Waller v. Cralle

• Decision Date: 09 December 1847
• Citation: 47 Ky. 11
• Parties: Waller v. Cralle.
• Court: Kentucky Court of Appeals

47 Ky. 11

Waller v. Cralle.

Court of Appeals of Kentucky.

December 9, 1847

Fraud. Creditors and purchasers. Evidence. Authentication of deeds.

APPEAL FROM THE HENDERSON CIRCUIT.

Harlan & Craddock for appellant

Morehead and Reed for appellee.

OPINION

SIMPSON JUDGE.

Case stated.

THIS is an action of detinue for several slaves, instituted by the appellee against the appellant.

The plaintiff in the action claims the slaves by purchase from Armistead Long, who had married her daughter. At the time of the purchase, she was residing with Long, the vendor, where she continued to reside subsequently for a considerable period of time. No actual change of possession was made under this sale, but the slaves remained in the possession, and under the control of Long as they had been previously. At the time of the sale, Long was largely indebted, and the defendant claims the slaves in controversy, as a subsequent purchaser from Long, being also a creditor at the time of his purchase.

Sales of slaves and other personal property, where the possession does not accompany the sale, but remains with the vendor, are fraudulent and void, as to creditors and subsequent purchasers. This doctrine is too well established to require a discussion, or reference to authorities for its support. The condition of the parties at the time of the sale, the vendee residing with the vendor, does not take the sale out of the operation of this rule of law. An actual change of possession, so far as the thing sold is susceptible of it, is absolutely necessary to the validity of the sale as to creditors and subsequent purchasers, whenever the vendor at the time of the sale, is in the possession of the property. And this transmutation of possession to be effectual, must not be merely nominal or momentary, but must be real, actual and open, and such as may be publicly known.

Sales of slaves and other personal property, where the possession is not taken by the purchaser, but remains with the seller are fraudulent and void as to creditors and subsequent purchasers; that the purchaser resided with the vendor does not render the actual change of possession less necessary.

Waller was apprised of the sale to the plaintiff, Mrs. Cralle, at the time he made his purchase, it is therefore contended, that having notice, he is not such a purchaser as has a right to impeach the previous sale on the ground of fraud. Where, however, a sale is fraudulent, and made to defeat or delay creditors in the collection of their debts, a subsequent purchaser from the fraudulent vendor is not affected by notice of the fraudulent sale and conveyance: (Roberts on Fraud, 16; 1 Marshall, 209.)

The fact that the purchaser had notice that a previous sale had been made will not affect his right, if the sale was made to defeat or delay creditors in the collection of their debts.

Waller made his purchase from L. J. Cralle, the agent of Armistead Long, and procured from him a bill of sale for the slaves, executed in the names of Long, Mrs. Cralle and L. J. Cralle, the agent of Long. It appears, however, that Cralle had no authority from the plaintiff to make sale of the slaves, or to execute a bill of sale in her name. Nevertheless, the execution of the bill of sale in her name, although without authority, is relied on as an estoppel on the purchaser to deny her title to the property. It cannot have this effect. The whole transaction shows that the purchase was made, and the property held in opposition to, and not under her title. The purchaser did not recognize, but on the contrary, denied its validity; although for the purpose of preventing litigation, he may have deemed it prudent to procure a transfer of her claim, supposing at the time, that L. J. Cralle was empowered to make it. He has not since looked to her for title, his purchase was not executory, but executed, and there is nothing in his attitude in relation to the plaintiff to preclude him from denying her title, and showing it to be wrongful and illegal. Besides, if the bill of sale to the defendant in the name of the plaintiff operates as an estoppel on him to deny her title, it must be on the ground that the writing is obligatory on her; but as she has repudiated it, and denied its validity, the estoppel, if one ever existed, so far as it was created by the mere execution of the bill of sale, has been removed, it being well settled that upon the principle of reciprocity, one is not bound by an estoppel, when his adversary has placed at large the matter of estoppel: (4 Dana, 256.)

The slaves in controversy had been removed from this State by the directions of the plaintiff, under suspicious circumstances. They were taken by L. J. Cralle in the night, for the plaintiff, who is his mother, and hurried along...