Waller v. . Mills , 14 N.C. 515 ( 1832 )

John Waller, the father of the plaintiff, in November, 1826, conveyed the slaves in dispute to the plaintiff by a bill of sale, reciting a consideration of $260; at that time Waller, the father, owed debts (516) to the amount of $1,700; besides the slaves conveyed to the plaintiff, he then owned land worth $750, and other slaves worth more than $900, and some debts due him, and chattel property of value.

At the date of the bill of sale to the plaintiff, he conveyed a small slave, not one of the two above mentioned, to another daughter, to whom, and to the plaintiff, he also conveyed his land; at the same time he conveyed all the rest of his property to a son-in-law, one Bradham, upon condition that he, Bradham, would pay all his debts. Some time in the year 1827 Bradham, having in his possession judgments and executions, in favor of several different persons against Waller, the father, placed them in the hands of a constable, and directed him to satisfy them out of the property which had belonged to Waller. Under these executions, and another in favor of one Jones, the slave in dispute, together with the one conveyed to the sister of the plaintiff, and also several horses, etc., were advertised for sale. At the sale, but before it commenced, Bradham purchased Jones' judgment and execution, and thus becoming entitled to receive all the money to be raised, he instructed the officer to sell for specie only, and purchased all the property sold at an under value, and took a bill of sale for the slaves conveyed to his sisters-in-law. These slaves were left by Bradham in the custody of the plaintiff and her sister until the month of April, 1828, when they were seized by the defendant, by Bradham's directions, under an execution against the latter.

The defendant offered Bradham as a witness, but he was rejected as incompetent. He then offered to prove, by common reputation, that Waller, the father, who died in 1831, was insolvent at that time, but his Honor rejected the evidence as irrelevant.

The judge charged the jury that although the bill of sale to the defendant might be fraudulent and void as to the creditors of her father, yet that it was valid to pass the title of the slave in dispute to the plaintiff against all other persons; that they should inquire (517) whether the title of the plaintiff was ever divested by a sale legally made, at the instance of a creditor of the father; that as to the sale under the judgments and executions which had been assigned to Bradham, they ought to ascertain whether those executions were for debts of the father, which Bradham was bound to pay; if they were, and that sale was made for the benefit of Bradham, and for the purpose of fraudulently defeating, for his profit, the title of the plaintiff, they ought to find for her.

A verdict was returned for the plaintiff, and the defendant appealed. The case of Bland v. Ansley, 2 Bos. and Pul. New Reps., 331, establishes the incompetency of Bradham upon a clear principle. The slave had been seized by the defendant under a fi. fa. as the goods of the witness, and he is offered to prove property in himself. He has a direct interest in the event, for, if successful, he pays his own judgment debt. And our statute, which makes the defendant in execution liable to the purchaser if the latter be evicted by a paramount claimant, renders the reason for excluding the witness stronger here than it is in England.

It is unnecessary to discuss the questions whether the conveyance to the plaintiff was fraudulent in law, and whether, by consequence, the evidence of the father's insolvency in 1831 ought not to have been received. The judge assumed that the deed was void as against (518) creditors generally; but, admitting it to be so, he held, and we think properly, that it was valid as against Bradham, supposing the debt for which the negro was sold to have been then contracted. At the sale under execution Bradham owned that debt, and if it existed when the deed was made to the plaintiff, he was, by his contract with old Waller, to pay it. For the purposes of this controversy, that debt must be considered as satisfied. Bradham cannot hold the estates conveyed to him and yet go against the residue of the father's property for the very money which constituted the consideration of the conveyance to himself. The only question remaining was one of fact, whether the debt to Jones existed at the time of the contract between Waller and Bradham, and so was one of those to be paid by the latter. That was left to the jury, and found affirmatively. If so found without sufficient evidence, the Superior Court might have granted a new trial. We cannot. But it is said there was no evidence, and therefore the court erred in leaving it to the jury at all. If such were the fact, it would be error in a case where the onus probandi was on the side of the plaintiff. But we cannot take that to be the fact. It is not to be presumed that the judge would go out of the case made, and deal in mere abstract propositions. The record does not contain any objection in the Superior Court on this ground, and it was therefore unnecessary to state the evidence relative to it.

I have no doubt, however, that the debt existed in November, 1826, and think it extremely probable that all the deeds then made to Bradham and the daughters were fraudulent against Jones and Waller's other creditors. It was a family arrangement in the nature of a voluntary settlement of all, or nearly all, the father's property; and this, I say, notwithstanding the price agreed to be paid by Bradham for what was then conveyed to him. If that price were the full value, yet his embarrassments, which plainly appear, show his responsibility to be an inadequate security to the creditors. A debtor cannot substitute for the solid value of his property the colorable provisions of an insolvent's engagement to pay the debts. The presumption is very (519) strong that the object of the sale under execution was to supply this defect, and that in this object all the parties concurred. The debt was in the name of Jones, who had a right to treat the deeds as nullities;specie was demanded to keep off other bidders; Bradham purchased, but, instead of taking the property, left it still with his sisters-in-law. It can hardly be doubted that Bradham and the plaintiff then understood each other, and that the design was, not to deprive her of the negro, but to confirm her title — she trusting to Bradham not to use his legal title to her prejudice. Bradham seems to have kept his faith until April of the next year, and then he and the present defendant commenced that course of conduct which produced the present action. If such was the true state of facts, and Bradham was the owner of Jone's judgment, it is manifest that the last sale was but a continuation of the first fraud, and a court of justice can, in such case, help neither party. The law leaves them where they place themselves. Had the defense been put on that point, and the jury drawn the same inferences of fact from the circumstances which I do, the plaintiff would have been barred, because she participated throughout in each act of fraud. But the jury was not required to make such inferences, nor the court asked to instruct them upon their effect, if drawn. This Court cannot, therefore, act on this part of the case, because we cannot say how it was, or might have been, answered, by evidence from the other side, if it had been relied on. Indeed, the point would not have been adverted to at all in this opinion, except for the wish not to be misunderstood. This construction of the acts of the parties seems to us to be so obvious as to induce the belief that it will be deemed the natural one by all other persons, and if no notice had been taken of it, it might be supposed the Court meant to approve and support such dealings. But the decision steers clear of the point, which is not open to this Court.

PER CURIAM. Judgment affirmed.

Cited: Quinn v. Rippey, 39 N.C. 187.

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