
    W. T. & E. Floyd vs. Goodwin.
    An agreement between an attorney and his client, made áfier judgment recovered, that the attorney shall have part of the judgment when collected, is not void for champerty and maintenance under the act of 1821, ch. 66.
    Whether a judgment is fraudulent or not, and made to hinder and de'lay creditors, must bo left to the jury, upon all the facts and circumstances of the case.
    Fraqd may be proved by .direct or circumstantial testimony.
    To confess judgments on .notes dated the same day the judgments are rendered, and issue executions on the same day; to pay other judgments and issue executions thereon, and levy them upon the debtor’s properly; and to buy in the property hy the creditors) in the judgments, and suffer it to remain in the debtors possession, or that of his family, are evidences of fraud, which require to be disproved by evidence of consideration, and honest indebtedness.
    When a judgment is had against principal and surety, and the execution issues against both, the surety may pay off the execution, and by contract with the creditor, cause to be enforced the execution upon the judgment against the principal debtors; hut if held up by the surety, to hinder 'and delay other creditors of the principal debtor, it will be fraudulent and void as to creditors.
    When a sale .is made at the instance of A, under executions, part of which are good and valid, arid the others fraudulent and void, the sale and purchase thereat, are void, and of no effect, for being fraudulent as to part, they must be esteemed fraudulent for the whole.
    A stranger to the record put chasing property at an execution sale, may leave the properly in Ihe possession of the debtor, or any one else, without the imputation of fraud; but if the creditor in executions, founded upon judgments confessed, purchase the piopeityat the sale, and leave the properly with the debtor, it will devolve upon him to show that the judgments were fair and honest.
    If a person fraudulently pnrehase the property of another, without paying, therefor, merely to hinder and delay creditors, he canm't dispute and entest the regularity of the title of a purchaser at an execution sal^ of another creditor. ;
    Bills of sale made by officers selling slaves under execution or other judicial process, are not embraced in the teims “all sales of slaves” in the acts of 1784,-eh. 10, see. 7; and of 1789; and are not required to be registered to pass the title to the purchaser.
    A levy and sale of slaves under execution, vests the title to the slayes jn the purchase, without any bill of sale or other writing.
    
      This was an action of detinue brought bj Wm. T. and Elisha Floyd, against John Goodwin, in the circuit court of Franklin county, to recover two slaves, Fanny and Priscilla. The defendant pleaded non cleiinet. A verdict and judgment were rendered for defendant in the court below; a new trial moved for and refused; from which the plaintiffs appealed in error to this court.
    Both parties claim title to the slaves in controversy from John M’Gowan. The plaintiffs claim title as follows. On the 10th of May, 1831, John M’Gowan, the stepfather of the plaintiffs, executed to them six notes, amounting in all to upwards of five hundred dollars, and payable one.day after date. On the lltb May, 1831, he confessed judgments before Stewart Cowan, a justice of the peace for Franklin county, on each of said notes. Executions " issued and were levied on the same day on the slaves in dispute, all with the consent of M’Gowan. The negroes were sold at Thompson’s store, a relation of the plaintiffs, on the 21st of May, 1831, when but five persons were present. The sale was not advertised at the muster ground, as required by lavy, but was advertised at three other places, and the advertisements torn down by plaintiffs. The property was not present when the constable made his levy, nor did he then take possession of it; M’Gowan gave it in, and Wm. T. Floyd, one of the plaintiffs, undertook that die property should be delivered on the day of sale. On the day of sale the negroes were produced, and sold by the constable, and the plaintiffs became the purchasers. The constable, before that, never had the possession of the negroes, nor had he taken any forthcoming bond for their delivery. A hill of sale wás executed by the constable to the plaintiffs, for the ne-groes, which was registered on the 18th September, 1832, more than one year after the sale.
    
      •The defendant, who was in possession, claimed title as follows On the 10th of May, 1831, B. and Anderson F. Willis, assignees of Peter Willis, issued a writ in covenant, and recovered a judgment at August term, 1831, for five hun-_ . . , _ - , dred and ninety eight dollars and seventy three cents, against John M’Gowan; an execution issued from that court, and was returned “no property found.” An alias fi. fa. issued 30th November, 1831, and was levied on the negroes in controversy, and they were sold on the 10th December following, when the defendant, Goodwin, and H. L. Turney, became the purchasers. The defendants contended in the court below, that the sale and purchase under which plaintiffs claimed the negroes, was fraudulent; that Willis was a judgment creditor, and his, defendant’s title, under the judgment and execution sale in favor of Willis, was superior to that of plaintiffs.
    In addition to the executions above mentioned, in favor ofWm. T. and E. Floyd, the plaintiffs produced two other executions in favor of Stewart Cowan, against John M’Gowan, one for eighteen dollars and seventy five cents, and costs, and the other for fifty two dollars and fifty cents, and costs; which were levied in March and April, 1831, on the negro girl Priscilla, and a grey mare, as the property of M’Gowan. These executions defendant alleged were paid before the sale of the negroes under plaintiff’s executions. An execution was also produced and read by the plaintiffs, in favor of James H. Wilkinson, levied on the grey mare and said negro girl, which it was also alleged was paid before the sale. This last execution was for eight dollars, and costs.
    The plaintiffs introduced testimony, tending to prove that John M’Gowan was indebted to them the amount of the judgments confessed before Stewart Cowan; and defendant introduced testimony, conducing to prove, that M’Gowan was not indebted to the plaintiffs to that amount, but the greater part was colprable merely. The slaves, after they were purchased by plaintiffs at his execution sale, went back on the same day, into M’Gow-an’s possession, where they generally remained till they were levied on by the execution in favor of Willis. ' The bill of sale to John Goodwin, the purchaser at the execution sale, in favor of Willis, was made by the deputy sheriff.
    The plaintiffs also introduced Peter Willis, who proved that he assigned the obligation on John M’Gowan to Wm. B. and Anderson Y. Willis, the same on which the above mentioned judgment was obtained: that afterwards, when B. and A. F. Willis gave it back to him, FI. L. Turney was employed as his counsel, to bring suit .on said obligation, and obtained the judgment in favor ofWm. B.and A. F. Willis. That he, Peter Willis, had an execution issued on the judgment, and levied on land which was claimed by some other person. That his counsel, H. L. Turney came to him and told him if he would give the case up to him, he, Turney, could make his money for him; and it was',then agreed between him and Mr. Turney, that he, Turney, should have one half of what he could make out of M’.Gowan by the execution. He has never received any part of the consideration for which the negroes were sold,, but Mr. Turney and Mr. Goodwin have been his lawyers in some cases, and he is indebted to them on that account; and has made no settlement with them; but he expects to be paid; and Mr. Goodwin has told him he would pay him. The instructions given by the judge to the jury, were as follows:
    -It is contended on the part of the plaintiffs, that the defendant does not stand in such a situation as to be enabled to contest the correctness or purity of the plaintiff’s title to the negroes, because there was a champerty contract existing between the witness, Peter Willis, and Hopkins L. Turney, in relation to the judgment obtained in.the name of A. F. Willis and W. B. Willis, against John M’Gowan; in the coprt of pleas and quarter sessions, the record of which has been read to you from the bar, and as . Goodwin and Turney purchased the negroes in dispute, in partnership, under said judgment. This will depend upon the evidence given you upon this point, in view of the law, as I shall expound it to you. I understand our act °f 1821, was passed to prevent champerty and maintenance, so far as it bears upon this subject, tobe in strict accordance with the ancient law. Our act of assembly declares nothing champerty, unless the contract or agreement was made or entered into, before the commencement or during the pending of a suit, “to pay or give any greater or less sum of money, or any greater or less portion of the thing in litigation upon any contingency, or upon the amount of the suit.” These words I read from the 2d sec. of the act of 1821, ch. 66, and they do to my mind, leave no doubt as to the time when this unlawful contract or agreement must be entered into. It must be before, or at the commencement, or during the pendency of the suit; for nothing can be in litigation after the final judgment of the c'ourt upon it; and the amount of the suit is no longer dependent on contingencies, but is fixed and certain. You will, therefore, inquire if any agreement or understanding was made, or had, between P. Willis and and Mr. Turney, in relation to this judgment against M’Gowan; if so, when was it made or had? Was it before, at, or during the pendency of the suit? If it was made, or had at either of these periods, and the defendant and Turney were parties in the purchase, it would render the' judgment void, and make the consideration nothing upon which their purchase .was made. But if no such agreement was made, or understanding had between Willis and Turney, until after the rendition of the judgment, it would not be champerty. The litigation would be ended, the right of the parties settled, and the amount fixed and determined, and none of the mischiefs would happen, which the law of champerty intended to prevent. Willis might then give Turney one half, or three fourths, or the whole of the judgment, and it would not amount to cham-perty either by our statute, or the ancient law, unless it was done in fulfilment of some agreement made, or understanding had as aforesaid.” It is sáid in Haw. P.' chv 84, sec. 15 and 20. 1 Bac. ab. 576, a gift-of land in suit after the epd of it,- to a counsellor for his fee or wages, without any bond or precedent bargain relating to such gift, is not within the meaning of the statute. “For certain it is, under the statute 2, Edwd. 1, chap' 11, the plea must be hanging in court when the unlawful agreement was made.”
    2d. - A number of judgments and executions had been introduced on behalf of the plaintiffs, as a foundation for their purchase of the negroes in question; six of which are in favor of the plaintiff, purporting to be confessed by John M’Gowan, predicated on notes made by him, it is said, on the day the judgments were confessed; and it is also said, that executions issued upon all of-themthe same day. Two more judgments and executions were introduced before you, in favor of Stewart Cowan, Esq. the justice before whom the other judgments were confessed against John M’Gowan, with another, for some small amount in favor of James H. Wilkinson, against said M’Gowan. It is said, that before this issuance of the seVeral executions upon the judgments confessed as aforesaid, and on the same day, that either M’Gowan or plaintiffs, paid lire justice up the amount of his executions, that notwithstanding these executions, were levied upon the negroes, as though they had not been satisfied. That when the negroes were- sold, they were purchased by the plaintiffs, and the possession thereof given immediately to the wife of said M’Gowan.
    Whether these facts have been proved or not, you must determine. It-is said by the defendant’s counsel, that the whole transaction is a fraudulent contrivance, to hinder, delay anij defraud the creditors of M’Gowan. How that is, you must inquire and find out by your proof, under the rules of law the court shall give you upon this point. Fraud is not to be presumed, but must be proved by the facts sworn to you, or the circumstances arising from, and connected with the facts directly proved before you. Though the law requires fraud to be proved as before stated; yet in most instances the evidence of it must be gathered more from the circumstances attending the transaction, than upon tangible proof; such things are not generally told, or done openly. Lord Coke says, it is hatched in secret, and another great mañ has went farther, and says it was hatched in the hollow of a tree. It therefore has to be ferreted out by carefully following its marks and signs; for fraud will, in most instances, though never so artfully and secretly contrived, like the snail in its passage, leaves its slime by which it may be traced. The things alleged by the defendant’s counsel as before stated, if true, are signs or badges, or presumptions of’ fraud, capable of being explained away by proof on behalf of the plaintiffs. It is for you to determine, whether they have done so. The fact of making the notes, if made for an honest existing debt, and confessing judgments upon them, and the issuing executions upon them, all on the same day, do not of themselves make the proceedings fraudulent, but it is competent for the plaintiff to shew the whole an honest transaction. If the debts were honestly and fairly due and owing, M’Gowan might, at his plea.sure, cut up the amount into as many sums, and give his notes for them as he chose, and then confess judgments upon them, and permit execution to issue immediately, so that the plaintiffs might secure their demands. It was lawful for M’Gowan to prefer them to any other creditor, if they were lawfully such; if the whole was done in good faith, for the securing a proper and honest debt. The confessing judgments under such circumstances, render it only necessary for the plaintiffs to show the 'Consideration upon which the judgments were confessed to be a fair and full consideration.
    3d. But should the whole consideration, dr only apart thereof be merely a nominal or a colorable consideration, hatched ahd cdntrived to hinder, delay ánd-defraud creditors from’the recovery of their just and'horiest debts but of these negroes, the whole contrivance would be void and of no effect. To arrive at the truth, you must look narrowly into all facts and circumstances, and see if any portion of the averred consideration was merely colorable, and not real; for instance, were Stewart Cowan’s executions paid off and discharged before the negroes were advertised and sold; if they were paid, and satisfied and discharged, they would be what lawyers call functus officio, dead in their office, having fulfilled their design. Although the circumstance might not be a sufficient reason to render void the sale of the negroes to an innocent purchaser, if these executions were levied upon these negroes after they were satisfied, to deter competition at the sale, or to swell the consideration beyond the bounds of truth, to hinder, delay or defraud creditors, it would render the sale and purchase as it was, an entire thing, fraudulent and void as .to creditors; or if any other sum was inserted in the execution, which was not honest ,and fair, it would render the sale and purchase a nullity. The law feels the wound, when its process is bruised and bleeding under any fraudulent contrivance; and will punish any one who will attempt to contaminate her channels of justice, by fraud.
    4th. A stranger to the record and proceedings, may purchase any property, bona fide, and leave the possession with the execution debtor, or any other member of his family, -without the slightest imputation of fraud, but it is otherwise with the plaintiffs in the execution, for if he purchases the property, and leaves it with the execution debtor, it lies upon him to show the judgment when thus confessed, a fair and honest one. An honest and fair purchaser may do what he pleases with his property, and leave the possession with the debtor or any one else, at his pleasure;
    5th-. It is said by -the plaintiff’s attorney that the purchase by the defendant was a mere colorable thing, and. that the defendant has not paid any part of the purchase money t° ¿Willis, the plaintiff in the execution, nor is he to do so unless he shall succed in this suit. If that be true, he would not stand in a situation to contest the regularity of the plaintiff’s muniments of title, nor the fairness of acquiring the title itself. But if the execution creditor pleased to trust the defendant for the purchase money coming to him some future day, to he then bona fide paid, and not to depend upon the contingency of success in the suit now on trial, the plaintiffs have no right to complain.
    6th. It is urged by the defendant’s counsel, that the plaintiffs did not have their bill of sale registered within twelve months from the date of the purchase, that they have no title that they can assert in a court of law under the acts of 1784, ch. 10, sec. 7, and 1789. I am of opinion, that the words all sales of slaves, include sales under legal process, as well as private sales; and therefore, that the hill of sale to plaintiffs, from the constable, ought to have been made and registered within .twelve months, to make it available. And personal notice is of no avail, when the law requires notice from the register’s office, and the records thereof.
    The plaintiffs insist, that the defendant’s deed or bill of sale, is a nullity, because made by the deputy sheriff. Suppose it were void, if he has shown from the facts that he did purchase; and that the purchase of the negroes was a fair bona fide purchase, it would enable him to contest the plaintiff’s title.
    
      Taul, for the plaintiffs in error.
    The sale under the executions in favor of the plaintiffs was good, without a bill of sale. It is the well settled law, that a bill of sale of slaves is not necessary in any case, where there is a fair and bona fide sale for a valuable consideration. Caines and Wife vs. Marley, 2 Yer. Rep. 582; Davis vs. Mitchell, 4 Yer. Rep. 281. If a bill of sale from, the constable was necessary to have been made, the one made ought to have relation back to the time of the sale, though not registered in twelve months after the sale. The contract between Willis and Turney .was contrary to the laws against champerty. See act of 1821, and 5 John. C. Rep. 44. Mr. Goodwin, the purchaser, paid no part of the consideration, and does not stand in a situation to contest the plaintiff’s title. If a bill of sale was indispensably necessary before a title vested in plaintiffs, it was equally necessary defendants should have one. The judge instructed the jury, that it-was not necessary that defendant should have one.
    
      Wm. E. Anderson and J. Campbell for defendant.
    The judgments, executions, and sale to plaintiffs is a fraudulent contrivance to hinder and delay the creditors of M’Gowan. The plaintiffs should have had their hill of sale from the constable registered in twelve months, especially as the possession of the - slaves- remained ■with M’Gowan, otherwise the sale is fraudulent by the act of 1784, ch. 10, sec. 7. That the sale to the plaintiffs was fraudulent, appears from the 'following circumstances: 1. The whole batch of notes executed by M’Gowan to plaintiffs, were given, on the day the writ in favor of Willis issued.
    
      2. The judgments were confessed before the notes fell due.
    3. The levy, was made on the same day the judgments were rendered by the directions of M’Gowan, the constable not seeing the property, and the plaintiff’s dispensing with security for its delivery.
    4., The plaintiffs and M’Gowan consulted the constable, whether the plaintiffs had not the right to have the negroes sold without advertisement.
    5. The property was not advertised for sale as the law directs.
    
      6. The plaintiff, Wm. T., followed'the constable, and pulled down the advertisements of the sale.
    
      
      1' ^ie P^ace selected for the sale was Thompson’s store, the uncle of the plaintiffs.
    8. When the sale took place, a bidder wished the ne-groes to be sold separately, as he wished to purchase one.
    Plaintiff, Willi.am, objected, saying, he wished them sold together, and they were sold together.
    9. The slaves were sent from the sale directly back to M’Gowan’s, where they remained until levied on, except some short periods, when they were sent to help to get out the cotton crop.
    The sale to the plaintiffs was not good, without a registered bill of sale. See act of 1784, ch. 10, sec. 7, 1789, ch. 59, and 1827, ch. 59; Latham vs. Overton, 2 Haywood’s Rep. 66; 2 Do. Rep. 86; 1 Do. Rep. 289; M’Ree vs. Houston, 3 Murphy’s Rep. 429; Sherman vs. Russell, 1 N. C. Law Rep. 469; Waterford vs. Pitt, 3 Murphy’s Rep. 468. In this last case, the possession was delivered and remained with the donee- for years; a registered bill of sale was not dispensed with. 3 Hay. Rep. 162, 163; 1 Hawk’s Rep. 367.
   Catron, C. J.

delivered the opinion of the court.

1. The instructions given to the'jury, that the title of the defendant was not void, by force of the statutes to suppress champerty and maintenance, is believed to be correct.

2. The charge on the second point was correct. It left the facts fairly to the jury.

3. The charge on the third point, is perhaps slightly objectionable in reference to Stewart Cowan’s executions. Cowan might have been paid the amount due him, and the executions remain valid. A security may pay the creditor his money, and still by contract with the creditor, cause tobe enforced the execution against the principal debt- or, although the execution be jointly against the debtor and security. Such is the spirit of our legislation on the subject of enforcing executions against debtor and security; and so this court held in Gunn and Boyd vs. Tannehill. 2 Yerg. 544. Aside from these facts, the relation of principal and surety not existing, the charge was correct; if the the relation did exist, and the debt was paid with the fraudulent intent set forth by the charge, the sale was colora-ble and void as to Cowan’s executions; and being colora-ble in part, is void, although made by virtue of other valid executions; because a purchase based on partly a fair, and partly a colorable and fraudulent consideration, is within the statute of frauds, for the reasons given in the cases of Darwin vs. Handley, 3 Yerg. 502, and Somerville vs. Horton, 4 Yerg. 541.

4. On the fourth point the charge was remarkably accurate. A third person, purchasing at execution sale, takes a title disconnected frqm the debtor and creditor. The transaction is open and notorious, and the evidence of title is the record of recovery in favor of a third person. ‘ With the possession of property thus acquired, the purchaser may deal as if the creditor had ljever been the owner, or in possession thereof. 2 Starkie 619. If, however, the judgment is a mere contrivance to hinder and delay creditors, and the plaintiff purchases with this intent, the purchase is void.

5. The charge on the fifth point was not objected to by either party, and is not objectionable had it been.

6. On this point arises the only controversy worthy the serious attention of the court., as a revising tribunal, and the only one on which much attention is bestowed. The circuit court was asked to charge, that by the acts of 1784, ch. 10, sec. 7, and 1789, a bill of sale from the •officer making the execution sale, was necessary to vest a title in the purchaser as against the creditors of the execution debtor; and that such bill.of sale must be registered within twelve months from the date of the purchase. That there not having been made any bill of sale for the slaves by the officer who sold them to the Floyds, within twelve months after the sale, they had no title that could enforced as against creditors in a court of law. A ^ bill of sale had been made to the Floyds by the officers, but more than a year after the date of the sale, and after \J 1 they brought suit for the negroes.

On the effect of this bill of sale, and in response to the request to-charge what its effect wras, the court said, “I am of opinion the words, all sales of slaves, include sales under legal process, as well as private sales; and, therefore, that the bill of sale to plaintiffs from the constable, ought to have been made and registered within twelve months, to make it available; and personal notice is of no avail, when the law requires notice from the register’s office, and the records thereof.

This part of the charge took the cause in effect from the jury, and most properly, if the law was correctly charged; for it would have been idle to try the complicated and doubtful matter of law. Are judicial sales within the purview of the act of 1784. The levy of the execution divests the title out of the debtor, and discharges 'the debt as this court has holden. Young vs, Reed, 3 Yerg. Rep. 297; 6 Yerg. Rep. The property being in custody of the law, remains so until the sale is made, when a title immediately vests by the sale. This is evidenced by the levy and return of thesale, which return becomes matter of record, and furnishes a record title, notoriously and openly made, and is the farthest from a secret sale that can well be imagined; and to private gifts and sales, the act has at all times in this-state been holden to apply, so far as my knowledge extends. The acts of 1784, and 1789, ch. 59, sec. 2, were intended to apply only as between vendor and purchaser, to give notoriety to the transfer of slave property. There w'as no necessity for such a provision in cases of judicial sales. Vide 5 Yerg. Rep. 127.

We are told by the act of 1784, that all sales of slaves shall be in writing, attested by at least one credible witness, or otherwise shall not be valid; and shall be proven and recorded within nine months; which, by the act ’ 1 J 1739, is extended to twelve months. If it be true, that a judicial sale .of a slave shall be in writing/this writing is furnished by the levy and return: shall it be attested by a' witness, proved and registered? This cannot have been the intention of the legislature, if it was meant to extend the acts to judicial sales; for after the officer makes the sale, he has no farther title; if he has, the property must rest in him and the custody of the law, until some further step is taken with it. Here another creditor has seized upon the property and sold it, and the defendant’s claim under such sale. -

It would be difficult to hold the second purchase good; or take a title against the officer who first levied, and attempted to sell to the Floyds. The officer field the possession lawfully, and as a bailee, could recover it from another. The lawful possession was transferred to the' Floyds; even admitting 1 the sale was void. They hold for the officer, with the levy fixed on the slaves; their possession is prima facie lawful, and they are authorized to recover on their possession, unless the judgment and execution under which they claim are fraudulent, and for this reason void, which destroys- the force of the levy.Aside from the sale, the Floyds bad the same right to recover the slaves the officer would have had from whom Miley obtained the possession.

But this consideration is aside from the true question.’ •\The saffi vested the title to the slaves in-the purchaser, and if the officer had refused to deliver, the property on payment to him of the money bid, I think there is no doubt the purchaser could have recovered the slaves in detinue, without having obtained a bill of sale from the officer. He took title aside from the register acts, and transferred it without reference to them, nor does any one register act, requiring titles to goods to be registered, contemplate- a record title, made up of judgment-, execution, j€Vy andgjde. In this part of the charge the circuit court J r ° erred.

On the last objection, the deputy sheriff could not make a bill of sale, of course nothing further need be said, as ipy opinion is, the defendant took title without any, if the title of the Floyds was void.

Judgment reversed.  