Henderson v. Mabry

CHILTON, J. In this case, there is no controversy as to the facts. But one witness, so far as we are advised by the bill of exceptions, was examined, and he, being the defendant in the attachment, and rendered incompetent to testify under the statute of this State, was permitted to give evidence by the consent of the respective parties. The charge of the court, which was excepted to, was, that the possession of the property in controversy, by the vendor after an absolute sale, was fraudulent as to creditors, but that the special circumstances in evidence before the jury, if true, were sufficient to rebut the presumption of fraud. This charge, had there been a conflict of proof upon the question of fraud, would perhaps have been improper, inasmuch as its effect would have been to withdraw from the consideration of the jury the weight and credibility of the doubtful, or conflicting proof. See Boyd &. Macon v. McIvor, 11 Ala. Rep. 822. But as we have before stated, the proof was not of this character. The facts were clear and undisputed, and in such case it is proper that the court charge directly upon them, and .give the law of the case as applicable to them, without hypothesis. In the case before us, the facts being ascertained, the question whether there was or was not fraud in the sale by the defendant in the attachment to the defendant in error, was a pure question of law, and the circuit court properly so regarded it. The question then occurs upon the charge [716] whether the peculiar circumstances shown by the witness, explaining the retention of the possession by the vendor, was sufficient to rebut the presumption of fraud arising out of that'fact. To test its propriety, let us recur to the facts as stated in the bill of exceptions, which are briefly these : The defendant in the attachment owned five slaves — was largely involved in debt beyond his means of payment, one execution being then in the hands of the sheriff for $550, upon which specie was demanded. He was by occupation a school teacher, and had a number of scholars boarding at his house, his wife being in very feeble health, and her otherwise delicate condition requiring the aid of some domestic assistance. Under these circumstances, he made an absolute sale of said slaves for the price of $2,200, which is shown to have been their full value, to the claimant, who was his uncle, and to one Goodman. That the money was not to be paid to the defendant in the attachment, but the purchasers were first to extinguish the lien for the $550, and were to pay the remainder of the money in discharge of debts due from the seller. It was understood between the parties at the time of sale, that the woman in controversy should remain with the family of the said defendant in attachment until the end of the year, she being the cook, and after the sale, the only servant on the place. The purchasers complied with the terms of their contract, and the slaves were delivered to them, except the woman, who remained with the vend'or from March, 1842, the time of the sale, until the first of January following, when she was delivered to the claimant, who retained possession of her until the 17th of February, 1847, when she was levied on by the plaintiff’s attachment. Moreover, the witness swears the sale was not intended by him to delay, hinder or defraud his creditors, but was induced by a desire to make them pay the largest possible amount of his liability to his creditors. These are the facts upon which the charge was predicated, and it is too clear to admit of doubt, that they fully warranted the court in giving the charge to which the exception was taken. It is unnecessary to review the authorities which establish the principle, that the possession of the vendor, though inconsistent with the deed, may be explained, and the pre [717] sumption of fraud which would otherwise arise, be repelled. Blocker v. Burness, 2 Ala. Rep. 354; Ravesies v. Alston, 5 Ala. Rep. 297; Planters’ & Merchants’ Bank v. Borland, 5 Ala. Rep. 531. It is sufficient, that in this case the possession for a limited period is provided for by the parties at the time of the contract, and forms a part of it. But if the presumption of law was adverse to the claimant, by reason of the temporary possession of the vendor, the circumstances attending the transaction sufficiently dispel all suspicion of bad faith. The situation of the vendor, confined to his school, with numerous boarders, his wife enfeebled by disease, and left without a servant to assist her, and at a season of the year, when perhaps it would have been difficult to have procured one — all these may be supposed to have made a strong appeal to the kindness of the claimant, who was a relative. The law, which regards and scans with scrupulous vigilance every circumstance from which a legitimate inference of fraud or unfairness may be drawn, is at the same time, not so wanting in humanity as to forbid the alleviation of distress and suffering by honest means. To hold, that in this case the sale is invalid, because the purchaser left the slave in controversy, under the circumstances shown in evidence, a few months with his afflicted niece, to whom her services were indispensable, the transaction showing there was no secret trust inconsistent with good faith, or the rights of creditors, would be to stamp as a fraud, what by the law of God, as well as by the common consent of mankind, is esteemed as a virtue. Let the judgment be affirmed.