Peck v. Land

• Decision Date: 31 January 1847
• Docket Number: No. 1.,1.
• Citation: 2 Ga. 1
• Parties: Ira Peck, plaintiff in error. vs. Nathan Land, assignee of Henry Solomon, defendant in error.
• Court: Georgia Supreme Court

2 Ga. 1

Ira Peck, plaintiff in error. vs. Nathan Land, assignee of Henry Solomon, defendant in error.

No. 1.

Supreme Court of the State of Georgia

JANUARY TERM, 1847.

JANUARY TERM, 1847.

Claim from Twiggs Superior Court. Tried before Judge ScaR-borough, October Term, 1846.

Judgment against the plaintiff in error, who was claimant in the Court below, and motion for new trial overruled.

For the facts and circumstances of the case, and the error assigned, see the opinion of the Supreme Court.

Harris & Rockwell, for the plaintiff in error.

Argument of Mr. Harris.

This case is to be determined by the Statute of 13 Eliz. ch. 5. That statute was designed for protection of creditors against deeds, &c., fraudulent in. their concoction—of those devised of malice—and not such as in their effect merely might "delay or hinder" other creditors.—Meux, qui tam vs Howell, 4 East, 14 ed. 1805.

It is evidently meant by the expression—fraudulent in their concoction—those transfers or assignments, without being on a valuable consideration and bona fide designed to shield the vendor, by continuing him in the enjoyment of property which belongs in conscience to his creditors. Wherever such an end is contemplated, a trust is naturally implied.

To constitute fraud under the Stat. of Eliz., there must be either an express or implied trust for the benefit of the vendor.—Twyne's Case, 2 Coke R. 212.

The vague and unprecise notions too prevalent as to what constitutes fraud, must and should yield to the stern definition which the law has given to it; and although fraud is a Proteus assuming many forms, and in each and every form, perhaps, odious; yet it is not of fraud as defined by Cicero in his Offices, or by La bio, with which this tribunal has to deal—it is not with the genus, but the species, against which the Stat, of Eliz. was directed.

Fraud, sought to be remedied by that statute, appears by Twyne's case—a case decided in ten years after the enactment— a case of unquestioned authority, until doubted by the Circuit Judge—to be synonymous with a trust. The expressions used confirm this idea—"Here was a trust between the parties"— " Fraud is always appareled with a trust"—" A trust is the cover of fraud."

The term, " bona fide, " used in the proviso to the statute, signfies the non-existence of a trust. Thus, in the second resolution—"And no estate, interest in lands, goods or chattels, though on a true and good consideration, is yet bona fide and within the proviso which is accompanied with any trust."

Again—'' And as to the gifts made bona fide, it is to be known that every gift made bona fide, either is on a trust between the parties, or without a trust. Every gift made on a trust is out of this proviso; for that which is betwixt the donor and donee, calleda trust per nomen speciosum, is in truth as to all the creditors, a fraud."

" A gift, made bona fide, is a gift without any trust either express or implied."

In all cases, then, of transfers or assignments, the valuable consideration being proved, and in the case now before the Court no question arises in relation thereto—the chief, the only remaining inquiry is, as to the intent or motives with which they were made.— Nunn vs. Wilsmore, 8 Term R. 521.

No trust appears on the deeds. It is sought to raise the presumption of a trust, by alleging that the possession of the land and negroes did not accompany and follow the deeds; in other words, by the proof that Holmes, the vendor, remained on the land and continued to manage the negroes from the 27th March, 1842, (date of deed for the land,) and 31st March, 1842, (date of bill of sale of negroes,) until the levy by plaintiff in execution.

Upon the authority of Edwards & Harben, 2 Term Reps., and other cases, chiefly American following it, it is argued, that possession not accompanying and following the deed, it is fraudulent per se.

The reasoning of this class of cases is most ably refuted in Hall vs. Tuttle, 8 Wend. R. 375. Edwards vs. Harben is denied in Stewart vs. Lombe, by Dallas, Ch. J., 1 Brod. & Bing. 511, 5 Eng. C. L., explained in Martindale vs. Booth. 3 Barn. & Adol. 130, 23 Eng. C.L.

The learned note of Mr. Cowen to Bissell vs. Hopkins, reported in 3 Cowen R. 166, must convince any mind, free from prejudice, of the utter valuelessness of a rule to which there are twenty-two excepted cases.

The case of Leonard vs. Baker, 1 M. & Sel. R. 251; Watkins vs. Birch, 4 Taunt. R. 423; Jezeph vs. Ingram, 8 Taunt. R. 838; Kidd vs. Rawlinson, 2 Bos. & Pul. R. 59; Dewey vs. Baynton, 6 East R. 267; Reed vs. Blades, 1 Eng. C. L., all recognize the principle that fraud or no fraud is a question for the jury. In 10 Reports, 56, it is said by Lord Coke, "that fraud shall not be presumed, nor shall the Court adjudge it to be, until the matter is found by a jury."

Possession, then, is not a presumption de juris et de jure. It is remarkable, and worthy of note, that the Statute of Elizabeth says not a word about possession.—Lord Mansfield in Cadogan vs. Kennet, 2 Cowp. 482.

If possession continuing in the vendor be a sign of a trust, ac-cording to Twyne\'s case, it becomes important to look to the surrounding circumstances, before such an implication be allowed to become conclusive.

Notoriety of transfer is a strong circumstance to rebut that presumption. Latimer vs. Batson, 4 B. & C. 652 and Leonard vs. Baker, 1 M. & Sel. 251; Mair vs. Glennie, 4 M. & Sel. 248, and Ryall vs. Roll, 1 Atkins. If done in an open manner, and not in secret; publicly and before the neighbors; if appraised by good people and to the very value.—Ld. Coke's advice in Twyne's Case.

Against these, it is alleged, that other badges of fraud are apparent in this case, which require explanation:

1st. The generality of the sale to Peck, lands, negroes, horses, corn, carts, bacon, etc.

2d. The unbroken continuance of possession in Holmes for near three years from the sale.

3d. That the transfers were made pending the suit of Solomon, original plaintiff in execution.

In answer to the first—It is replied, that the evidence does not authorize the assertion. The bill of sale simply comprehended such chattels as were essential to stock the farm, in plantation phrase. The land having been previously purchased; and at that season of the year, in that latitude, the crop had been planted.

To the second-The negroes, etc., were delivered at the time of the sale, as appears by the evidence of Col. Crocker, the attorney of Peck, who was taken along to advise and direct. Bullard, a neighbor of Holmes, proves the same fact. After the completion of the purchase, Peck said to Holmes, "take care of them until I can make other arrangements." This custody formed no part of the original agreement or contract of sale, and should not therefore be deemed a trust for the benefit of Holmes. Holmes remaining on the land and working the negroes subsequently, is not incontistent with the deed, as the dominion of Peck was asserted by several acts, viz: the renting of additional land; the payment of blacksmith's bills; shoes for the negroes, and more especially by the overwhelming fact, that the cotton made on the land by the negroes, was marked at the warehouse, by Bullard, in Peck's name, and shipped for him to market.

These facts are absolutely irreconcilable with the existence of a trust for Holmes' benefit.—See Benton vs. Thornhill, 7 Taunt. 149.

To the third—It may be replied, that although in Twyne's case, this is enumerated as a sign of trust, it is extremely difficult, insound logic, to perceive why that should be considered as a "badge, " when there can be no question as to the right of Holmes to sell, and Peck to buy, at any moment up to the rendition of judgment. A debtor has a distinctly acknowledged right to prefer one creditor to the exclusion of all others.—Comyn. Dig., Title Covin., 285, 3 v.; Holbird vs. Anderson, 5 Term E. 236; Estwick vs. Caillaud, 5 Term R. 420.

This preference may be given even after other creditors have commenced their actions, unless the debtor be a trader in contemplation of bankruptcy.—Pickstock vs. Lyster, 3 M. & Sel. E. 371; Meux vs. Howell, 4 East; Bowen vs. Bramidge, C. & P. 142; Goss vs. Neale, 5 Moore, 29. And though this is done by the assignor expressly with a view to delay and hinder other creditors, &c.

Both principles cannot coexist, and at the same time, and in the same case, be applied. It savors of absurdity, to say that although it is neither illegal nor immoral for the vendor to sell pending the suit against him, yet because he does a lawful act, it shall be considered as a badge of fraud.

There is error in the charge of the Court, that where a creditor in payment of his antecedent debt, purchases of his debtor a large surplus over of property, it is a badge of fraud. No such sign of fraud is enumerated in Twyne's or any subsequent English case, upon the Statute of Elizabeth. It is unsupported in this argument by counsel for the defendant in error, by reference to any adjudication, except the case of Smith vs. Henry in Hill's Law E., S. C. 21. It may not be improper to remark, that when we are occupied in tracing Common Law principles we will not look into the reports of South Carolina, with a view to find them in their original purity. Bound as we are by Common Law, as usually of force in this State previous to May, 1776, we should look to the English Reports before that date for the governing rule.

This matter, however, has been settled, after able argument, by this Court, in effect, if not in terms, in the case of Eastman vs. McAlpin, June Term, 1846, at Hawkinsville. If that decision is adhered to now, the Court below in this case erred. The charge complained of and that decision are irreconcilable. Without such an expression of opinion from the bench below, who can believe that the jury would have made the finding that it did.

It has been argued that the decision of Eastman vs. McAlpin was under the Act of 1818. That is not denied, but it...