Gully v. Hull

Handy, J., delivered the opinion of the court. This case has been heretofore before this court, on which occasion a judgment rendered against the intestate of the present plaintiff in error, who was the plaintiff below, was reversed, and a new trial awarded.. On the second trial, judgment was also rendered for the defendant below, and the plaintiff brings the case here again. The action was replevin, to recover certain slaves in the possession of the defendant. In support of the plaintiff’s title, he offered the following evidence: 1st. A deed of loan, executed by him to his daughter Rebecca, wife of James B. Shines, for the slaves, reserving to himself the title to the slaves, and the power to take possession of them at his pleasure, loaning and delivering them to her for her sole and separate use, while they remained in her possession. This deed, which was drawn by a witness, at the instance of the plaintiff, on the day that Shines and his family arrived at De Kalb, when it was executed or the day after, is dated and acknowledged on- the 28th September, 1846, and was recorded on the 30th of that month, and witness thinks that Mrs. Shines knew of its execution. The slaves were in the possession of Shines when the deed was executed. 2d. It was proved by another witness, that he had an execution against Shines after the date of the deed, and that he told him that the slaves belonged to the plaintiff. 3d. A paper in these words, “Received by the hands of J. B. Shines, six hundred and twenty-five dollars, for Simmons Harrison, of Alabama, on the payment of two negroes, by the name of Lettice and Rosanna, this 23d April, 1846. A. D. Mooreand the deposition of Moore, showing that he purchased the slaves at a sale of Shines’s property, under mortgage, in North Carolina, at the request of Mrs. Shines, who furnished him the money to make the purchase; and that he executed the receipt for the purchase-money to the plaintiff, at the request of Mrs. Shines, and understood th.e object to be to secure the property for the benefit of Mrs. Shines and her family. In behalf of the defendant, who claimed title as administrator — 28 — of Shines, the following evidence was offered: 1st; The declarations of both Shines and his wife, that the slaves belonged to her. 2d. That Shines gave them in as his property in Kemper county, and paid taxes upon them, and that the plaintiff never gave them in as his property, or paid taxes upon them, and that they had remained in the possession of Shines or his family, from the time they came to this State, in 1846,-until his death in 1851. 3d. That Shines was insolvent in North Carolina, and when the slaves were sold there, under the mortgage, they were purchased for her, with money derived from the sale of her furniture and jewelry, the plaintiff not being present, and being unknown to Moore, who made the purchase, and the receipt being executed to him at her request and for her benefit. 4th. A deed of trust upon one of the slaves, executed by Shines and wife in February, 1851, to Watts, as trustee, to secure a promissory note made by them to one Steele, for $>504, due 1st January, 1852, which was duly acknowledged and recorded, also a mortgage upon the other slaves, executed by Shines and wife to one Binns, to secure the payment of a note made by them to him, for $>525, acknowledged by Shines, but not by his'wife, and recorded — and proved that these notes and deed were Iona fide, and upon full consideration. The first question presented is, whether the evidence was sufficient to show a legal title in the plaintiff; and that has already been , settled by the former decision, holding that the circumstances of the purchase of the slaves in North Carolina, vested the legal title in the plaintiff, for the use and benefit of his daughter. The evidence upon that point is now the same as when that decision was made; and upon well settled principles, that decision is conclusive of the point in all subsequent stages of the cause. But it is contended that the plaintiff was but a mere trustee of the bare legal title, for the use of Mrs. Shine, the whole beneficial interest being in her, and the object of the trust being to protect the property against the control or debts of her husband, and that as these purposes of the trust ceased at the death of the husband, •the trust became functus officio, and his title ceased. This is undoubtedly true; and if Mrs. Shines had brought her action against the plaintiff after her husband’s death, to recover — 29 — the slaves, his naked legal title in trust would have been no bar to her recovery under the state of facts here shown. But this is a right which.Mrs. Shines alone, or some one claiming under her, by title acquired since the death of her husband, would be competent to assert. The administrator of Shines, claiming adversely both to her and to the plaintiff, could not maintain any such claim; for the plaintiff has the legal title, to all intents and purposes, unless Mrs. Shines, or those claiming under her, after the objects of the trust had ceased, chose to put an end to the trust; and there is nothing in the evidence to show that she put an end to the trust, or has made any effort to assert her interest in the property. Again, it is objected that the deed and mortgage to "Watts and Binns were erroneously admitted in evidence, and, moreover, that they showed nothing properly tending to defeat the plaintiff’s action. According to the previous decision in this case, the title of the plaintiff accrued before the date of these deeds, and of course, the prior title would prevail. This is attempted to be avoided by showing that the plaintiff’s title was fraudulent as to purchasers from Shines, and that, therefore, the subsequent bona fide conveyances to Watts and Binns are good. But the objection to this is, that, in order to let in these deeds, it must first be shown that the prior title of the plaintiff is fraudulent on the part of Shines, and that cannot be done by the defendant, his administrator. The deeds could have no effect as evidence, in this point of view, without proof of the fraudulent title of the plaintiff; and as such a position could not be taken by the defendant, the deeds could not constitute any proper matter of defence to the action. It is true, as is said by counsel, that when a party has made a fraudulent conveyance, and afterwards conveys to a bona fide purchaser, the latter may impeach the prior conveyance for fraud and set it aside. But this is quite different from the case of an administrator impeaching the deed of his intestate as fraudulent, which we have held to be incompetent by the former decision of this case, and in Ellis v. M'Bride, 27 Miss. 155. Another ground upon which these deeds are said to be competent evidence is, that Shines having been in possession more than — 30 — three years, his conveyances to Watts and Binns were effectual against the claim of the plaintiff, which was fraudulent under the last clause of the Statute of Frauds, Hutch. Code, 638. But this position is untenable, because, first, it is liable to the same objection above stated, of the incompetency of the defendant to insist upon it, and second, the deed of loan by the plaintiff to Mrs. Shine was duly recorded. Again, it is said, that if Mrs. Shines had a separate estate, the legal title being held in trust for her by the plaintiff, the conveyances of Shines and wife to Watts and Binns passed the legal title, which could be set up to defeat a recovery by the trustee. But the legal title of the trustee could only be determined by the cestui que trust after the objects of the trust had been accomplished, and there was no longer a necessity that the trust should continue. The chief object of the trust, as appears to be conceded, was, that the father should hold the property for the use and benefit of his daughter, so as to protect it against the control and debts of the husband. During the husband’s life this necessity must be presumed to continue, and not to have ceased until his death. To allow the husband, in conjunction with his wife, to convey away the property, would, therefore, be a direct violation of the object of the trust, and ineffectual to defeat the legal title of the trustee. The deed would be void for want of power to make it, and the trust would continue as though it had not been made. For the title of the trustee, for the purposes of the trust, is as much a vested legal right as is the right of the cestui que trust to the benefit of the trust. Hence, these deeds were ineffectual to dispose of the slaves and to defeat the legal title of the trustee, and they should not have been admitted in evidence. It follows from these views of the case that the court erred in refusing the seventh and tenth instructions asked in behalf of the plaintiff, and in granting any or all of the instructions asked in behalf of the defendant. These instructions in behalf of the defendant were immaterial and incorrect as legal rules with reference to the circumstances of this case. — 31 — The judgment is therefore reversed and the cause remanded, and a new trial awarded. The following is the opinion of the court, delivered on the first trial in the court, at April Term, 1854:— Fisher, J. — This was an action of replevin in the Circuit Court of Kemper county, by the plaintiff in error, to recover certain slaves in the possession of the defendant. The plaintiff below offered in evidence to sustain his title, a certain deed of loan to his daughter, Mrs. Shines, which stipulated, amongst other things, that the plaintiff might revoke said deed, and repossess himself of said slaves at pleasure. It was proved, in this connection, that the deed was made in the presence of James B. Shines, the husband of the loanee. It Was further proved that the slaves were sold some time about the year 1846, under a deed of trust, in the State of North Carolina, as the property of the said Shines, when they were purchased by his wife with money which she had obtained from the sale of her jewelry and some furniture. That this purchase was made at her request, in the name of her father, the plaintiff; and that, in virtue of the title thus acquired, he made the loan above stated. The defendant set up, in his answer, that he is administrator of the estate of James B. Shines, and as such, holds the possession of said slaves; and insists that they are part of his estate. It was further attempted to be shown in the defence, that the purchase by Mrs. Shines, in the manner stated in North Carolina, was intended to hinder and delay her husband’s creditors, and therefore void. Upon this state of the case the jury found a verdict for the defendant, which the court refused to set aside, upon motion, and to grant a new trial. The questions for consideration are, first, whether the plaintiff’s evidence is sufficient to sustain his title, and second, whether admitting the fraudulent purchase by the wife, her husband’s administrator can take advantage of it. There are many articles of furniture which the wife may hold, — 32 — independently of the husband, and which will not be liable to his debts. Her jewelry was her own property, and might as such be sold, and the money invested in the name of a trustee for her use. The evidence is, that it was her furniture which was sold. Under this evidence, therefore, we have no hesitation in holding that the purchase in North Carolina, having been made in the name of her father, transferred to him the legal title for her use and benefit. Aside from this evidence, the husband must be understood to have ratified the transaction, and to have renounced all right he had to the property, so far as he alone was concerned. In regard to the other point — whether the administrator can ask to have a fraudulent conveyance of the intestate set aside, we deem it only necessary to state that the authorities on that subject are conflicting; but believe that the safer rule to hold is, to permit, the administrator to take only such advantage of the transactions as the intestate himself could take. The conveyance was binding as between the parties and their legal representatives. It is only void as to creditors who can assert their own rights, if it should become necessary. Judgment reversed, and new trial granted.