
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Booth, Assignee of Smith v. Moret.
    A'judgment will not avail against creditors, when there ié evidence té 'satisfy a jury that it was fraudulently kept open after it had in fact been paid: nor will a sale by the sheriff under such a judgment give a -•good title to a purchaser, who was cognisant of, tod a party to the fraud.
    Motion for a new trial on behalf of Doct. J. Chanter, vouchee of the defendant. The action was trespass to try titles to land, and was tried before Grimke, J.,in Charleston district. The material facts and circumstances of the case appeared to. be these.
    One Smith purchased the land in question of one Tiddy, and gave bonds and a mortgage of the premises, to secure the payment of the consideration money. This was in 1795. In 1797, judgment was obtained on the bonds. Afterwards in the same year, Tiddy executed a deed to one Mrs. Lockwood ; which deed, after setting forth that Smith had mortgaged the land as aforesaid, and had also mortgaged the same land to the said Mrs. Lockwood, t® secure the payment of a debt due from him to her ; and that she had undertaken to pay the debt due from Smi.h to Tiddy ; gopson to state a covenant and agreement on the part of Tiddy, to assign and set over his judgment to her, orto whatever person she might appoint, upon the payment of certain promissory notes given by her to Tiddy. These notes were signed hy Doct, Cjtanler as well os Mrs. Lockwood, at her request, and for her use. After ward sin,the same year, 8th Dec. 1797, Mrs. Lockwood, by a paper writing untier her hand, reciting that Chanler had lent his name to the notes aforesaid, and that she was to pay them as they should become due, •goes on to state an agreement, on her part, to assign the aforesaid debt and mortgage to be assigned to her by Tiddy, to him, Chanler, in case she should not have sufficient to reimburse him, if he should bo compelled to pay the notes. In March 1798, Smith became insolvent, and took the benefit of the act made for ¿he relief of insolvent debtors ; and in Aug. 1798, assigned over his estate and effects, and inter alia the land in question, subject however to the incumbrances aforesaid, to the plaintiff, in trust for the benefit of his creditors. In May 1799, Tiddy executed an assignment of his judgment and mortgage to Doct. Chanler, in pursuance of his agreement with Mrs. Lockwood. This assignment states all the mortgages before mentioned ; the agreement made between Tiddy and Lockwood, and that the notes were signed by Chanler ; then proceeds to state that Lockwood being unable to pay the notes, he Chanler, instance and request, had assumed to pay the balance, an his own notes for the same ; and that she having appoint receive the assignment, it is therefore made to him.
    In Oct. 1799, a sci. fa. issued to revive the judgment; and tion issued thereon, by virtue of which the land in question vt on the 7th of Jan. 1800. Doct. Chanler became the purchas^At the sale by the sheriff, and then leased the premises to the defendant, and put him in possession. It was proved that Tiddy, after the sale by the sheriff, called at the clerks office, and offered to enter satisfaction on the judgment obtained by him aforesaid, and acknowledged that he was satisfied before May, 1799. It was proved that Mrs. Lockwood, both before and after the assignments to her, and Chanler, lived notoriously with Smith as his wife ; and this circumstance was known to Chanler. There were other circumstances affording very strong presumptive evidence of fraud and collusion between Smith, Lockwood, Tiddy, and Chanler, to delay and defeat Smith’s creditors. The notes given by Mrs. Lockwood and Chanler were taken up by Chanler previous to the assignment to him, and before the sale by the sheriff.
    The jury found for the plaintiff.
    In support of the motion it was contended, that the question of fraud was very improperly raised in this case ; for that it could not come fully and distinctly before the court upon the trial, and could only be fully investigated in a court of equity: and that the cl amor which was made on this ground had obtained the verdict for j^e p]ajn(¡fft That the evidence to prove that Mrs. Lockwood tvas Smith’s wife was not sufficient in this case. Cohabitation, reputation, &c. although sufficient proof of marriage, if constant and uni form, which was not the case here, to render the husband respon sible for necessaries furnished the wife, are not sufficient for other purposes. The rule of law to this point going to this extent, no more. 1 Esp. 593. But although she should be considered as a feme covert, it would not affect Chanler, unless proof could be brought' home to him, to show that he colluded with her, or others, to defraud the creditors of Smith ; and that no such proof having been made, it could not be presumed that he was participant of the fraud, if any such there were in the case : and therefore that he must stand in the light of a fair bona fide purchaser at the sheriff’s sale. Then, whether Mrs. Lockwood was single, or married, would make Uo difference as to him. If married, it is objected, that she could not make an appointment to assign; but could not Tiddy assign notwithstanding, and would not his assignment be good ? If sho could appoint, and did, the assignment is good. It is good also, if she could appoint and did not. Tiddy is answerable to her for. any violation of his agreement with her ; but such breach of agreement will not invalidate his actual assignment to Chanler. This is a dilemma from which the plaintiff cannot be extricated by all the ingenuity of counsel. A solemn contract by deed ought not to ho blown away by mere suggestions of fraud. Chanler has actually paid the balance due from Smith to Tiddy. This he surely had a right to do, whether Mrs. L. was Smith’s wife or his mistress : and if he did so, in what respect was it fraudulent as to creditors ? The assignee of Smith cannot be in a better condition than Smith himself. They must fake the property assigned cum onere; and mortgagees are not to be affected by an assignment under the insolvent debtors act, unless the incumbrance, or lien, they claim, is disputed, and they have an opportunity of defending such claim'? but the assignee having accepted the assignment, subject to the incumbrances stated, without having objected at the time, must be considered as having agreed to the truth of the incumbrance, and could not make it a question on this trial. With regard to Tiddy’s acknowledging that the judgment was satisfied prior to tho sale, and offering to enter up satisfaction after the sale, nothing conclu. sive can be drawn from it. The most rational construction to be given to this circumstance seems to be, that he had received satisfaction from Mrs. L., or Chanler, by moans of the notes given to him in consideration of his assigning, or agreeing to asssign the judgment, and not that the judgment was paid by Smith. But admitting a different construction, could such acknowledgment, made after a sale, operate from a time anterior to that at which it was made, in order to defeat the sale and divest a right acquired under it? The defendant, if he had paid the débt, should have proceeded by a rule to shew cause why a mandamus should not issue to command the ' plaintiff to enter satisfaction. He might have pleaded the satisfaction to the scire facias. After assignment, Tiddy had no right to enter satisfaction, for the right was not in him to receive it. The deed to Mrs. L. was good if she was a feme covert; for she might contract with the consent of her husband and he might ratify it. Although Tiddy had a right to enter satisfaction, yet the sale must stand. If the judgment had been reversed for error, yet, if the execution were regular, and the sale fair, it must stand. 1 Cromp, 362. The party could only be restored to the money produced by the sale.
    On the other side, all the circumstances given in evidence to evince that the transactions between Smith, Tiddy, Mrs. Lockwood, and Chanler, were collusive and fraudulent, and intended to delay and hinder the creditors of Smith from obtaining their just debts, were much commented on : and it was strongly insisted on, that Chanler could not be ignorant of the situation in which Smith and Lockwood stood at the time he bargained with’ her, and afterwards when he took the assignment from Tiddy ; and that there was every reason to presume that the money said to be paid by him to Tiddy was furnished by Smith himself: that, in fact, there was a secret trust and confidence existing between Smith and his wife, and Chanler, that the land should enure to the benefit of the former, after he should be discharged under the insolvent debtors act. It was further argued, that the assignment to Chanler, having stated ah the previous agreements between Tiddy and Mrs. L., and Mrs. L. and Chanler, and shewn the ground, reason, and intention of the assignment, it cannot be expounded upon any other principle than what is expressed in the assignment: and therefore it cannot be construed to have been made from Tiddy to Chanler, without reference to Mrs. L., but to him in his character of appointee of Mrs. L.; or have any effect independently of the previous agreements of the parties interested therein, as stated in the introductory part of the said assignment. Then, if this position he good, Chanler must stand in the place of Tiddy, and could .claim ho greater right, or any other privilege or advantage than Tiddy might lawfully claim. Tiddy was bound by his contrató with Mrs. L. to assign to her appointee, (if such contract would bind him, she being a feme covert; and if it would not bind him, the assignment would not be good, because bottomed on that contract,) and Mrs. Lockwood’s appointment was not proved, although alleged in the assignment, It is true, it may be inferred, because inasmuch as the assignment must be taken altogether; and as the objection taken to its being an absolute assignment to Chanler, is founded on the agreements recited in it; and as her appointment is alleged in pursuance of the agreements recited ; the allegation of such appointment may be received as proof thereof: yet, as it can hardly be disputed that she was Smith’s wife, the appointment could not be valid without his consent; nor indeed without his joining in it. Admitting that Chanler paid the balance of the debt due by Smith out of his own funds, yet if on the whole, the assignment was founded in fraud, and with a view to deleat creditors, it is nevertheless void. Cowp. 434. The notes given by - Mrs. L. and Chanler, pursuant to the first agreement between Tiddy and Mrs. L., (even admitting there was no fraud, in the case,) were paid by Chanler to Tiddy, prior to the assignment to Chanler. The notes were those which Mrs. Lockwood had given to Tiddy, and in consideration of which he had agreed to assign the judgment to her on the payment of the notes. He never assigned to her. Her agreement with Chanler to assign the judgment to him did not bind Tiddy; and the judgment was not l.ers to assign, and besides this agreement was executory and conditional. The subsequent transactions between Tiddy and Chanler, if we take them as unconnected with the previous agreements, will be liable to this objection; that the notes having been paid by Chanler to Tiddy, the debt was satisfied, and Tiddy could not assign to him. The notes were- passed to him by Mrs. Lockwood, and although Chanler’s name was to them, he could not claim an assignment on that ground, for he did not sign the notes upon any such agreement. And besides, he only paid the balance of these notes, for part had been paid by Mrs, Lockwood. The assignment to him is of the whole debt, and not for an aliquot part. Therefore, on no ground is the defendant entitled to a new trial. The questions were mixed questions of law and fact. The law had been stated to the jury, and they had decided upon both. Another jury must do the same; and in all probability the result of another verdict would not be different from this.
    Gbimke, Bay, and Johnson, Justices, were absent:, the, other ■Judges delivered their opinions severally. "Wattes, J., was of opinion that a new trial ought to be granted, on the ground that the fraud did not appear to have been brought home to Chauler; and pn the other grounds lie thought the law was with the defendant.
   Teezvant J., and Brevard J.,

thought tv new trial ought not to be granted, as the evidence was very strong, both of the fraud, and of Chanler’s being privy thereto. And further, because it did not appear that the assignment to Chanter by Tiddy was warranted by Mrs. Lockwood’s appointment, or the rules of law, so as to make it a good assignment, in pursuance of" the agreement between her and Tiddy : and as the notes were pato off by Chunler in satisfaction of the debt, and he was not authorized to take an assignment in virtue of the agreement to assign to her appointee, the assignment to him was void ; iuasmuch as the notes paid by him were paid iu behalf of Mrs. Lockwood, and upon payment of the balance due there was nothing to assign, for the debt and judgment were extinguished aud satisfied,. And as to Chanler’s being purchaser at sheriff’s sale, he must have known that nothing was due on the judgment. It was at his instance that the sale was made, and he could not be considered in the favorable light of an innocent purchaser, without notice at sheriff’s sale.

New trial refused.  