#### DEN ON DEM. OF JOHN DOBSON et. al. vs. WILLIAM A. ERWIN, DEVISEE OF WILLIAM W. ERWIN.

June 1839

It seems, that where the defendant in an execution and his famüy makes a fraudulent misrepresentation of the quality and value of the land levied upon and about to be sold, with a view to defeat the creditors of the defendant and to secure it for his benéfit, and one ignorant of the fraudulent arrangement purchases fit fin inferior price, his title will be good against the creditors; as will also, at least at law, be the title óf one of the parties to the fraudulent arrangement purchasing from him. But if, in such case, the sale were void, as fox want of a seal to the writ issuing from another county, and the first purchaser sold without ever having taken possession, the possession of his vendee, a party to the fraudulent combination, will be as td the creditors of the defendant a possession for him, and will not be adverse to the creditors so as to defeat them by length of possession under colour of title.

After the new trial granted in this case at June Term, 1836, (See 1 Dev. & Bat. Rep. 569) it was removed to Rutherford, where it was again tried on the last circuit before his honor Judge Toomer. It appeared upon the trial that Joseph Dob-son, the elder, owned the premises in dispute, and that they were exposed to sale under executions against him, and purchased by his daughter, Nancy Young, with money belonging to the father, and by his directions, for the purpose of defrauding his other creditors. This sale took place in 1808, and the sheriff conveyed to Mrs. Young. In 1810, one Knight, another creditor of the father, obtained judgments and executions against him and filed his bill in the Court of Equity against the father and daughter, seeking a discovery of the fraud between them, and that it might be declared, and the land made liable to, and sold for, his satisfaction; and in that suit there was a decree for Knight, and a sheriff’s sale made under an execution issued thereon in 1824, at which the person bought, under whom the defendant claimed. Pending that suit, namely in 1812, another creditor of the father obtained judgment in Buncombe and issued a fieri facias, without a seal, to Burke county, where the premises lay; under which they were set up for sale and bid off at $>16,25 cts. by one Stevely, who took a deed from the sheriff, and then conveyed to one Burnet; and he in July; 1815, conveyed to *202Dobson and Alexander Dobson, two sons of the said Dobson, the elder, and the lessors of the plaintiff who lived on the land, and continued to do so until 1827 or ' , . when the defendant entered. During that whole pen-Joseph Dobson, theelder, and his daughter, Nancy Young, wejj as tjie icssors 0f the plaintiff, resided on the land; but who was examined as a witness for the lessors of the stated that after he made the deed to the lessors of plaintiff in 1815, Mrs. Young did not set up any title to land as against her brothers. This action was brought 1831.

The defendant alleged that the land in dispute was a notorious and valuable tract, situate on the Catawba River, and worth f>3,000; and that for the purpose of defeating Knight’s suit and other creditors of Joseph Dobson, the elder, a ’scheme utas contrived by the father and his sons and daughter and his son-in-law Burnett, to have this tract set up and sold under the execution in 1812. without its being known by the sheriff or bidders that this particular tract was the one exposed to sale, but, on the contrary, that it should be represented to be a different and poor piece that was sold; and that at such sale the lessors of the plaintiff’s witness, Burnett, should become the purchaser for the benefit of Joseph, the 'father, and his family; and the defendant gave evidence to that effect: and thereupon the defendant contended that his title was good, notwithstanding the deeds to Stevely, Burnett, and the lessors of the plaintiff, and the possessions by the lessors of the plaintiff, the father, and other members of the family, as stated by the witness Burnett.

It was admitted on both sides, that the sale by the sheriff, at which Stevely purchased, was void for the want of a seal to the writ.

His Honor held that the deed to Stevely and the others were a sufficient colour of title, if there had been the requisite possession under them. But, leaving to the jury, upon the evidence, the question of the alleged fraudulent combination between Joseph Dobson and the other members of the family, his Honor further instructed them in substance, that *203if they found such collusion and fraud, the possession, as proved, would not constitute a good title in the lessors of the plaintiff. The defendant had a verdict and judgment and the lessors of the plaintiff appealed.

TheP?sses_ sion or a not'?n ITs-of fraudu-be deemed ’ *204the makes the tract°voi(]"" theomiHoi-1 th? vendee Is* deemed to trust for the therefore”it is the pcs-the vendor, ?aie ¡íonce made by the then th’ pos -session ot* the fraudulent donee becomes adverse; for the law does not suppose any secret confidence between the donee and the purchaser-

*203 Badger for the lessors of the plaintiff.

D. F. Caldwell and Alexander for the defendant.

Ruffin, Chief Justice.

The title of the defendant is deduced under a creditor of Joseph Dobson, the elder; and therefore, he is at liberty to impeach that set up by the lessors of the plaintiff. (His Honor here stated "the facts of the case as above, and then proceeded as follows:) It is not necessary to say how the parties would have been affected by their dishonest purposes, if the execution had been valid. We suppose, however, that Stevely, being innocent of the fraud and a fair bidder at a judicial sale, would have got a good title; and that the title derived from him by the lessors of the plaintiff would also have been good, at least in a Court of Law. But it being clear that Stevely gained nothing by the sale and conveyance to him, the enquiry is, whether under the circumstances of this case, the possession was out of Joseph Dobson, the father, or whether it was in the lessors of the plaintiff, and of a character to defeat the defendant? We think not.

In the first place, it might be sufficient in this particular case, perhaps, to say, that the lessors of the plaintiff had not the exclusive possession: because the debtor himself was also in the actual possession. We do not, however, put the case on that point, inasmuch as that would perhaps have made it llecessary to submit an enquiry to the jury as to the terms on which the father remained on the land, as understood between him and his sons. But in the next place, we think that even if the father had not been on the land at all, the possession of the sons, under the fraudulent agreement and circumstances 1 # found by the jury, could not be legally adverse to the and his creditors, so as to make a complete title in the sons under the statute of limitations. Pickett v. Pickett, 3 Dev. 6. The possession of a fraudulent vendee cannot in of a creditor of the fraudulent vendor, be deemed adverse to such vendor or his creditor, because the statute makes whole contract void and as against the creditor, the *204i0n .of the vendee is deemed to have been in trust for the vendor, and therefore it is the possession of the vendor. When a sale is once made by the creditor, then the possession of the fraudulent donee becomes adverse; for the law does not sup-any secret confidence between the donee and the purchaser. It must be admitted that a possession by Stevely would have been for himself, and therefore adverse to all the world. -^ut never had ^Ie possession for a moment, and the title taken from him, not in fact for the persons to whom the deed was made, but upon a fraudulent and secret trust for the father, to the intent that he and his family should enjoy the land, and his just creditors be hindered of their debts. Whatever colour the deed might afford to such a possession, we see that in fact it was not a possession of the lessors of the plaintiff for themselves, and therefore, it was not in law adverse. Consequently the judgment must be affirmed.

^E:R Curiam. Judgment