Barley v. Tipton

NaptoN, Judge, delivered the opinion of the court. The main effort in this case, on the part of the defendant, the failure of which is complained of, was to get in his proofs of the fraudulent intentions of Thomas Money in making the bill of sale to his sister, the plaintiff. The difficulties in the way of such a defence as this appear to be insurmountable. The execution, which defendant had in his hands, was against Thomas Money and Anna Money; but Thomas Money was dead, and had been long before the execution was renewed. So far as Thomas Money was concerned, the paper was a nullity, and this property could not be reached in that way. If the execution is to be treated as a valid one against Anna Money, and a justification is attempted to be set up under it in that view, then the fraud of Thomas Money is foreign to the case ; so that, in either view of the defence, no ground is laid for an attack upon the conveyance from Thomas Money to his sister, the plaintiff. The instruction given by the court, that the bill of sale from Thomas to Catherine Money conveyed the title to the hogs levied on, was doubtless occasioned by the previous decisions of the court, not only in excluding all testimony tending to impeach this transaction for fraud, but all the documentary proof of a valid execution. The defendant was regarded in the light of a naked trespasser. The instruction goes very far in taking from the jury all consideration of the title of Thomas Money, or of Anna Money, if she ever had any; but, under the circumstances and facts in evidence, we can not say that the instruction could possibly have injured the defendant. [209] There was no evidence to show title in Anna Money, the person against whom the execution'could only have been directed or levied. There was no evidence offered in the case on either side to show that Anna Money had ever set up any claim to this property, or had ever exercised acts of ownership over it, or had ever been in possession of it; on the contrary, the title of Thomas ■. Money previous to his transfer to his sister was not a controverted point in the case. Both sides conceded it; the plaintiff assumes it as the source of her title; and the defendant’s evidence throughout was all based upon -the same assumption, and was therefore aimed to establish that Thomas .Money had transferred the title to plaintiff for the purpose .of defrauding his creditors. For the'purposes of this trial, therefore, it cannot be said that the court committed an error in giving an instruction which disregarded and left out of view any hypothesis based upon a claim of title, or thé existence of title, at any time in Anna Money. Had there been any controversy in this point, such an instruction might .have been improper, and certainly would have been improper, were it not for another difficulty which the defendant had to encounter in his defence. The execution which the defendant had in his hands was issued originally by a justice of the peace of Hurricane township, and was directed to the constable of that township; whereas the defendant was constable of Monroe township, and it appeared upon the face of the execution that he had no authority to execute it. The execution seems to have been renewed, after its first return unsatisfied, by the justice who first issued it, and put into the hands of one Joseph W. Sitton. Then it appears to have fallen into the hands of a justice of Monroe township and by him put into the hands of defendant, who was constable of that township, to be executed. It should have appeared that the last named magistrate was the successor of the one who originally renewed it; but not only does this not appear positively, but the contrary is shown by the papers; for the successor of Reed, the first justice in Hurricane township, who issued [210] execution, is the justice who certifies the papers, and he is a different person from the person who, as justice of Monroe township, undertakes to authorize the defendant to execute the writ. So that, in every view of the case, the defendant stood before the court as a mere trespasser. The only defence which, under such circumstances, seemed to be available was, that the plaintiff had no title; but as he was not in a condition to dispute the validity of the transfer from Thomas Money to her, and offered no evidence to show that Anna Money ever had any title, and in fact conceded, by his attempted defence, that Thomas Money did have the title previous to his sale to the plaintiff, this ground was a very shadowy and narrow one, and was in truth utterly cut off by the mere proof of possession in the plaintiff. Judge Ewing concurring, judgment affirmed. Judge Scott absent.