King v. Kenan , 38 Ala. 63 ( 1861 )

STONE, J.

The folllowing are among the uncontre- ■■ verted facts in this case: That Mr. Sink was the owner of „ John, the slave in controversy, up to July'7th,. 1857 ; that v on that day he executed a deed of trust to Win. B. Milton, ■■ trustee, conveying--the slave vto him,fin trust to secure .a large debt to Mrs. Maria A. Milton; that the slave remained in the possession of Mr. Sink, in Dallas county, until March ,. 21st, 1859, when, in .part payment of the debt to Mrs. "Milton, Mr. Sink conveyed the slave to her by bill of sale, and the possession,-then went to Mrs. Milton, who still regained him in Dallas-countys -until she sold and delivered him to Mr. Kiug^also of the.oame county; that before the said 21st March,,1859, Frothiegham, Newell & Co. recov- . ered a ) udgment, in said Dallas'county,-against Mr. Sink, .- ■.and sued out an execution upon it, and placed it in .the ,• hands of the- sheriff for collection; that from that time, t. until the slave JJohn was seized by the sheriff of Dallas, ; said execution was regularly renewed from term to term, .and kept in the hands .of said sheriff; and that, up to that ¡«time, the slave.was owned in said county, and was regu- . larly in it at least once a week. On these plain facts,, the • execution in favor of Frotliingham, Newell & Co. operated ; a lien on said slave John, from the time it first went into ,. the sheriff’s hands, unless Mrs. Milton’s title can relate i-back, and rest cm the deed of trust of July, 1857.

[2.] Having premised the foregoing facts, about which t. there seems to have been no contest in the court below, ’We feel bound to declare, that the testimony in this cause, if believed, made the case of a conveyance with intent to -delay, hinder and defraud the creditors of Mr. Sink. The , facts connected with the making of the deed, and its purpose, are shown by the deed itself, and by the testimony .■ of Mr. Sink. The -chief features of the transaction are the Hollowing : Mr. Sink and Mr. Milton formed a mercantile «•copartnership, — Mr. Milton employing, the trust funds, of Mrs. Milton’s separate estate in his bands, .in supplying his share of the capital stock. The funds of the firm were used in paying the individual antecedent' debts of Mr. Sink, by which he-became indebted to the-firm in some nine thousand dollars. To secure this indebtedness, Mr. '■•Sink executed to Mr. Milton, as trustee,"the'deed of trust, ' the chief contents of which will be hereafter stated, for the -■ express purpose of securing ■ said debt of nine thousand dollars to Mrs. Milton, the wife of" ihp''trustee. At the ■ time this deed was executed, Mr. Sink was insolvent, arid Mr. Milton knew it. The debt of nine thousand dollars, secured by the deed, was made payable the first day of January, 1858.

The deed of trtísí conveyed the'family residence and house servants, three in number, belonging- to- the said Sink; also, all the notes and accounts due the firm of Sink & Milton; “and also the'stock of goods now on hand, ■or hereafter to be purchased by the said firm of Sink '& Milton, for the purpose of carrying oh the business in which said-firm is now engaged'; but it is expressly-■ understood and agreed, that the interest in said accounts,’-notes, claims, debts, stock of goods of said firm now on band,' and to be purchased as-aforesaid, and herein transferred and conveyed, is the interest which the pá-rty -of the first part shall have in them, after the payment of all .the partnership debts of said Sink & Milton now contracted,'or hereafter to be contracted for the purpose of carrying om-said, partnership business as aforesaid.” The •'deed-.then: provides, that Mr. Sink was to- retain possession of said real and personal property until'January 1st, 1S61; — he ..paying interest on the first of January, T85’9 and 1860. ".-The law-day of the deed is fixed at January 1 st, 1861, — near three and a half years after its date, and three years after the maturity of the debt secured. There is a provision in the deed, that'if any creditor attempted to subject Mr. Sink’s interest in the mercantile establishment to the payment of bis debts, then Mr. Milton was directed to wind up the mercantile establislunent; and further, if Mr.- Sink failed to pay the inter-est in January, 1859, or January, 18GQ„then the property; was to be sold, and the trust closed., These are all the stipulations of the deed, necessary to- be noted here.

This deed, then, provides for the continued enjoyment, by Mr. Sink of his property for three and a half years, and the continuance of his mercantile business by selling, buying, selling again, and again reinvesting for a like period,, without any noticeable change in his business, or tho manner of conducting it; this, too, .by,an insolvent debtor* dealing with one who had -notice, of his insolvency. We, hold, that the case made by this record is not distinguishable in principle from Ticknor v. Wiswall, 9 Ala. 305 ; Constantine v. Twelves, 29 Ala. 607 ; and Price v. Mazange, 31 Ala. 701. In each of those cases, the deeds were pronounced fraudulent as against creditors and the present transaction must receive the like condemnation.

The charge of the circuit ..court is strictly in accordance ■ with our .views, and the judgment, must be affirmed.