NOAH WHITE vs. JOHN WHITE, AND AL.
When A; made a fraudulent deed of trust of certain property to B., and for a fair price and bona fide conveyed the property to B., Held, that B. acquired a good title, notwithstanding the previous fraudulent transaction
Appeal from the Superior Court of Law of Randolph County, at the Spring Term, 1852, his Honor Judge Cal». well presiding.
*266This is trover for a wagon. The plaintiff claimed title to it under a purchase of it and horse, mads by him in May 1847, from one Thomas White and one Wall, at the price of $135; which was their value. In September 1847, the defendant obtained a judgment against Wall before a justice of the peace on a debt, which existed prior to March 1847, and then had the wagon sold on execution, and became the purchaser. The defence was, that the plaintiff's purchase was fraudulent and void as against Wail’s creditors. In order to sustain it, the defendant gave in evidence a deed of trust made by Wall to Thomas White in March 1847, whereby he conveyed the wagon, two horses, and some other small articles, being all the property he had, in trust to secure certain debts, which Wall owed the plaintiff, Noah White, or for which the plaintiff was his surety, amounting altogether, as recited in the deed, to “ about f>300,” with a provision for the sale of the property by the trustee, if the debts were not paid in six months. The said Wall was also examined as a witness, and he stated that the amount of the debts secured in the deed was not known correctly when the ’deed was executed, and that it was supposed fj30Q would cover them, and that sum was inserted for that purpose; but that, when they were after-wards settled, it was found that they amounted to $177.— Thereupon the counsel for the defendant moved the Court to instruct the jury, that the deed of trust was fraudulent and void as against the defendant, and, if so, that such fraud vitiated the sale from Thomas White, the trustee, and Wall, to the plaintiff, in' May 1$47, whether such sale were fair or fraudulent. But the Court refused to give that instruction, and told the jury, that though the deed of trust were fraudulent, yet, if the subsequent sale to the plaintiff were in good faith and for a fair price, the plaintiff was entitled to recover. A verdict and judgment were given for the plaintiff, and the defendant appealed.
*267
Gilmer and Miller, for the plaintiff.
Mendenhall and Bryan, for the defendant.
Ruffin, C. J.
There cannot be a doubt of the law laid down to the jury. Assuming the deed of trust to have been fraudulent, yet, clearly, the fraudulent grantor and grantee, united, must be able to make a good title. For, the title must be in one of them, and unless it could be conveyed, we should have an instance of property perpetually inalienable. A stranger might, therefore, have purchased this property. So might the plaintiff, for a fair price and bona fide; which is admitted to be the .case here. For, the law does not deprive persons of the power of reference; but rather encourages them to abandon covinous conveyances, and make honest bargains instead of them. That was done here before the defendant got a judgment against ■Wall.
Per CuJBUJt. Judgment affirmed.