Brown v. Smith

• Decision Date: 01 January 1847
• Parties: Brown <I>vs</I> Smith.
• Court: Kentucky Court of Appeals

46 Ky. 361

Brown vs Smith.

Court of Appeals of Kentucky.

Spring Term, 1847.

ERROR TO THE SHELBY CIRCUIT.

This opinion, with the case preceding, was delivered on the 31st October, 1846, by the present Chief Justice Marshall, at the close of the term, and suspended until this term.

THIS was an action of ejectment by the purchaser under execution, against the prior purchaser of the same land from the debtor.

The objection made to the terms of the levy as being upon the right, title and interest of Johnston in the land, and not upon the land itself, is untenable. The distinction is but nominal and has been too generally disregarded in making levies and sales, for it to be now questioned, whether a levy and sale in either mode is not sufficient, with the Sheriff's deed, to pass to the purchaser such title as the defendant had subject to execution.

But the Court erred in instructing the jury "that if they find from the evidence, that the sale from Johnston to Brown was made for the purpose of hindering, delaying or defrauding the creditors of Johnston, or any of them, in the collection of their debts, the sale was void as to creditors, if Brown knew when he made the purchase, that such were Johnston's intentions; and that a consideration having passed from Brown to Johnston does not make the transaction valid, if he had such knowledge of Johnston's intentions." We do not deem it necessary to enter upon any discussion of this instruction, but refer to the opinion just rendered in the case of Brown vs Foree, &c., in which similar instructions in reference to the same sale were decided to be erroneous. The question of fraud should have been left to the jury upon all the circumstances, and not upon the isolated fact of Brown's knowledge or ignorance of a fraudulent intent on the part of Johnston, if there was such intent. The knowledge of such intent could at most, afford only a presumption of fraud on the part of Brown, sufficient to establish it, unless repelled by other circumstances. To this extent and no farther, should any instruction have been given as to the effect which the particular fact of knowledge should have in determining the question of Brown's participation in the fraud.

The instructions given on the part of the defendant did not, as is contended, correct the error in the instruction for the plaintiff just noticed. They correctly informed the jury that Brown could not be affected by the fraudulent intention of Johnston, and they must find for Brown, if he himself acted in good faith and without the fraudulent intention of aiding Johnston in hindering, delaying or defrauding his creditors, or unless he made the purchase with the intention of assisting Johnston in his fraudulent purpose. But the first instruction had laid down a peremptory rule for ascertaining whether Brown did make the purchase with fraudulent intent, or at least for determining whether the sale was void or not, by telling the jury that if Johnston intended fraud and Brown knew it, the sale was void. If they believed these two facts, they could not without violating the principles of this instruction, find the fact of Brown's non-participation in the fraud, and thus the main object of the inquiry before the jury was to be concluded by the determination of a preliminary and inconclusive fact.

If upon any or all of the evidence, we could say that it was conclusively established in the whole case, that Johnston fraudulently contrived the sale for the purpose of hindering, delaying and defrauding his creditors by selling his visible property to another, and putting the price in his pocket, and that Brown, without necessity, made the purchase for the purpose of aiding him in the accomplishment of this object, which we admit his making it with full knowledge of Johnston's purpose, and without taking any means to prevent it, would tend most strongly to prove; there would, in such a state of case, be no reason for a strict scrutiny of the instructions, and no probability that the jury could have been misled by them. But as the evidence is not deemed absolutely conclusive as to either of the facts referred to, it is essential to the authority of the verdict, that the instructions should not have been of a character to mislead or even by their confliction, to confound the jury in their investigation of the facts. If it were doubtful upon comparison of the instructions which have been referred to, whether the jury may not have been misled by the first instruction, to give undue weight to the fact (as they might infer it,) that Johnston intended a fraud and that Brown knew it, we think it manifest from the subsequent course and events of the trial, that they...