Powell v. Wragg

DARGAN, J. On a trial of the right of property levied on, and claimed by a stranger to the execution, the only issue is, whether the property is subject to the execution ; hence the statute of limitations can never be invoked on such a trial, unless for the purpose of showing an indefeasible right in the claimant to the property ; or by the plaintiff in execution, to show that the title of the claimant is divested, and vested in the defendant in execution, by the uninterrupted possession of the chattel, adversely to the title of the claimant, for a period of time that will, by statute, give title. The statute of limitations, when applied to real estate, or to personal property, operates not only by w.ay of barring the remedy for the recovery thereof, but acts directly on the title, and vests in the possessor, when his possession has been adverse, and uninterrupted, for the space of time required by the statute, an indefeasible title. See 2 Ala. R. 561; Shelby v. Gay, 11 Wheat. 361; Brent v. Chapman, 5 Cranch, 358. Hence it would follow, that if the title of the claimant depended on his possession, and this had been adverse to the title of the defendant in execution, and this possession had continued for a time sufficient to bar the defendant of all remedy for the recovery of the slaves, before any lien was created on them, the title of the claimant would be absolute, and indefeasible to the slaves. The defendant, by virtue of his title, could not recover them, or divest the title of the claimant; nor could a creditor of his, or any one else that claimed by, or through, or in consequence of the title of the defendant in execution. But this is not the character of the claimant’s title ; he claims the slaves by virtue of a fraudulent bill of sale, executed by the defendant in execution, in fraud [165] of the rights of the plaintiffs, as creditors. This title is void as to the creditors, and the claimant seeing this, he now attempts to set up title by the statute of limitations ; for it is very certain that time will not purify the fraud in the original purchase ; but he says, although my purchase was fraudulent and void, I have a good title by the statute of limitations, as against the defendant in execution, and therefore a good title as against you. It therefore becomes necessary to examine into the character of his possession. The slaves have remained on the plantation where the defendant in execution and his family have resided, from the time of the pretended purchase until now. A younger son living with the family, and in the same house, has had control of them; as yet he has never received a dollar from his brother for his services. The claimant does not show that he has received the proceeds of the labor of the slaves, or that their labor, or their product on the farm, does not go to the support of the family of the defendant in execution; or that the slaves do not serve the defendant in execution since the' sale as they did before the sale. Leave then the bill of sale out of view, and look to the title of the claimant, as founded on his possession, for a time sufficient to bar the right of the defendant in execution, and we see the slaves yet with the defendant in execution ; in fact, at the house he and his family live at. How is his family supported ? Who receives the profits of the labor of the slaves ? The claimant does not inform us, and therefore it is but reasonable to presume, that the slaves yet serve the defendant and his family. Such a possession cannot be the foundation of a title by the statute of limitations; therefore there is no- error ill the charge given, or in refusing to give the charge requested. The judgment of the circuit court is consequently affirmed. COLLIER, C. J. The second section of the- statute of frauds enacts, that every gift, grant, or conveyance of lands, tenements, hereditaments, goods or chattels, &c., by writing or otherwise, had, or made, and contrived of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder, or defraud creditors of their just and lawful actions, suits, debts, accounts, damages, penalties, or forfeitures, shall be, [166] from henceforth deemed and taken only as against the person or persons, his, her, or their heirs, successors, executors, administrators or assigns, and every of them, whose debts, suits, demands, &c., by such guileful and covinous devices and practices as is aforesaid, shall, or might be in any wise disturbed, hindered, delayed or defrauded, to be clearly and utterly void ; any pretence, color, feigned consideration, expressing of use, or any other matter, or thing, to the contrary notwithstanding. Clay’s Dig. 254, § 2. This enactment explicitly declares, that every “ gift, grant, or conveyance” made with the intent to delay or defraud the creditors of the grantor, shall be utterly void; and this whether the transaction be written or merely oral. Here is language too plain to be misapprehended. If then, the gift or grant is wholly inoperative, a consequent possession can derive no aid from it. Such possession must be referred to the authority under which it originated, and if this be a nullity, the possession will have no foundation upon which it can rest; and no matter how long continued, cannot change the character of the donor’s or grantor’s possession, or prejudice the creditors’ rights. So far as it concerns the creditor, the debtor may still be considered as continuing in the possession, and the voluntary or fraudulent grantee cannot call to his aid the statute of limitations, so as to give himself a title in despite of the express provisions of the statute. In this view, it is immaterial whether the defendant in execution, or claimant, was in possession of the property in question, from the time of the transfer, as the plaintiff, by the claimant’s possession for more than six years previous to the levy, cannot be defeated. I am therefore for affirming the judgment of the circuit court. Chilton, J., not sitting.