Paulling v. Sturgus , 3 Stew. 95 ( 1830 )

By JUDGE SAFFOLD.

Under the circumstances of the cascas above stated, the legal or equitable result in relation to the title is to be considered. Sotaras any conclusion is warranted from the indigence and consequent inability to purchase, the effect would appear to be the same in reference either to Sturgus the elder or bis sons, that neither had the ostensible means of paying for property of that value. There is no admission by either of the defendants, that the father actually paid the purchase money, or any part of it, nor is there other proof of that fact. Bui it is charged and admitted that the purchase was made on time; how long is not shewn; that this was done in June 1811, at the price of two hundred dollars, besides the remaining instalments duo the United States.

It may bo remarked that William F. Sturgus, though a joint defendant with his father in the execution under which the land was sold, had transferred his interest to his brother before the judgment was obtained. The transfer of his interest, it is true, so recently preceded the judgment, as to justify a suspicion that it may have been made in anticipation of it, and to elude its effect. But this view ofihe case is less material, in as much as it is not charged that the title to the land, or any part it was in William F. Sturgus, but in his father, except that the sons were made the nominal assignees of the certificate, to secure the land for the father, against the claims of his creditors. This fact connected with the evidence tending.to prove that the transfers were made in good faith, and that Pope is a purchaser for a valuable consideration, satisfies the inquiry respecting the title or interest of William F. Sturgus. - It does not appear that cither of the Sturgus’s, independent of Anderson, or Pope, had funds to make the purchase, or if any, how acquired. It seems that the only means they bad of raising money about the time of, and subsequent to the purchase from Kibble, was personal industry; in this respect, the sons, from their youthful vigour, must be presumed to have had the advantage.

That Pope is a bona fide purchaser for a valuable consideration, mustbe assumed as true. It is so averred in answers of all the defendants; and by James B. Sturgus and himself the circumstances are particularly stated, and not disproved. From them it appears thatas early as the first of the year 1813, Pope advanced to James B. Sturgus as much as $250. In the winter of 1814-15, he advanced a further sum of ¡S500, and as early as September 1810, the additional sumofabout $700, which JamesB. Sturgus declared his intention of using for the redemption of the mortgage held by Anderson, and to pay 1he balance due on the land to the United Siates; and that these sums, with a small amount otherwise owing, as stated by James B. Sturgus, constitute the consideration which passed between him and Pope, for the land, and which induced the~ assignment of the certificate to the latter, and procured the-patent in his name.

Thus it appears that at the lime of the sheriff’s sale, when Bonahoo became the purchaser of the land at $150, neither James A. Sturgus nor his son William F., the defendant in the execution, had any title or interest in the land-. As to the effect of the possesion of the land, so long as it was enjoyed by the defendants in the execution, it is to be remarked, that during most oí that time James B Sturgus was also a joint occupant; that James A. Sturgus, who is charged as having been the proprietor, appears never to have been such; nor does Pope claim to have derived title, either mediately or immediately, from him. Therefore, without entering into a strict inquiry whether at the date of Allen'’sjudgmcnt, or of the sale of the land under it, the inchoate title to the land, held only by certificate for part payment to the United States could be transferred by a sale under an execution at law so as to vest even the equitable interest in the purchaser, it is sufficient to say the inchoate title of this land appears not to have been in the defendants in the execution. With respect to the doctrine of constructive fraud arising from the enjoyment of possession by the debtors, it is not conceived that, according to the most rigid rule, it has the same application to real estate. that it has to chattels; the former admits of more certain indicia of title in writing, duly proven, and \yhen complete, to be found of record.. On the contra,r-y thp. possession of personal property implies ownership, anti' when retained by the former owner who is a debtor, affords at least prima facie evidence of fraud, and, as high authority has often held, even fraud per sc. By the rule as settled by this Court, in the case of Hobbs v. Bibb, ^a and Ayres v. Moore, ^b this presumption is subject to explanation by evidence to the salifaction of the Court and jury. Hence, on a view ot all the circumstances of this case, it appears there was no error in the decree of the Circuit Court dismissing the bill at the costs of the complainant, and in this opinion the Court arc unanimous.

Decree affirmed.

a 2Stewart a 2 it. 54.

b Idem 336.