High v. Nelms

CHILTON, J. The main question involved for our inquiry in this case is, had Jonathan Simms such an estate in the land sued for as was subject to sale under execution at law ? There is no principle better settled, than that a person indebted cannot make a valid gift of his property to the prejudice of his creditors. They may, under ordinary circumstances, after having obtained judgment, proceed and sell the property, disregarding the gift. The law requires the claims of creditors should be first adjusted, before the donor is permitted to bestow his effects gratuitously even upon the most cherished object. In other words, to use the trite, but correct maxim, “ he must be just before he is allowed to be generous.” Miller v. Thompson, 3 Por. Rep. 196; Moore v. Spence, 6 Ala. Rep. 506; Hundley v. Buckner, 6 S. & M. Rep. 70 ; Clay’s Dig. 254. It is certainly true, that a voluntary conveyance not actually fraudulent as relates to the grantee may become valid and operative by matter ex poní fado, as by a subsequent bona fide purchase for a valuable consideration. Wood v. Jackson, 8 Wend. Rep. 1; Jackson v. Anderson, 4 Wend. Rep. 474. And upon the first examination of this cause, [354] under the supposition that the improvements made upon the lot by McKeen were subsequent to the execution of the conveyance by his father-in-law, Simms, of the lot to Mrs. Mc-Keen, we had arrived at the conclusion that a sale under such circumstances was not allowable. But the deed was executed in October, 1839, whereas, the improvements were made 1838, so that it is manifest the improvements were not made in virtue of the conveyance, but they belonged as well as the lot on which they were erected, to the defendant in the judgment under which they were sold. Such being the facts, it is too clear to admit of any doubt, that the gift was void as to Crenshaw, who was a subsisting creditor, and that the lot could properly be sold under the judgment. It follows from what we have said, the court did not err in the charge to the jury. 2. The charges asked by the defendant were very properly refused. They are predicated upon the hypothesis that the defendant, at the time of the salo by the sheriff, was in the adverse possession of the land. The law is well settled, that the doctrine of adverse possession does not apply to judicial sales. 3. There was no error in allowing the plaintiff below to prove the indebtedness of Simms by the notes read in evidence. It was certainly important to prove his indebtedness at the time of the gift to his daughter, and the notes bear date anterior to the deed. Let the judgment be affirmed.