Opinion
(December Term, 1844.)
1. Where a daughter placed in the hands of her father $550, and also an order from her uncle for $122, which the father owed, for the purpose of enabling the father to purchase for her a negro woman at public sale, and the father purchased for her and in her name, and took a bill of sale in his own name, taking possession of the negro and giving his bond, according to the terms of the sale for the purchase money, but immediately afterwards conveyed the negro to his daughter: Held, that this conveyance could not be considered fraudulent against the father's creditors.
2. The father would at least have been compelled by a court of equity, under those circumstances, to make the conveyance to the daughter. But in fact a conveyance from the father was unnecessary, as by the sale and delivery the father purchasing for and in the name of his daughter, an absolute legal title immediately passed to the latter.
APPEAL from MOORE Spring Term, 1844; Nash, J.
Strange and Mendenhall for plaintiff.
Winston for defendant.
Detinue for a female slave and her two children, which the (170) defendant claimed under a purchase made by him at the price of $102 at a sale made by the sheriff of Moore, in December, 1840, on a fieri facias against Malcolm Buie, the father of the plaintiff. The plea is non detinet.
The plaintiff claimed the slaves under a bill of sale for the woman and one of the children, then born, made to her father, bearing date 9 June, 1838. The defendant contended on the trial that the conveyance was fraudulent against the creditors of Malcolm Buie, who was largely indebted at the time he made it, and, indeed, was admitted to have been then insolvent.
To establish the fairness of the transaction, the plaintiff released her father from the warranty in his bill of sale and called him as a witness. He stated that he administered on the estate of a deceased relation, of whom he and his brother, Dr. Buie, were the next of kin, and that in that manner he became indebted to his brother in a sum exceeding the whole value of the negroes in controversy; that the negro woman and her eldest child belonged to the estate of his deceased mother-in-law, and were sold for distribution among the next of kin, and that his share of that estate also exceeded the value of the negroes in controversy.
He further stated that his daughter, the plaintiff, desirous to purchase the woman and her child, requested him as her agent and on her behalf to bid for her and make the purchase at the sale, and at the same time placed in his hands the sum of $550 to pay for the negroes, if he should purchase them for her, and also procured an order from Dr. Buie to the witness, in case he should have to give more for the negroes than $550, to apply, in discharge of the excess, as much as might be sufficient of the money the witness then owed Dr. Buie, as before mentioned. He then stated that he attended the sale with his daughter, and in her presence made known publicly that he was bidding for her, and accordingly purchased the negro as the agent and in the name of his daughter, at the price of $672; that he did not (171) actually pay the same, because he was entitled to a dividend of the estate to a greater amount, and, therefore, he gave his own bond to the administrator for the price, and then used the money he had received from the plaintiff; that he did not pay his bond when it fell due, but that he filed a bill for an account and for his distributive share, and thereon obtained an injunction against the bond. He further stated that he did not take a conveyance for the negroes, but that, some time afterwards, and on 7 June, 1838, he did apply for one and the administrator offered him one in his own name, which on that account he objected to receiving, as he had made the purchase for the plaintiff and in her name. But being told that a return of the sale had been made in his name, and that it would cause some inconvenience to alter it, and that it would answer as well for him to make a deed to his daughter, he finally accepted the conveyance to himself; but that he returned home two days afterwards, and immediately executed and delivered to the plaintiff the bill of sale to her, dated 9 June, 1838, and registered in May, 1839.
Upon his cross-examination this witness was asked whether, at the sale under the execution, in reply to a question by one C. Dowd, he had not stated that he executed the deed to the plaintiff after the teste of the execution under which the negroes were sold, and he replied in the negative.
The defendant then showed a suit commenced in November, 1837, against Malcolm Buie, as the surety of one McIntosh in a bond in which a judgment was obtained in February, 1839, for upwards of $9,000; and that execution issued therefor, and was regularly kept up until the sale at which the defendant bought in December, 1840.
The defendant then called a witness who testified that, at the sale, C. Dowd asked M. Buie when his deed to the plaintiff was executed, and Buie replied that it was either after the writ was issued, or after the suit was instituted, or after the teste of the execution; but which was the particular expression the witness was unable to say, though he was inclined to think it was the last.
The defendant then offered to prove that a gentleman of the bar, who is since dead, but was present and heard Buie's reply (172) to Dowd, said, "Then I will bid," and immediately bid the sum of $50 for the negroes. But the plaintiff objected to the evidence as irrelevant, and the court rejected it.
The defendant called other witnesses to contradict and discredit Malcolm Buie; and the plaintiff supported his evidence by the concurring testimony of the person who made the sale of the negroes at which he purchased for his daughter, and of the witness to the bill of sale from him to the plaintiff. Also, the defendant's witnesses, and several others called by the plaintiff, united in stating that Malcolm Buie's character was good as an honest man and a creditable witness.
The defendant's objection to the plaintiff's title, on the score of fraud, was presented in a number of forms, not easily to be distinguished from each other, but which it is unnecessary to notice, as in this Court the defendant's counsel insisted on only a single position. The defendant at the trial moved the court to instruct the jury that, supposing the testimony of Malcolm Buie to be true, and that he had the money, as stated by him, to purchase the negroes for the plaintiff, and, with the money in his hands, made the purchase as the agent of the plaintiff, yet, as he did not pay that money for them, but gave his own bond for the price, and took a deed in his own name, he was merely a debtor to the plaintiff for the money, and the slaves became his property, and his subsequent conveyance to the plaintiff was fraudulent and void as against the judgment creditor.
The court refused the instruction, and directed the jury that if Malcolm Buie was the plaintiff's agent to make the purchase, and the money put into his hands for that purpose was her money, and Dr. Buie had in M. Buie's hands money sufficient to cover the balance of the price, and had ordered M. Buie to apply it to that purpose, and the latter had agreed to do so, and in fact made the purchase for the plaintiff, the plaintiff was to be considered a purchaser for a valuable consideration, and the deed to her was not fraudulent, notwithstanding Malcolm Buie did not pay the said moneys for the negroes, but gave his bond (173) for the price.
The jury under this instruction having found a verdict for the plaintiff, and judgment being rendered accordingly, the defendant appealed.
It has been insisted here that the instruction was erroneous, at least, in this respect, that as to the excess of the price above the sum of $550 which the plaintiff put at the time into her father's hands, viz., $122, the conveyance was voluntary from the father to the daughter, and, therefore, void; and, being void in part, is, under the statute, void altogether. But we think the position entirely untenable in reference to this case. The sum of $122 spoken of was as much in the father's hands for the purposes of the plaintiff as that of $550. It was not exactly in the same form, indeed; but it was the same in substance. The larger sum the plaintiff then delivered in cash; the smaller the father before had in his hands as the money of Dr. Buie, which he transferred, as far as it might be needed, to the plaintiff. As soon as the purchase was made, therefore, and Malcolm Buie had settled for the price by giving his bond for it, he thereby paid to the plaintiff her advance of $550 and to Dr. Buie the other sum of $122, and the plaintiff became debtor to Dr. Buie, therefore, instead of Malcolm Buie. It was not material that the very identical money furnished by the plaintiff should be used in paying the price. It was only requisite that the father should not give the negro to his daughter, or, it may be, any part of her; and, therefore, it is sufficient if she furnished to the father a fund to pay the price in full, though he may have kept that fund to himself and applied other means to an equal amount, of his own. He was nothing out of pocket, and, therefore, his creditors had no ground to complain that his property had been covinously conveyed for an inadequate consideration. In thus speaking, it is supposed that the negoes [negroes] once belonged to Malcolm Buie, and that the plaintiff derived her title from or through him. (174) Admitting that to be so, it is plain that he was bound in conscience to convey under these circumstances to the daughter, and that a court of equity would have compelled him to do so; and, therefore, it could not be fraudulent in him to do it of his own accord. But the truth is that the plaintiff did not derive title from her father, and the case was unnecessarily embarrassed by being so considered. Assuming the testimony of the father to be true — and the instruction prayed for so assumes — the title never was in the father; for the purchase was made by him as the agent of his daughter and in her name, and as soon as the purchase money was paid to the vendor (and to that purpose the bond for it was the same as payment), the right of property was in the plaintiff, and the title became complete by the possession received by the daughter. Woods v. Fuller. ante, 26. When the vendor afterwards made a bill of sale to Malcolm Buie he did what he had no authority to do; for the title was not in him then to convey, but had by the sale and delivery before vested in the plaintiff. There was, therefore, no ground whatever on which the creditors of Malcolm Buie could treat these slaves as his property. They never had been his.
For this last reason, also, the evidence that was rejected was totally immaterial. The object was to show that the deed from her father to the plaintiff was in fact executed after the teste of the execution. If that was so, it would make no difference, since the plaintiff had title by the original purchase, made before June, 1838, and long before the judgment against the father. But even supposing that the deed from the father to the plaintiff constituted her title, the evidence was properly ruled out. The remark of the deceased bidder carried the evidence no further than the testimony of the witness, who said he was uncertain whether the declaration of M. Buie was that he conveyed after the original writ issued or after the teste of the execution. The declaration, simply, of the bystander, "then I will bid," does not tend to establish that the declaration of Buie was the one or the other; (175) as he might have thought a conveyance after the suit brought evidence of fraud. Indeed, that is most probable; for, as a member of the profession, he must have known that if the conveyance was posterior to the execution the slave was undoubtedly liable on the execution, and he would have offered more than $50 for three slaves. The declaration, in truth, proved nothing.
PER CURIAM. No error.