"Gentlemen of the Jury: You have listened patiently—you have manifested a very commendable spirit in doing so— through this long and tedious and uninteresting trial. You have heard all the evidence and the argument of counsel, and you will now hear the law of the case expounded by me, and you will take the law as I give it to you. Should I err in doing so, there is a higher court to correct my errors. This is an action, gentlemen, brought by Sarah J. Archer and several others against J. G. Long, to recover the possession of personal property, consisting of mules, cows, hogs, wagons, and other plantation implements, enumerated in the complaint here. It is not necessary that I should repeat the enumeration. They claim to be the owners of this property, and allege that the property has been taken by the defendant, and wrongfully detained from them. When they brought this action against the defendant, the de
fendant had seized this property, and the action is that which is called 'claim and delivery, ' where the one that brings the action, if a proper bond is given, can get the property into his possession; and that the plaintiffs did. They replevied the property, as it were, by giving a proper bond to the clerk of the court; whereupon the property was delivered over to them. But it is to abide the event of this suit, the object of which is to try the title to that property, and, if the plaintiffs show a good title, they will simply keep the property, which they have in their possession. But if the title should be shown to be not in the plaintiffs, but in those represented by the defendant, who is the sheriff of your county, then the property would have to be returned, given up by the plaintiffs, and handed over to the sheriff to be sold under these executions. In this action the plaintiffs must recover, if at all, upon the strength of their title. In order to show their title, they have introduced a bill of sale from Albert G. Means, their father, to Robert Beaty; and then a transfer by Robert Beaty to them of the property here sued for; and that was dated on the 30th of December, 1887. That is all right. That is a good title, if Mr. Albert G. Means was at that time the owner of the property, and there is no doubt about that. That is conceded on both sides, that prior to the 30th December, 1887, Albert G. Means owned this property. Heconveyedit to Robert Beaty, and Robert Beaty conveyed it to the plaintiffs.
"Now, gentlemen, that is a good title, and will prevail against the defendant, who is your sheriff, unless he can show abetter title. The sheriff is proceeding under executions issued to enforce judgments recovered in the spring of 1888, several months after this conveyance, after the title had passed out of Albert G. Means. You observe that that, now, does not give the sheriff any right whatever to take this property, and the plaintiffs' title is prima facie good against that of the sheriff, acting as agent of these judgment creditors. But the judgment creditors assail this title acquired through Robert Beaty upon the ground that it is void for fraud; that at the time Albert G. Means made the bill of sale to Robert Beaty it was done with the view to defraud these very creditors who got their judgments in the following spring; and that, therefore, the bill of sale is null and void. Now, if they have made good that assault upon the bill of sale, it will have to give way. But if the bill of sale is not impeachable for fraud, but is valid, why, the plaintiff must recover. And you see the whole question, then, turns upon the validity of that bill of sale. If that bill of sale is good, why, these plaintiffs recover the property. If the bill of sale is void for fraud against those whom the sheriff represents, then the plaintiffs will fail. Just there, now, gentlemen, I have been requested to charge certain propositions of law; and, inasmuch as the bill of sale, the plaintiffs' title, is assailed for fraud by the defendant, I will read the requests which have been submitted to me by defendant's counsel, containing in his opinion the law applicable to the defense.
"The first request to charge, gentlemen, reads as follows: ' That, while an insolvent debtor may, by bona fide mortgages, confessions of judgments or conveyances, intended merely as securities, give a preference to one or more of his creditors, yet if such instruments are really designed and intended to operate, not merely as securities, but as the means of transferring his property to one or more of his creditors in preference over others, they must be declared null and void; and it matters not whether there be one or more than one of such papers, if they are connected together, and operate as an assignment, and were intended to give a preference.' That is a correct proposition of law, if the papers amount to a general assignment.
"Second. 'A conveyance made in payment of a bona fide debt is fraudulent and void, if made with intent to hinder, delay, and defraud other creditors.' I charge you, gentlemen, thatthis is a correct proposition of law.
" Third. ' If Mr. Robert Beaty let Mr. A. G. Means have money, not intended at the time to require him to pay it back, but merely to account for it as advancements, it cannot be made a consideration sufficient to support a sale. A gift cannot be converted into a charge.' That is a correct proposition of law, gentlemen; except that I will say that the word 'advancements ' there, in its technical sense, could not be used in speaking of a transaction betwixt Mr. Robert Beaty and Mr. A. G. Means. But the meaning of the proposition, taken altogether, is that a gift cannot be afterwards converted into a charge, a debt, or a claim.
"Fourth. 'A debtor cannot prefer one creditor to another, if the consideration of his doing so is that he receive some benefit to himself for such preference; and if it was understood before the conveyance of the property to Mr. Beaty that it should be immediately assigned to Mr. Means' children, and if the assignment was any part of the consideration to Mr. Means to execute the conveyance, it is void.' If the assignment to his children was the consideration that induced him to do it, why, the conveyance would be void. But if the debt was a bona fide debt, and Mr. Means was advertised beforehand, or knew beforehand, when he paid the debt to Mr. Beaty, that Mr. Beaty would give the benefit of it to Mr. Means' children, that would not necessarily vitiate the transaction. But the proposition, in the shape in which it is put here by the defendant's counsel, I charge you is correct.
"Fifth. 'If the conveyance and assignment were so closely connected as to amount to one transaction, it is a very strong badge of fraud.' Not necessarily, unless the assignment to the children was the consideration that induced the conveyance by Mr. Means to Mr. Beaty.
"Sixth. 'In deciding the bona fides or the mala fides of a conveyance by a debtor of his property, much importance is to be attached to the fact that it was made in payment of a pre-existing debt; and that fact, together with the fact that the debtor retained possession and use of the property, renders the transaction fraudulent
unless the vendee, and those claiming under him, explain by the clearest and most satisfactory evidence the retention of possession.' That is a correct proposition of law, and, put in short terms, it is that where one conveys property in payment of a debt, and still retains the possession of it, it' devolves upon him to show clearly and satisfactorily that his possession is all right. Otherwise it would be a presumption of fraud. But he has a perfect right to show that the possession continued in him in consequence of a good and proper contract with the party to whom he conveyed.
"Seventh. ' The sale of the whole, or the most valuable portion, of a debtor's property, in anticipation of suits against him, and retention of possession by him, are such strong evidence of fraud as to avoid the transaction, unless explained by the most satisfactory evidence of fair dealing.' That is correct. It throws upon the party retaining the property the duty to explain how it is that he is retaining it, and, unless he can give a proper explanation of it, why, it will be presumptive evidence of fraud, —in fact,...
