Durham vs. Mayo.

By the Court.-LYON, J., delivering the opinion.

David A. Mayo, as a mason, did some work on the "Isabella Hotel," or Crummey House," as then called, in the city of Albany, and recorded his lien on the house and premises for the same, under the Act of 22d December, 1834. After his lien was recorded, this property was levied on and sold under an execution from the sixth Circuit Court of the United States, for the Southern District of Georgia, and was purchased at that sale by the plaintiff in error, Lindsey H. Durham. Mayo having brought suit on his claim, and obtained judgment under the Act, caused his execution, issued from that judgment, to be levied on the premises covered by his lien, and Durham interposed his claim.

These facts being developed on the trial, the claimant, Durham, asked the Court to charge the jury, "that if claimant bought the property in dispute under a fi. fa. against Crummey, after the lien was recorded, then they should find the property not subject." The Court refused to give the charge, but charged, "that if, at the time of the purchase of said property by the claimant, notice was given by the Marshal that the property was sold subject to the plaintiff's lien, then the jury should find the property subject."

The refusal to charge as directed, and the charge as given, are the grounds of error complained of in this case.

1. By the 6th section of the Act before referred to, (Cobb, 556), it is enacted, that, "Whenever any house and lot, or houses and lands, subject to incumbrances herein created, shall be seized and sold by authority of any process or decree of any court in this State, the same shall pass to the purchaser free from such incumbrance, which incumbrance shall attach to the proceeds in the hands of the officer making it, on a notice, as in cases of claims to money raised under execution, which notice, with the money, shall be returned to the Court by the officer." Under this Act, the sale of the premises, and purchase by Durham, under the execution against Crummey, divested the premises of the lien, and passed the whole title of Crummey, the defendant in the execution, to

Howard et al., vs. Snelling.

the purchaser, Durham; and the lien of Mayo, given by the statute, was transferred from the house and lot to the proceeds of that sale. The house and lot was no longer subject to be seized and sold under the lien, and the Court ought to have given the charge as requested.

2. That the property was sold by the Marshal subject to this lien, and purchased by Durham, with notice of its existence, does not, in the slightest degree, alter the rule. The statute contemplates that the holder of the lien shall take notice of the sale, for it provides that the incumbrance shall attach to the proceeds, instead of the premises, and that the officer, on notice, shall hold up the money, and return the same to the Court.

There is no hardship in this provision of the statute, but it is really beneficial for the holders of these liens. It saves the necessity of reducing their claims to judgment.

That it has proved disastrous to the defendant, Mayo, in this case, is not the fault of the Act, but that of his neglect to give heed to it.

Judgment reversed.

HOWARD et al. vs. SNELLING.

1. The sole subscribing witness to a deed, or other instrument of writing, being dead, proof that the subscription of his name is his genuine handwriting and signature, is sufficient to admit the paper in evidence. 2. A recital in a bill of sale, or other muniment of title, of a pecuniary consideration, paid by the vendee to the vendor, for the property sold, is not evidence against a party claiming under the vendor by a prior conveyance of the same property.

3. In a case arising between a volunteer and a subsequent purchaser for value, without notice, it is not error in the Court to charge the jury that the subsequent sale of the property was a circumstance to be considered by them in determining whether or not the voluntary deed was made with intent to defraud.

4. Nor was it error in the Court, to charge, that that circumstance is not conclusive, but that it may be rebutted by evidence showing that the voluntary conveyance was bona fide.

Howard et al., vs. Snelling.

The cases of Flemming vs. Townsend, Fowler vs. Waldrip, Harper vs. Scott, Clayton vs. Brown, Brown et al. vs. Burke, and Black et al. vs. Thornton, reviewed, shown to be consistent and re-affirmed.

5. 6. 7. A great lapse of time, (say thirty years), between the voluntary conveyance and the subsequent conveyance for value, is a circumstance to be gravely considered as evidence rebutting the presumption of fraud, growing out of the case; and connected with other evidence, showing strong influences operating on the donor's sense of justice and natural affection, to induce the making of the voluntary conveyance, should be considered a rebuttal of the presumption.

Trover, in Stewart Superior Court. Tried before Judge PERKINS, at the October Term, 1860.

This was an action brought by Harman H. Howard and his wife, Mary Howard, Elizabeth Speer, Harman H. Howard, as administrator of Wm. B. Tompkins, deceased, and John Smith, as administrator of John Tompkins and Stephen Tompkins, deceased, against John D. Snelling and James W. Snelling, to recover damages for the alleged conversion, by the defendants, of ten negro slaves, to which the plaintiffs claim title, to-wit: Harriet, and her children, George, Jacob, Daniel, Morgan, Rhoda, Clarissa, Sophia, Maria and Jackson, alleged to be worth, in the aggregate, the sum of ten thousand dollars, and of the aggregate yearly value for hire, of eight hundred and seventy-five dollars.

Pending the action, John Smith, one of the plaintiffs, died, and Obediah R. Lewis, administrator, de bonis non, of John Tompkins and Stephen Tompkins, deceased, was made party plaintiff in his stead. The name of James W. Snelling was stricken from the case as a defendant.

In behalf of the plaintiffs, the following facts were proved on the trial, to-wit:

Samuel Tompkins married a woman in the county of Jefferson, whose name is not given in the record, and found, on said marriage, that she was pregnant, and he immediately carried her back to Jefferson county, from whence he had brought her; afterwards, he married another woman, by the name of Polly Watts. On the ninth day of August, in the year 1809, he executed a deed, of which the following is a copy, to-wit:

Howard et al., vs. Snelling.

"This indenture, made this ninth day of August, in the year of our Lord one thousand eight hundred and nine, between Samuel Tompkins, of the county of Washington, and State of Georgia, of the one part, and Robert Rutherford, of the town of Milledgeville, and Baldwin county, and Franklin Rutherford, of Washington county, both of said State of Georgia, of the other part, witnesseth: That for and in consideration of the trust and confidence reposed in the said Robert Rutherford and Franklin Rutherford, as well as the love, good will and affection which he hath for and towards the children of Polly Watts, otherwise Polly Tompkins, hath given and granted, and doth, by these presents, freely give and grant unto the said Robert Rutherford and Franklin Rutherford, the following negroes, to-wit: Jack, February, Rhody, Stephen and Sarah; to have and to hold the aforesaid five negroes unto the said Robert Rutherford and Franklin Rutherford, upon trust, nevertheless that the said Robert Rutherford and Franklin Rutherford, or either of them, shall, and do well and truly, and without partiality, divide, and equally apportion the before mentioned negroes, together with their increase, at the death of the said Samuel Tompkins, or within nine months thereafter, among all the children that may be born of the said Polly Watts, otherwise Polly Tompkins, at the end of said nine months, whether legitimate or illegitimate; and the said Samuel Tompkins, for the full and more clear disposal of the said five negroes, as well as their increase, doth covenant to and with the said Robert Rutherford and Franklin Rutherford, to and for the use of the said children of the said Polly Watts, otherwise Polly Tompkins, of which children are now in life, John, Betsy, Samuel and Polly, sons and daughters of the said Polly Watts, otherwise Polly Tompkins, shall have, hold, occupy and enjoy: Provided, nevertheless, the said Samuel Tompkins, also, the said Polly Watts, otherwise Polly Tompkins, shall continue to use, employ and receive, all and singular, the services of the said five negroes during the full end and term of the natural life of the said Samuel Tompkins, also, during the life of the said Polly Watts,

Howard et al., vs. Snelling.

otherwise Polly Tompkins, without any manner of trouble from the said Robert Rutherford and Franklin Rutherford, or either of them; and the said Samuel, for the more free and clear disposal of the said five negroes unto the said children of the said Polly, and to their heirs and assigns, doth make and execute this reasonable instrument, or conveyance in writing, with the special reservation to the said Samuel and Polly, as herein expressed. In witness whereof, the said Samuel Tompkins hath hereunto set his hand and affixed his seal, the day and year within written.

"Signed, sealed and delivered in presence of

his

"SAMUEL TOMPKINS, [L. S.]

"WMS. RUTHERFORD.

"JESSE ARMSTRONG, J. P."

mark.

The following endorsement was written on the back of said deed, to-wit:

"I do hereby acknowledge to have delivered the negroes herein mentioned to Robert Rutherford and Franklin Rutherford, with the reservation herein specified, this 9th day of August, 1809.

his

"SAMUEL TOMPKINS,

mark.

"WMS. RUTHERFORD.

"JESSE ARMSTRONG, J. P."

The deed was duly executed and delivered, after which, it was recorded in the office of the Clerk of the Superior Court of Washington county, on the 12th of August, 1809. Samuel Tompkins owned the negroes mentioned in the deed, and had them in possession at the time the same was executed. The negro woman, Harriet, sued for in this case, is a child of the negro woman, Rhody, mentioned in the deed, and the other negroes sued for, are the children of the said Harriet. Samuel Tompkins and Polly Watts, alias Polly Tompkins, had eight children, to-wit: John W., Elizabeth, Samuel, Polly, William, Stephen W., Dolly, and Nancy. John W.