#### MOYE & ADAMS vs. JOHN BEAMAN.

Upon an issue of fraud, under the insolvent debtors Act, where a debtor conveyed all his visible property in trust, and many circumstances tended to show, that by a fraudulent collusion with the trustee and another, a large amount of property had been transferred to his son, a youth of 18, without means, it was error in the Judge, after assuming that the deed and sale were fraudulent, to instruct the jury that they should not find the issues against the defendant, unless they believed that the property toas purchased for the defendant. It should have been submitted whether the transfer to the son was bona fide and for value paid by him.

Issue oe fraud, underlie statute for tlie relief of insolvent debtors, tried before liis Honor, Judge Ellis, at the Spring Term, 1855, of Greene Superior Court.

*141The plaintiff obtained a judgment against the defendant, in Greene County Court, for $142,67, and issued a capias ad satisfaciendum thereon. The defendant gave bond' under the statute, and, at the return term, proposed to take the oath for the relief of insolvent debtors, when the defendant suggested fraud ; whereupon an issue was made up. Among the specifications, it was alleged, that the defendant fraudulently concealed land and slaves; that he concealed money ánd notes, so that his creditors could not have satisfaction out of them.

The case was tried in the County Court, from whence it -was taken by appeal to the Superior Court.

Upon the trial below, it was in evidence, that the defendant, before the issuing of the ca. sa., was in possession of two tracts of land, several slaves, and notes to a small amount,— altogether valued at $15,000; that he was at the same time indebted beyond the value of his property. This was in 1848.

It was proved that he conveyed all his visible property, to his son-in-law, one Jones, in trust to satisfy certain debts set out in the deed ; the plaintiff’s debtnotbeingincluded among them. That the defendant declared to one witness, he had enough to satisfy all his debts; and his object, in making the trust, was to avoid the payment of a certain debt he owed one Eason, by whom he had lost a claim theretofore. It also appeared that the trustee, Jones, sold all of said property at auction, in July, 1848, for cash. That when persons were assembled at the sale, defendant persuaded several of them not to bid, saying he did not know what would become of his family. It was also in evidence, that the day before the trust deed was made, the trustee, Jones, loaned the defendant $1000 of his own means, which was provided for in tire deed of trust, and subsequently paid. It also appeared that, after the sale, and up to the time of the trial, the defendant and his family lived on the land. Several of the slaves still remained on the premises, together with other property, a part of which was claimed by a son of his, who was about eighteen years old at the time of the sale, and a part by Jones, the trustee.

The defendant introduced Jones, wdro testified that the d$*142fendant married a sister of his, by whom be bad several children, among whom was the son referred to. That he, Jones, with a view of providing a home for defendant’s family, and assisting his son, purchased at the said trust sale, one tract of land, and other property now on the premises, for which he • paid his own money. The purchase was made by others for ■'him, he being informed that he could not buy at his own sale. That he left this j>i'operty with the defendant’s son, with an understanding that he should labor for it, and he (Jones) would make him a title to it. That the son had paid for a part of it, and the title was still in himself. He. further testified, that the $1000 was loaned by him to the defendant, to enable him to pay some small debts, which he said he did not recollect when he made the deed in trust, and were therefore not included in it; but that a few days afterwards, and before this proceeding was instituted, he was informed that a large debt of this defendant existed, for which a deceased brother of wit- . ness’ was the surety. That he, being the 'administrator, on the estate of his brother, and finding that it was liable to this debt, went to the defendant, and took back from him the $1000, . and subsequently applied it to that debt.

One WilUams swore that he purchased a tract of land, and the slaves now on the premises, at the sale. That he and defendant’s son then had an agreement, in which it was understood, that if the son would pay for the property, which he, "Williams, had bought, and pay a debt his father owed him, he would make him a title to the property. That he at first took away the negroes, but afterwards let them go back ; and that the son having complied with the terms of their agreement, he (witness) had made him a title to the property.

Some evidence was introduced to explain how the son had made the money to pay for this property, which was G or $7000.

The plaintiff then gave evidence, that the defendant had borrowed $1300, just before the trust deed was made, and had $85 due by notes. The defendant then introduced evidence to show the disposition made of these funds, and plaintiff contended that he only accounted for $885 of the- amount.'

*143' The witness, Jones, further stated, that all the property sold by him as trustee, was paid for, and the proceeds paid out to creditors; that there were debts in the trust unpaid.

Williams further stated, that he did not pay for the property at the time he bought it; that he had claims against the defendant, provided for in the trust, and, at a subsequent day, had a settlement with the trustee, when he paid the balance.

The plaintiff insisted, that defendant did conceal as alleged: 1. Because the deed in trust was fraudulent, being made to a brother-in-law, to defeat a creditor. 2. The sale was for cash, in July, when money is generally scarce in that part of the country. 3. Jones and Williams did not pay cash. 1. A loan for $1000 was made the day before, and provided for in the trust. 5. The sale was fraudulently conducted, the defendant dissuading persons from bidding. 6. Jones bought at his own sale. 7. The defendant is still in possession of the property, as before the sale. 8. The -notes and money not satisfactorily accounted for. 9. The defendant’s son could not have honestly paid so large a sum as 6 or $7000 in so short a time.

The Court charged the jury, that the issue was, “did the defendant fraudulently conceal property as alleged ?” and not whether the deed in trust was fraudulent. For, even if they should think it fraudulent, and yet, at the same time, believe that all of defendant’s property had gone to pay his debts before this proceeding, then he would not be held guilty in this issue. They were also charged, that the defendant’s dissuading persons from bidding at the sale, did not, of itself, condemn him; but both of these circumstances, with all the others relied on by plaintiff, as . above enumerated, were evidences tending to show that the sale of property to the defendant’s son, was not bona fide, but oovmmcs, and for his benefit; in -which case the verdict should be for the plaintiff. All the conduct of the defendant and his associates was submitted as evidence tending to the same end, together with all the incidents connected with the trust and sale. The jury were told, *144that if Jones’testimony were true, the $1000 had been satisfactorily accounted for. Plaintiffs excepted.

Yerdiet for the defendant. Judgment and appeal.

Moore and Dortch, for plaintiff.

Hodman, for defendant.

Pearson, J.

We do not concur with his Honor, in the view taken of the question presented by the facts in this case. His charge, in substance, was : although the deed of trust executed by the defendant, conveyed all of his visible property, and was made with intent to defraud his creditors ; and although the trustee had much of the property bid off by an agent, for the purpose of passing it to a son of tire defendant, then under age, whenever he paid the amount of the bids, •which conveyance had not been made, (the full amount of the bids not having, up to that time, been paid;) and although one Williams also bid off much of the property, and agreed to let the defendant’s son have it upon the payment of the amount of his bids, which was arranged accordingly ; and although, according to the testimony of the trustee and Williams, “ this property, valued at. some fifteen thousand dollars, was left with the son, with the understanding, that if he would labor, and fay for it, they would make him a title ;” and although no proof was offered as to the fecudar Idnd of labor done by the son, whereby a youth, eighteen years of age, can realize as the nett profit of his labor, some $6,000 or $7,000, within less than one year; and although the defendant had, on the day of sale, persuaded people not to bid against the trustee, or Williams, “ saying he did not know what would become of his family;” yet, the jury should not find against the defendant, upon the issues, unless they believed the property was purchased for the defendant! This of course Yas not the fact; because the defendant knew he could not hold property, and the object was to get the title in the son of the defendant. A more palpable case of fraud can scarcely be imagined.

We can only account for the error into which his Honor *145fell, by supposing tliat he had taken up the idea that the oath which the creditor is required to take by the Act of 1844, changed the law in regard to the whole subject matter, so as only to make a debtor liable, if, at the time of the commencement of the proceeding, he held property, money, or effects, which could not be reached by a fieri facias, in a way to de-. fraud his creditors. We do not consider that the Act of 1844, made so radical a change in the law, as to make it necessary for the creditor to prove, upon an issue of fraud, that the debtor, at that time, held property, money, or effects, which were concealed by him, so as to defeat the writ of fieri facias. We are satisfied that the intention was to leave open the question, as to whether the debtor had not, before that time, made a conveyance of his property for the purpose of defrauding creditors ; and although the right of property, as between the parties, had passed out of the debtor, yet, if, as against creditors, the conveyance was void, the debtor eannot be allowed to take the oath and claim his discharge, unloss he makes a full disclosure, and sots out in a schedule, the property so fraudulently conveyed ; not his right, but the corpus of the property, as is held in Adams v. Alexander, 1 Ire. 501, where tlie subject is fully discussed.

'So, in the point of view in which we look at the case, viz : assuming, as the Judge does in his charge, that the deed of trust, and the purchase under it for, and on behalf of, the son, were both fraudulent, we differ from him in the opinion that the creditor was not entitled to a verdict, unless the purchase was made for the debtor, so as to revest the property in him.

If a debtor makes a voluntary conveyance, with an intent to defraud creditors, and the donee sells bona fide, and for a valuable consideration, the purchaser can hold against the donor’s creditors ; because the valuable consideration, and bona fides on his part, are taken to supply the want of both those quali ties in the first conveyance. This doctrine does not apply to our case; for the Judge assumes a want of bona fides, as well as a want of ability to pay a valuable consideration, on the part of the son, and makes the case turn upon the fact,.did *146the son. purchase for the benefit of the father; whereas it ought to have been put on the' fact of lonco fides, and. value paid by the son, so as to supply the absence of both of these essentials in the conveyance to the trustee.

Per Curiam.

Venire de novo.