#### WILLIAM JONES v. DAVID I. YOUNG.

A voluntary conveyance made by a debtor, who owned at that time, and left at his death, sufficient property to pay all the debts which he owed at the time of such conveyance, is not necessarily fraudulent and void as to creditors.

Although a party may get a verdict, notwithstanding an erroneous charge against him, on a particular point; yet if the opinion delivered may have prevented the other party relying upon, or have excluded from the case stated, other evidence that was given, a new trial will be granted.

Detinue for a slave, tried at Person, on the last Spring Circuit, before his Honor, Judge Martin. On the trial, the plaintiff, in support of his title, produced and proved a bill of sale from Reuben Jones, his father, to himself, for the slave in question. The defendant then proved that the bill of sale was made without any valuable consideration, and that the slave, after its execution, still continued in the possession of Reuben Jones, and there remained until his death, when the defendant, as his executor, took possession of said slave, together with the other effects.of the testator. He further proved, that at the time when the bill of sale was executed, Reuben Jones was indebted to one Stephen Milton, in the sum of about ninety dollars; that a warrant was brought, and judgment obtained for this debt in the life-time of Reuben Jones; and that after his death, the judgment was revived by sci.fa. against the defendant, as executor, and upon an execution issued, the slave in controversy was levied upon and sold ; when the defendant became the purchaser. In reply to this evidence, the plaintiff proved that at the time when his father conveyed the slave in question to him, by the bill of sale above men*353tioned, he had other slaves, and property sufficient to pay all his debts, and that in fact, the defendant, as executor, had discharged all the claims against the estate, leaving a balance of negroes and other property still remaining. The plaintiff then introduced much testimony to show that the defendant had acted fraudulently in procuring the sale of the slave, and in purchasing himself at an under value; and among others, he introduced a witness by the name of Thomas, by whom he proved that the defendant had said to witness, while they were on their way to attend the sale of the slave, “ that the title of the plaintiff to the slave was good, as he had a firm bill of sale for him from his father, which expressed upon its face, to have been given for a valuable consideration.” This testimony of Thomas’s was objected to by the defendant, but was received by the Court; whereupon the defendant offered to call several witnesses to prove that he had urged several persons to attend the sale of the slave; and that on the day of sale, and while the officer was crying the slave, he had told a negro trader that he thought the plaintiff’s title was not good, though probably the plaintiff would sue for the slave, and he asked the trader to purchase. This testimony was objected to, and rejected.

His Honor charged the jury ; that the bill of sale from the defendant’s testator, to his son, the plaintiff, was fraudulent as to creditors, it having been made without any valuable consideration, though it was valid and binding in law upon the testator in his lifetime, and upon his executor after his death. That if the jury believed from the evidence, that the defendant had acted fraudulently in procuring the sale of the slave in question; and at the sale had prevented competition, so as to enable himself to purchase at an under value; such conduct would be a fraud on the part of the defendant, and prevent his acquiring a title to the slave by virtue of his purchase under the execution, notwithstanding the debt, to satisfy which the slave was sold, was just, and the proceedings thereupon were in accordance with the regular forms of law. The jury returned a verdict for the plaintiff, and the defendant appealed.

*354 W. A. Graham, for the plaintiff.

Nash, for the defendant.

Daniel, Judge.

— The Judge charged the jury, that the sale of the slave by the defendant’s testator to his son, William Jones, was good against himself and his representatives, but was fraudulent as to his creditors ; it having been made without a valuable consideration. The case states that, after the payment of all the debts of the donor, there were several slaves and other property, left in the hands of the defendant, his executor, belonging to the estate of the donor, Reuben Jones'. The conveyance of the slave by Reuben Jones to the plaintiff, being by deed of gift, is not necessarily an act fraudulent and void as to the creditors of the donor, if he had at the time of the gift, and left at his death other property sufficient to pay all his debts due and owing at the date of the deed of gift. The intent to hinder and delay creditors, might be repelled by such a fact. This case is not within the reasoning of the case of Peterson v. Williamson, 2 Dev. Rep. 326 ; for that was a parol gift of a slave, and the donor continued in possession, and ultimately became insolvent. Nor is it within the principle decided in the case of O’Daniel v. Crawford, 4 Dev. Rep. 197; for there the creditor would have been entirely hindered in getting his debt satisfied, if he could not have reached the fund covered by the voluntary conveyance. The Judge should have left this part of the case to the jury on the question of actual intent.

The question of fraud in the defendant’s preventing com-petion at the sale, which seems mainly to have occupied the attention of the parties on the trial, was, as it seems to us, an immaterial one. For if the plaintiff’s deed of gift was not fraudulent and void, as to the creditors of the donor, he would have been entitled to recover against the defendant, although his, the defendant’s purchase, at the sale made by the officer, had been ever so fair; on the contrary, if the plaintiff’s deed had been fraudulent as to the creditors of the donor, he could not have recovered against the defendant, who had purchased under a judgment and execution at the instance of the creditor, although *355the defendant might have been guilty of fraud in preventing competition at the sale. Such conduct might have been injurious to the creditors of the estate, but could not have helped the plaintiff, if his title was void ah initio. But even here, if it had been material, the court erred, as it seems to us, in rejecting the defendant’s evidence. The plaintiff had examined the witness, Thomas, and others, to show by the defendant’s declarations and actings, that he had fraudulently prevented competition at the sale, with a view to purchase the slave himself at a low price. The defendant offered evidence to show that he had requested, and made efforts to get persons to bid, and had declared to these persons that the plaintiff’s title was not good.

This evidence was rejected by the Court, and we think improperly, if the facts had been material to the issue; because they were facts accompanying the very subject then under examination, viz. whether the defendant had, by his conduct, fraudulently prevented competition at the sale. The affirmative proof would have lain on the plaintiff; and when the plaintiff offered evidence of the declarations of the defendant made before the sale to establish that fact, it seems to us, that the defendant was at liberty to repel the force of such declarations, by proof of other declarations cotemporaneously made, or made near the same time relative to the same subject-matter; in other words, the declarations became a part of the res gestee. The evidence was admissible; the force and effect of it to be left with the jury. The plaintiff obtained a verdict, notwithstanding the error of the Judge on the first point, yet as the opinion delivered may have prevented the defendant A j. relying upon, or have excluded from the case stated, other evidence that was given, we think it proper that the case should be retried.

Per Curiam. Judgment reversed.