Simpson v. Mitchell

• Decision Date: 31 August 1835
• Citation: 16 Tenn. 417
• Parties: SIMPSON v. MITCHELL.
• Court: Tennessee Supreme Court

16 Tenn. 417

SIMPSON

v.MITCHELL.

Supreme Court of Tennessee.

August Term, 1835.

This is an action of trover, to recover two negro slaves and some other property which had been taken as the property of John Staples and sold by Mitchell as sheriff, and to which the plaintiff claimed title by virtue of a deed, which, though absolute in terms, appears from other parts to be only a surety for a debt from said Staples to himself, dated the 27th of January, 1832. The deed, for the express consideration of seven hundred and seventy-one dollars and fifty cents, conveys to the plaintiff all the property of Staples, consisting of the two negroes, stock of every description, furniture, corn, and pork. The property remained in possession of Staples, was used by him as before the sale, and the corn and pork was consumed. It is stipulated in the deed that the stock of groceries thereby conveyed should be sold, and the proceeds to be applied to the payment of Staples' part of the partnership debts for which himself and Simpson were liable, and that the proceeds were to be accounted for without delay. John Staples, the grantor, being introduced as a witness, swore that he was justly and honestly indebted to Simpson in the sum of seven hundred and seventy-one dollars fifty cents, the consideration for which said deed was given, at the time the deed was executed. The jury, under the charge of the court, which is not excepted to, found a verdict for the defendant. The plaintiff moved for a new trial, which being refused him, he appealed in error to this court.

A. B. Lane, for plaintiff in error.

The plaintiff insists that the transaction between himself and Staples is destitute of fraud in fact, and, if it is avoided in favor of a creditor, it must be on the principle that his permitting Staples to make use of the corn and pork he did vitiated the deed from its creation. It is not provided, by the deed, that Staples shall use and consume the property, and the plaintiff's conduct in relation thereto could only be used as evidence to create the presumption of fraud. The plaintiff's conduct in relation to the property is explained by the evidence of Staples. Indeed, if he gave a full consideration, no creditor has a right to question the propriety of Simpson's charity to Staples and his family. See Cullin v. Thompson, 3 Yer. 475;4 Yer. 164. The case of Darwin v. Hadley, 3 Yer. 502, does not apply to a case like this; there, the deed was on its face only made to secure a third person, being a trust deed. It is believed that the case of Sommerville and Crutcher v. Horton, 4 Yer. 541, is subject to the same remark.

R. Wilson and J. Rucks, ...