Christopher vs. Covington and Smith, 2 B. Mon 357

Chief Justice Robertson delivered the Opinion of the Court. James Heatherly having conveyed to two trustees, (one of whom was his creditor,) a male slave and various articles of personal property, (described as constituting his whole estate legally subject to his debts,) in trust, for sale and distribution among all his creditors, who were numoious—two of them, who seem not to have assented to the conveyance, immediately afterwards sued him. at law and obtained judgments.

Executions of/, fa. which were issued on these judgments, were levied on the said slave and sundry other articles embraced in the deed of trust, which were sold by the sheriff for $801 68. Judgment of the Circuit Court for plaintiff below. A deed of trust of all the debtors property, including stock and a growing crop, which provides for a sale by the trustees, for the benefit of all the creditors, after the expiration of about 3 months, is not necessarily fraudulent, and if the intention be to mature the crop and fatten the stock, is not, per se, fraudulent.

For the debtor to remain in the possession of property so conveyed, is not, per se, fraudulent. After the sale of all the property levied on, except the slave, and between the date of the levy on and sale of him, the trustees brought this action of trover against the sheriff; and, on the trial on the general issue, verdict and judgment were rendered for $801 68, in damages. Against that judgment several objections are now urged in this Court. 1. The plaintiff’s counsel insist that the deed of trust was fraudulent and void, as to the judgment creditors, and that it was the duty of the jury to have so found.

There is nothing apparent on the face of the deed which would prove that it was intended to hinder or delay any creditor. It purported,to be for the benefit of all equally; and although it prescribed a sale after the expiration of about three months, upon notice and also upon a short credit, yet, as it did not otherwise restrict the power of sale, the inevitable delay that must have resulted from a sale as authorized, should not, in our opinion, be deemed suchas necessarily to evince a fraudulent design to obstruct or otherwise injure any of the creditors, In every such assignment some delay is unavoidable.

It is not, therefore, the fact of delay, but its character, and the motive which’ actuated it that is deemed fraudulent in law. It is proved that the avowed object of the parties to the deed, for postponing a sale for tho prescribed time, was a wish to allow time for fattening the hogs and maturing the growing crop embraced in the conveyance; and if this were the only motive, the delay was not, in our judgment, fraudulent; or in other words, the fact of delay does not, per se, prove that the deed was made to hinder, delay or defraud creditors.

And we are of the opinion that it was not the duty of the jury to find that the conveyance was fraudulent. Nor should such a conveyance, in trust, be deemed, per se, fraudulent, merely because Heatherly was permitted to remain in possession of the property conveyed. 2. The next objection to the judgment is, that the Circuit Court refused to permit the plaintiff in error to prove that, after the execution of the deed, Heatherly said that his object in making the conveyance was to prevent a sacrifice of his property and enable him to pay all his creditors.

The declarations of grantor, after the delivery of a deed, are not competent evidence against the grantee or others interested in the subject of the conveyance. It is not competent to prove_ a fraudulent intent in a conveyance in trust, to prove that the grantor had previously been guilty of making a fraudulenteonveyanee to another—Argu.

Though a sheriff may lawfully levy an execution on property mortgaged, yet he may he guilty of illegally selling, and by such illegal assumption, he guilty of a conversion, ab inito, and the acts of the sheriff after the institution of the suit are competent to ■show the oiigimal intention >.a taking.

But that fact, if it be admitted to be evidence against Heatherly, of a fraudulent intent on his part, was not, in our opinion, admissible against the trustees and beneficiaries, because the declaration was made after the delivery of the deed; and though he was then in the possession, we cannot perceive how that circumstance can make his declaration, not as to his possession, but as to his motive in making the deed, competent evidence. We cannot consider it admissible as part of the res gestae. 3.

The plaintiff in error also offered to prove that about the date of the conveyance in this case, Heatherly had made to other creditors a fraudulent conveyance of his land; but the Circuit Judge did not permit him to do so; and this also is objected to as erroneous.

But it seems to us that the judgment ought not to be reversed on that ground. ' The fact of fraud in another case would certainly be very remote and anomalous evidence of fraud in this case; and an investigation of such previous and independent fraud might not only have taken the opposite party by surprise, but have involved the Court in a collateral, and perhaps protracted and vexatious inquiry between strangers to this suit.

But, waiving all this, we will not reverse the judgment merely because .the Court did not permit such a collateral investigation, when the party proposing it offered no specific proof, propounded no question to any witness, nor showed, in any other way, that he could prove any fact which would even tend to establish the broad-cast charge that there had been fraud in another act of Heatherly’s life. 4. It is also urged here that, as the slave had not been sold when this suit was brought, the recovery as to him was unauthorized.

But, if it be admitted that the sheriff might have levied on the equity of redemption, and that, therefore, having a legal right of caption under the execution, there was, in judgment of law, no proof of conversion until there had been an illegal sale of the absolute property; yet, nevertheless, we are clearly of the opinion that the subsequent tort in illegally selling, operated, by relation, on the original levy, so as to make it an illegal assumption of dominion, and therefore, a conversion, ab initio.

A creditor who is provided for with others, in a deed of trust, but who has never assented to the deed, levies his execution on the trust property. In a suit by the trustee, in which a recovery is had for the illegal seisure against the sheriff and the creditor, the latter has no claim to any abatement in the extent of the recovery on account of his interest as a cestui que trust in 4he deed.

The sale proved the illegal intention with which the levy was made, and therefore, by proving that the levy had been for an unauthorized purpose, and was, consequently, tortious, it proved that, in making that levy, the sheriff was guilty of a conversion, for which this action vms maintainable. 5. The plaintiff’s counsel also argued that, as the execution creditors were beneficially entitled to a portion of the property sold by the sheriff, their distributive interests ought to have been deducted by the jury; and that, therefore, the assessment was exorbitant.

But this position also is, in our opinion,'indefensible. The legal title being in the plaintiffs in the action, they had a right to recover to the whole extent of the damage to their legal interest; and any equitable right which the beneficiaries may have, can be made available in equity only. This principle has been, heretofore, recognized and applied by this Court in such cases as this, and seems to be perfectly consistent with all analogy in actions on legal titles. 6.

The last objection to the judgment, is that the jury, in assessing damages, included about $6 for which some wool had been sold by the sheriff, and which, as assumed in argument, was not embraced by the deed of trust. We are strongly inclined, however, to the conclusion that, though the wool is .not specifically mentioned in the deed, it was intended to be embraced, and should, therefore, be deemed to have been vested in the trustees.

But, however this may be, we would not be disposed to reverse the judgment for $801 68 merely because, in the assessment, $6 had been included improperly, on account of the wool; for if the plaintiffs in the action were entitled to any thing, they were clearly entitled to the value of their property sold by the sheriff; and it is evident, not ■only that the verdict corresponds precisely with the ¡amount for which the sheriff sold the whole property, but •that this sum is less than the real value of the property, ¡excluding the wool.

Consequently, even if the price of the wool be deducted, the verdict is not higher than it ought to have been, upon the hypothesis that any verdict for the plaintiffs in the action was proper; and, as already intimated, we are of th'e opinion that the jury had a right, upon the law and the facts of the case; to find for the plaintiffs. Owsley Qoodloe for plaintiff; Turner for defendants. Wherefore, the judgment of the Circuit Court must be affirmed.