Kemp v. Nichols

The judgment of the court was pronounced by Eustis, C, J. The plaintiff is a judgment creditor of Charles N. Roidcy^ The judgment having been duly recorded operated as a general mortgage on the property of Rowley. The petition alleges that certain slaves therein named • owned by Rowley and in his possession, though covered for fraudulent purposes under the name of Jacob JD. Lansing, of the value of $10,000, were removed from the State to parts unknown. It charges that the defendant, fully aware of the mortgage rights of the plaintiff upon the slaves and intending to defeat them, colluded with Roioley, and others to the petitioner unknown, and fraudulently aided in removing the slaves, he, the defendant, well knowing the utter insolvency of Rowley, and thus accomplishing their purpose of defeating the mortgage^ It further states that, after exhausting all the property of Rowley known to the petitioner, a large balance of the judgment remains due and unpaid, and that she has sustained damage to the amount of the value of the slaves, by the illegal, [175] unjust, and fraudulent acts of the defendant in the premises. She prays judgment for $10,000, the amount of the alleged damage, and for general relief. The defence to this action is, an alleged bond fide purchase of the slaves by the defendant from Charles N. Rowley, as the attorney in fact of Samuel Rowley, by act under private signature, dated the' 31st July, 1847, for a just price, he, the purchaser, believing that the slaves belonged to said Samuel Rowleys There was a verdict for the defendant, .and judgment having, been rendered in Conformity therewith, the plaintiff has appealed. In addition to the general defence resting on the bond fides and the validity of the purchase of the slaves by the defendant, a point was made and has been argued before us, that there were other judicial mortgages against Roxoley's property having precedence over that of the plaintiff, and that the plaintiff has no sufficient interest in the slaves to support the present action for damages against the defendant. It appears that the judicial mortgages recorded against Rowley exceed the sum alleged to be the value of-the slaves; the petition states that his property has been exhausted, and it follows that those slaves, eight in number, alone remain to satisfy the prior judgments against him. The judicial mortgage gave a right to the plaintiff over the property of the debtor for the security of her debt, with the power of having it seized and sold in default of payment.The existence of a judicial mortgage on properly does not, in any sense, affect the validity of the disposal of it by a contract of sale. The owner may sell it,- ’ and the purchaser takes it subject to the mortgage. It may be sold under execution, the mortgage still subsisting in the hands of the purchaser. The injury complained of by the plaintiff is the collusion of the defendant with Rowley and others, in removing the slaves from the State and thereby defeating her mortgage. She having neither the ownership nor the possession of the slaves, if her action be based upon the 2294th article of the Code, which provides that eveiy act whatever of man that causes damage to another obliges him by whose fault it happened to repair, it is then incumbent on us to ascertain what damage the plaintiff has suffered by the acts of the defendant in thus aiding in removing the slaves. The petition assumes that the measure of the responsibility of the defendant is the value of the siaves. Let us suppose then that the slaves are returned, and sold under execution, and the proceeds in court for distribution The plaintiff can have no portion of them; they must be applied to the satisfac tion of the previous judgments, arid thus it seems to us that the plaintiff stands before us without interest to maintain the present suit. She' has sustained no injury, and can have no action. Or, if it he conceded that the plaintiff’s jus in re, resulting from the general mortgage, is sufficient to authorize the action, the damages must be merely nominal, and below in arriount the jurisdiction of the c'ourt of the first instance. The right of the plaintiff to maintain this action is placed upon the same footing by the argument of counsel, as that of the creditor to set aside a fraudulent conveyance made by his debtor. The case's aTe similar’ in principle, but the objiv-i'.f’u taken to the present action is provided for expressly in the revocatory action and removed. The judgment in that action, in avoiding the fraudulent contract, applies the property conveyed by it, or its value, to the payment of the plaintiff’s debt. Civil Code; 1972. We think the provisions of law concerning the revocatory action are in conformity with the views we have expressed concerning the plaintiff’s right of action in the. case as presented to us, in thus creating a definite interest in the creditor in the result of the litigation which is thas made to inure to his benefit, [176] The district judge was of opinion that the judicial mortgages recorded against Charles N. Rowley, for an amount exceeding the value of the slaves and having precedence of the plaintiff’s mortgage, did not affect hor right to recover in this action, and so charged the jury, who found a general verdict for the defendant. The evidence satisfies us that the slaves, at the time of the alleged purchase by the defendant from Charles N. Rowley, as the attorney in fact of Samuel Rowley, were the property of Charles N. Rowley, and not of Samuel Rowley, and that the names in which the titles were placed of Jacob D. Lansing and Samuel Rowley, were used by Charles N. Rowley for his exclusive benefit, for the purpose of screening the slaves from his creditors. We do not find that the relations of Lansing and Samuel Rowley and Charles N. Rowley, in respect to these slaves, differ materially from those established in the "case of Rowley v. Kemp, 2 Ann. 362, and Farrar v. Rowley, Ib. 478. As to the privity of Nichols to the mode of operating of Charles N. Rowley which his transactions, wliichhave been the subject of judicial investigation, have disclosed, his position and relations with the latter leave no doubt on our minds, and we do not concur with the jury as to the bona fldes of the defendant in his alleged purchase of the slaves. Although averse to the reversal of verdicts of juries on questions of fact in cases of this kind, we should have felt ourselves obliged to have set aside this verdict and have ordered a new trial, had the plaintiff made out a sufficient cause of action. As the case stands before us, the only judgment we can render is that of non-suit. It is, therefore, ordered that the judgment of the District Court be reversed, and that judgment be rendered against the plaintiff as in caso of non-suit, with costs in the District Court; the defendant paying those of this appeal.