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Peck rs. Land.

a trust per nomen speciosum, is in truth as to all the creditors, a fraud.”

“A gift, made bona fide, is a gift without any trust either express or implied."

In all cases, then, of transfers or assignments, the valuable consideration being proved, and in the case now before the Court no question arises in relation thereto - the chief, the only remaining inquiry is, as to the intent or motives with which they were made.Nunn vs. Wilsmore, 8 Term R. 521. No trust appears on the deeds. It is sought to raise the

presumption of a trust, by alleging that the possession of the land and negroes did not accompany and follow the deeds ; in other words, by the proof that Holmes, the vendor, remained on the land and continued to manage

the

negroes from the 27th March, 1842, (date of deed for the land,) and 31st March, 1842, (date of bill of sale of negroes,) until the levy by plaintiff in execution.

Upon the authority of Edwards & Harben, 2 Term Reps., and other cases, chiefly American following it, it is argued, that possession not accompanying and following the deed, it is fraudulent

per se.

The reasoning of this class of cases is most ably refuted in Hall vs. Tuttle, 8 Wend. R.375. Edwards vs. Harben, is denied in Stewart vs. Lombe, by Dallas, Ch. J., 1 Brod. & Bing. 511, 5 Eng. C. L., explained in Martindale vs. Booth. 3 Barn. f. Adol. 130, 23 Eng. C. L.

The learned note of Mr. Cowen to Bissell vs. Hopkins, reported in 3 Cowen R. 166, must convince any mind, free from prejudice, of the utter valuelessness of a rule to which there are twenty-two excepted cases.

The case of Leonard vs. Baker, 1 M. f. Sel. R. 251; Watkins vs. Birch, 4 Taunt. R. 423; Jezeph vs. Ingram, 8 Taunt. R. 838; Kidd vs. Rawlinson, 2 Bos. &. Pul. R. 59; Dewey vs. Baynton, 6 East R. 257; Reed vs. Blades, 1 Eng. C. L., all recognise the principle, that fraud or no fraud, is a question for the jury. In 10 Reports, 56, it is said by Lord Coke, “that fraud shall not be presumed, nor shall the Court adjudge it to be, until the matter is found by a jury.”

Possession, then, is not a presumption de juris et de jure. It is remarkable, and worthy of note, that the Statute of Elizabeth says not a word about possession.—Lord Mansfield in Cadogan vs. Kennet, 2 Cowp. 432.

If possession continuing in the vendor be a sign of a trust, ac

Peck vs. Land.

cording to Twyne's case, it becomes important to look to the surrounding circumstances, before such an implication be allowed to become conclusive.

Notoriety of transfer is a strong circumstance to rebut that presumption. Latimer vs. Batson 4 B. &. C. 652 and Leonard vs. Baker, 1 M. & Sel. 251; Mair vs. Glennie, 4 M. & Sel., 248 and Ryall vs. Roll, 1 Atkins. If done in an open manner, and not in secret ; publicly and before the neighbours ; if appraised by good people and to the very value. -Ld. Coke's advice in Twyne's Case.

Against these, it is alleged, that other badges of fraud are apparent in this case, which require explanation ;

Ist. The generality of the sale to Peck, lands, negroes, horses, corn, carts, bacon, &c.

2d. The unbroken continuance of possession in Holmes for near three years

from the sale. 3d. That the transfers were made pending the suit of Solomon, original plaintiff in execution.

In answer to the first — It is replied, that the evidence does not authorize the assertion. The bill of sale simply comprehended such chattels as were essential to stock the farm, in plantation phrase. The land having been previously purchased; and at that season of the year, in that latitude, the crop had been planted. To the second The

negroes, &c. were delivered at the time of the sale, as appears by the evidence of Col. Crocker, the Attorney of Peck, who was taken along to advise and direct. Bullard, a neighbour of Holmes, proves the same fact. After the completion of the purchase, Peck said to Holmes, “take care of them until I can make other arrangements." This custody formed no part of the original agreement or contract of sale, and should not therefore be deemed a trust for the benefit of Holmes. Holmes remaining on the land and working the negroes subsequently, is not inconsistent with the deed, as the dominion of Peck was asserted by several acts, viz: the renting of additional land; the payment of blacksmith's bill; shoes for the negroes, and more especially by the overwhelming fact, that the cotton made on the land by the negroes, was marked at the ware-house, by Bullard, in Peck's name, and shipped for him to market.

These facts are absolutely irreconcilable with the existence of a trust for Holmes' benefit- See Benton vs. Thornhill, 7 Taunt., 149.

To the third - It may be replied, that although in Twyne's case, this is enumerated as a sign of trust, it is extremely difficult, in

Peck os. Land.

sound logic, to perceive why that should be considered as a “badge,” when there can be no question as to the right of Holmes to sell, and Peck to buy, at any moment up to the rendition of judgment. A debtor has a distinctly acknowledged right to prefer one creditor to the exclusion of all others. — Comyn. Dig., Title Corin., 285, 3 v.; Holbird vs. Anderson, 5 Term R. 236; Estwick vs. Caillaud, 5 Term R. 420.

This preference may be given even after other creditors hare commenced their actions, unless the debtor be a trader in contemplation of Bankruptcy.- Pickstock vs. Lyster, 3 M. f. Sel. R. 371; Meux vs. Howell, 4 East; Bowen vs. Bramidge, C. & P. 142; Goss vs. Neale, 5 Moore, 29. And though this is done by the assignor expressly with a view to delay and hinder other creditors, fr.

Both principles cannot co-exist, and at the same time, and in the same case, be applied. It savours of absurdity, to say that although it is neither illegal nor immoral for the vendor to sell pending the suit against him, yet because he does a lawful act, it shall be considered as a badge of fraud.

There is error in the charge of the Court, that where a creditor in payment of his antecedent debt, purchases of his debtor a large surplus over of property, it is a badge of fraud. No such sign of fraud is enumerated in Twyne's, or any subsequent English case, upon the Statute of Elizabeth. It is unsupported in this argument by counsel for the defendant in error, by reference to any adjudication, except the case of Smith vs. Henry, in Hill's Law R., S.C.21. It may not be improper to remark, that when we are occupied in tracing Common Law principles we will not look into the reports of South Carolina, with a view to find them in their original purity. Bound as we are by Common Law, as usually of force in this State previous to May 1776, we should look to the English Reports before that date, for the governing rule.

This matter, however, has been settled, after able argument, by this Court, in effect, if not in terms, in the case of Eastman vs. McAlpin, June Term, 1846, at Hawkinsville. If that decision is adhered to now, the Court below in this case erred. The charge complained of, and that decision are irreconcilable. Without such an expression of opinion from the bench below, who can believe that the jury would have made the finding that it did.

It has been argued that the decision of Eastman vs. McAlpin was under the act of 1818. That is not denied, but it may confidently be asserted, that that act is but a re-enactment of principles

Peck os. Land.

settled by the Statute of Elizabeth. Whatever motive led to it, it was but a mere processioning, a re-marking of the lines where the hand of time had laid its obliterating fingers too roughly. In that act was the spirit of the God Terminus, the best of all the Roman Gods, a plain, blunt old fellow, not smooth as chiseled marble or polished ivory; not double-faced, with an eye inwards, and with an eye also outwards, fastened coretously on the domain of a neighbour.

The Court below erred in disallowing the application for a new trial. The jury, without other proof than the possession of the land by Holmes, found it subject to the execution. In doing so, it disobeyed the instruction of the Court, and violated a clear principle of law, that possession of land in the vendor after sale, is no evidence of a fraudulent conveyance. Ryall vs. Rolle, 1 Atkins,

168; 2 Horenden 395. Manual occupation of lands is no criterion • of ownership. Roberts on Fraud. Conrey. 549. Land is enjoyed and possessed by title. Ibid; 4 Kent Com., 461, 456, 489.

In Stone vs. Grubham, 1 Rolle's R. 3, it is said that in conveyances of land, the donor continuing in possession, is not fraudulent unless it be expressly proved that fraud was intended.

The verdict is contrary to evidence, and a new trial should have been granted also on that ground. Here Mr. Harris examined all the facts relied on by counsel for defendant in error, as authorising the presumption of fraud in the sales, and endeavoured to exhibit their entire insufficiency for the purposes

of

any such result, by bringing them to the test of common sense and a sound logic. The circumstances surrounding the sales and continued possession of the land and negroes, with their use by Holmes, were condensed and presented in explanation.

He then insisted, with earnestness, that as there was no conflicting testimony, the jury was bound to have given due weight and consideration to the uncontradicted and unimpeached testimony of Crocker and Bullard ; and that it had not by law a capricious discretion to find as it had, against and without evidence. He thought that the only safe and sound rule which this Court could adopt in disposing of cases of this description, was to order a new trial, if it would have granted one, had it presided below.

The refusal of the Circuit Judge should furnish no impediment or reason for a refusal here, since the entire case, both pleadings and evidence, are here and as fully as they existed below.

C. B. Cole, for the defendant in error.

Peck vs. Land.

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

This writ of error has originated in a Claim case; a mode of trying the rights of property, unknown to the Common Law. Henry Solomon obtained a judgment against Henry Holmes in the Superior Court of Twiggs County, which being assigned over to Nathan Land, was levied on sundry property, real and personal, in the possession of the defendant; and all of which was claimed by Ira Peck. The special jury on the final trial, found the whole subject to the fi. fa., and the Court below overruled a motion for a new trial, and the plaintiff in this writ the claimant in the Circuit Court, complains that Judge Scarborough, before whom this cause was tried, committed error, as well in his charge to the jury, as in refusing the application for a re-hearing. And hence it becomes our duty to examine, first, the charge, to see if it contain any misdirection; and then to look into the facts, in order to ascertain whether or not we will control the discretion exercised by the Circuit Judge, in disallowing a new trial.

The charge is as follows:

“Proof of the execution, the levy under it, and that the defendant was in possession of the property levied on, makes a prima facie case for the plaintiff. Then the onus probandi is devolved on the claimant to support his title. For that purpose claimant introduced a deed to the land, and a bill of sale to the negroes and other personal property levied on, of an anterior date to the judgment, with evidence of the consideration paid."

Judge SCARBOROUGH states the law correctly, and the practice under it, in relation to proceedings under our Claim acts: Namely, that proof of the execution, the levy under it and possession of the property by the defendant, at the date of the judgment, or at any time subsequently, makes out a prima facie case for the plaintiff, so as to put the claimant upon proof of his title. In Georgia, real estate, as well as personal property, is bound by the judgment and liable to be sold under execution. And although mere naked possession is the lowest and most imperfect degree of title to lands and tenements, still it is such an interest therein, as will subject it to levy and sale, unless claimed and proof is made, that the paramount title resides in another. For this mere naked possession may and will, in process of time, unless disturbed, ripen into a title completely legal. I make this remark, because much of the

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