Swigert v. Thomas
| Decision Date | 19 October 1838 |
| Parties | Swigert and Shreve v. Thomas. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR JESSAMINE COUNTY.
Messrs Morehead & Brown for appellants.
Mr Owsley for appellee.
The facts.
A fieri facias in favor of Vinton and Rockhill another in favor of Gill, and two others in favor of the Bank of the Commonwealth, all against Jacob H. Holeman, having been levied in May, 1832, on a female slave (Laura,) and various articles of household furniture then in his possession in Frankfort, and all of which property had been previously mortgaged by him to Vinton and Rockhill, as a collateral security for about four hundred and fifty dollars the debt for which there said execution was issued--the slave and furniture, at the instance, or with the concurrence, of the execution creditors, were nevertheless left in Holeman's possession by the sheriff; who, as he himself says, proposed to sell the property more than once, between the date of the levy and the succeeding December, but was, in each instance, directed by the creditors, or their agents, to defer the sale.
Laura having been carried by Mrs. Holeman to the county of Jessamine, in December, 1832, a fieri facias, in favor of Benjamin F. Thomas, and against Jacob H. Holeman, was there levied on the said slave, and Philip Swigert, as agent of the sheriff of Franklin and of Vinton and Rockhill, having asserted a prior right to Laura, under the mortgage and the levy, in May, 1832,--a jury, empannelled to try the right of property, decided that she was not subject to sale under Thomas' execution. Whereupon, the sheriff, being indemnified by Thomas, sold Holeman's equity of redemption under the execution in favor of Thomas, who became the purchaser, at the price of twenty five dollars; gave bond, according to the provisons of the statute of 1828, for the forthcoming of the slave within one year, and took her into possession; whereupon, Swigert, as agent as aforesaid, and John M. Shreve forcibly rescued her, and having restored her to Holeman in Frankfort, the equity of redemption in her and the household furniture was afterwards sold by the sheriff of Franklin, and Swigert having become the purchaser, he permitted Holeman to take and sell her, by private contract, for a sum with which he discharged the mortgage debt.
For the forcible taking of the slave in Jessamine, Thomas sued Swigert and Shreve, in an action of trespass, and recovered a judgment for eight hundred dollars, in damages; to reverse which, this appeal is prosecuted.
The action, judgment, etc.
The only questions for revision are presented by instructions to the jury, on the trial.
The Circuit Judge instructed the jury: first--that the levy in favor of the mortgagees, was void; secondly--that all the levies in May, 1832, should, upon the facts exhibited, be deemed fraudulent as to Thomas; thirdly--that, if Thomas had a title to damages, he had a right to recover the value of Laura at least; and fourthly--that, after the sale of the equity of redemption to Thomas, and the delivery of the slave to him by the sheriff, the mortgagees had no right to the possession of her, and therefore Swigert, as their agent, had no right to take her.
Instructions.
First. It has been decided by this Court, that the mortgagor's equity of redemption is not subject to the mortgagee's execution on a judgment for the mortgage debt; and therefore, the levy in favor of Vinton and Rockhill, on Holeman's equity of redemption, should--as decided by the Circuit Judge--be deemed void.
An equity of redemption is not subject to sale, under the mortgagee's execution for the mortgage debt; such levy and sale are void.
Second. Prior to the American revolution, the prevailing doctrine in England was, that the retention of possession of movable property by the debtor, with the assent of the creditor, and without any effort by him to sell it in the usual time, notwithstanding a levy of his (the creditor's) execution upon it, was, if unexplained, prima facie evidence of fraud between them, so far as any other judgment creditor of the same debtor was concerned.
The simple detention of movable property, by a debtor after the levy of an execution upon it, is not--in this State, where it is common to permit such retention--necessarily a fraud upon other creditors of the same debtor: and if such permission is not extended beyond the time when the sale ought to be made, it should not be deemed even prima facie evidence of fraud; though it may be slight evidence of collusion. But--
But the more modern rule in England seems to be that, in such a case, the fact that the possession did not accompany the title acquired by the officer in virtue of his levy, may be, per se, fraudulent in judgment of law.
This latter doctrine has never been recognized in Kentucky; nor, in our opinion, should it ever be. The post-revolutionary decisions in England are not authoritative evidences of the common law here. And, as the judicial rule as to conclusive legal fraud, is not, in our judgment, consistent with either the analogies or ends of the law, we will not extend it farther than it was authoritatively established in England antecedently to the 4th of July, 1776. We can not admit, therefore, that the simple retention of movable property by the debtor, after the levy of an execution upon it, should be deemed necessarily a fraud in law on other creditors of the same debtor. And, if such possession be not continued longer than a vigilant officer may be conveniently able to sell the property, we should be inclined to the opinion, that such a fact, so common in the practice of this country, and so compatible, therefore, with good faith, should not alone be even prima facie proof of a fraudulent intent--though it might be some slight evidence of collusion.
But we do not doubt that, either such a retention of possession, with a right in the debtor to consume or sell the property, or any indefinite holding by the debtor, without any effort by the creditor to sell the property, within the ordinary or usual time, should be deemed prima facie evidence of collusion to the prejudice of other bona fide creditors--that is, sufficient proof of fraud until the contrary appears.
If a debtor, on whose movable property an execution is levied, is permitted to retain, and consume or sell it; or if he is allowed to retain it indefinitely, without any effort on the part of the creditor to have it sold, this, in the absence of countervailing proof, would be sufficient evidence of a fraud upon other creditors.
Qu.--whether there should be a reversal, for instructions technically erroneous, when the verdict, with or without them, must have been the same.
This is the established doctrine in New York. (Farrington vs. Caswell, 15 Johnson's Rep. 428--9--30.) And it is, we think, the more rational and just doctrine.
In this case, the continued possession by Holeman, for months after the levy, must, as unexplained, be deemed unusual and unreasonable, and, therefore, prima facie fraudulent. Consequently, as there was no attempt to repel that presumption, (and which was even fortified in some degrees by other facts,) it was the duty of the jury to find that the levy, in May, 1832, was void, so far as Thomas was concerned as a subsequent execution creditor. And therefore though the Circuit Judge was...
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