Spencer v. Godwin , 30 Ala. 355 ( 1857 )

WALKER, J.

The conveyance of Wm. C. Yonge, in trust for his wife, vested the title to the slave in controversy in the trustee, for the separate use of Mrs. Yonge, upon the principle laid down in the cases of Andrews v. Andrews, 28 Ala. 438; McWilliams v. Ramsey, 23 Ala. 816; and Williams v. Maull, 20 Ala. 730. This conveyance was voluntary, and, therefore, void as against existing creditors. The conveyance by Yonge and wife to the plaintiff, made under the circumstances stated in the bill of exceptions, was voluntary as to Yonge, and, therefore, void as to his existing creditors. The debt on which the judgment of Parmelee, Rodgers & Co. was founded, was older than either of these conveyances; and neither the one nor the other, nor both of them together, can make a title maintainable against an execution issued on that judgment, in favor of a purchaser with notice.

If the execution of Parmelee, Rodgers & Co. could have been legally levied on the slave in controversy, the sheriff might have constituted the defendant, Godwin, Ids bailee; and the latter could, on the authority of the right derived from the bailment of the sheriff, have successfully resisted an action of trover brought by one who held under a voluntary conveyance from the defendant in execution, subsequent in date to the debt on which the judgment was founded.

The only objection to the levy of the execution is, that a senior execution against the same defendant had, before the issue of the execution under which this suit is defended, been levied on the same property, and, a claim having been interposed, a trial of the right of property was pending at the time of the levy under which the defendants claim. But we do not think that the pendency of the trial of the right of property can render void the levy of a junior execution, as against a vendee of the claimant, to whom the property is conveyed during the proceeding for the trial of the right of property. — McLemore v. Benbow, 19 Ala. 76; Branch Bank at Montgomery v. Broughton, 15 Ala. 127; Babcock v. Griffin & Williams, 9 Ala. 150; Atwood v. Pierson, 9 Ala. 658; Kemp v. Buckey, 7 Ala. 138; Langdon & Co. v. Brumby, 7 Ala. 53; Elves & Owen v. Willborne, 6 Ala. 45.

The purchaser from the claimant, who has replevied the property levied on, cannot take by the purchase pending the trial of the right of property the right which pertains to the claimant, as the law-appointed custodian of the property. ITe can only take by his purchase such title to the property as pertained to the claimant on his title, aside from the pendency of the claim and the execution of the claim bond; and consequently, the property is liable, as to such purchaser, to the junior execution, when the title of the claimant, as contra-distinguished from his mere right to the custody under the claim bond, is subordinate to the right of the plaintiff in execution.

It must be observed, that the terms of the plaintiff’s bill of sale are such that he must be regarded as a purchaser with notice of the liability of the property to the execution levied on it; and it is upon that idea our opin ion is based. Having purchased with notice, the plaintiff has no better title than his vendor had.

The levy of tlio execution not being void, the sheriff might himself defend upon it, and so may his bailee. There being no other objection to the levy, it follows from what we have said, that the court did not err in the charge given to the jury.

The records offered in evidence could have had no effect on the rights of the parties. Aside from the objection that they were the records of suits commenced after the institution of this action, they could have no other effect than to reform the deed of trust, so as to make its express words create a separate estate; while the law already eouceded to it that effect. The deed, being voluntary, was void as to existing creditors; and it was altogether immaterial, so far as concerns the question of the liability of the property to the existing debts of the grantor, whether it created a separate estate or not. If the property was liable to be levied on at the commencement of the suit, that levy could not be converted into a wrongful conversion of the property by the subsequent proceedings in chancery.

The declarations of one of the defendants, offered in evidence by the plaintiff, could not, if admitted, have affected the result of the case. If they had been in evidence, the court would still have been bound to charge the jury as it did. Indeed, they contribute to sustain the defense of the holding under the levy of the execution; except some declarations which conduce to show a conversion after the commencement of the suit, and which would be inadmissible. There was no error, prejudicial to the appellant, in the rejection of those declarations as evidence. It does not appear that the sheriff was a party to this suit; and his declarations, after the commencement of the suit, were not admissible evidence against the defendants.

The judgment of the circuit court is affirmed.

Rice, C. J., not sitting.