Marler v. Marler

GOLDTHWAITE, J. Our statute of frauds does not avoid loans, reservations or limitations of personal property, however secret, as between the parties themselves or their representatives, but only as to creditors and purchasers of the person remaining in possession ofthejwoperty for the space of three years; and not then, if the loan is evidenced by deed or will, recorded as prescribed. [Clay’s Digest, 254, § 2.] This, indeed, is conceded to be the general effect of the statute; but it is insisted, whenever an estate is decreed to be insolvent, that then the administrator is entitled to hold, or reduce into possession, any property which a creditor could resort to for satisfaction of his demand. And it is further urged, that if the administrator cannot thus proceed, the creditor will be remediless, as, by reason of the insolvency, he can procure no execution to levy on the property. In the present case, there seems to have been no question raised as to the bona fides of the transactions between the defendant and the plaintiff’s intestate; but we may remark, that even if there had existed a fraudulent intent in fact, as well as in law, it seems to be well settled that a personal representative is bound by the act of his testator or intestate. [Gillespie v. Gillespie, 2 Bibb, 89; Stewart v. Dailey, Litt. S. C. 212; Osborne v. Moss, 7 John, 161; Hawes v. Leider, Cro. Jas. 270; Yelv. S. C. 196; Steele v. Brown, 1 Taunt. 381; Reichert v. Castator, 5 Binn. 109; Densler v. Edwards, January Term, ’43.] However this may be, we are aware of no rule which permits a personal representative ever to change his character, and to become the representative of a creditor. Indeed, there is no reason why he should do so, for the creditor has ample remedies which he may use at will. Without undertaking, at this time, to decide whether a creditor, whose rights have attached under the statute of frauds, can or cannot sue one who takes possession of property liable to the payment of his debt, as an executor de son tort, we may remark that, if he was remediless at law, this, of itself, would [370] be a sufficient l’eason why the property liable for his debts should be reached in equity. The case of Boyd and Swepson v. Stainback, [5 Munf. 305,] was one, where a creditor, suing on behalf of himself and others, was permitted to subject slaves, which had remained in his debtor’s possession for such a length of time as created the legal presumption of a fraudulent trust, and this after the death of the debtor, and after the slaves had been retaken by the lender. We think the refusal to give the charge requested, was proper; and the one given seems to be unexceptionable. Judgment affirmed.