
    Toulmin v. Buchanan’s Executors.
    A father having given some slaves to his son-in-law at the marriage;. some months afterwards, and being indebted to more than th‘- value of his property, gives him another slave This latter gift is not fraudulent pe- se, though from the circumstances, if corroborated by others, the jury‘may infer fraud.
    Trover in the Circuit Court of Washington county, by Theophilus L. Toulmin against Buchanan, fo- a negro man slave. General issue, ver,diet and judgement for defendant.
    
      The pli’intifi tlahrcd the slave under a gift from James Caller, the fathei of his wife ; he was married iu the early part of the sun unci, and the gift was made in the sun ceding fall. At the time of his marriage, he received *our or five negroes from his father- in-law. At the time oi the gift, Caller was much embarrassed by debts, more than he was ablr to pay, and shortly afterwards died. The negro in question was levied on in possession of his executrix as part of his estate, and bought by Buchanan at sheriff’s sale.
    The Circuit Court charged-the jury that, if at the time of making the gift. Caller’s just debts exceeded a fair valuation of his property, and it could not be made without prejudice to bis creditors, it was void as to them. To which the plaintiff excepted, and assigned this matter here as error.
    Buchanan having died, his executors were made parties.
    PaRsoks, for plaintiff in error.
    The question presented by the hill of exceptions is, can a man who is indebted, make any advances to his children who have married, in order to set them up in the world? From the charge of the Court, it would seem that if the creditors run any probable risk of being injured hv the gift, it is in law void. But the law seems to be, that a man posessed of property may make reasonable advances to his children, and if he did not intend fraud, the gift would he valid. 
    
    If the law be otherwise, a man of much property may make reasonable advances to his children acting in good faith, but if he is involved in unexpected misfortunes or dies, and his estate is mismanaged, though his whole conduct may have been most fair and honorable, he is to be deemed guilty of fraud. Fraud in equity mat be presumed from circumstances, but at law, it must he proved. 
    
    The charge was too broad and too uncertain as to the time of the donor’s embarrassment; the extent of the excess of his debts beyond his means of payment, and as to his fraudulent intent in the gift. His children as well as his creditors, had claims on his justice, they were creditors by. blood.
    Ruffin, for defendant in error.
    The plaintiff mistakes the principle from which the charge proceeded. The charge is on this question, can a man by a gift to a child, for whom, for aught that appears, he has already pro\ ided comfortably, destroy the claims of his creditors on the property' on which vi ey relied when they gave him credit? If the. creditor must lose ¡ds debt, or the child the slave given to her, sur« ly the donee ought to be postponed to the creditor. The charge went no farther than t! is. It was in effect, that in order to susiain the gift against the claims oí the creditors, it must he such an one s could have been made wit out ; rejudice to them iiere the father appears to have advanced her marriage poition to his daughter, immediately on her marriage; the slave which was the subject of the controversy was not given till some months afterwards, and does not appear to have beet) delivered to the donee at ail. The sheriff found and lev ied tin execution upon the sffive, in the possession of the executrix of the donor. Why did the plaintiff suffer Buchanan to buy a law suit? Why did he not interpose his claim and have a trial of the right of property, befóte the ‘.h.vriff’s sale? His silence am unts to a constructive ifauu, and the controversy here is, between one who against ihe creditors of Caller, and purchasers under executions against him, has no equity, and an innocent purchasi r.
    Mr. Ruffian was not present at this term. The argument was made by the written briefs of the counsel.
    
      
      o 3 Dessaus, 1 to 4
    
    
      
      
        h 1 Dessaus, 300.
    
   JUDGE CRENSHAW

delivered the opinion of the Court.

The substance of the charge, appears to have been, that if Caller’s just debts exceeded a fair valuation of his property, and the gift was to the prejudice of his creditors, it was absolutely void. L'hese were circumstances to be left to the jury, and if connected with others sufficiently strong, they might infer that the gift was originally intended as a fraud upon creditors, and therefore void. But unconnected with other circumstances of fraud on the part of Caller, the mere fact that his debts exceeded the value of his property, and that the gift 'was to the prejudice of his creditors, were not of themselves sufficient to authorize the court or jury to infer that the gift was fraudulent and void. But the charge seems to have proceeded on the supposition that it vvas not necessary to establish fraud in the donor in order to avoid the gift, and 'that if it was even made bona jicle and with no intention of injuring die rights of creditors, yet it was void per ,vt, because the donor was in debt bey ond his ab lit} to pay, an(j t{,e gjft ciici an injury to creditors. It this be the correct doctrine, no man who owes as much as his property is worth can make a valid gift, however small its value; for he would thereby diminish his ability to pay his debts and injure the rights oí bis creditors. Itisliue that the debts are general!) contracted on the'credit of the debtor’s property, but this is lar from being the only source of credit. The creditor frequently looks perhaps more to the debtor’s skill in business, honesty and industry, than to the value of his propet ty. The debt cannot have such lien on the debtor’s property, as to prevent ev en voluntary alienations, unless made in bad faith, or under such circumstances as induced the belief that they were intended to defraud creditors. Here, if Caller had made a gift- of the whole of his estate, the law would declare it fraudulent per se, and void as aga nst creditors; but when the gift was of a part only of his property made to his son-in law a few months after marriage, it was prima fa-cie in advancement of the marriage, which is deemed in law a valuable consideration, and was not vo>d or fraudulent per se, but a circumstance which if corroborated- by other circumstances, nf ght have authorized the jury to infer baud. 1 he judgement must be reversed and the cause remanded.

The Chief Justice and Judge Gayle not sitting.  