Taylor v. Smith

56 Ky. 536 | Ky. Ct. App. | 1856

Chief Justice Crenshaw

delivered the opinion of the court:

Smith., on the 29th day of August, 1855, instituted this suit against Menzies, &c., upon a promissory note for $2.050; and his attorney, he being absent from the county, made an affidavit, stating, among other things, that Menzies was about “to sell, convey, or otherwise dispose of his property, with the fraudulent intent lo cheat, hinder, or delay his creditors.” An attachment issued, and was levied upon the slaves in controversy.

C. VV. Taylor, the appellant, having petitioned the court for that purpose, was made a defendant to the suit; and he claims the slaves which were attached as his property, under a purchase of them from Menzies before the issual of the attachment The plaintilfinsists that this purchase was fraudulent in law and in (act. The defendant, Taylor, insists that his purchase was fair and bonafide in fact, and valid in law.

In the morning of the day upon which the attachment issued the witnesses, MoBrayer and Oliver, went out from Lawrenceburg to the. dwelling-house of Menzies, some one or two miles distant and when they arrived there. Taylor and others were at a table doing some writing. MoBrayer and Oliver remained but a short time, and returned to town, and reported to the attorney of the plaintiff’, Smith, that some trading was going on at Menzies’. This report induced-the attorney to institute suit immediately, and to issue bis attachment, which was placed in the hands of the. sheriff, who forthwith proceeded to Menzies’; but, when he arrived Taylor had purchased the slaves in controversy, and one other from Menzies, and bad departed with the latter slave. The sheriff attached the slaves in contest — they having been left by Taylor upon the premises.

It is proved that Taylor made the purchase, and paid his money for the slaves; that they were delivered. an.! that he. carried one away with him ; and it being inconvenient to take away, at the same time, those that remained, they were left upon the premises, that Taylor might, the next morning, send a vehicle for them, and take them away, by which time Mrs. Menzies said she would have their clothing ready.

1. A party-purchased several slaves, and paid the price, took one of them away with him, and was to return the next day with a vehicle to remove the other: Held, that thus leaving the slaves with the vendor was not fraudulent. It gave to vendor no delusive credit.

The purchase was absolute and unconditional, and the circuit court being of opinion that the leaving of the slaves in contest upon the premises was inconsistent with the right acquired by the purchase, and constituted the transaction a fraud per se, as to creditors, substantially instructed the jury, which was sworn to try the cause, that if they believed the state of facts above mentioned, as to the slaves remaining still with Menzies, the sale, as to creditors, was fraudulent, in law, and passed no title to Taylor. And, whether the facts authorized this instruction is the first question which wo shall consider.

There is no doubt that, as a general proposition, all absolute sales of personal property, when the possession remains with the grantor, are fraudulent in law. This is a well settled general proposition. But the principal reason of this rule of law is, that such possession gives to the vendor a delusive credit, whereby he may be able to cheat and defraud those who may be ignorant of the transaction. Another reason is, that the possession of the vendor, under such circumstances, is incompatible with the sale, and is a badge of collusion. This rule of law is a safe and reasonable one, but it should not be applied to cases where the reason of it fails, and where indeed its application would be unreasonable. It is true, that in the present case the slaves were permitted to remain on the premises of the vendor, but under circumstances altogether consistent with the sale, and consistent with reason and propriety. No delusive credit was extended in consequence thereof, nor is it probable that, there could have been delusive credit caused thereby. It was inconvenient to take the slaves away immediately, and the purchaser left them merely to procure a suitable conveyance, which he intended to procure on the following morning; and he either sent for them the next morning, or declined to do so in consequence of receiving word that the sheriff had attached and taken them off. The rigorous application of the general rule, as insisted upon by the counsel, would scarcely allow a purchase)' to go to a near neighbors’ house to procure the means of taking awa^ his property on the same day. Various cases might be put, to show the unreasonableness of the application of the general rule in a case like this, but it is deemed unnecessary. The instructions of the court, predicated upon the erroneous idea which we have mentioned, are erroneous, and the judgment will have to he reversed.

2. An affidavit to obtain an attachment should state that affiant be lievea the debt sued for to be just Quere. Could the affidavit be amended after the lew of the attachment?

But during the progress of the trial, and after most of the testimony had been given to the jury, the defendant, Taylor, moved the court to discharge the attachment, and the court overruled the motion. It. is contended, that- even if the attachment improperly ■issued, the motion came too late, and 11 was proper to overrule it. We do not see how a motion of this soi't could well come too late, as the court, even upon final decision, should vacate the attachment if it were improperly issued. We perceive hut one defect, and that is in the affidavit which was made to procure it- The affidavit states that the affiant believes that the plaintiff ought to recover the amount of the note sued on, but fails to state that he believes the demand to be just.. This latter statement, as well as the other, is expressly required by the Code, and it is not for us to dispense with it. The attachment, therefore, ought to have been vacated.

During the progress of the suit the attorney filed an amended affidavit; but, even if were conceded that an affidavit could be amended after the issual and levy of the attachment — which we do not. concede — the amended affidavit is defective in the same respect as the original.

Whether the purchase of the slaves was fraudulent in fact or not, was a question for the jury, and in regard to which we express no opinion one way or the other. What we have said renders it unnecessary to notice the instructions in detail asked by the parties. The administrator oí' Menzies made no defense.

Wherefore, the judgment is reversed, and the cause remanded, that the attachment be vacated and set aside., that the petition be dismissed as to Taj lor, and th.at judgment be rendered upon the note against the representative of Menzies.