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MEWS & PLANTERS’ GAZETTE.
I*. U. COTTIUCJ, Editor.
v No. 46.— NEW SERIES.]
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LEGAL DECISION.
hi Oglethorpe Superior Court, >
April Term, 1840. $
Benjamin F. Hardeman, and
Abram S. Hill, Ex’rs. of
Robert Gillespie, deceased,
vs.
Wilie Pope, defendant in ft. fa.,
and
Wilie Hill, Claimant.
Fi. fa. in Oglethorpe Superior Court—
claim and verdict on appeal for Plaintiff’s
in ft. fa., and motion by Claimant, for a
new trial.
Ist. Because the verdict is contrary to
Law.
2ndly. Because the verdict is contrary to
Evidence.
3rdly. Because the verdict is contrary to
the charge of the Court.
This was a claim for Negroes. The ev
idence disclosed that the Sheriff levied on
them in possession of the Defendant; that
they were sold by defendant to claimant
for a full and fair consideration, before the
rendition of the judgement of Plaintiffs, for
the satisfaction of which the levy was made,
and that they were never removed from de
fendants possession, but left with him on
hire, where they were found when the levy
was made.
At the trial, on the appeal, the plaintiff’s
counsel contended that though the sale was
bona fide, and for a full and fair considera
tion ; and. without any intent to deceive
anthdefraud the creditors of defendant, that
. yet, inasmuch as the defendant continued
s possession, after such sale, it was frau
dulent, per se, by virtue of the Stat. of 13th
of Elizabeth, and therefore void.
The court was with the plaintiff’s coun
sel, so far; and so charged the Jury. But
as the negroes were loft with defendant, on
hire, such possession was held with much
doubt and hesitation by the court, to he
the possession of the claimant, and within
one of the many exceptions made to the a
bovc rule.
The above motion was made; and in
support of which, it was argued, that, by
tiie opinion of the court, the finding should
have been for tire claimant; as it clearly j
. appeared that there was, in fact, no proof of
actual fraud; or any intent to deceive and
defraud creditors or others. The only dif
ficulty which the court had, in granting the
rule nisi, was, that though it was of opinion
there was no fraud, or intent to deceive and
defraud proven, there were what are con
sidered, badges of fraud, to-wit: the rela
tionship of the parties, and possession by
defendant, contrary to the deed. And the
jury having found a verdict on such evi
dence, (if evidence it can he considered,) it j
should not now be disturbed by the court.
Intervening the taking of the rule nisi,
and the argument on the motion to make it
absolute, (at Wilkes Superior Court, July
Term, 1840,) the main question, agitated in
the above cause, came up, and the court
there very decidedly held, that a sale fora
full, fair and valuable consideration, with
out fraud, and without any intent to deceive
or defraud any one, was not fraudulent and
void, merely because the possession did not
accompany and follow the deed. On the
argument of the rule absolute, it was fur
ther contended, by claimants counsel,
that as the court had overruled its opinion,
<Tiven in the case at bar, it was a reason for
£3
making it absolute. The answer given to
this argument, of claimant’s counsel, was,
that it was the overruling of an immaterial
portion of the opinion ; that according to
opinion given at tho trial, it was not |
important, (if material to that case,) wheth
er the possession was, per se, held to be
fraudulent; as the court was of opinion that
the case could not be controlled by the 13th
of Eliz.; that case being an exception to
those before ruled fraudulent, by virtue of
tho Statute, should have received the same
decision, let the construction of the cases
under tho statute have been what they
[might; and that the claimant would not
’have a right to anew trial on the ground
that a decision in his favor was made on one
ind instead of another ; that a decision
favor, (whether satisfactory or not,)
could be no ground for anew trial : let the !
reasons by which it was arrived at, he what!
they might. How far this answer shall
influence the opinion to he given, on this
motion, will be seen hereafter.
I will now take up the grounds of the
motion in the order in which they appear
in the rule :
And first, Because the verdict is contra
ry to law.
j The first question, oflaw, that presents
j itself in this case is, whether a sale, bona
fide, and made for a full, fair and valuable
consideration ; without any fraud or decep
tion, practiced on any one ; and without a
ny intent to deceive or defraud any credi
tor of defendant or any other person, shall
yet he declared fraudulent and void, sim
ply because the possession of the negroes
I did not accompany and follow the deed :
I Because they were not at the time of sale
taken out of the possession of Pope, the ven
der, and transferred to the possession of
; Hill, the vendee and claimant.
The opinion of the court, upon this point,
was given, orally, in the case alluded to, in
Wilkes, (Guise, def’t. and Harris claim
ant.) and I am glad to have an occasion to
review that opinion, and put it in writing.
No question of greater consequence to the j
country, and to the security of property, !
can arise.
I am required, by plaintiff’s counsel, to
say that though the claimant has fairly
bought his property, without defrauding or
deceiving any one ; or without the remotest
intent of so doing ; that yet, his purchase is
fraudulent and void. This, though a cor
rect statement of the proposition, appears to
he too great a solecism to need refutation.
The first reason given, why the sale should
he declared fraudulent and void is, that it
has been made so by the Stat. of 13th Eliz.
and 2ndly, if that statute is doubtful in its
meaning, the courts of England, before the
adoption of the common and statute law of
that country, by our State, had fixed the in
terpretation. in favor of plaintiff so uni
formly and strong., that our courts must re
ceive such interpretation, as the law of this
land. As for the first of these reasons, it
seems to mo, that the reading of that portion
lof the Stat. of Elizabeth relied on, is all
that is necessary, to shew that it does not
admit of the construction contended for by
plaintiffs.
The first section of the 13th Eliz. is de
clared to he “ for the avoiding ami abolish
ing of feigned, covinous and fraudulent fe
offments, gifts, grants,” Ac., as well of
lands and tenements as of goods and chat
tels,” Ac. “ whichfeopments. gifts, grants”
Ac. it is further declared “ have been and
are devised and contrived of malice, fraud,
I conin, collusion or guile, to the end, pur
pose and intent, to delay, hinder, or defraud
creditors and others of their just and lawful
cations, suits, debts,” Ac.
The second section then enacts that all
and every feoffment, gift, grant, alienation, j
bargain,” &c. thereafter, “to he had or j
made, to or for any intent or purpose before
declared and expressed,” shall he from
thenceforth deemed and taken to be clearly
and utterly void, Ac. The statute, itspems
to me, is not only too plain for criticism,
! but for doubt even. It makes fraudulent con
veyances, and those which are devised of
fraud, Ac. void; A nothing more. And this
plain interpretation is agreeable to the spir
it of the common law. It is for those who
contend that it makes, not only fraudulent
and covinous conveyances, void ; but also
those that are honest and free from fraud
and covin, and free from any such intent,
also void; to shew from what portion of the
statute such construction is derived. Os
the hundred decisions, upon this subject, 1
have never yet met with one where the ju
rist has undertaken this task. It has often
been asserted, in the face of its plain lan-
guage, that such was u fair construction of
the statute, when the possession did not ac
company and follow the deed ; but none
have pointed to tho section or clause that,
in tho remotest, authorized such disting,
tiou.
To my mind, it is perfectly clear, diat
this statute makes no sale, that is perfectly
honest and free from all fraud ; and all in
tent to deceive and defraud, fraudulent and
void.
But, says tho seednd reason of plaintiff’s
counsel, this interpretation was so fixed by
judicial construction, before our State adop
ted the English statute and common law,
that it cannot now be overruled without
great injury to society ; that the construc
tion has become a part of tho statute, and
if overruled at this late day, there can be
no reliance on judicial decisions ; aud that
men’s rights, acquired under such construc
! tion. will be sacrificed to modern innova-
WASIIINGTON, (WILKES COUNTY, GA.,) JULY 8->, BSlfl.
I lion. The court is duly impressed with
the ibrcc and correctness of this course of
reasoning, but denies, that at the time of the
incorporation (by the State of Georgia) of
the Statute of Eliz.; such construction, if
given at all, was so uniform and well es
tablished, that it should he adhered to, not
withstanding the violence done to its plain
meaning; and notwithstanding the evils
that would follow such interpretation. 1
have expressed a doubt, whether, before we
adopted tho statute, such construction had
been given it, by the courts of England, as
that contended for by plaintiff’s counsel. —
If there had, it is not properly authentica
ted ; and I believe none sucli had been ju- j
dicially pronounced. If this he so, the
question is relieved of its principal diffi
culty.
I believe it is universally agreed, with !
Chancellor Kent, that “ Tviyne's case, !
which arose in the Star Chamber in the 44th
Eliz. is the basis of the decisions on the
question of fraud arising from possession
being retained by the vender.” 2d Kent, 515.
Let it be noticed, before we review this
case, that it was in the Star Chamber, on an
information by Coke, the Attorney-General,
against Twyne, for making and publishing
a fraudulent gift of goods ; for it will be re
| collected that by the 3d section of the Stat.
j of 13tli of Eliz., such is a crime punished
by forfeiture of the goods and imprisonment
of the offender. Before such a court, dur
ing such a reign, and on an information for
such an object, we could expect nothing
else than the most rigid construction of the
Statute, in favor of the crown. And again,
the judgement in that case may have been i
given (agreeably to tho facts stated) upon a j
ground different from the one now under j
consideration. Pierce was indebted to Tw- j
yne £4OO. and to C. in J 6300. C. brought
his action against Pierce, and during its
pendency he (Pierce) sold the goods in
question to Twyne, and continued in pos
session ; and when C’s. f.fa. was levied
on the goods, divers persons, by the com
mand of Twyne, did with force resist the
Sheriff, claiming the goods for Twyne, by
virtue of the gift. And divers points were,
by the court, resolved. Ist. That the gift
had the signs and marks of fraud. Among
the six signs given, by the court, the 2d is,
that the donor continued in possession, and
used them as his own, and by reason there
of he traded and traffiicked with others, and
defrauded and deceived them.”
Here then, was actual fraud and decep
tion proven, and sufficient to authorize the
judgement of tiie court, which was in the
following words : “ And by the judgement
of the whole court, Twyne was convicted
of fraud, and he and all the others of riot.”
In Ist Atk. 108. Ilyall v. Rolle, decided in
1749, Justice Burnett in giving his opinion,
says, “ Twyne’s case, 3 Cos. 80, is a lead
ing case upon fraud on this act, 13th Eliz.
| the transaction there was held fraudulent,
; though upon good consideration, for that it
was not bona fde, because tiie vender was
left in possession and traded upon the credit
of the goods sold.”
If Pope, while the goods were in his pos- j
session, had, after the sale, traded and traf- I
sicked with others, had obtained credit on j
the faith of them, from others, and had
thereby defrauded and deceived them, the
case would have been parallel with 1 wy
ne’s; and there would have been no diffi
culty, if the question had been presented in
the shape that it was in that case, in giving
the judgement there given. But I am re
quired to say, that though no one was de
ceived or defrauded by retention of posses
sion, contrary to the deed ; and though the .
intention of Hill and Pope was, that none
should he so deceived and defrauded, jet
the transaction was fraudulent and void.
Thc only other portion of this case relied j
on to support the doctrine, contended for by .
plaintiffs, is that wherein the sth sign of j
fraud is given, which is as follows :
“ sth. Here was a trust between the par
ties, for the donor possessed all, and used
them as his proper goods, and fraud is al
ways apparelled aud clad witli a trust, and
a trust is the cover of fraud. ’
We will suppose the judgement of the
court was given upon this statement; yet it
does not support the ground that such pos
session necessarily imports a trust for tho
vender. If the words last quoted should
be thought equivocal, what precedes and
follows, shows that nothing more is meant
than, that possession, by the vender, with a
trust, will make the conveyance fraudulent
and void.
The reporter say-, in this case divers
points were resolved : “ Ist. That this gift
had the signs and marks ot fraud, and
then proceeds to state them (six in number)
PUBLISHED EVERY THURSDAY MORNING
and two of winch, and all, necessary to this j
investigation, I have above quoted. Let it
ho observed that they are given as “signs
and marks of fraud,” and not called frauds j
j of themselves, as contended for by plaintiff, j
And that there may be the less misappre
hension on this point, the reporter, after hav- J
ing stated what was resolved by the court, j
proceeds to advise the reader what lie j
j should do when a gift is made him in satis- J
t fiction ofa debt, says, among other things, |
“ 3d. presently after the gift, take the pos- \
session of them (the goods) for continuance j
of the possession in the donor, is a sign of j
I trust.” If he had understood the doctrine
j ruled in that case to be that such possession
would he fraudulent, at all events, would ho
I not have so stated ? Why say that it was
j only a sign of fraud when it was ruled to be
! more— a fraud of itself ?
It may he said that it was resolved that
such possession necessarily implies a trust,
for the vendor; whatever doubt there max’
he, on that point, from the manner in which
the sth sign of fraud, and the 2nd resolve,
are stated, is dissipated by the distances
given to illustrate the proposition, thus care
lessly laid down. In giving the arguments
to support the resolution of the court, it is
held, that the sale must not only he on good
consideration, but bona fide, and that it can
not be bona fide when there is a trust for
the vendor, and then, in illustration, this in
stance is given : “ As if a man be indebted
to five several persons, in the several sums
of £2O. and make a gift of ail his goods to
one of them in satisfaction of his debt, but j
there is a trust between them, that the do- j
| nee shall deal favorably with him in rc-
I gard of his poor estate, either to permit the
I donor, or some other for him, or for his
j benefit, to use or have possession of them,
and is contented that he shall pay his debt
when lie is able ; this shall not he called
bona fide,” Ac.
So of the several cases, afterwards cited, 1
by the reporter ; notone of which is the
least authority for the position, that posses- 1
sion, by vender is necessarily a fraud, or
that it necessarily implies a trust. The j
meaning of the whole case is, that such pos- j
session was a sign and mark of fraud : or, in j
other words, was a presumption of a trust,
for tho benefit of the vendor ; which, togeth
er with the other signs, mentioned, and the
fact that the vendor had, afterwards, by
means of such possession, been able to trade
and trafiick with others, and had defrauded
and deceived them, constituted a fraud un
der the 3d sec. of the act. It seems to me,
therefore, that those, who cite this case as
] authority for the misinterpretation of the
13th Eliz. do it nearly as much injustice as
has been done the statute. The whole rea
soning of the case, and the authorities cited,
plainly shows that the judgement was on
the ground, that the court believed, there
was actual fraud. First, because of the
trafficking and trading, with others, on the
faith of the possession of the goods, by
Pierce : and 2ndly. because there was a
secret trust or benefit designed and intend
j ed to he conferred on Pierce in the trade.
; There is no necessity, from the nature of;
I things, that possession by tiie vender should i
| imply a trust, any more than possession by !
any other person, of goods to which he lias j
no title, implies it. The presumption or j
“ sign and mark” of its existence, may be j
stronger in the former case ; hut, from ne
cessity, it is no more implied in the one j
case than tho other.
Having disposed of the Stat. oi the 13th
of Eliz. and Twyne’s case, I shall take up j
the other cases, cited as authority, for this j
doctrine, or this interpretation of thfe Stat.
as having been adjudged, prior to our adop
tion of the English Shat. and Common Law.
And I knovy of no fairer way of doing this,
than noticing them in the order in which
i they are given, by Justice Buller, in his o-
I pinion, given in the case of Edwards vs.
! Harbin, which is the only Case, having an
undeniable claim, to tho distinction of being
the leadingcase on this subject.
The first authority noticed, by this emi
: neat Judge, is a case in Bulstrode, which is
1 taken for authority, that the possession
must accompany and follow the deed. 1
have not this old Reporter, but am fortun
ate in being able, front other sources, to
discover what was the point there decided.
It was the case of Stone vs. Grubham. ‘-2
Bulst. Rep. -225, which Chancellor Kent,
2 Com. 516, says, arose “upon a bill of
sale of chattels, being a lease lor years, the
vender continued in possession ; but as the
j conveyance was only conditional upon pav
i ment of money, it was held, that the pos
! session did not avoid the sale, as by the
i terms of the deed tho vendee was not to have
1 possession until he had performed the con-
jdition.” Now, according to this report,.
which I take to be true, tho question did not
j arise, and need not have been adjudicated,
. whether an absolute hill of sale, without pos
session, would have been void. It only de
cided that a conditional sale was good,
though possession did not accompany and
follow the deed ; which is not the case he- ;
fore us ; neither was it in the case before
Justice Duller.
Chancellor Kent's report of the case in |
Bulstrode, is supposed by the notice taken
of it in Ryall vs. Rolle. 1 Atk. 168. Jus- j
tice Burnett in giving his opinion, in this j
latter case, and speaking of the report in !
Bulst. says, it was “ resolved, that the !
granter’s possession of the land was not I
fraudulent.”
The next case, mentioned by the court,
in Edwards vs. Harbin, is that of Bucknal v.
Royston ; and, in the way it is there re
ported, it should never have been taken as
an authority for the perse doctrine, as 1
shall for brevity’s sake, call it; for it is j
there admitted that the Chancellor decided
that the deed was good, because the posses- |
sion was consistent with it; as there was an j
agreement that the vender should keep the I
goods for a purpose mentioned in the deed, j
2T. R. 596. And if the Chancellor had !
proceeded on the distinction, as stated by
Justice Duller, that lie did in giving his o
pinion, that “ lie supported the deed, be
cause the want of possession was consistent !
with it,” yet it is far from a Judicial opiu- j
ion that lie would have held it void, if the j
possession had not accompanied and follow- j
ed it. Any opinion of that sort was untie- j
cessary to decide the case, and was there
fore extra judicial. Admitting that Justice j
Duller is right as to the ground ort which it |
turned, so far there is the same objection to j
the case of Bucknal vs. Royston, that is ;
before noticed to the one in Bulstrode, to- j
wit : that it is an authority, at most, for the j
per se doctrine, only by inference. But there j
is a farther one, equally substantial : It is j
that “ the Chancellor did not proceed on |
the distinction” supposed by Justice Bui-!
j lor, to-wit, that “he supported the deed,
j because the want of possession was consist- j
| cut with it;” hut because “ Brewer’s (the j
vender’s) keeping possession of them (the
goods) was not to give a false credit to him |
as ill other cases which had been cited ” in the j
case of Bucknal vs. Royston. Though the j
above extract is found in Justice Buffer's j
opinion (2 T. R. 596.) yet he did not fur
ther notice it, though it was the true ground ,
of the opinion of the Chancellor, as is ex
pressly stated by Justice Burnett, in his o- j
pinion, given in the case of Ryall vs. Rolle. j
1 Atk. 168-9. Speaking of Bucknal vs.
Royston, (Pr. in ch. 285,) Justice Burnett
says, “there a supercargo having ship
ped goods ofhis own, borrowed money at 40
per cent, and made a biff of sale of the
goods to the plaintiff; the goods were car
ried and sold abroad ; and upon a ques
tion betwixt the particular vendee of these
goods, and a judgement creditor of the ven
ders, Lord Cowper decreed in favor of the
vendee ; iie took no distinction betwixt con
ditional and absolute sales, hut founded his
; determination upon the fairness of the traus
i actions ; his words are “ that here was no
possession calculated to acquire a false cre
’ dit,” which is a plain declaration (contin
ues Justice Burnett,) that a possession so
j calculated as to acquire a false credit,
■ would have made the transaction void.—
There is a further saying in the report,
i that it is true, in case of a bankrupt; such
j keeping its possession after a sale, will
! make the sale void.” “ This must mean
(continues Justice Burnett,) such possession
as would give a false credit, and all that is
laid down there is, that a possession to ac- j
quire a false credit, would make such a |
transaction void, otherwise not.”
This long extract from the opinion of j
Justice Burnett, proves that he is very par
ticular in reporting accurately what was j
decided in Bucknell vs. Royston ; for he j
gives an extract, in quotation marks, from j
the opinion of Lord Covvper, and therefore j
the report must have been before him ; that j
he took great pains to shew what was the j
true point decided, and that it was if the j
“possession was to acquire false credits, j
the sale would be void, “otherwise not, i
and not whether such possession should, or ‘
not, accompany the deed.
The case of Ryal vs. Rolle, was in 1 1 49,
and after reviewing other cases besides
Rucknal vs. Royston, the Judge draws the
conclusion that “ from all these cases it
appears, that upon the construction of the
Statute of the 13th Eliz. there is no room ■;
to make a distinction betwixt conditional 1
and absolute sales of goods, if made to de
< fraud creditors : but a court or jury are left
!l. .. k.IPPEL, Printer.
j to consider of this from the circumstances
:of the case.”
Justice Buffer seems (of course with
great deference,) to have been misled in
supposing the case was decided on the
ground (and which would have been tena
ble) that the deed was conditional, and then
j has taken it tor granted that if it had been
absolute, the judgement of the court would
have been different. Whereas, if Justice
Burnett is to be believed, (and 1 think no
| one can doubt his report.) the case turned
j on no such distinction, hut on one fatal to
1 the “per sc doctrine.”
And here let it not he forgotten, that Jus
| tice Burnett makes the above explicit Uec
’ laration, after reviewing all tile cases reli
-1 ° .
ed on by Justice Buffer, in Edwards vs.
11 a rhi n, besides several others ; and shortly
before we adopted the English Common and
Statute Law.
The next authority relied on by tiie court
i in the case of Edwards vs. Harbin, (if au
, thority it can be called,) is, the declarations
j of Sir E. Nortliey, who stated in argument
| as counsel, l suppose, that it had been ru
; led forty times in his experience at Guild
! hall, that if a man sell goods, and stiff eon
i tinues in possession as visible owner of
them, such sale is fraudulent and void as
to creditors, and the law had always been
so held. And though it was said by Jus
tice Buffer, that ho had cited a case to that
’ effect, yet neither that nor one of the forty
i are to he found reported.
Now, after discovering how Justice Bul-
I ler lias misapprehended the effect and pur
port of the reported cases, will any one in
pursuit of truth, rely on such authority as
! this. What Sir E. Nortliey had in this
careless way remarked, according to Jus
tice Buffer's recollection, to establish such
an important, not to say dangerous doctrine,
as that contended for by plaintiff’s counsel,
j The very expression that he had known it
! ruled ‘'forty times,” Ac. shews that he (Sir
j E. Norlhey) whether judge or lawyer, had
j no very definite idea of any number of
! times; and if his forty cases had been re
; ported, l feel very confident that none of
i them would be found to have gone further
than tlie ease in 2 Bulstrode, and the case
| of Bucknail vs. Royston.
For first, no such cases can be found.—
| Secondly, it is against the plain meaning
!of tho Statute of 13th Eliz. Thirdly, the
j cases cited, in Edwards vs. Harbin, which
are reported, do not go to that extent.—
! Fourthly, the court in their judgement, giv
en in Ryall vs. ffollc, (1 Atk. 169,) after
j reviewing all the reported cases noticed, in
Edwards vs. Harbin, and several others,
declare that “ from all those cases it ap
pears, that upon the construction of the
J Stat. 13th Eliz. there is no room to make a
distinction betwixt conditional and absolute
sales of goods, if made to defraud creditors;
hut a court or jury are left to consider ot
tills from the circumstances of the case.—
And it was resolved hv Lord Hoff, so early
as the last of the 17th century, “ that if
goods of A. arc seized on a fieri facias and
sold to B. bona fide, upon valuable consid
eration, though B. permits A. to have the
goods in iiis possession, upon condition that
A. shall pay to B. the money, as lie shall
raise it by tiie sale of tiie goods, this will not
make the execution fraudulent. See Ist.
Lord Raymond, T 2.
These arc all the authorities, cited, in
Edwards vs. Harbin, for the per se doc
trine ; not one of which, so far as l am able
to discover, goes the extent of that case. —
And therefore, I think 1 am well authorized
to say, there is no Judicial opinion to be
found, previous to the adoption, by this
State, of the English Statute and Common
Law, which recognizes the per sc doctiine.
! 1 have not the original reports ot the ca
i ses in Bulstrode A l’re. in Chancery , bir
| the full account given of them in the opin
j ions noticed, leaves but little doubt as to
i the true points adjudicated in those cases.
The ease of Edwards vs. Harbin, goes
the full extent of holding that posses-don, by
! the vender, contrary to the deed, is, of it
| self, a fraud, and I believe it is Che first case
j that does. But this case was decided in
1788, and several years after we adopted
’ the English Stat. otjEliz. This case has
i been followed in that country, I believe, vc
i ry uniformly until latch’ ; and the great
i mistake under which I have been laboring
was, in supposing, that many of these deci
sions occurred before tho State ot Georgia
incorporated into hers the Statute and i -om.
Law of England. The cases in England
that have been decided are too numcroii’
| heje to review, unless it were necessary fin
j the determination of tins ease. But though,
: T believe, the doctrine of Edwards vs- Her
I bin. was followed in the courts of thst
[VOLUME XXVI.