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About News & planters' gazette. (Washington, Wilkes County [sic], Ga.) 1840-1844 | View Entire Issue (July 15, 1841)
MEWS & PLANTERS’ GAZETTE. I*. U. COTTIUCJ, Editor. v No. 46.— NEW SERIES.] NEWS & planters; gazette. terms: Published weekly at Three Dollars per annum, it’ ■jpuid at the time of subscribing; or Three Dollars and Fifty Cents, if not paid till the expi ration of six months. No paper to bo discontinued, unless at the option of the Editor, without the settlement of all arrearages. ID” Letters, on business, must he post paid, to ; insure attention. .Vo communication shall he j published, unless we are made acquainted with the name of the author. 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.
