Roberts v. Boylan

McDonald, J. By the Court delivering the opinion. [1.] The conveyance executed by Fay to Mrs. Short, vested, the title in her husband, Adam Short. Adam|Short being insolvent, conveyed to Hiram Roberts all his property for the benefit of all his creditors. The jury .do not, in their verdict, set forth the deed of assignment, but they findjthat a number of negroes were mentioned and named in it, and that the negro woman Mary, was not named among them. The jury further find, that Hiram Roberts took possession of all the negroes mentioned and named in the said deed, and duly advertised and publicly sold them, at the door of the Court House, for the benefit of the creditors of Adam Short. He did not take possession of the negro woman Mary, but left her in the possession of the said Adam Short. The jury do not find that Mary was conveyed by the deed of assignment. They rather find in part, the contents of the deed of assignment. They do not set forth in their verdict, .however, the names of the negroes mentioned .in the deed, but content themselves with saying, that Mary’s name is not among them, which fact would certainly have appeared negatively, if they had given the names. We hold, therefore, that, although the deed of assignment is general, of “all his property,” the subsequent specification of a number of negroes by name in the deed, excludes from it, negroes who were not [44] named. There are no general words at the close of the enumeration, such as, “and all other negroes not mentioned,” or “remembered,” to give operation to the deed as a conveyance of all that kind of property. The specification is restrictive of the general words. The parties themselves so construed the instrument, for Roberts took possession of all the negroes named, and advertised and sold them. He did not claim Mary, although he had ample notice that she had been levied on, and he had every opportunity to claim, which is strong evidence, of itself, that he did not feel at liberty to make the necessary affidavit [2.] The claim of the defendant, is through the lien of the judgment creditor, whose execution was levied on Mary, and the title not having passed out of Roberts by deed of assignment, it follows that he purchased the title of Short, the debtor, which, for ought that appears in the record, was a good one. But the conveyance as between Short and Roberts, may have been good and valid, and yet, upon the facts found by the jury, the judgment lien of the creditor, may have attached to the property. It makes no odds that Roberts was assignee for creditors. Such assignments are not always exempt from fraud as to creditors, and like all other assignments, their validity must be tested by the principles of law applicable to their circumstances. The title of the defendant, as we have said, depends on the lion of the judgment under which he purchased. The negro woman Mary, was found in possession of the defendant, Short. The conveyance, under which the plaintiff claims, is an absolute conveyance, Mary is not named in it. She was left by the assignor, in the possession of the defendant. The jury find nothing in their verdict, explanatory of this continued possession. Without an explanation, the right of the judgment creditor to have his debt satisfied from the property, is perfect, and the plaintiff is concluded. 8 Ga. Rep., 556. This would have been so had he claimed the property, and it is equally [45] so, if he has elected not to claim, but to sue the purchaser for the property. [3.] In another view of this case, the plaintiff cannot recover. The jury find, that if, upon the facts found in their verdict, the defendant is entitled to hold the negro woman slave, in a Court of Law or in a Court, of Equity, then they find for the defendant. The property specified in the deed of assignment, was conveyed to the plaintiff, in trust, for all Short’s creditors. He sold the property of which he took possession, and most assuredly, a Court of Equity would not allow him to recover, even from the debtor, property conveyed by the deed, and by him left in his possession, without accounting for the property which he confessedly received and sold. The verdict finds neither the amount of Short’s debts, nor the amount of the proceeds of the sale, which went into the hands of the assignee, nor the distribution of the fund. It is not enough to say, that the record shows unsatisfied judgments, non constat, that if the property conveyed had been all sold and the proceeds applied according to the trust, there would have been unsatisfied judgments. But the verdict finds that Mary was sold for her value, that the money was paid and applied to the payment of executions and judgments against Short, according to their legal priority. The jury does not find that this payment was not in accordance with the stipulations of the deed of assignment. The debtor and the creditors have had the full benefit of the sale of this property, and there is no equity against the purchaser who has paid full value, nor in favor of the debtor or his creditors who have received the full value of the property. But, if the proceeds of the sale of the property were applied differently from the terms of the assignment, a Court of Equity would not allow a purchaser who was guilty of no fraud, and was without fault, to be prejudiced thereby. The facts were all known to the assignee, he knew of the sale and, of course, that the money went into the hands of the officer, and that being in the custody of the law, it was [46] subject to the order of the Court. He ought to have applied, then, for the distribution according to the agreement of the debtor and his creditors, as evidenced by the deed of assignment, if, according to that agreement, ' it was distributable differently from the manner the law would distribute it. Upon the facts found by the jury, therefore, the defendant, in our judgment, is entitled to hold the negro woman slave Mary, according to the principles, both of law and equity, which apply to the case, and the judgment-of the Court below is affirmed. Judgment affirmed.