditors. Code 1759; taken from Act 1715, oh. 38, sec 8, and Act of 1801, eh. 25, sec 2, first clause.
A vendor, whose goods have been obtained by fraud, may pursue them into the hands of all who purchase them with knowledge of tho fraud. Arendale v. Morgan, 5 Sneed, 703, 712.
(2) No idemnity in a case of actual fraud. Alley v. Connell, 3 Head, 578, 582; Brooks v. Canghran, 3 Head, 464’ 467. A party guilty of fraud is not entitled to be relieved against the consequences of bis fraud. Moody v. Fry, 3 Humph. 567; Sharp v. Caldwell, 7 Humph. 415; Mulloy v. Young, 10 Humph. 298; Parks v. McKarny, 3 Head, 297; Taylor v. Harwell, 5 Humph. 331; Nichols v. Cabe, 3 Head, 92.
No recovery against innocentpurchaser without notice of the fraud. Arendale v. Morgan, 6 Sneed, 703, 710, 717; Coleman v. Satterfield, 2 Head, 259, 265; Williams v. Lowe, 4 Humph. 62, 63; Read v. Slaton, 3 Hayw. 159, 163; Story Eq. § 409 et seq.
But where the goods were obtained by a felony, no number of sales will divest the original owner of his property. Arendale v. Morgan, 5 Sneed, 703, 712; Parham v. Riley, A Cold. 5, 9, 10.