Horn v. Ross & Leitch

By the Court. Benning, J. delivering the opinion. Was the Court below right in over-ruling the objections to the admission in evidence of the claim fi. fa. ? They?, fa. was for only $65 83. It had on its back an entry,, stating that it had been levied on five negroes. This «entry bore date the 4th of January, 1833. They?, fa. had ■ also on its back, another entry of the same date, stating that the megroes levied on had been sold on that day; and that the money for which four of them sold, had been applied to a ■ mortgage fi. fa.; and that the money for which the fifth sold, had been held up subject to the order of the Court. As to the money arising from the sale of the fifth negro, the Court ordered it to be applied to other fi. fas. The main objection to the admission of the fi. fa. was, that the entries on its back showed it t'o be satisfied. When a fi. fa. has been levied on personal property, sufficient in value to satisfy the fi. fa. the presumption is, that it has been satisfied. This presumption may, however, be rebutted, by showing that the property, at its true value, was applied to higher demands on the property; and showing that the property wag sold at a regular sale, and that the money arising from the sale was applied to such higher demands, would be showing that the property, at its true value, was so applied; because, it is to be presumed that property sold at a regular sale, fetches its true value. But, showing that the property was sold at an irregular sale, as that it was sold on the same day on which it was seized; and therefore, that it was sold in the absence of advertisement; and then, showing that the proceeds of such irregular sale were applied to such higher demands, would not be showing that the property, at its true — 220 — value, was so applied ; for, it is to be presumed that property sold in such an- irregular and hasty manner, would not fetch, its full value. Therefore, such a showing as this, would not rebut the presumption of satisfaction arising from the levy’s being on property sufficient, in value, to satisfy the fi. fa. And such a showing as this, was the showing of this plaintiff in fi. fa. in respect to the levy entered on the fi. fa. The showing was therefore not sufficient. [1.] He ought to have shown that the property, though sold irregularly, brought its full value; and yet, did not bring enough to do more than satisfy the higher demands-upon it; or, at least, he ought to have shown that the property, when rated at its full value, would not have been sufficient to do more than satisfy such higher demands. Not having done this, his fi. fa. as we think, ought not to-have been received in evidence. The other objections to the admission of the fi. fa. resolve themselves into this : that it does not sufficiently appear that the debts to which the proceeds of the sale, irregular as it was, were applied, had priority over the fi. fa. What does appear, amounts to this: that all the proceeds of the sale were applied by the Sheriff', acting either on his own responsibility, or acting under an order of the Court, to other debts. And prima facie, it is to be presumed, that this was a proper application of them; for, prima facie, it is to be presumed, of all officers, that they do not violate their duty. The deed of settlement contained a recital of an antenuptial contract. This recital, the claimant contended, was evidence for him. The Court held that it was not. Was the Court right? It is a general principle, that declarations made by a person, if they are adverse to his interest when made, are evidence against him, and against all persons claiming under hini by a right arising subsequent to the declarations. (Ivat vs. Finch; 1 Taunt. 161; 2 Phil. Ev. Cow. & Hill’s Notes, note 481.) — 221 — Recitals in a' deed are but the declarations of the author -of the deed. (1 d. note 869.) Harvard was one of the makers of the deed of settlement; nnd therefore, was one of the makers of the recital contained in that deed. He was also the defendant in the claim fi. fa. — the fi. fa. that was seeking to condemn the property settled by the deed. Now the plaintiff in the fi. fd. in a claim case, can rely upon no title but that of the defendant in th a fi. fa. He is in privity with the defendant in thefi.fa. Therefore, the plaintiffs in this case were in privity with Harvard — they had to claim under him! The only question remaining, therefore, is this: did they elaim under him by a right that arose subsequently to the date of the deed, and consequently, to the date of the recital ? And the answer is, that they did. The note on which their fi. fa. was founded, was made on the 6th of March, 1851. The deed was made on the 24th of July, 1850. ■ This being so, the recital, when made, was against the interest of Harvard. It follows, then, that by the general principle above stated, the recital was evidence against Harvard, and also against •the plaintiffs in fi. fa. for they claimed under him. Is there anything in this ease to take such a recital out of the general rule ? It is said that there is. It is said that •there is something in the nature of a claim case, that forbids the admissions of the defendant in fi. fa. even though made against his interest, from being received in evidence for the ‘claimant; and yet, a claim is but a statutory substitute for -certain Common Law forms of action that, themselves, do not have any such effect. 13y an action of trespass against the Sheriff, or an action of trover against the purchaser, the claimant can attain, in substance, all that he can attain by a claim. And in an action taking either oí these two forms, he would have the right to use the sayings of the defendant in fi. fa. if adverse to the defendant’s interest, as evidence; — 222 — •and his action may still take either of these forms. I • am wrong, to say that the claim is a statutory substitute for •them. It is not a substitute for them. It is a form in addition to them — a form by which, what they would accomplish, is accomplished more simply. Did -the Statute giving this form, repeal any rule of evidence, so far as this form was concerned? Did it repeal anything? No. There is not any decision of this Court that goes the length of determining, that sayings of the defendant in fi. fa. adverse to his interest, made not only before the origin of the claim case, but before the origin of the debt on which the claim #. fa. is founded, are inadmissible for the claimant. But that is the length to which the decision of the Court below, in this -case, goes. [2.] We think, therefore, that the recital was prima facie evidence for the .claimant; and.copse.quently, that the Court ■erred in charging that'it was not evidence for him. The Court, in the course of its charge, told the Jui-y, that “ If Harvard took possession of the property after the marriage, without an antenuptial agreement, and had it under his control, it vested title in him — his marital rights obtained, and the property was his; and if this was all the property Harvard had, and Harvard made a voluntary gift of it to his wife, and immediately afterwards contracted large debts, it was evidence of fraud, and was void against creditors.” By the words, “immediately afterwards,” we understand the ■Court to have had reference to the facts of the case; and therefore, to have intended the interval of time between the ■making of the deed and the contracting of the debt. And with this import to those words, the charge amounts to this: that if the property once vested in Harvard, and it was all he had, and he made a voluntary gift of it to his wife; -and not more than six or seven months afterwards, contract-cd large debts, the gift was fraudulent, as against creditors; and was therefore void as to creditors; that is to say, that so ■contracting' such debt-3 was conclusive evidence of fraud •against creditors. Is this so ? — 223 — What shall be the answer to this question; depends upon, what is the meaning of the 18i7t JSliz. elu 5, the abstract of' which, in Oobb’s Digest, is as follows : “ That every convey- - anee of real or personal estate, by writing or otherwise, and-every bond, suit, judgment and execution that shall be had’ or made to delay or defraud creditors or others of their debts and other rights, shall be void as against such creditors, &c. and them only. But that the Act shall not extend to any conveyance on good consideration, and bona fide to-persons without notice of the fraud.” Unless a deed be made with the intention to delay or defraud creditors and others, it is plain that it is not within the-Act. Now when a man makes a voluntary deed of even all his' property, it is at least a possible thing that he does not intend to defraud some person who may become his creditor six months afterwards. The man may think that he will never go in debt to any body; the subject of his going in-debt may not be in his mind; he may feel that if he ever does go in debt, he will be able to pay out by his future acquisitions. If any of these things be true of him, it is manifest that he does not, at the time when he makes the deed, intend, by the deed, to defraud his future creditors. Yet, the charge says, in effect, that it is not possible for a man to make such a deed without intending, at the time, to defraud every person who may, in six months afterwards,, become his creditor. [8.] And therefore, we think the charge too general and. sweeping. Had the Court told- the Jury, that if the circumstances-which the Court enumerates existed, they would constitute such evidence of fraud, that it would be necessary for the claimant to rebut them, in order to prevent the' deed from being considered fraudulent and void, the Court would have told them what, in the opinion of one member of this Court, is now law; and what, in the opinion of the other two mem — 224 — bers, was law until the passage of the Act of 1847, “to require marriage settlements to be recorded.” The view which has been presented of the Statute of the 13 Eliz. ch. 5, may not be in accordance with the later English decisions. Rut we think it sufficiently supported by such as existed at the time when the law of England became the law of Georgia. The Supreme Court of the United States say, “ There is some contrariety and some ambiguity in the old cases on this subject. Rut this Court conceives that the modern decisions, establishing the absolute conclusiveness of a subsequent sale, to fix fraud on a family settlement, made without valuable consideration — fraud, not to be repelled by any circumstances whatever, go beyond the com struction which prevailed at the American Revolution, and ought not to be followed.” (1 Story’s Eq. §431.) In the opinion of Judge Lumpkin and myself, however,, the Statute aforesaid of 1847, has much to do with the question under consideration. The third section of that Act is in the following words : “ If any such instrument” (marriage agreement or settlement) “ be not recorded within the time prescribed by this Act, the same shall not be of any force or effect against a bona fide purchaser, without notice, or bona fide creditor,, without notice, or bona fide surety, without notice, who may purchase, or give credit, or become surety, before the actual recording of the same.” In the opinion of Judge Lumpkin and myself, the natural, if not the necessary, implication from this language is, that if the instrument be recorded within the time prescribed by the Act, it shall be of force even against a bona fide purchaser, without notice, a bona fide creditor, without notice, or a bona fide surety, without notice; and therefore, we think that if a voluntary marriage agreement be duly recorded, tliepresumption must be, that it is not fraudulent; and that this is a presumption to be rebutted only by showing something that would amount to positive, actual fraud: Such, for example, as the settler’s hiding the record book and inducing the Clerk — 225 — to tell the person inquiring for it, that it contained no record of a marriage settlement, when it did contain the record of' one. This Act ought certainly to receive the same hind of construction which the other Registry Acts have received. This marriage settlement was recorded in time. It was-made on the 24th of July, 1850, and was recorded on the 26th. The creditor had, therefore, in this case, more than six months record-notice of the settlement. On the remaining point in the case, we express no opinion. The bill of exceptions does not disclose' whether Mrs. Harvard, at the time when she said “ she intended to marry Harvard anyhow,” was under age, nor, if she was, who wa3. her guardian; nor does it distinctly disclose in whose actual possession the property was at that time, or was at the time when it was turned over to Harvard. And these are matters which affect the law of the point. The new trial which we grant is founded, therefore, upon the points previously considered.