6.

VERDIER V. LEPRETE. May T. 1832. 4 Louisiana Rep. 41.

siana.

Per Cur. Martin, J. A vendee who suffers personal property And Louipurchased to remain in possession of the vendor, and thus enables him to acquire credit, or deceive a subsequent purchaser, cannot resist the claim of his vendor's creditor, nor that of a subsequent bona fide purchaser.

7.

HOBBS V. BIBB. July T. 1827. 1 Stewart's Alabama Rep. Possession 54.; S. P. AYRES V. MOORE, ibid. 336.; MARTIN V. WHITE, of personal ibid. 163.

Hobbs purchased slaves of J. & J. Estells for a debt they owed him, and left them in their possession on hire, and while in their

property remaining in the ven

or is preevidence of ownership which may be rebut

sumptive

ted,* but it

is not evi

dence of

fraud, per

* Fraud vitiates all contracts. Even a private act of the legislature may be avoided, if it was obtained by deception and fraud. Commonwealth v. Breed, 4 Pick. Rep. 460. Parsons, Ch. J., observed, in Bliss v. Thompson, 4 Mass. Rep. 488., that, it is generally true, that a man shall not be required to aver against his own deed. But se. the case of fraud is always excepted, which vitiates every contract. A vendor of goods is bound to disclose a latent defect, if known. Hugh v. Evans, 4 M'Cord's Rep. 169. ; yet the sale and delivery of goods will pass the title as between the parties, although obtained by fraud. Rowley v. Bigelow, 12 Pick. Rep. 307.; Somers v. Brewer, 2 Pick. Rep. 184. And whether there is fraud or not, must depend upon the peculiar circumstances of each case. In general, it is not a conclusion from a single fact, but from all the facts; and is, therefore, a proper subject for inquiry by a jury in a court of law. Watkin's v. Stockett's Ad'mr, 6 Har. & Johns. Rep. 435. 455. And there must be a fraudulent design. Young v. Covell, 8 Johns. Rep. 23. When matters are alleged to be fraudulent in a court of law, it is for the jury to find the facts, and determine their character. Gregg v. Lessee of Sayre and Wife, 8 Conn. Rep. 244. And it may be laid down as a general principle, that a conveyance of lands or goods liable to be set aside for fraud, will be good in the hands of a bona fide purchaser of the vendee without notice. Fletcher v. Peck, 6 Cranch's Rep. 133. ; Mowrey v. Walsh, 8 Cowen's Rep. 233; Hollingsworth v Napier, 3 Caines' Rep. 182. And it may also be laid down as a general principle, that on the absolute sale of goods possession must accompany the deed, and the want of change of possession is considered, per se, such a circumstance as to render the transaction fraudulent and void. Talcott v. Wilcox, 9 Conn. Rep. 134. ; Patten v. Sinith, 4 Conn. Rep. 455; Burrows v. Stoddard, 3 Conn Rep. 160.; Chumar v. Wood, 1 Halst. Rep. 155.

The leading case in which this principle has been effected, and in which the exceptions to the rule are stated, is in Bissell v. Hopkins, 3 Cowen's Rep. 166. It was held in that case, that possession of goods remaining in the hands of the vendor after sale, is but prima facie evidence of fraud as to creditors, and may be explained. Bis. sell v. Hopkins, 3 Cowen's Rep. 166. Numerous cases are cited in the note to the case, to show, that the English rule is incumbered with so many exceptions as to be no longer of use in any practical application to the subject of frauds. Where the sale is absolute, however, there can be but little doubt that the interest of society would be

possession they were seized under an execution against Estells, by a judgment creditor, the defendant, whose judgment was entered about the time of the sale to Hobbs.

The court charged the jury, that although no fraud may have been intended by the parties, and although a fair price may have been actually paid by Hobbs, and although the contract of hire from Hobbs to Estells might be also bona fide, for a fair price, and without intentional fraud, yet that the possession of the property remaining with Estells was fraud of itself, as to creditors, and rendered the title of Hobbs inoperative. Hobbs excepted.

Per Cur. Lipscomb, Ch. J. After referring to Shepard's Touchstone, 66., Twyne's case, 3 Cooke's Rep. 87., Edwards v. Harben, 2 T. Rep. 587., Kid v. Rawlinson, 2 Bos. & Pul. 59., Lady Arundel v. Phips et al., 10 Vesey's Rep. 145., Stewart v. Lomb, 1 Broad. & Bing. 506., Watkins v. Burch, 4 Taunt. Rep. 823., Hamilton v. Russel, 1 Cranch's Rep. 399., Ludlow v. Hurd, 19 Johns. Rep. 221., and Bissel v. Hopkins, 3 Cowen's Rep, 166., decided, that personal property remaining with the vendor is presumptive evidence of ownership in him; but this presumption may be rebutted by proof: possession remaining with the vendor is ruled to be only prima facie evidence of fraud. And in Echols v. Derrick, 2 Stewart's Rep. 144., the court held, that where A. purchased at sheriff's sale, without notice, a slave which had been previously conveyed by deed in trust, but the deed not recorded in the manner required by the statute of frauds, and after the sheriff's sale, and before the expiration of twelve months from the date of the deed, the trustees sold the property, and executed the trust, the statute dispensing with the registry within twelve months, the adverse possession of A. under his purchase at the sheriff's sale, made no difference, and did not prevent the trustees from executing his trust. And see Astor v. Wills, 4 Wheat. Rep. 466.

best promoted to hold it evidence of fraud, where the property was not changed. But in qualified sales, mortgages, loans, &c. of property, it seems to be necessary in those complicated arrangements of which property is susceptible among families, that they should be open to explanation, and that the mere want of change of possession should not, per se, be evidence of fraud. And that is probably the true distinction which might be drawn from the cases. It is the principle laid down in Hamilton v. Russel, 1 Cranch's Rep. 309., and is sustained by a great number of cases, English and American. It is obvious, however, the rule does not apply where the property is so situated it cannot be delivered. Conrad v. Atlantic Ins. Co., 1 Peter's Rep. 386. Bissel v. Hopkin's, 3 Cowen's Rep. 166.; Callen v. Thompson, 3 Yerger's Rep. 473.

8.

AYRES V. MOORE. January T. 1830. 2 Stewart's Rep. 336.

made to

or

Trespass by Moore against the defendant, for taking away a ne- But it is for gro boy Tom. Ayres pleaded, that he levied on the boy as sheriff, the jury to say whethe boy being the property of one James B. Moore, by virtue of ther it was an execution against him. The plaintiff relied on a bill of sale to hinder delay crehim for the negro, by James B. Moore, in March, 1825, for the ditors, consideration of $225, to be paid at Christmas; and which was duly paid, and the bill of sale duly recorded. The sale took place at the house of James B. Moore, when the slave was delivered by putting his hands into the hands of the purchaser, who afterwards went home, leaving the slave in the possession of the vendor. About six weeks after the plaintiff took the boy home, but went backwards and forwards from the house of the purchaser and vendor, but was some time after, continually at the house of the purchaser. The defendant gave in evidence a mortgage of the boy, made after the sale to one Brittain, who forcibly took the boy, and retained him near twelve months, until J. B. Moore satisfied the debt, when the boy was returned, and again went into the possession of William Moore.

The counsel for the defendant requested the court to instruct the jury "that if they believed the possession did not accompany and follow the bill of sale from J. P. Moore to the plaintiff, William Moore, at the time of its execution, that then the said bill of sale was fraudulent in law, as against creditors and subsequent purchasers." But the court refused, and charged them, "that if they believed that the consideration of the bill of sale was bona fide, and that it was duly recorded, it was good and valid in law, though the negro remained in possession of the vendor previous to that time."

The Court, Lipscomb, Ch. J., and Saffold, J., both gave opinions, and after referring to Hobb v. Bibb, supra; Bissell v. Hopkins, 2 Cowen's Rep. 431., Barron v. Paxton, 5 Johns. Rep. 261., Dawes v. Cope, 5 Binney's Rep. 265., Brooks v. Powers, 15 Mass. Rep. 244., Howell v. Elliott, 1 Badger & Dev. Rep. 76., Clow v. Woods, 5 Serg. & Rawle's Rep. 275., held, that where the vendor remains in possession of personal property sold, it is not sufficient, as against creditors, that the consideration of the sale be bona fide, and the bill of sale recorded; it must appear that the sale was not made to

hinder or delay creditors; and whether it was made to hinder or delay creditors, is to be determined by the jury from all the cir

cumstances.

of slaves,

under a

9.

GARTH'S EX'RS V. BARKSDALE. March T. 1816. 5 Munf. Rep. 101.; GAY V. MOSELY, 2 Munf. Rep. 543.; BEASLEY v. OWEN, 3 Hen. & Munf. Rep. 449.

Five years' Trespass brought by Barksdale against Garth, sheriff, for unpeaceable possession lawfully seizing two slaves. The plaintiff claimed the slaves, as having been the original owner, and only having lent them to Barksdale, who had married his daughter; the defendant undertook to prove that the slaves had been in Barksdale's peaceable and uninterrupted possession for five years from the time when they were first loaned him, and before the service of the execution.

loan by parol agreement,

vests the title in the loanee, subject to his creditors, and

which can

them after

tion of the

five years.

The court instructed the jury, that if the slaves loaned by the plaintiff to Barksdale, had, before the expiration of the five years, not be de- been returned, by the consent of the lender and borrower, that vested by returning would interrupt the possession; and that even if the borrower, the expira- after five years' possession of the slaves, had surrendered the same to the lender, the lender's right to the slaves became revested in him, so as that, in neither case could an execution, in behalf of a creditor against the borrower, which issued subsequent to the last return of the slaves into the borrower's possession, be levied on said slaves, although in the borrower's possession at the time of levying said execution, unless five years had again elapsed after the possession of said slaves was restored to the borrower. Verdict for plaintiff; and the defendants appealed.

Per Cur. The Court is of opinion, that the instruction of the superior court is erroneous in this, that the five years' possession of the negroes by Douglas Barksdale, if proved, vested a title in him, which enured in favor of his creditors, notwithstanding he might thereafter have returned the same to the plaintiff, from whom he had received them. Judgment reversed. See Boyd et al. v. Stainback et al., 5 Munf. Rep. 305. Where the court declared, that a loan of slaves, though not declared by deed in writing, duly recorded, and therefore void as to creditors, (the loanee having continued in possession five years without such demand as would bar their right,) is nevertheless effectual between the parties and their representatives. If, therefore, the loanee die in possession, they are not to be considered as assets belonging to his estate, nor

can be recovered as such; being liable to his creditors, so far as their claims remain unsatisfied by the assets in the hands of his executor or administrator, but no farther. And if the assets be

deficient, a court of equity will give the creditors relief; they will make the assets liable, in the first place, so far as they extend, after which it will allow the lender a limited time to make good the deficiency, and in defualt thereof, a sale of the slaves.

(G.) BY PRESCRIPTION.

1.

BROH V. JENKINS. April T. 1821.

Rep. 526.

9 Martin's Louisiana

by pre

be examined accord

ing to the

laws of the

country in which he

was thus

acquired.

This suit is brought by the plaintiff, as heir to his mother, to If a slave recover a slave named Lazare. The testimony on the part of the be claimed plaintiff is, that he is the only child of Madame Broh; that the scription, the quesslave Lazare belonged to her in the year 1803, when she resided tion is to at Jeremy, in the island of St. Domingo; that she sent him to Charleston in that year; that she died at Baracoa, about the end of 1808, or begining of 1809; that the plaintiff was born in 1792, or 1793, and was consequently 26 or 27 years old when this suit was commenced. The testimony on the part of the defendant is, that Lazare was in possession of Mr. Placide, in Charleston, about fourteen years before this suit was commenced, where he always remained, until sold to defendant; that Placide sold him to Dastras on the 26th day of May, 1806, who possessed him, as owner, until his death, in the summer of 1817, a term of eleven years; that he was in October, 1817, sold to Lazarus; that Lazarus sold him to defendant, on the 2d of August, 1819, in Charleston, South Carolina. The plaintiff arrived here in 1809. The negro Lazare was brought here by the defendant, in the month of August, 1819, and this suit was commenced the 15th September, in the same year. The defendant sets up the title of prescription by virtue of possession, in himself and others, under whom he claims, founded on the several sales which were produced. The principal question in this case was, by what law will the court judge of the prescription: that of South Carolina, where the slave was, or that of this state, where the suit is brought.

Porter, J. The presiding judge of this court has gone so fully