Opinion
August Term, 1857.
Where the real purchaser of property has the title made fraudulently to another, in secret trust for himself, it cannot, at law, be subjected to the purchaser's debts, but must be pursued in a court of Equity.
Witnesses summoned by one suing in forma pauperis, are entitled to their costs for attendance. Officers of the court only, are included in the order authorised by the act of Assembly.
ACTION of TROVER, tried before ELLIS, Judge, at the Fall Term, 1856, of Rutherford Superior Court.
The plaintiff, to prove title in himself, offered a duly certified copy, from the register's book, of a bill of sale from one Norton to the plaintiff. He filed an affidavit of the loss of the original; that due search had been made, and that it could not be found. He proved the contents of the bill of sale by the subscribing witness, and that the paper produced was a true copy. The defendant objected to the reception of this evidence, but the court admitted it, and the defendant excepted.
The defendant then proved, by the same witness, that at the time of this transaction, the plaintiff was an infant, in his nurse's arms, and that the slave, in question, was paid for with the means of W. W. Morris, the plaintiff's father, and that the same went into his possession, and remained in it for some years; that the trade was made before they came to the witness; that the consideration was land, not money; and that the deed was made at the same time that the bill of sale was executed. The defendant also proved that W. W. Morris, the father, was indebted beyond his means at the time of this trade between him and Norton, and that he was in fact, at that time, insolvent; that the defendant caused an execution to be levied on the slave in question, under which he was sold at sheriff's sale, and purchased by one Hamrick, as the property of the father; that the plaintiff brought suit against the purchaser Hamrick, and failed to recover.
The defendant insisted that this judgment was a bar to the plaintiff's action; and, at least, was a ground why he should recover but nominal damages, and called on the court so to instruct the jury. The defendant also contended, that the property passed to the father, Morris, before the bill of sale was executed to the son, and was liable to the debts of the former; and asked the court so to charge.
The court declined to give this instruction, but was of opinion that neither of the defenses relied on could avail the defendant. To which he excepted.
The suit was brought in forma pauperis by the plaintiff; and in addition to the general judgment on the verdict, he moved, that in the taxation of costs, the clerk be directed to include in the bill the amount of the attendance of the plaintiff's witnesses, which was ordered by the court; for which the defendant also excepted.
Cabaniss, Baxter and Shipp, for plaintiff.
Bynum and Gaither, for defendant.
It is admitted by the defendant's counsel, that if the title to the slave in question passed by the bill of sale to the plaintiff, he would have no defense at law, although the bill of sale was procured by the plaintiff's father to be so executed, for the purpose of defrauding his creditors. The reason is, as is clearly shown by Gowing v. Rich, 1 Ire. Rep. 583; Rhem v. Tull, 13 Ire. Rep. 57, and other cases of that class, that if the deed be held to be void, the legal title of the property will be in the grantor or bargainor, and not in the debtor; so that the creditors cannot, at law, take advantage of the fraud. But in the present case, the counsel contends that the slave did not pass to the plaintiff by the bill of sale, but to his father, who paid the purchase-money, by a sale and delivery, previously to the execution of the bill of sale; and that the title having, as against the vendor, vested in the father by such sale and delivery, his creditors could avoid it by seizing and selling the slave for the payment of their debts. The argument would be good, and the conclusion irresistible, if the premises were correct. A slave may be sold, and upon the payment of the price, the title may pass by delivery, without a bill of sale, unless the parties intend that the contract of sale shall not be complete until a bill of sale is executed, in which case, the title will not pass until that is done; Caldwell v. Smith, 4 Dev. and Bat. Rep. 64.
From the statement in the bill of exceptions, we are satisfied that the parties intended that the deed for the land, which the plaintiff's father gave for the slave, and the bill of sale for the slave, should be executed at the same time; the subscribing witness testified that it was so done; and we cannot infer, from the statement, that the father took possession of the slave before that time. Such being the case, we are obliged to hold that the legal title passed by the bill of sale, and of course passed to the plaintiff, which makes the principle of the cases to which we have referred directly applicable to the transaction.
We concur also with his Honor in the construction of the 43rd section of the 31st chapter of the Revised Code. The question was referred to, but not decided, in the case of Carter v. Wood, 11 Ire. Rep. 22, and we are not aware that it has been settled by any previous adjudication in this State. The terms of the act certainly do not expressly embrace any other persons than the officers of the court, and we do not feel ourselves at liberty, without the express authority of the Legislature, to declare that witnesses shall give their time and labor to any person, not even to one suing in forma pauperis, without compensation therefor. It is true, that when subpoenaed, they are bound to attend, and give their testimony, without having expenses previously paid or tendered. Rev. Code, chap. 31, sec. 43. But if they can recover for their attendance from the pauper, in the mode provided in the statute, they are at liberty to do so; or they may file their tickets in the clerk's office, and have them collected from the defendant, in the event of the plaintiff's success.
There were some objections taken on the trial, which have not been insisted on in the argument here, and we have not, therefore, thought it necessary to give an opinion upon them, further than to say, as we now do, that they are clearly untenable.
PER CURIAM. There is no error; and the judgment is affirmed.