Peck vs. Land.

in the possession of the vendor, it is prima facie evidence of fraud. If a man convey his land absolutely, and yet is allowed to continue in possession as its absolute, unqualified owner, this will be a proof that the conveyance is fraudulent. (Newland on Contracts, 372; Stone vs. Grubham, 2 Bulst. R. 226; Hungerford vs. Earle, 2 Vernon R. 261; Styleman vs. Ashdown, 2 Atk. R. 479; Russell and others vs. Hammond and others, 1 Atk. R. 13, 16.) If, says Lord Coke, a man mortgage his land and continues his possession, no disseisin is wrought by this. If it was an absolute conveyance and a continuance in possession afterwards, this shall be adjudged in law to be fraudulent.

In Sands vs. Codwise, 4 Johns. R. 503, the question related to real estate, where it is certainly true, that possession is much less important than it is in relation to personal property, yet the Court of Errors of New York thought it strong evidence of fraud that the grantor continued after the sale to exercise acts of ownership. In the case before us, the sale was made pending an action by the defendants in error, for the collection of their debt. There was no change of possession; and what explanation is offered of this strong evidence of fraud? None other, except that the pur

chaser remarked to the debtor at the time that the deed was executed, “remain here until I can make other arrangements," and at the expiration of several years the vendor is still found in the occupancy and enjoyment of the property. It is not even attempted to be shown that he acted as the agent of Peck, the most plausible account that could have been given of this continued possession. But this would not have availed. The change of possession must be actual and complete, and a divided enjoyment which leaves the vendor to appear to the world as the owner, will not do.

Lord Ellenborough, in the case of Wordall vs. Smith, 1 Camp. R. 332, said, “it was a mere mockery to put in another person to take possession jointly with the former owner, and that a concurrent possession with the assignor by the assignee, was colourable, He declared that the possession must be conclusive to protect the transfer."

With all the facts of this case before me, I will not say with a distinguished jurist in a similar case, that within the two and a half centuries which have elapsed since the Legislature first came to the aid of the Courts for the suppression of fraud against creditors, there never has been a time when this transaction could stand the test of a judicial investigation; yet I will affirm, that the facts

Peck vs. Land.

developed in this case, not only created a presumption of fraud, but warranted the most scrupulous and searching examination.

The Statute of 13th Elizabeth, c. 5, relating to frauds against creditors, directs, that no act whatever done to defraud a creditor or creditors, shall be of any effect against such creditor or creditors. We concur fully with the Circuit Judge, "that the fact that the claimant paid a fair price for the property is not a sufficient explanation of the transaction." The question still occurs, was the conveyance made in good faith? And does not the continued possession, together with the joint, if not the whole, reception of the profits impress the mala mens upon it?

[3.] In the case of Cadogan vs. Kennett, 2 Cowp. R. 432, Lord Mansfield stated, that he had known several cases where persons have given a fair and full price for goods, and where the possession was actually changed, yet being done for the purpose of defeating creditors, the transaction has been held fraudulent and therefore void. It is assisting one man to cheat another, which the law will not allow.

Judge Scarborough charged the jury, "that the circumstance that Mrs. Holmes, the wife of the defendant, sold two or three loads of corn and three bags of cotton during the absence of her husband at the North, ought not to be admitted as proof of fraud against the claimant.”

It will be kept in mind, that Holmes, the original defendant, was not a party to the proceeding below. But the contest was between Peck, the claimant, and the plaintiff in execution. If Peck therefore, having in his pocket the title papers to the land and negroes, stood by and permitted Mrs. Holmes, the wife of the defendant and vendor, to sell the corn and cotton made on the plantation, this is a circumstance going to establish the covinous intention between the parties to this transaction, and that a trust had been reserved for the benefit of the vendor's family. And it would seem that the absence of Holmes had nothing to do with the matter.

Counsel for the plaintiff in error have presented with much confidence, this view of the case. By the Common Law, a debtor was allowed to prefer one set of creditors to another; the Statute of Elizabeth does not militate against this right. And although in the preamble to the act of 1818, the practice of selecting particular creditors to the exclusion of the rest, is denounced as "contrary to the first principles of equity and justice, still the privilege of making this preference is expressly secured by the body of that

Peck vs. Land.

statute, provided the disposition of the insolvent's property be "bona fide and absolute, and free from any trust for the benefit of the seller or any person or persons appointed by him, her or them." And such is the construction put upon this act by this Court. It is demanded then, how can the doing of that be fraudulent which the law authorises to be done? If an insolvent debtor, at any time before judgment, can sell the whole or any part of his property, either to a creditor in satisfaction of his antecedent debt, or to an indifferent person for money or other thing, how can it be deemed a badge of fraud to execute a conveyance under these circumstances?

This inquiry may be answered by propounding another. May not the purchaser of property suffer it to remain in the possession of the seller? Is it either illegal or immoral to do so? And yet the doing so, is not only a cogent badge of fraud, but, unexplained, will condemn the transfer as void. An insolvent debtor may dispose of his goods in secret, to a near relation, still, should he do this, the transaction would be shrouded in a shade so dark, that it would be difficult to extricate and sustain it. Any one of the badges in Twyne's case would singly impeach the assignment of property; nevertheless, the whole of them might unite and many more be superadded and, still the conveyance protected. A man presents his pistol and snaps it within a foot of the head or heart of another. Under this evidence he would be convicted of an assault, with intent to murder. He proves, however, by witnesses, that the pistol was unloaded, and that it was a mere trick to try the other's metal, and he is acquitted. Is there any thing inconsistent in this?

It is contended that the Court below erred in admitting in [4.] evidence the original writ to prove the pending of the suit. We think otherwise. We apprehend that it is the every-day practice of all the Courts to allow the original papers of file in the office to be used in evidence in the same Court. Bills and answers, as well as verdicts and decrees in chancery, while in paper, are constantly offered to prove a particular fact. In this instance, the writ is produced merely for the proof of the res ipsa, namely the pending of the suit.

The special jury having found the property subject to the [5.] execution, an application was made for a new trial, on the following grounds, to wit:

Peck vs. Land.

First. That the jury found contrary to evidence and without evidence.

Second. That the jury found contrary to law.

Third. That they found contrary to the charge of the Court. If it were true, as assumed in this rule, that the verdict was without evidence, there would be no doubt in the case. The judgment below would have to be reversed and a new trial ordered. But by looking into the testimony, we are satisfied that such is not the fact. The rule for our guidance is clearly defined in the books, and is this," that the verdict will not be set aside as contrary to evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a preponderance of evidence against the verdict." 2 Strange R. 12, 38; 7 Taunt. R. 153; M. & Sel. R. 192; 1 Burr R. 11; 10 Johns. R. 101; 1 Cowen R. 77; 2 S. C. Cond. R. 337, 441; 6 Conn. R. 185; 2 Miller, L. R. 12, 21, 449; 2 Str. R 1142; 2 Wend. R. 352; 15 Johns. R. 493; 8 Conn. R. 223; 3 J. J. Marshall R. 421; 7 Wend. R. 270; 5 Mass. R. 353; 3 Call R. 276; 2 Vermont R. 165; 8 Peck R. 182; 1 Ham. (Ohio) R. 357; 1 Hayw. R. 14, 132; 3 McCord R. 276; 1 Cowp. R. 37; 10 East R. 268; 6 Term R. 619.

If it be true that in all cases, facts are the peculiar province of the jury, and that it is for them to say in any given case, whether the proof produced be sufficient or not, much more will the Courts refrain from disturbing the verdict when a question of fraud is submitted to the jury. 1 Hill R. 467.

In conclusion, we will advert briefly to the testimony in reference to two points only, that is, the continued possession of Holmes, the vendor, and the acts of ownership exercised by him subsequent to the sale to Peck.

E. E. Crocker testified as to the sale and formal delivery of the property, that the consideration was $1,700, which Peck held individually on Holmes, $500 or $900 in debts due by Holmes to Wiggins, Reynolds and others, and Peck gave his note for $1,000, the balance of the purchase money at the time of the sale.. Peck told Holmes to take care of the property until he could make other arrangements; none of the property was taken away at that time.

Bullard swore that Holmes continued to live on the plantation after the sale and work the property.

John Hughes stated in his examination, that Holmes hired him (witness) in 1845, to superintend the saving of his fodder, while he

Peck vs. Land.

went to the North. Cherry and Phillis (two of the negroes sold to Peck) were there. Holmes' family resided on the place. Holmes paid witness for said service. Witness let Holmes have ploughs and gear, which he was to return, but never did—he paid witness for them-never saw any one else in possession but Holmes. His wife sold two or three loads of corn, while her husband was absent, and three bags of cotton, made by the children of Holmes and the negroes-saw Peck two or three times in the latter part of 1843. Holmes gathered witness' fodder in 1844, and Bullard paid witness five dollars for Holmes; all the balance Holmes paid in work. Witness repaired the gin house in 1843, and Holmes settled with witness at the rate of one dollar per day.

William Stafford testified, that Holmes ginned his cotton in 1842 and 1843, and witness paid him for it. Aleck packed it and Phillis fed the gin, (these negroes were a part of those sold by Holmes to Peck.) Witness paid Holmes the thirteenth part in money after he sold the cotton.

Charles Whitehead states, that he rented land to Holmes in 1843, and, subsequent to the sale to Peck, Holmes paid witness for the rent, partly in fodder made on the land. The land was cultivated by the negroes sold by Holmes to Peck.

Well might the Court below not think it a discreet exercise of its power to interrupt the finding of the jury against the claimant, upon such evidence.

A majority of this bench would have come to the same conclusion, to wit, that the facts fully warrant the belief, that as to the surplus at least, there was a benefit reserved to the vendor and his family, and the contract being entire, if part of it be tainted with fraud, the whole must fail. It is void altogether.

Were it otherwise, and we believed the verdict against the weight of evidence, still the Judge, who tried the case, being satisfied with it, this Court would decline to set it aside. It must be a very strong case that would induce this Court to order a new trial, when it has been refused by the presiding Judge on the merits.

The verdict then, in our opinion, is not contrary to law, but in conformity with it; and it is only repugnant to so much and such parts of the charge as were against law, and on the side of the claimant ; of course that would not authorise us to intermeddle with it. The motion for the reversal of the judgment below, must therefore be denied.