Gary v. Colgin

GOLDTHWAITE, J. 1. If the evidence before the jury in this case, was of a nature proper to raise the question, [518] whether the deed made by Biting was for the purpose of delaying or hindering creditors, then ti must be conceded the defendant was entitled to the charge requested by him on the general principle, however correct it would have been for the court to explain the principle in its application to the particular case. When however, the evidence set out in the bill of exceptions is looked to, we think it becomes apparent there was none to warrant the charge asked for. It will be remembered the plaintiff claimed under a conveyance from Colgin, who was the purchaser under a trust deed executed by Binns, as whose property the slaves were seized and sold. Now it is quite clear, the defendant may be allowed to justify his seizure, by showing that all these conveyances are invalid, by reason of fraud, as in that event no title would pass and the slaves remain the property of Binns, as which the defendant seized it. But it is equally clear, that if the slaves were conveyed to Inge, as the trustee to secure creditors, or sureties, bona fide, and for a valid consideration, before the lien of the execution attached, which the sheriff held at the time of seizure, there was no title in Binns which would justify a taking. The object of the defendant in asking the first charge, was to support the charge that all the conveyances were parts of a frandulent and therefore inoperative contrivance. The evidence ‘ as set out must be • presumed to show that the deed was on a valid consideration, or in other words, that debts were due to some preferred creditor, to whom the other Binns and Colgin were the grantor’s sureties. It .is not.denied that a debtor may lawfully prefer one creditor to another, (Stover v. Herrington, 7 Ala. Rep. 193,) .but the defence insists that the admission of Colgin, one of the beneficiaries in the deed, that it was made to prevent the property of the grantor from being sold to pay a debt for which he was surety for another, is evidence to warrant the jury in declaring the deed void. In our judgment, this admission, although it might be proper evidence to go to the jury, was not sufficient by itself to invalidate the deed, because, if the utmost effect is given it against the purchaser, it does not connect itself with either the preferred creditor or .tbe other security of the grantor — both of whom are likewise [519] beneficiaries under the deed. In Anderson v. Hooks, 10 Ala. Rep. 704, we held, that the connection of a simulated creditor with one that was bona fide, as the beneficiaries in a deed of trust, did not avoid it, although in that case the intent of the grantor to defraud was entirely apparent. It will be seen, this case goes much beyond the one before us, and establishes, that a deed for the indemnity of sureties will not be avoided, though the grantor and some of the beneficiaries concur in the fraudulent intent. [See also, Borland v. Mayo, 8 Alabama Reports, 104, § 18.] We come therefore to the conclusion, that the defendant was not warranted in asking the charge referred to, and for this reason there is no error in the refusal. The charge actually given in response to the request, calls for no other remark, than that if conceded to be erroneous, which, however, we should very much doubt, it could not prejudice the party. 2. The other charge grew out of the refusal to charge as requested on the supposed irregularity of the trustee’s sale, and the purchasers conduct in relation to it. In Brown v. Lipscomb, 9 Portor, 472, where a sale by a trustee was not in conformity with the power, we held this was a matter that could not be investigated by a stranger to the deed. To the same effect is Foster v. Goree, 5 Ala. Rep. 424. It is evident the purchaser under the trustee’s sale, would not be allowed to defeat an action for the price on the ground that the power had not been complied with, nor would it be any defence to the trustee, in a suit by the beneficiaries of the deed, that he had parted with the property without receiving pay. Neither the defendant nor the creditor under whom he acted, have any interest in investigating the questions of regularity, for if the sale was invalid, the purchaser would be a bailee for the trustee, and as such entitled to his action for the unlawful seizure. [McBride v. Thompson, 8 Ala. Rep. 650.] Another reason why a stranger should not be permitted to defeat the possession acquired under an irregular, or even void sale, is, that the purchaser nor seller can dispute its validity, except in a direct suit to cancel the sale, for in no other mode could the parties be placed in the condition they were at the sale. [Wier v. Davis, 4 Ala. Rep. 442; Creagh [520] v. Savage, 9 Ala. Rep. 959; Costello & Keho v. Thompson, Ib. 937. On the whole, we are nnableto perceive any available, error m the ruling of the county court; its judgment is therefore affirmed, and that of the circuit court reversed. COLLIER, C. J. Edward B. Colgin acquired no title to the property in question, either as against the trustee, the beneficiaries in the deed, or Binns; and it was clearly competent for the trustee to have exposed it to sale again, to sub-serve the purposes of the trust. This is clear from a mere statement of the fact that he did not comply with the terms-on which he was permitted to bid it off, and has really paid nothing for it. He did not then occupy the situation as it respects the property of one who acquires the possession under a purchase fraudulent as to the creditors of the vendor. A derivative purchaser from such fraudulent vendee, who becomes such bona fide, and for a valuable consideration, previous to the attaching of the liens of creditors, obtains a paramount title. There the first vendor might have made a fair sale of the property, and one who has acquired all his estate, though by a fraudulent purchase, stands in the same predicament with him, and may make a similar disposition of it. Here the trustee has no power to compromit the interests of his grantor or cestuis que trust — he cannot give away the property, either undisguisedly or under the semblance of a sale, for which no equivalent is asked or received. The proof negatives the idea that a gift was intended, but shows that E. B. C. failed to pay the purchase money. I have said that under the circumstances, this prevented him from acquiring any title whatever; and having no title himself, he could transmit none to a third person. We have repeatedly held, that one who has right to a chattel seized under a fieri facias, cannot interpose a claim of property under the statute, and prevent a sale by proving that a third person has a title, «which, if asserted, would defeat the execution. The claimant himself must have either a general or special property, which would entitle him to maintain an action at law. In the present case, he has shown none, and it follows that the third charge prayed should have [521] been given. I forbear to consider the questions raised upon the statute of frauds, and have only to add, that I dissent from the judgment just pronounced.