
    Thomas C. Trimble vs. John T. Turner et al.
    The law requires a man to devote the whole of his property, with some trivial exceptions, fairly to the payment of his debts; it will not tolerate any subterfuge or device which is intended to divert it from that purpose. The form of the contract or transaction gives it no validity when good faith, which is necessary to the obligation of all contracts, is absent. A. sale under execution confers no exemption from this principle in behalf of those who participate in such device.
    Where a sale under execution íb.so conducted by collusion between the plaintiff and the purchaser of the property levied on, as to cover the title to a much larger amount of property sold under the execution than is necessary to satisfy it, for the benefit of the family of the defendant in the execution, it will be fraudulent; and no feeling of sympathy or benevolence of motive on the part of those engaged in the transaction can redeem it from the condemnation of the law.
    It was agreed between a judgment creditor and a third party, that the latter might purchase, under a sale upon his execution against his judgment debtor, certain slaves of the debtor, which had- been levied on, and, instead of paying cash for them, as were the terms of the sale, might have a credit which was agreed on ; the purchaser bought for the benefit of the judgment debtor, through whose active exertions on the day of sale, in preventing bidders, the property levied on brought less than its value, and who expected, out of his crop then in the ground,, and a sale of part of the property, to meet the price the purchaser was to pay at its maturity; the sale took place nominally for cash, but really on this credit, at a season when money is always most scarce ; and the property, after the sale, remained with the judgment debtor, who paid the price bid when due : Held, that this sale was fraudulent as to creditors, and the property purchased subject to the other debts of the judgment debtor.
    Where a deed or other instrument or transaction is set aside because of fraud as to subsisting creditors, it becomes wholly void, and cannot stand in the way of subsequent judgment creditors.
    After proof of a combination between parties to a fraud is made, the acts or declarations of one are evidence against the others.
    The principle which protects sales at execution from the presumption of fraud where the original owner is left in possession, does not apply to a case where, previous to the sale under the execution, an agreement is made between the plaintiff and the purchaser that the latter shall buy at the sale upon a credit agreed on ; in such case, the sale is but a private one.
    In error from the district chancery court at Carrollton ; Hon. Henry Dickinson, vice-chancellor.
    James C. Trimble charges in his bill, that on the 17th of April, 1845, he obtained a judgment in the Carroll circuit court, for $3240 for debt, and $1620 for damages, against John T. Turner and C. L. Eslill; that an execution was issued and placed in the hands of the sheriff of Carroll county on the 12th of May, 1845; at the October term the execution was returned nulla bona; the judgment was enrolled on the 21st of April, 1845. That Collins F. Hemingway obtained a judgment in said court, on the 11th of Oct., 1844, against John T. Turner, for $271.36; execution was issued thereon and returned nulla bona; an alias ji. fa. issued on the 9th of May, 1845, and was placed in the hands of the sheriff of Carroll county; that judgment was enrolled on the 9th of May, 1845. That Hemingway, as executor of Sam Bell, deceased, obtained another judgment against John T. Turner, in the same court, on the 15th of April, 1845, for $2275, and that execution issued thereon on the 9th of May, 1845; that this judgment was enrolled on the same day; that the sheriff levied the two executions issued on the judgment obtained by Hemingway on certain slaves named in the bill as the property of Turner. That William Booth claimed them, and gave a bond to try the right of property, an issue for which was then pending; that the slaves were in the possession and under the control of Turner, as his property. Turner had in his possession other real and personal property; that all the property in the possession of Turner is claimed by Booth, and other persons, unknown to the complainant; that the property in the possession of Turner, levied on and claimed by Booth, is the property of Turner, and that the claim of Booth is fraudulent, and made to hinder, delay, and defraud the complainant, in the collection of his just debt.
    He makes Turner, Booth, and Hemingway defendants, prays that- the claim of Booth may be set aside and declared void, and that the property may be sold for the payment of his debt, and that his debt may be paid and satisfied in preference to the debt of Hemingway, and for general relief.
    The answer of Hemingway, after admitting most of the allegations of the bill, and by way of cross-bill, charging that on the 2d of April, 1842, Turner executed and delivered to one G. F. Mill a deed of trust or mortgage, conveying to him, as trustee, the property named in said bill and bond, and by virtue of his execution to secure the payment of the two notes, which were the foundation of the actions in which his judgments were obtained ; a copy of the trust deed is made an exhibit; states in his cross-bill that he has a prior lien on said property under his deed of trust; that his judgments are older than complainant’s, and that he is entitled to a sufficient amount of the proceeds of the sale of said property to satisfy his claims; that he has a special lien on said property by virtue of the trust deed, also by virtue of his judgments- and levy of the executions, and his superior diligence in giving bond and having the levy made, &e.
    The answer of Trimble to the cross-bill admits the execution of the deed of trust by Turner to Mill, as trustee, but charges the deed of trust was executed to defraud the creditors of Turner; denies that he has lost his privilege of-lien by the superior diligence of Hemingway, or any laches on his part.
    The answer of Booth to the original bill admits the allegations of it touching the rendition of the judgment and the levy of the execution, &c., but denies that the possession of the slaves was in Turner or any right in him, but admits that Turner had an apparent possession; denies that Turner used them for his use and benefit, but states that the possession was that of Turner’s wife, and for her separate use and benefit, and that of her children; denies that Turner has any right, legal or equitable, to said slaves; denies that his claim is fraudulent or made to hinder, delay, or defraud, the creditors of Turner; denies all fraud, or intention to defraud; states that some years ago judgment for a large sum had been obtained against Turner; that an execution had been issued thereon, and levied on the slaves; that they were sold by the sheriff of Carroll county, at which sale one E. R. McLean became the purchaser; that McLean, on ' the 2d of October, 1849, sold said slaves to him for the sum of $2540.44, which was secured to be paid by bills of exchange drawn on his commission merchants, Hoopes & Marye, of the city of New Orleans, Louisiana, and paid in New Orleans, out of the money of the defendant (Booth); that E. R. McLean executed a bill of sale to him, which is made part of his answer; states he was not present when the property was sold by the ■sheriff, but McLean informed him that he had purchased them under execution against Turner on a judgment for a large amount obtained in 1840, and then.due and unpaid, and proposed to sell them to him; and believing that McLean’s was a bona, fide and good purchase of said slaves, and that they belonged to him, and having no notice of any defect in the title, entered into the contract of purchase; and not desiring to conceal the motives which induced him to make the purchase, states he believed, from the terms on which McLean proposed to sell said property, that by the use of his own means he could make said purchase and realize a good profit, and from considerations of friendship and regard for Mrs. Turner and her children, who were in a helpless condition, he intended to settle whatever profit he made on said purchase on them for their separate use; he supposed a brother of Mrs. Turner’s would redeem said negroes for the benefit of Mrs. Turner, he being a wealthy young man, but it was never done, he having died soon after; states that he yet intends to settle whatever profit he makes on his purchase on the persons for whom he intended it, after he is reimbursed his money, for Mrs. Turner’s separate use and benefit, for life, and, after her death, for her children; states the title to said slaves is still in him, and that Mrs. Turner has no other interest than that he permitted them to enjoy said property for their separate use and benefit, reserving to himself from their labor $250 a year; insists that he is a fair purchaser of said slaves, and bought in good faith from E. R. McLean for the purpose and object above named, and without intent to hinder, delay, or defraud the creditors of Turner; admits the execution of the trust deed, but insists that the purchase of McLean was under a judgment older than said deed.
    The answer of Turner denies that the property was in his possession and under his control, for his use and benefit; but states, in explanation, that the possession of said slaves was in his wife, William Booth having permitted her to have and enjoy the possession, and receive the profits of their labor, for her separate use and benefit, and for her children, Booth reserving f250 per annum for their use; admits that his possession was apparent, but not real, the possession being in his wife; denies that he has any property in his possession, except such as the law exempts from execution, all of his property which was subject having been seized and sold by the sheriff of Carroll county on judgments to him; denies that the slaves in possession of his wife are his property, but states that they belong to Booth, who has allowed his wife to enjoy the same; states that about the 17th of October, 1840, Geo. D. McLean recovered judgments of him for $3399, which, remaining unpaid, were levied on this property in 1843, and sold in October, and purchased by E. R. McLean ; at the time of said sale, there was due on said judgment about $2500; that the said judgment had been transferred to a bank in Tennessee; that said E. R. McLean was the agent of said bank, and purchased all of the slaves; that McLean had subsequently sold to Booth for about the amount of the balance due on said execution; denies that said sale was fraudulent, and intended to hinder, delay, or defraud his creditors; the sale was made under process of law, and could not be avoided; believes that Booth made his purchase from McLean fairly and in good faith; that he never put funds in,Booth’s hands to make the said purchase; believes said purchase was made with Booth’s own money; denies all fraud or intention of fraud.
    The deposition of William Ransom, sheriff of Carroll county, proves that E. R. McLean directed the levy of the execution under which Booth claimed, to be made; it was at his office in Carrollton; never took the slaves into his possession; left them with Turner, by the direction of McLean; the names of the slaves were furnished by McLean and Turner; did not take the slaves into possession, because McLean directed him not to do so; they were delivered on the day of sale by Turner; that at the time McLean directed the levy to be made, he told the witness that “he had made a good arrangement for Turner; that Turner had found a friend, Major Booth, who would purchase the negroes and let Turner have them to work out the balance of the debt; that Booth was to give him a draft; it was a good time to sell.” Yfitness sold them in two lots; sold them so at request of Turner; McLean purchased the' negroes at $2000; gave the witness a receipt for the money; only $62.05 were paid in money; that was the amount of cash, as it was paid by Booth; did not deliver the slaves to any one after the sale, but Turner took them off; that it was the understanding of the witness that the sale or purchase was for the. benefit of Turner.
    On cross-examination, witness says it was his practice, while sheriff, to leave property levied on with the defendant, when he had entire confidence in him, or when so directed by the plaintiff, his agent or attorney; that the sale was fair on his part; that he entered into no agreement to hinder, delay, or defraud Turner’s creditors.
    The deposition of Z. T. Jones states that he was the overseer of Booth in 1842, ’43, and ’44 ; that the brand of the cotton raised by him was “Mount Ida, William Booth;” this was his mark all the time; that six bales marked “W. B.,” or “ W. Booth,” were delivered by Turner at Booth’s gin in the spring of 1844; that he delivered the cotton to Dunn & Caper-ton for Booth, at Greenwood ; that he knows part of the negroes; they were in the possession of Turner; that none of the negroes came into the possession of Booth, or on his plantation, but remained in the possession of Turner; that there was no change of possession of the property; saw the negroes in the possession of Turner before and after the sale; knows of no acts of ownership exercised by Booth.
    On cross-examination, states that Turner has been living in Carroll county, and his wife has been living with him.
    
      The deposition of H. G. Hall proves that he levied the executions of Hemingway, as deputy sheriff; that he found the negroes in the possession of Turner.
    The deposition of Gilbert M. Earcham proves that he knows the negroes of Turner; lived near neighbor to him in 1842, ’43, ’44, and ’45; was on his farm; that the negroes were in the possession of Turner; that they were under his control, working with him; that Turner’s wife and children lived with him.
    Thomas D. Joliffe’s deposition proves, that he, witness, saw a letter in possession of Turner, from Booth, who was then at Jackson, instructing Turner to sell some of the negroes, and he would make the title when he came home; upon which the witness bought five of the negroes, in March, 1844, for $2000, and paid the money to Booth.
    The deposition of William Terry proves, that he was in the town of Carrollton when the sheriff was selling the property of Turner’s. Says he did not bid for the slaves; was not present when they were sold. The reason was, that he was introduced to Turner before the sale was commenced, and remarked to him, that he supposed the man who would give the most for the negroes, would be his best friend. To which Turner replied, that he should not so consider him; says that he thought, although he had informed Turner through a friend, that he would not bid, he looked on him suspiciously, and was fearful he, witness, would buy the property. This induced him to absent himself; some other man, he thinks Wilson Hemingway, came to him, and told him Turner was fearful he would buy the property; thinks Wilson Hemingway told him. that Turner hoped to get the property back if he did not buy; thinks Turner told him the same thing; he fixed an estimate on the negroes; does not recollect what it was, but it was more than they sold for.
    Deposition of A. W. Coperton proves, that Booth sent to witness, at Greenwood, some ten, twelve, or fourteen bales of cotton of the year 1843, with instructions to ship the same to Hoopes & Marye, of New Orleans, which he did; that the cotton was marked “ W. B.; ” that Booth sent no other cotton to him ; he sent it to Hoopes & Marye on account of Booth.
    
      The deposition of E. R. McLean proves, that the judgment in favor of George D. McLean against J. T. Turner and others, under which the slaves were sold, was bona fide; that it was transferred by George D. McLean as collateral security to' one of the banks at Nashville; that he was acting as agent of said bank; was authorized to take an accepted bill for the balance; that he had the execution run.; that he was!present at the sale; bid off the negroes. The only view he had; was to secure the debt. Sold the property to William Booth; he paid for the same.
    On cross-examination he says: Does not recollect instructing the sheriff to leave the negroes with Turner at his risk; the negroes tvere sold in two lots; gave $2000 for them; that there was an understanding between Booth and himself before the sale; that he, witness, was to bid off the negroes, and that Booth was to have them, but that there was no agreement between Turner and himself; does not know of any means being taken to prevent competition for the negroes; they were worth from $3000 to $4000.
    The deposition of Augustus Bird proves, that Turner has the negroes in his possession; the same he has had for the last nine or ten years; saw them frequently; they were in the service of Turner. In 1845, Turner told witness he made ten bales of cotton; don’t know what he did with it; saw some of it at Booth’s gin; Turner said it was his or Booth’s; he always spoke of it as his or Booth’s, always adding Booth’s name after his own; that Mrs. Turner lived with Turner; says he never saw any change in the character of possession since he first knew Turner.
    The deposition of Martha Goza proves, that Turner had the negroes in his possession; heard Turner say he had had to sell five of the negroes; said he had to sell them to pay Mr. Booth; did not say what he had to pay Booth for. He said he had done it, and was independent; that he owed some debts which he would pay if they would let him alone, but if they did not, he would not pay them.
    On cross-examination she says: That Mrs. Turner and family lived with Turner during the time she knew them; saw the negroes working about the place, &c.
    Deposition of James M. Strong proves, that he was present at 'Carrollton at the sale of Turner’s negroes by the sheriff; that he had a conversation with Booth, on the evening of the day of the sale, on the road from Carrollton to his house, in relation to the same. Booth said that the object of the sale was a matter of favor; that Mr. Turner was one of the unfortunate men, connected with the bank of Holly Springs; that suits were instituted against him on account of that concern; that he, (Turner) had a large family of girl ^children; that he (Booth) had undertaken to befriend his family, and save the property,which was sold for them; that he (Booth) had drawn a bill to meet the purchase of the property; said the debt was going to' a Tennessee bank; that Turner had a crop of cotton, with the proceeds of which, and the sale of some of the negroes, he would be enabled to meet the bill, and save something for his (Turner’s) family.
    Deposition of Passmore Hoopes proves, that he was one of the' firm of Hoopes &. Marye at the time the bill of $2540.44 was drawn by Booth on the firm of Hoopes & Marye; that draft was held by McMahon, Trotter, & Pearsall; that they paid $1521.90, on the 9th of Jan. 1844, which was credited on the draft; says William Booth shipped his crop of cotton, raised in 1843, to the house of Hoopes & Marye; that the funds paid on said draft was the balance of proceeds of fifty bales of his cotton; that no part was paid as an accommodation.
    On cross-examination says : That Booth shipped to house of Hoopes & Marye, of the crop of 1843, one hundred and twenty-six bales of cotton, one hundred and fourteen of which were marked “ W. Booth, Mount Ida,” and twelve marked “ W. B.” the only letters received by the house of Hoopes & Marye from William Booth, in relation to the draft aforesaid, were dated on the 10th of Oct. 1843, on the 19th of same month, and on the 19th of Dec. 1843, and on the 9th of Feb. 1844. These letters are annexed to his answer, and made part of it. In the letter of the 9th of February, he merely says he will return home and make arrangements for the payment of balance of said draft. In the letter of the 10th of Oct. 1843 (A), Booth says: “I have given a draft on you for upwards of $2500, payable 4th of March next, with this express understanding, that it was not to be presented for your acceptance; and it is not my desire that you should accept it. It may be presented to you, having another object in view. I gave the draft for the purchase of a lot of negroes, fifteen in number, which were sold under execution, in order to save something for a numerous and dependent family, without expecting to be benefited myself one farthing. The amount thereof is to be placed in my hands anterior to its maturity, by the friends of the family, when I am to make a bill of sale to them.” In his letter of the 19th of same month, he says “ Dr. McLean, the holder of the draft of which I spoke in my last, has stated to me, since writing that letter, his intention to get you to do his business, provided you will accept to the amount of my draft on you, you holding possession thereof as collateral security. The draft must and shall be paid at maturity,” &c. In the letter of the 19th of Dec. 1843, Mr. Booth says: “You will be so good as to place the amount of funds in your hand to my credit on the draft, in favor of Dr. McLean, in the possession of Messrs. McMahon, Trotter, & Co., I believe, on their deducting interest at the rate of eight per cent, per annum. Dr. McLean says he will instruct them to that effect. Interest at that rate was allowed him.” Again he says: “It is not expected that you accept the draft, and it will not be any accommodation to me for you to do it, and the understanding was that it was not to be presented for acceptance.” On a subsequent examination Hoopes testified that he paid the further sum of $998.96 on this draft for Booth.
    This was all the proof. The vice-chancellor dismissed the bill and cross-bill, and Trimble and Hemingway each sued out a writ of error.
    Cothran, for Hemingway,
    In an elaborate argument and review of the proof, contended that the sale to Booth was fraudulent, and that the property was really Turner’s, and subject to Hemingway’s judgments, because they were oldest.
    Pie insisted that the proof established a combination, and so made all the acts and speeches of the parties evidence. He cited 2 Stark. 403; 3 Serg. & Rawle, 222; 2 Phil. Ev. (Cow. & Hill’s Notes) 177, note 180; 8 S. & M. 305.
    He contended that the deed of trust in favor of Hemingway was older than Booth’s pretended title, and, whatever might be the right of subsequent creditors, it could not affect his position.
    
      Acee, for Trimble,
    Contended that the purchase of Booth was clearly fraudulent, and it made no difference whether the complainant was or was not a subsequent creditor. He cited How. & H. 370; Wadsworth v. Haven, 3 Wend. 411; Randall v. Cook, 17 lb. 53; Stoddard v. Butler, 20 lb. 507.
    He insisted that, even if no fraud were proved, Turner’s long possession would alone be sufficient. Fonda v. Cross, 15 Wend. 628; Hall v. Tuttle, 8 lb. 375; Cole v. White, 26 lb. 511; Handford v. Artcher, 4 Hill, 294; 2 Kent, 539, note E; Story on Sales, 457; Coburn v. Pickering, 3 New Plamp. 415; Stovall v. Farmers Bank of Tennessee, 8 S. & M. 305; Petrie v. Wright, 6 lb. 647.
    
      E. S. Fisher, on the same side, made an oral argument.
    
      Sheppard, for Booth.
    1. The complainants have not made out a sufficient title. They do not show, by their allegations and proof, that they were creditors of Turner at the time the alleged sale was made, against which they seek relief. Indeed, it is not shown that there was any existing debt against Turner, save that in satisfaction of which the negroes were sold. The rule is obvious that prior creditors alone could complain of injury.
    2. The sheriff’s sale was valid, and vested title in McLean, the vendee, which defeats any claim of the creditors of Turner-McLean testifies that the judgment under which he bought was 
      bona fide due; that he was the agent of plaintiffs, and purchased the negroes only with a view to secure the judgment of the debt,never had any understanding with Turner, and knew nothing of any act to prevent competition at the sale. These statements are not contradicted by any proof of other witnesses. On this point, Mr. Sheppard reviewed the proof.
    3.The principal portion of the proof is confined to possession of Turner, and only establishes a fact that Turner had an apparent possession, which Booth’s answer admitted. But possession is not a badge of fraud in case of judicial sale. Garland v. Chambers, 11 S. & M. 337; Pugh v. Foster, 12 lb. 416. The use being for Jane Turner, it must be regarded as her possession. Land v. Jeffries, 5 Rand. 219.
    
      D. C. Glenn, for Trimble, in reply.
    1. Trimble’s judgment was enrolled prior to Hemingway’s, and is entitled to have prior satisfaction. He lost the benefit of his deed of trust by laches and delay.
    2. Admitting Trimble’s debt not to have been a subsisting one at the time of the sheriff’s sale, yet Hemingway’s was, and the court will interfere in his behalf.
    3. Where conveyances are made mala fide, as with an intent to delude or deceive, it is utterly void both as to subsequent as to prior creditors. 1 Story, Eq. 359, § 356, and cases.
    4. The proof shows as clear a case of fraud as could well be conceived. The case is similar to, but a far more heinous case of fraud than that of F. Sf M. Bank v. Stovall, 8 S. & M. 305.
    5. Between McLean, Booth and Turner, there was a conspiracy and combination to practise a fraud, and the acts of each are part of the res gestee, and evidence against each and all. F. M. Bank v. Stovall, 8 S. & M. 305; 2 Starkie, Ev. 404, and cases cited.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the district chancery court at Carroll-ton. It states that Trimble, the complainant, had obtained judgment against Turner for $3240, on which execution had been issued, and returned no property. That defendant, Hemingway, was likewise a judgment creditor in his own right, and as executor of Samuel Bell, deceased, but that, from priority of enrolment of his judgment, he was entitled to preference over Hemingway. It further states that executions had been issued upon the two judgments of Hemingway, and had been levied on twelve slaves as the property of Turner, to which William Booth set up claim. That Booth had given bond to try the right of property to those slaves, in the circuit court of Carroll, and that the issue was still pending. It charges that the claim of Booth is fraudulent, makes Turner, Booth, and Hemingway parties, prays that the title of Booth may be set aside, and the slaves declared subject to his judgment, preferably to those of Hemingway.

Booth and Turner deny the alleged fraud. Hemingway sets up in his answer, as well as by cross-bill, that he has a deed of trust on the same property, duly recorded, and free from objection, that is, older than any of the judgments against Turner, and by virtue of which he claims priority.

The evidence shows very clearly that Turner had become wholly insolvent as early as 1843, perhaps earlier, and that as far back as 1840, one George D. McLean had recovered judgment against him for nearly $4000. A part of this judgment had been paid, but in 1843 a balance of $2600 was still due upon it. The plaintiff transferred it to the Planters’ Bank of Tennessee, and the bank constituted E. R. McLean, of Carroll county, its agent for the collection of this claim. On the 2d of Oct. 1843, the negroes in controversy were sold under this judgment, and purchased by E. R. McLean, the agent, at the price of $2000. According to his testimony, there was an agreement or understanding between Booth and himself before the sale, that he was to bid off the negroes, and Booth was to have ■ them. On the same day, Booth drew a bill in his favor on Hoopes & Marye, of New Orleans, for $2540, payable on the 4th of March following, which appears to have been the amount due on the execution. On the evening of the same day, on their way home from Carrollton, Booth told Strong that he had undertaken to befriend Turner’s family, and to save the property for them; that he had drawn a bill to meet the purchase of this property, and that he expected to be able to meet the bill from the sale of Turner’s crop of cotton then growing, and from a sale of a part of the negroes. Joliffe proves that, in the winter of 1844, he bought five of the negroes from Turner, under a written authority from Booth, for which he gave $2000, and which he paid to Booth, partly in March and a part in May, 1844. In a letter from Mr. Booth, dated 10th of Oct. 1843, to Hoopes & Marye, he refers to the bill he had drawn upon them, tells them not to accept it, and “ that he gave the draft for the purchase of fifteen negroes at execution sale, in order to save something for a numerous and dependent family; that the amount is to be placed in his hands anterior to its maturity, by the friends of the family, when he is to make a bill of sale to them.” McLean states that the negroes were worth, at the time of his purchase, from $3000 to $4000, and there is abundant proof that there was no change of possession, up to the time of the last levy of the execution.

It is also in proof, that on the day of the sale to McLean, there were active exertions used by Turner, to prevent any bidding by other persons; and that, some time after the sale to Joliffe, he stated that the amount paid by Booth had been refunded to him. The sale itself was made in two lots of seven and eight respectively; not with any particular reference to families, but apparently with a view to exclude competition.

The principal question is, whether this sale was fair or fraudulent. The proof very clearly shows a combination or understanding between Turner and Booth, and Booth and McLean, before the sale under the execution. The result of that understanding was a sale at a very reduced price, virtually upon credit ; the money really either paid by Turner or refunded by him to Booth, and the property left without interruption in the possession of Turner. Did this combination hinder, delay, or defeat other creditors? To state the proposition is to answer it.

The object of the whole arrangement was to secure the property to the family of Turner, at the smallest possible price. That price was the amount of the execution under which they were sold. The sale was> not made to raise cash, because the rules of law were departed from, and the sale made really upon credit. It took place at a time of the year when money is most scarce, nominally for cash, but really upon a credit to Booth, long enough to enable the crop then maturing to be carried to market and sold. It is almost demonstrably certain, that if the sale had been postponed until the bill drawn by Booth in payment fell due, the slaves would have brought double as much. For five of them were sold in the interval, for the same amount which the whole fifteen brought at the sale made by the sheriff.

The law requires a man to devote the whole of his property, with some trivial exceptions, fairly to the payment of his debts. It will not tolerate any subterfuge or device, which is intended to divert it from that purpose. The form of the contract or transaction gives it no validity, when good faith, which is necessary to the obligation of all contract's, is absent. A sale under execution confers no exemption from this principle, in behalf of those who participate in such device. Stovall v. Farmers & Merchants Bank, Memphis, 8 S. & M. 306. Whilst McLean had the undoubted right to enforce the execution of which he had the control, he had not the right so to use it as to injure others. The transaction was, in effect, an effort .to cover the title to a much larger amount of property, under the execution, than was necessary to satisfy it. No feeling of sympathy, nor any benevolence of motive upon the part of those engaged in such a transaction, can redeem it from the condemnation of the law.

The position, that a fraudulent conveyance will not be set aside in favor of subsequent creditors, even if it were granted to be true, (and about which it is not necessary to express an ’opinion,) cannot avail the defendant in this instance. Hemingway’s deed of trust is older than the sale. And if a'deed or other instrument or transaction be set aside, because of fraud as to subsisting creditors, it becomes wholly void, and cannot stand in the yray of subsequent judgment creditors. Young v. Pate 4 Yer. 164; 3 Johns. Ch. Rep. 481.

. After proof of the combination between the parties, the acts or declarations of one are evidence against the others. Stovall v. Farmers & Merchants Bank, Memphis, 8 S. & M. 306.

The sale cannot be permitted to stand, and the title must be declared subject to the debts of Turner. As between the complainant, Trimble, and the defendant, Hemingway, the latter is entitled to priority of satisfaction, both in his own right and as executor of Bell. The lien of his deed of trust is prior in time to the judgment of Trimble, and consequently entitled to precedence.

It may be proper to add, that the principle which protects sales at. execution from the presumption of fraud, where the original owner is left in possession, does not apply in this case, because, as between Booth and the other parties, the contract of sale was a private one. Not much weight, however, is attached to this circumstance, because there is abundant testimony apart from any presumption.

The decree of the court below will be reversed, and the cause remanded for further proceedings, in accordance with this opinion.  