Houston v. . Bogle , 32 N.C. 496 ( 1849 )

The act of 1840, ch. 28, sec. 4, enacts that no gift by one indebted shall be hereafter taken and held to be fraudulent and void in law, property at the time fully sufficient and available for the satisfaction of all of his then creditors being retained by such donor.

A very interesting question upon the construction of this statute was decided in the court below, and was ably argued in this Court. Are the debts for which the donor is bound as surety to be taken into the estimate, in ascertaining the amount of his indebtedness at the time of the gift, and if so, is (503) the property which is owned by the principal to be taken into the estimate in ascertaining whether such donor retained property at the time sufficient and available for the satisfaction of all his then creditors?

We do not feel at liberty now to decide the question, because this case does not come within the operation of that statute. In September, 1826, one George L. Davidson, being indebted to one Graham in an amount exceeding $3,000, made a voluntary conveyance of the slaves for which this action is brought, to his son, William L. Davidson. In 1829 Graham commenced a suit in equity for the recovery of the debt. In January, 1833, by an order in the cause, George L. and William L. Davidson executed a bond for the forthcoming of the said slaves. The cause pended until 1839, when Graham obtained a decree for a large sum. Execution thereupon issued, and the defendant, as sheriff, took the slaves from the possession of William L. Davidson and sold them in May, 1840. In February, 1833, William L. Davidson executed to the plaintiff a deed for the slaves, in trust for the payment of debts. And in September, 1840, this action was commenced for seizing and selling the slaves.

The statute was passed afterwards, and the question is, can it have any effect upon the rights of the parties in this case, or change the law, so far as they are concerned, from what it was at the time their rights vested? According to the reasoning in the opinion in Arnett v. Wanett,28 N.C. 41, by a proper construction of the statute, the word "hereafter" refers to the decisions of the courts and not to gifts, and the Legislature intended to say, not only what the law should thereafter be, but what it had been before. If such was the intention, it is an excess of authority, and it is null and of no effect. The right tomake laws is vested in the "General Assembly." The right todecide what the law is and what it was is vested in the Supreme Court. The assumption of a right by the (504) "legislative power" in December, 1840, to instruct "the supreme judicial power" how the law shall be "taken and held" to have been in 1826 or in May, 1840, is an infringement of the distribution of powers made by our form of government, and a breach of the fundamental principle set forth in the Bill of Rights, sec. 4: "The legislative, executive, and supreme judicial powers ought to be forever separate and distinct from each other." It is settled that the Legislature cannot pass any declaratory law or act declaring what the law was before its passage, so as to give it any binding weight with the courts. A retrospective statute, affecting or changing vested rights, is founded on unconstitutional principles, and consequently void. 1 Kent Com., 455, and the cases cited.

If, as the case was before the act of 1840, Graham, as an existing creditor, had a right to treat the gift of his debtor as void, and to subject the slaves to the payment of his debt; if the defendant, as sheriff, had a right and was bound, in discharge of his duty to seize and sell the slaves; if the purchaser at such sale acquired a valid title, and if the plaintiff and William L. Davidson, under whom he claimed, had no title as against such creditor, sheriff and purchaser; if such was the law, and it was the intention of the act of 1840 to change the law, so as to divest Graham of his rights, to make the defendant liable to this action, to deprive the purchaser of his title, and to give a right of action and the title to the plaintiff, when he had neither before — it was an attempt to violate vested rights, and to take the property of one citizen and give it to another, which this Court feels bound firmly to resist. A legislative act which deprives one person of a right and vests it in another, is not "a law of the land" within the meaning of the Bill of Rights, sec. 12. "No freeman shall be deprived of his life, liberty, or property, but by the law of the land." Hoke v. Henderson,15 N.C. 15. (505)

In Arnett v. Wanett, 28 N.C. 41, the first point was decisive of the case, and it was not necessary to decide whether the case came within the operation of the statute. In treating of it, the opinion is confined to the inquiry as to the construction to be given to the word "hereafter." The power of the Legislature to pass an act affecting vested rights and title to property, by declaring how the law should be "taken and held" to have been before the passage of the act, was not taken into consideration.

As this case does not come within the operation of the act of 1840, the only inquiry is, What was the law at the time the right of the creditor attached and the property was taken and this action commenced? The gift of the debtor to the son was voluntary. The creditor had an existing debt; and it is admitted that when he obtained his decree and sued out execution, the debtor was insolvent, and there was no other property to which the creditor could have recourse for the satisfaction of his debt. The matter was reduced to this: The donee must give up the property, for which he had paid nothing, or the creditor must lose a debt existing at the time of the gift. This is settled by the case of O'Daniel v. Crawford, 15 N.C. 197. That decision has been much discussed. We are entirely satisfied of its correctness, giving due consideration to the supposed expression of the opinion of the Legislature. We believe the reasoning upon which it is founded is conclusive, and it has been cited and approved by repeated adjudications of this Court. Jones v. Young,18 N.C. 352; Arnett v. Wanett, 28 N.C. 41; Smith v.Reavis, 29 N.C. 341. In 2 Kent Com., 442, that learned jurist says: "The very able decision of the Supreme Court of North Carolina in December, 1833, in O'Daniel v. Crawford, stands out firmly opposed to this enervating infirmity. It has established, by argument and authority, resting on the soundest foundation, the rule that no voluntary conveyance of property, (506) even to a child, will be upheld to defeat an existing creditor." By defeat he means to convey the idea that satisfaction cannot be otherwise obtained. We add nothing to the reasoning or the authorities by which the law of that case is supported.

The judge erred in his instruction that the gift was not fraudulent and void as against Graham, though George L. Davidson had no property at the time Graham took out his execution.

PER CURIAM. Judgment reversed, and a venire de novo.

Cited: Phelps v. Chesson, 34 N.C. 200; Black v. Saunders, 46 N.C. 68;Southerland v. Harper, 83 N.C. 203; Clement v. Cozart, 112 N.C. 418;Epps v. Smith, 121 N.C. 162; Wilson v. Jordan, 124 N.C. 709;Greene v. Owen, 125 N.C. 214.