Opinion
11-22-1871
BROWN & al. v. MOLINEAUX, DUFFIELD & CO. & als.
E. Y. Cannon, for the appellants. Lyons and John Howard, for the appellees.
1. An absolute deed of sale of personal effects held to be fraudulent upon the testimony of one of the grantors, and corroborating circumcumstances.
2. Nemo allegans suam turpitudinem audiendus est, if it be law, does not apply, where it is the creditors of the parties who assail the deed, and call on one of them to prove the fraud.
This was a suit in equity, brought on the 19th of December 1866, in the Circuit court of the city of Richmond, by Molineaux, Duffield & Co., merchants of New York, against Wm. J. Gentry, Byron L. Sawyer, merchants and partners under the name of Wm. J. Gentry & Co., Samuel Freedly, A. Vance Brown & als. The bill was filed on the 20th, on behalf of the plaintiffs and all other creditors of Wm. J. Gentry & Co., who would come in and make themselves parties; and set out that Wm. J. Gentry & Co. were indebted to the plaintiffs in the sum of $2,113.31; and that Sawyer had just left the State, and was a non-resident thereof. It states that on the 5th of December 1866, Gentry and Sawyer executed what purports to be a bill or deed of sale to Samuel Freedly, for all the merchandise, boots, shoes, trunks, & c., debts and choses in action, and store fixtures of the firm of Wm. J. Gentry & Co., in consideration of the sum of $3,826.76. It further states that Gentry & Co. were indebted to A. Vance Brown in the sum of $2,617.47, as appears by the books of the firm; that no consideration was paid by Freedly to Gentry & Co.; and that the value of the goods which were pretended to be sold was about $9,000. That Freedly placed in the store of Gentry & Co., one John Cox, as his agent, with directions to sell the goods and deposit the money in bank to his credit; and that said agent is proceeding to sell off said goods at cost, and at a sacrifice, with great speed, and has already disposed of about $1,400 worth thereof, which was deposited in the National Exchange Bank; and that the agent is wholly irresponsible.
The bill charges that the said deed of sale was collusively and by fraud obtained from Wm. J. Gentry, one of the partners of the firm, by a fraudulent combination and confederacy between the said A. Vance Brown, Samuel Freedly, and Byron L Sawyer; that it was intended to be a deed of trust or mortgage to secure the debt due to Brown by the firm of Wm. J. Gentry & Co., and was so represented to be to Gentry at the time of its execution; it being understood that, as a further consideration for the execution of the said deed to secure the debt to Brown, he was to make further advances to the firm of Wm. J. Gentry & Co.; and they charge that these actings and doings are a fraudulent combination to deprive the plaintiffs of their rights to resort to the social effects of Wm. J. Gentry & Co. for the payment of their debt.
The plaintiffs call upon the defendants to answer, and they pray that the said deed may be declared void as fraudulently obtained, and if not void, that it may be held as a security for the debt due to Brown, as intended; and that the defendants may be restrained from selling, removing, disposing of or secreting the stock, effects and assets, and the proceeds of the sales of such as had been sold; and that a receiver be appointed; and for general relief.
The injunction was granted; and it was ordered, that unless Cox or some one for him should execute a bond to the Commonwealth of Virginia, in the penalty of $6,000, with condition to have the said effects, and the proceeds of those sold, forthcoming to answer the future order of the court, the officer of the court should take possession of them, & c. The bond was given.
Gentry, Freedly, Brown, Sawyer and Cox answered the bill separately. Gentry says that early in December Sawyer proposed to him to secure the debt due to Brown, Sawyer saying that Brown agreed, if he was secured, to make further advancements or endorsements for the firm of Wm. J. Gentry & Co., to enable them to proceed in their business; and that the only object of the deed was to secure Brown, and enable the firm to carry on their business. For the purpose of executing the deed they went to a lawyer's office, Brown coming in soon afterwards; and after a short private conference between Brown and the attorney, the attorney finished the deed, and it was executed. That on the next morning, the 6th of December 1866, he went into the country, and returning on the 10th he found Freedly in possession of the store of the firm; at which he felt both surprise and anger. That on applying to Sawyer for information about the matter, he referred him to Freedly; who told him that he, Freedly, had not personally a cent of interest in the matter; that his only object was to secure the debt of Brown, and after that he did not care what became of the balance of the goods--respondent might have them if he chose. And Freedly further said it was necessary to sell the goods as soon as possible, to prevent the other creditors coming on and availing themselves of the proceeds of the sale thereof; and that respondent must not appear as possessing any interest in the goods by his presence in the store and assertion of ownership. Immediately upon receiving this information, respondent having his suspicions aroused, wrote to other creditors of Wm. J. Gentry & Co., telling them that things were not going right in this arrangement, and he wished them to come to Richmond and look after their interests. He admits and fully believes the allegations of the bill charging fraud and combination between Sawyer, Brown and Freedly. He admits that the debt due to Brown is the amount stated in the bill, and that the amount stated in the deed is not correct.
This defendant further says, that he was doing business in his own name in the city of Richmond, when the defendant, Sawyer, proposed to join him as a partner in business, saying that the defendant, Brown, would endorse for him so as to enable him to put in the firm the capital sum of $3,500, and that the firm could have any accommodation in bank they desired; and that Brown did advance and endorse for the firm, until it was indebted to him in the sum stated in the bill, except some personal items, which were loaned to the said Sawyer alone, who charged them to the firm; and that said Sawyer had exclusive control of the books of the firm, and managed all its financial matters.
Freedly, Brown and Sawyer, in their answers, which were filed in June 1867, deny that there was any fraud in procuring the deed for the sale of the goods, or any fraudulent combination between them or with any other persons to procure it. They deny that it was intended as a mortgage to secure Brown's debt. They deny that the goods were worth $9,000, or anything like that sum. Freedly denies that he told Gentry he had no interest in the goods; or that after Brown's debt was paid Gentry might have the remaining goods. He says that Sawyer informed him the firm of Wm. J. Gentry & Co. was in pecuniary difficulty, that they owed A. Vance Brown a large sum of money, for money loaned, endorsements, & c., and wished him, Freedly, to buy their stock of merchandise. That after various negotiations he agreed to buy their stock, consisting of boots, shoes, & c., together with all their accounts and store fixtures, for the sum of $3,826.76, giving therefor his two negotiable notes at thirty and sixty days for the same. That he executed and delivered the notes to them; and they executed to him the bill of sale above referred to, and put him into possession of the stock of goods, & c.; and he has held and exercised ownership over them; and he has paid the notes; which he exhibits with his answer. He says both Sawyer and Gentry were present when the bill of sale was delivered, and Gentry being asked if he fully understood and assented to said sale, replied, " certainly." And when respondent took possession of the goods, Gentry was present with Sawyer, and not a word was said by either of them indicating any dissent to such possession.
Brown says that Wm. J. Gentry & Co. were indebted to him in the sum of $3,826.76, mainly for cash advanced, and to some extent for acceptances given by him for their accommodation, which were taken up by him in consequence of their inability to meet their current liabilities. That Wm. J. Gentry & Co. being unable to meet their liabilities, he applied to them to make provision for the debt they owed him; and they preferring to regard said debt, as in point of fact it was, of the highest moral as well as legal obligation, promised from time to time, to do everything in their power to secure it; and it was finally proposed to him by said Wm. J. Gentry & Co. that they would give him the notes of Samuel Freedly at thirty and sixty days, for the amount of said debt; and he being well acquainted with Freedly, and knowing him to be solvent, agreed to accept his notes in satisfaction of the said debt due him from Wm J. Gentry & Co. That this arrangement was made; the notes of Freedly endorsed by Wm. J. Gentry & Co. were received by the respondent, and had been disposed of by him. He denies that his debt was only $2,113.31, as stated in the bill, and avers it was $3,826.76. And he denies the allegation in the bill, that he as a further consideration for the execution of the said bill of sale, was to make further advances to the firm of Wm. J. Gentry & Co.
Sawyer says the deed was made in good faith; that Freedly's notes to the firm were endorsed by them to Brown in payment of their debt to him. That the deed was read by Gentry before being signed, and was then acknowledged by them before a notary and delivered; and he says, that the pretence of Gentry that he did not read the bill of sale or execute it, or that, if he did execute it, it was understood by him to be a deed of trust or morgage, and not a bill of sale, is simply and wholly false, and well known by Gentry to be so. It was perfectly understood to be what it purported to be, an absolute bill of sale, and not a deed of trust or mortgage.
Before the filing of the answers of these parties Wm. J. Gentry was examined as a witness, and he was, by the permission of the court, again examined after the answers were filed. He gives substantially the same account of the execution of the deed that he gave in his answer. From his deposition it appears that he was early in 1866, a merchant in Richmond, dealing in shoes, & c. That during the late war A. Vance Brown was a sutler in the United States army, and Sawyer was his clerk. That Brown came in several times to see him, stating that he had a young friend who wanted to go into business, and would like to get him with the witness; stating that he would furnish some twenty-five hundred or three thousand dollars. That witness acceded to the proposition, and about the last of March 1866, Sawyer came into the concern. Gentry went on to New York to buy goods; and Brown accepted some of the notes, which he paid, and the firm took up others. The money advanced by Brown was charged upon the books of Gentry & Co. to the firm, though it was in fact on account of the capital which Sawyer was to put into the concern. The debt due to Brown on the 5th of December 1866, when the deed of sale was made, as charged on the books of Gentry & Co., was, as Gentry stated, about $2,600.
The witness says further, that he attended to the buying of the goods and to the manufacturing department, and Sawyer kept the books, and managed the financial matters. That on the 3d or 4th of December 1866, Sawyer came to him and said Mr. Brown would not endorse any more paper until they secured him for what he had done. Of course witness could not object, and readily consented, and Sawyer had the paper prepared. That he executed the deed believing that it was a deed to secure Brown his debt; and enquiring of Sawyer why Freedly's name was inserted on it, Sawyer told him that Brown got Freedly to act in his place. Witness was willing that the firm should become bound to pay the debts of Sawyer to Brown in consideration of the promise that Mr. Brown made, (as Mr. Sawyer informed witness,) that he would endorse the paper of the firm for their future accommodation. Witness left the city for the county of Gloucester on the morning after the deed of sale was executed, and returned on the evening of the 8th of November, which was Saturday. The value of the goods on hand at the time the deed was made, at the cost price, excluding freight, the witness estimated as between eight and nine thousand dollars. He says that the notes executed by Freedly to Wm. J. Gentry & Co., and the endorsement to Brown are in the handwriting of Sawyer; and witness had no knowledge of their execution until after they were filed with Freedly's answer. The books of Wm. J. Gentry & Co. were in the store when witness left it.
The only other evidence in the cause, was such as bore upon the truth and credibility of Gentry's testimony, the deed of sale, and a letter of Sawyer to Gentry, written from New York, and dated December 20th, 1866, after he had left the State.
The deed conveys to Freedly absolutely the stock of goods, & c., in consideration of $3,826.76, and refers to an inventory of the goods as annexed to the deed, and to be taken as a part of it, and also to a schedule of the debts due to the firm, as also annexed; but neither appears to have been in fact annexed to it. This deed Gentry admitted he read before he signed it; but says he did not then know the difference between a deed of sale and a deed of trust, as to its form. He considered and intended it as a deed to secure Brown's debt.
Sawyer, in his letter, says: Yours of the 12th inst., was duly received, and would have replied sooner could I have done so.
To begin at once. You say you are " not satisfied with the manner in which our business is and has been conducted; " and I can say the same from the very depth of my heart; but it was the best (in our opinion) that could be done. We were heavily in debt, with no prospect of ever paying it, and continually running behind; consequently, the best thing that could be done was to make Mr. B. whole, and try to effect an honorable settlement with the balance of our creditors; and to do this we adopted the above system. I think it will all come out satisfactory, and trust that you will see the day when you will agree with me. I do not see how you can conscientiously call it a ‘ one-sided’ affair. At the time you understood it all perfectly well. So far as ‘ securing myself,’ that is not true. I shall lose (when the debts are paid) every cent that ever belonged to me, and then perhaps it will not be enough. You speak of ‘ securing yourself.’ Had I drawn from the concern as much as you, I should think my time and labor well invested. Mr. B. and Mr. F. will attend to the note of H. A. A. All my ‘ actions' will bear a close investigation, and I do not see why you bring up these things now."
The cause came on to be heard on the 10th day of August 1869, when the court held that the debt of Brown was for funds and credit furnished as and for the interest of Sawyer in the concern of Wm. J. Gentry & Co.; and decreed that the deed of sale of the goods, & c., was fraudulent as to the complainants. And a commissioner was directed to take an account of the debts due by Gentry & Co. to the complainants; and also an account of the value of the goods, & c., at the time the same went into the possession and control of Freedly. And the commissioner was authorized to call for the books of Gentry & Co. and Freedly, and to examine on oath any of the parties to this suit.
And it appearing that Freedly had given the bond required by the order granting the injunction, it was further decreed that he should by the first day of the next term of the court, bring into court the goods, & c., and proceeds of sale, and deliver and pay over the same to the sheriff of the court, who was directed to receive and hold the same until the further order of the court. And thereupon Brown and Freedly obtained an appeal to this court.
E. Y. Cannon, for the appellants.
Lyons and John Howard, for the appellees.
OPINION
ANDERSON, J.
This is a suit in equity by creditors of a firm, who sue for themselves, and all other creditors of the firm, who will come in and prove their debts, and comply with the terms, to set aside a deed as fraudulent which purports to be a conveyance by the members of the firm of all their effects, debts and choses in action, to one of the appellants.
It is a familiar and firmly established rule in courts of equity, that the allegations of a bill which are positively denied by the answer responsive thereto, to be availing must be proved by two credible witnesses, or by one witness and corroborating circumstances.
The chief witness relied upon by the plaintiffs, to prove the allegations of the bill, is Wm. J. Gentry, a member of the firm, and a party to the suit. It does not appear from the record, that he has any interest in the controversy other than a desire that the assets of the firm should be honestly applied to the payment of its debts.
But it is objected, if there was fraud he participated in it--was a confederate in the fraud, and should not be allowed to set up his own fraud as a means of destroying the title which he passed by his bill of sale. But it is not the witness who sets up the fraud to invalidate his deed. It is a third party, who had no participation in the fraud; an innocent creditor, who alleges that the deed was executed to the prejudice of his rights, who sets up the fraud, and introduces the witness to prove it. And if he were a confederate in the fraud he would be a competent witness, for the creditor, to prove the fraud.
But it is contended that the principle nemo audiendus est allegans suam turpitudinem, would exclude him. If that be law at this day, which is not conceded, the deposition of the witness alleges no turpitude in himself, in his connection with the transaction. On the contrary, he represents, that he himself was deceived and made a victim of the fraud.
Neither Brown nor Sawyer, the partner of Gentry, deny or affirm, in their answers, what Gentry avers in his answer, and more fully and particularly proves in his deposition, that Brown agreed to advance for his friend Sawyer his part of the capital, from $2,500 to $3,000; in consideration of which promise, Gentry agreed to take him into partnership; and that the sums entered to Brown's credit on the books of the firm, by Sawyer, who had charge and control of the books, were in fact advances made by Brown for Sawyer, in pursuance of that agreement. These facts are fully proved by Gentry, and are no where denied, or disproved, in the record. And the commissioner, to whom the matters were referred by an order of reference in the Circuit court, in his report, responsive to the first inquiry submitted to him by the court, stated, " that Wm. J. Gentry and Byron L. Sawyer, were equal partners in the firm of Wm. J. Gentry & Co.; and that the funds and credit, furnished by A. Vance Brown, were furnished as and for the interest of Byron L. Sawyer, in the said concern of Wm. J. Gentry & Co." To this part of the report, no exception was taken; and it was confirmed by the court.
This then must be regarded as an established fact in the cause. And what does it show? Why that Gentry, when he agreed to secure Brown, as he says was the purpose of the deed, assumed and secured a debt for which he nor his firm were liable. What was the inducement to this act? What was the consideration of this assumption? Sane men cannot be presumed to assume large pecuniary liabilities without some consideration.
The bill alleges that the consideration was, that further advances would be made to the firm by Brown. Brown in his answer denies that he made such a promise. The answer of Sawyer makes no express allusion to this particular allegation of the bill, or denial of it. It is proved by the witness, Wm. J. Gentry, that he was willing that the firm should become bound to pay the debts of Sawyer to Brown, in consideration of the promise that Brown made, as Mr. Sawyer informed him, that he would endorse the paper of the firm, for their future accommodation. He says he expected then that Mr. Brown would endorse a note for twenty odd hundred dollars, which they needed to pay accruing indebtedness. " The money was soon due. We were hard up (he says) and under the pressure of our creditors. I was willing to secure Mr. Brown, as above stated, if he would furnish us with the accommodation that we required. I expected him to endorse other notes for us, as we needed them." He here assigns a reason for agreeing to secure a debt to Brown, for which neither he nor the firm were liable, by pledging the effects of the firm for its payment. Was it the true motive and consideration? What other motive could he have had? The appellants show none. The record assigns no other. It is not probable that he would have performed such an act without motive. And the situation of his affairs, and the condition of his firm, made it necessary that he should have such aid and endorsation. It is therefore inconceivable that, but for this assurance, Gentry would have consented that his firm should become liable for Brown's debt, and that the effects of the firm should be pledged for its payment. The allegation of the bill, proved by the testimony of this witness, supported by these corroborating circumstances, must be taken to be true, notwithstanding the denial of the answers.
If it be true, as alleged by Brown in his answer, that he did not procure the execution of the bill of sale, and made no representation, or promise, in respect to the same, and further, that he never agreed to make further advances to the firm of Gentry & Co., in consideration of their executing the deed aforesaid, he may not have intended that this denial should have reference to the promise previously made through Sawyer, when no such deed was contemplated, at least by him. Be that as it may, if he kept aloof and did not actively participate in the fraud; if he remained a passive spectator, while Sawyer and Freedly concocted and carried out the scheme to swindle Gentry and defraud the creditors of Gentry & Co., and only received the fruits of the fraud, he cannot escape its consequences. If he did not undertake to make further advances to the firm, or to endorse their accommodation paper to enable them to meet their liabilities in consideration of their assumption to pay his debt, then the deed is voluntary without valuable consideration, and under the statute is fraudulent as to creditors. He says he received the notes of Freedly, which were given to Gentry & Co. in consideration of the deed. He says it was proposed by Wm. J. Gentry & Co. (not Wm. J. Gentry), to give him the notes of Samuel Freedly at thirty and sixty days, for the amount of his debt; which he accepted: and that he had disposed of them. He does not say in what way. But as the notes were given for the sum chiefly, which he had donated to his friend Sawyer as his input in the firm of Gentry & Co., it might be inferred that he had disposed of said notes by turning them over to Sawyer as his own. In this way he would be enabled to withdraw his input capital from the firm of Gentry & Co., and carry it with him to a distant State; leaving the balance of the effects in the hands of his confederate, Freedly, with which to pay himself for the part he performed in the transaction; and leaving his credulous and confiding partner, who does not seem to be a man of much penetration or discretion, now amazed and astounded with the strange result of his financial operation, which he probably had regarded as a very ingenious financial conception, " to try (as coolly advised by his retreating partner), to effect an honorable settlement with the balance of our creditors." Great was Gentry's amazement and chagrin, when he returned from the country, to find his cherished financial conception exploded, his means and effects spirited away out of his hands, himself ejected from his own premises, except as a hireling, absolutely stripped of every thing, and a stranger installed in his place of business. Such perturbation and amazement was the natural result of the assurance he felt, when he executed the deed, that he would be able to maintain his credit by Brown endorsing for the accommodation of the firm, and that their business would go on. This then must be regarded as another established fact in the cause, that such was his inducement to execute the deed.
Another fact is alleged by the bill, to wit: that the deed was intended to be a mortgage or deed of trust, to secure Brown's debt, and not an absolute sale to Freedly. This allegation is denied by the answers. But it would seem to be a necessary corollary from the position just established. If the inducement to the assumption of Brown's debt by the firm, was that the firm might meet its liabilities, maintain its credit, and continue its business by the future advances of Brown, or by his endorsing their accommodation paper, the said deed could not have been bona fide intended to be what its face purports, an absolute sale. Brown's denial is more guarded than the others. He only denies all " knowledge" that it was so intended; and that so far as he knows the allegation is not true. But the denial of Sawyer is bold and unqualified. He says the pretence set up by Gentry, " that it was understood by him, that it was a deed of trust or mortgage, and not a bill of sale, is simply and wholly false, and well known by Gentry so to be; it was perfectly understood to be, what it purported to be, an absolute bill of sale, and not a deed of trust or mortgage." How can this answer be reconciled with his letter to Gentry of the 20th of December, from New York, in answer to Gentry's of the 12th; which they have not thought proper to produce. In this letter he says, " We were heavily in debt, with no prospect of ever paying it, and continually running behind. Consequently the best thing that could be done, was to make Mr. B. whole, and try to effect an honorable settlement with the balance of our creditors; and to do this we adopted the above system." I can give no other meaning to that language than that the conveyance to Freedly was to secure Brown. First make him whole, and then to settle honorably with the balance of the creditors. But Freedly, Sawyer and Brown took all, and left nothing to settle honorably with the creditors.
The answers cannot be read as evidence for or against either party. Their affirmative statements are not proved by any evidence in the cause. The allegation now under consideration, is proved by the direct testimony of Gentry; and that is strongly corroborated by this letter, and by the conclusive presumption, arising from the consideration upon which he consented that the firm should become liable for Brown's debt; and the affirmative statements of Freedly, to the effect that the sale was negotiated with him by Sawyer, tend rather to strenghten this conclusion than to throw doubt upon it. It was Sawyer who proposed to sell him the goods. It was Sawyer with whom he made the agreement. It was Sawyer who took his notes at thirty and sixty days. It was Sawyer who received the notes, and transferred them to A. Vance Brown. It was Sawyer who executed to him a receipt for the whole pretended price of the goods. Of all which transactions, Gentry was kept in total ignorance; the idea being held out to him, all the while, that he was only to give a pledge of the goods as a security for Brown's debt; in consideration of which Brown would continue to endorse for them, and enable them to meet their liabilities, and to go on with their business. And when he expressed surprise that the deed was made to Freedly, he was artfully told, that it was because Mr. Brown didn't wish his name to appear in the matter, as it might injure him in bank.
It is possible that Freedly may have been himself deceived by Sawyer, and have been made by him a blind instrument in the perpetration of this impudent and nefarious fraud upon Gentry and the creditors of his firm. But the facts in the cause, tending to show his complicity, will not admit of that charitable supposition. It is positively alleged in the bill, that the debt of Brown, as shown by the books, was $2,617.47, and not $3,826.76, as claimed by the appellants. The answers deny that the debt was only $2,617.47, but they produce no evidence to show that it was more. Freedly had possession of the books, and if the testimony of Gentry to this fact were not true, it could have been shown by producing the books. But he does not produce them, or show any reason why he did not produce them. This fact must then be taken as true, that this was a contrivance not only to withdraw the social effects from the payment of the debts of the firm, and to appropriate them to refund the input capital of one of the firm, but for a much larger amount than he had actually put in.
The bill alleges, that the effects of the firm embraced in the deed were of the value of about $9,000. The proof by Gentry is that they were worth between eight and nine thousand dollars, near nine, at first cost, according to the inventories or invoices. Freedly took possession of all the books and papers of the concern; yet he does not produce these papers in evidence, or account for their non-production. The answers deny that the goods were worth so much; but no proof is introduced by the appellants, to prove that they were not worth so much, as Gentry testifies they were worth; and the presumption arising from the non-production of the inventories, corroborates his testimony, and supports the allegation of the bill. The inference is, that the price which Freedly alleges he agreed to pay for the goods, is very inadequate, and is an indicium of fraud.
But the contract, as alleged, is inconsistent with the idea of a sale and purchase. He professes to have purchased a stock of goods, which are proved to be worth between eight and nine thousand dollars, without taking any inventory, and the store fixtures and furniture, debts and choses in action of the concern, for the precise sum of three thousand eight hundred and twenty six dollars and seventy-six cents. If his contract had been to purchase the goods at cost, or at such a per cent. above or under cost, and the furniture at an estimated price, and the choses in action estimated at so much, and upon an inventory taken they summed up those precise figures, it would not be incompatible with the idea of a sale and purchase. But that was not the case. This is claimed to be what is called a lumping contract; and if so, and if it was a purchase, a valuation must have been made of the property; and being a lumping contract, it would have been fixed at a round sum. The price assumed by Freedly to pay, is the precise sum claimed by Brown to be due him, and tends to show that no valuation was made of the property (without which there could not be a sale and purchase), but that the effects of the concern were transferred to Freedly to pay that debt. And he, claiming the absolute title to the property as by a sale, in which no attempt was made to ascertain its value, is another indicium of fraud. Indeed, the whole complexion of the case is such, and Freedly, Sawyer and Brown are so mixed up in the transaction, that it is not easy to resist the conclusion of a confederation. That Freedly could have been the active instrument in carrying out this palpable fraud, and in the way in which it was carried out, and so as to conceal all knowledge of their purpose from the chief partner, without being privy to it, is incredible. We are of opinion, therefore, that the said bill or deed of sale from Wm. J. Gentry and Byron L. Sawyer, to Samuel Freedly, is fraudulent and void; and that the decree of the Circuit court must be affirmed.
DECREE AFFIRMED.