
    
      Tavenner v. Robinson.
    August, 1843,
    Lewisburg.
    (Absent Cabell, P., and Brooke, J.)
    Deed of Trust* — Chattels—Discharge of Deed. — A slave conveyed by a deed of trust is sold, in the absence of the trustee, by the debtor with the concurrence of the trust creditor, to another creditor not secured by the deed, for a consideration compounded of the balance remaining due upon the trust, other debts claimed by the trust creditor, and a debt due to the purchasing creditor. Held, that by this arrangement the trust deed was discharged, and the title of the trustee, so far as concerns the personal property embraced in the deed, divested; for in a conveyance of chattels personal the law disregards mere formalities of the instrument, and the payment of the debt secured thereupon completely extinguishes the incumbrance.
    Fraud — Sale of Personalty — Retention of Possession by Vendor. — The vendor of a slave continuing in possession until an execution was levied on the slave more than a year after the sale, and the presumption arising from the inconsistency of the possession with the title claimed by the vendee not being repelled by any circumstances appearing in the case, but the circumstances on the contrary confirming the presumption of fraud, the sale declared void as to the execution creditor.
    Executions — Title of Sheriff Purchasing at His Own Sale. — The owner of a slave sells her, but remains in possession. The slave is afterwards levied upon under execution, and the vendee forbidding the sheriff to sell, the creditor gives an indemnifying bond with security, and then the slave is sold by the sheriff, and the sheriff becomes himself the purchaser, though at the time in the name of another. In an action of detinue by the first vendee against the sheriff so purchasing, held, the Question whether a sheriff can acquire title by a purchase at his own sale does not arise, but the proper enquiry is whether the title of the plaintiff is valid against the execution creditor.
    This was an action of detinue, brought in the circuit court of Wood by James Robinson against Eranklin Tavenner, for a female slave named Zilpa; and the plea was the general issue.
    At the trial in September 1841, it appeared by the evidence, that some years pre-281 viously Charles H. E. *West moved from the state of Maryland to Wood county, and brought Zilpa with him; that West was an improvident and intemperate man, who became embarrassed in his circumstances, and indebted to divers persons; and that on the 21st of January 1834 he made a deed of’ trust, which was admitted to record in the office of Wood county court on the 22d of the same month, whereby, — after reciting that J. M. Stephenson had become surety for him in a forthcoming bond to William Tefft and Otis E. Bradford, for the use of Tefft, for 92 dollars 47 cents, and also surety for him in another forthcoming bond to Levi Wells for 36 dollars 51 cents, and that he was indebted to Stephenson 25 dollars by a single bill bearing date on that day, payable on demand, —the said West conveyed to Thomas M’Ear-land his interest in three several parcels of land, also a negro slave by the name of Sylph, two horses, one cow, &c. in trust that M’Earland should permit West to remain in possession of said land and personal property until default be made in the payment of the said forthcoming bonds, and then in trust that so soon as the said bonds should become forfeited, M’Farland should sell so much of said property as should be sufficient for the payment of the aforesaid bonds, or so much thereof as should remain unpaid, after having1 advertised the said sale 20 days at the door of the courthouse of the county, and should, out of the proceeds of sale, first pay all the costs attending the execution of his trust, and then pay off the amount of said bonds &c. or so much as might remain unpaid by the said West. "The record did not distinctly state that Zilpa was the same slave that was conveyed by this deed by the name of Sylph, but it may be inferred that she was. The trustee M’Farland, it appeared, advertised a sale of the said slave to take place at the house of West on the 4th of March 1835; but on the day of sale, he being absent from the commonwealth, West executed a paper 282 under his hand *and seal, authorizing and empowering Stephenson to make the sale in pursuance of the advertisement, and Stephenson proceeded to sell the said slave accordingly. She was struck off to the plaintiff Robinson for 88 dollars, and the following writing was thereupon executed by West and Robinson: “James Robinson this day purchased at public sale a negro girl of C. H. U. West, by the name of Sylph, for the sum of 88 dollars, which said girl is now in the possession of the said West; and it is agreed by the said Robinson that the said girl may remain in the possession of the said West for the present; the said West on his part agreeing to give up the said girl at any time on the request of the said Robinson or his assigns. Given under our hands and seals this 4th day of March 1835.
    Chs. H. Jj. West, [Seal.]
    Jas. Robinson, [Seal.]”
    It was understood at the sale, that the forthcoming bonds mentioned in the deed of trust had been previously paid and satisfied, leaving the sum of money due Stephenson alone to be provided for by the sale. A computation was made previous to the sale, ascertaining West to be indebted to Stephenson about the sum of 60 dollars, which included 25 dollars mentioned in the deed of trust, with the interest thereon, and some additional accounts in which West stood indebted to Stephenson. West was also indebted to Robinson a sum which added to the amount aforesaid constituted an aggregate of 88 dollars. For this aggregate of 88 dollars Robinson made his first and only bid, and for this price the slave was struck off to him without competition. The only persons present at the sale, as far as recollected by the witness who deposed on the subject, were Stephenson, Robinson, West with his family, and two other persons. West, at the time of the sale, 283 was *much embarrassed in his circumstances, and generally considered insolvent. The slave had been in the possession of West from the time of his removal to the county, up to the time of the sale; was present at the sale; and thereafter continued as before in the family and service of West. At the time of the sale, Robinson, who had been the correspondent and agent of the uncle and brother of West (residents of Maryland), stated that Zilpa was the property of Arthur West the brother of the said Charles, and had been loaned to him for the use of his family, on his removal from Maryland to this county; that he was instructed by Arthur West to purchase her, so that she might be secured to the use of the family of the said Charles; that he was making the purchase for these purposes, and would give up all right in the said slave and convey her to Arthur West, on receiving the sum of money for which he had become the purchaser. No money was paid at that time, but some months afterwards Robinson liquidated the balance of the amount due Stephenson, having previously paid a part by a check drawn by the uncle of Charles H. Lt. West for 54 dollars. This balance Robinson stated he had received from Arthur West. Whether the remittance had been sufficient to cover the moneys due to Robinson did not clearly appear: the impression of the witness who deposed on the subject was, that Robinson informed him he had received 90 dollars. On the 25th of July 1836, a writ of fieri facias was sued out of the court of Wood county in favour of William Telit against the goods of West, which was levied on Zilpa, who was then in his possession. Not being sold under the fieri facias for want of time, a venditioni ex-ponas issued commanding the sale of her, upon which this return was made: “1836, October 17. The negro girl Zilpa sold to Rawley M. Niger for 300 dollars, which sum more than satisfies this execution. The balance is now in my hands. F. 284 Tavenner D. S. for J. ^Tomlinson S. W. C.” While Zilpa was in the custody of the sheriff, another fieri facias issued from the same court on a judgment obtained by Alfred Beauchamp jr. against West, which was levied on the same slave, and the following return made thereon: “Satisfied by applying a part of the proceeds of the sale of a negro girl (Zil'Pa) sold to Rawley M. Niger on the 17th October 1836. F. Tavenner D. S. for J. Tom-linson S. W. C.” The defendant in this action was the acting sheriff who levied the executions aforesaid and sold the slave under the same. At the sheriff’s sale, the plaintiff claimed the slave as his property, and forbade the sale ; and on the requisition of the sheriff, Tefft, the plaintiff in the first execution, executed a bond with security for the sheriff’s indemnity. The defendant procured Niger to bid for and purchase in the slave for him, and she was knocked off at Niger’s bid for 300'dollars, and immediately thereafter went into the possession of the defendant, without Niger’s having any further agency in or control about the matter. The plaintiff’s forbidding the sale of the slave probably affected the price for which she was sold. Some evidence was given tending to shew that the sale was hurried by the defendant, and without sufficient time being given for deliberate and reflecting bids by competitors; but the court was not satisfied that the sale was conducted with any fraud or unfairness.
    Upon the evidence being closed, the defendant moved the court to instruct the jury, that the legal title to the said slave being in M’Rarland the trustee, the substitution of Stephenson, and a sale by him of the slave, did not vest in Robinson the purchaser such right and title as would enable him to maintain this action: but the court was of opinion that as M’Rar-land’s was a naked power, not coupled with any interest, it was competent for West the grantor and Stephenson the creditor to unite in the sale, by which the title 285 of West to the slave might *pass > aiQd instructed the jury, that if the evidence satisfied them that the plaintiff Robinson had been repaid his purchase money, such repayment divested him of the title acquired by the purchase, under the terms and conditions thereof as herein before stated.
    The jury found a verdict for the plaintiff, ascertained the slave to be of the value of 500 dollars, and assessed the plaintiff's damages to 200 dollars.
    After the verdict, the defendant moved the court to set aside the same and to award him a new trial, on the ground that the verdict was contrary to the evidence. The court overruled the motion; and a bill of exceptions was filed, stating the facts as before mentioned.
    Judgment being rendered for the plaintiff, a supersedeas was awarded thereto.
    The cause was submitted without argument, by Risher for the plaintiff in error, and William A. Harrison for the defendant in error.
    
      
      See monographic note on “Deeds of Trust.”
    
    
      
      Sale of Personalty — Retention of Possession by Vendor — Fraud Per Se. — See foot-note to Davis v. Turner, 4 Gratt. 422. Tbe principal case is cited in Howard v. Prince, 12 Fed. Cas. 651.
    
   BALDWIN, J.

The sale of the slave in controversy, though ostensibly under the trust deed, was substantially a sale by the debtor, with the concurrence of the trust creditor, to another creditor not secured by the deed, for a consideration compounded of the balance remaining due upon the trust, other debts claimed by the trust creditor, and the debt due to the purchasing creditor. By this arrangement the trust debt was discharged, and the title of the trustee, so far as concerns the personal property embraced in the deed, divested; for in a conveyance of chattels personal the law disregards mere formalities of the instrument, and the payment of the debt secured thereupon completely extinguishes the in-cumbrance. I think therefore that the circuit court correctly overruled the instruction asked for by the defendant there, it being founded upon the "idea that the legal title to the slave in question was still outstanding in the trustee M’Rar-land.

But the debtor West’s continued possession of the slave up to the time of the levy of the executions under which the defendant purchased, was inconsistent with the title claimed by Robinson, and rendered his-purchase in contemplation of law fraudulent and void as against creditors, according to the rule declared in Edwards v. Harben, 2 T. R. 587; Land &c. v. Jeffries. &c., 5 Rand. 211, 599; Sydnor v. Gee, 4 Leigh 536; Mason v. Bond & co., 9 Leigh 181, and many other cases. There were no> circumstances, such as are to be found in. some of those cases, to repel the application of this rule. The sale was virtually made by the debtor, and cannot be considered as a fair, open and public sale made by a trustee. There was no obstacle to the plaintiff’s obtaining immediate possession of the property. Nor was there a bona fide bailment of it for a valuable consideration, such as a .hiring for a limited time. The unregistered agreement between West and Robinson, by which the former was to remain in possession of the property until it should be called for by the latter, comes within the very terms and spirit of the rule, instead of repelling its application. And if the legal conclusion of fraud needed confirmation, it would be found in all the ma terial circumstances of the case, — the insolvency of the debtor, the gross inadequacy of the price, the total absence of competition, and the declarations of Robinson, calculated to prevent it, that he was purchasing in the property for the benefit of West’s family. I deem it unnecessary to consider a question not yet decided by this court, whether a sheriff can acquire title by a purchase at his own sale. The title and possession of the plaintiff were fraudulent and void in regard to the creditors, the levy of whose executions was valid, however irregular the sale, and who have an interest in the result of this contro-287 versy, ^arising out of the indemnifying bond, which guaranties against the consequences of the seizure as well as the sale of the property, and moreover warrants the title to the purchaser. My opinion therefore is, that the verdict of the jury was a plain deviation from the evidence, and that the circuit court erred in refusing a new trial.

The other judges concurring, the judgment was accordingly reversed with costs, the verdict set aside, and the cause sent back for a new trial.  