
    Coleman vs. Pinkard, et als.
    
    1. The father is the next of kin to his deceased children, and in case of their dying intestate and without issue, he inherits their estate.
    2. Pinkard conveyed ,to his three children certain slaves; two of the children died intestate and without issue. Coleman obtained judgment against Pinkard, and fi. fa. thereon was returned, nulla bona. Coleman administered upon the ■estates of the deceased children, and filed his bill, praying a partition and subjection of the estates of the deceased children to his debt: Held, that he was entitled thereto; but the father having sold one of the slaves and appropriated the proceeds, and Coleman standing in his shoes, must account for the price of the slave sold, before he shall have partition of those remaining.
    . 3- Coleman, a judgment creditor of Pinkard, and administrator of Oliver and Angelina Pinkard, deceased', filed his bill, claiming a distributive share of certain slaves conveyed by Pinkard to his children, Oliver and Angelina P., by deed, and the subjection of the distributive share to the payment of his debt; and also filed his bill, alledging that such deed was fraudulent and void: Held, that the claims set up in the amended bill were directly at war with those set up in the original bill, and the amended bill must be dismissed.
    Marshall P. Pinkard had three children by his'first wife,, to wit, Mary, Angelina and Oliver; she died; and he owing no debts, and having derived some property from his deceased wife, executed the following deed: ; -
    “Know all men by these presents, that I, Marshall P. Pinkard, of Williamson county, and State of Tennessee, for and 'in consideration of the natural love and affection which I have and bear towards my children, Oliver Pinkard, Mary Pinkard and Angelina Pinkard, and for the further consideration of the sum of five dollars, to mejn hand paid by them, have given, granted, bargained, sold and conveyed, and by these presents do give, grant, bargain, sell and deliver to them, the said Oliver, Mary and Angelina, their heirs and assigns forever, the following slaves, to wit, Hasen, aged about 22 years, Esther and her two children, Harriet and Malinda, and their increase. In testimony,” &c. -• ■
    This deed was acknowledged by Pinkard at the January session of the county court of Williamson, 1831, that county being at that time the residence of the parties to the deed, and it was duly registered on the 15th March, 1831. During this year he married a second time and removed to the town of Williamsport, Maury county, where he engaged in the business of merchandizing. In conversations in regard to his motives in making' this conveyance of the slaves to his children, he assigned different reasons at different times, generally, however, alledging that, as he had derived pro» perty from his first wife, and was going into a hazardous business, he wished to secure it to his children, so that in the event he should become unfortunate, it should not be taken to- discharge his debts. He took his three children and the slaves with, him to Maury. The deed was not registered in Maury countjr,. yet it seems to have obtained some publicity, and unfavorable motives were attributed to him in the execution of it. In May, 1834, Oliver died, and in August ensuing Angelina died, both unmarried, without issue, and intestate. In 1835, Pinkard sold Hasen for the sum of $850, subsequently assigning as a reason for so doing, that the slave was a bad fellow, and declaring that he intended, to account for the value to his daughter Mary.
    In 1834, Wilson W. Coleman became responsible for Pinkard for goods purchased in Philadelphia. Pinkard’s business at that time seemed profitable, and his credit was good till the year 1835, when his store house and entire stock of goods, books, &c. were consumed by fire, accidentally, which resulted in a loss to him of some twelve, or fifteen thousand dollars, and produced his utter insolvency-. Coleman instituted an action, against him. in the circuit court of Maury county, and recovered a judgment against him at the August term, 1837, for the sum of $1602 42. A Ji. fa. issued on this judgment and was returned, nulla bona, on the 1st January, 1838. Just previous to the institution of this suit, Pinkard placed his daughter and the slaves, to wit, Esther and her children, then four in number, in the hands' of her uncle, Edward Pinkard, and shortly afterwards left the State.
    Coleman applied to the county court of Maury county, and obtained letters of administration upon the estate of Oliver and Angelina, and on the 7th day of May, 1838, filed this bill in the chancery court at Franklin, against Marshall P. Pinkard, Mary Pinkard and Edward Pinkard, praying that two-thirds of the estate secured by the deed of the 17th day of January, 1831, to the said children,, Oliver, Angelina and Mary, to wit, the interest of Oliver and Angelina, deceased, might be subjected to the payment of his debt, as the property of Marshall P. Pinkard, as inheriting the same from his deceased children. An affidavit having been made to this bill by Coleman, that he was apprehensive that the - said slaves would not be forthcoming to answer the final decree in the premises, Judge Anderson, at the application of complainant, issued his order, that' the sheriff take this property into his possession, and secure it to abide the decree of the court, unless the defendants, or one of them, should give bond in double the value of the slaves to complainant, that they should be forthcoming to answer the decree which should be made in the premises. Edward Pinkard gave bond in accordance with thefiat, and retained the slaves.
    Marshall P. Pinkard answered the bill, and stated that the deed of the 17th day of January, was made in pursuance of the request of his first -wife at her death; that at the time it was made he owed no debts, and that he failed through misfortune, and that when he did so fail, his daughter Mary and her property (as he supposed it all was) was sent to her uncle’s, Edward Pinkard’s, as a permanent home. He stated that he was insolvent, and that he had sold Hasen, and that his interest in the other slaves conveyed by said deed should be charged with the proceeds of Piasen and interest thereupon.
    Edward Pinkard being appointed guardian of Mary Pinkard, filed an answer as guardian, insisting that the value of Piasen and interest thereupon should be deducted from the two-thirds of the estate which descended to Marshall on the death of Oliver and Angelina, if the court should determine that two-thirds of the value of said slaves descended to said M. P. Pinkard.
    On the 1st March, 1839, Coleman filed an amended bill, charging that said slaves were conveyed by Pinkard to his children with the avowed design of commencing merchandizing, of becoming indebted,and for the purpose of preventing them from being sold for the payment of debts which he then contemplated creating, and that it was fraudulent and void; that he held possession of said slaves in Williamson county for several years, exercised acts of ownership over them, and actually sold one of them for $850; that complainant’s debt was one created for merchandize, and praying that said conveyance be declared fraudulent and void, and the property therein specified be subjected to the payment of the judgment.
    The defendants answered, and denied the allegations of the amended bill.
    Mary A. Pinkard'filed her cross bill, praying an account of the proceeds of sale of Hasen, and of the hire of slaves, &c., as against M. P. Pinkard and complainant Coleman, which was answered by complainant Coleman, and taken as confessed against Pinkard.
    
      The cause came on to be heard at the April term, 1840, before' Chancellor Bramlett, on bill, amended bill and cross bill, answers, replications and proof, and the chancellor being of the opinion that the deed of the 17th of January, 1831, was not fraudulent, dismissed the amended bill and also dismissed the cross bill of Mary Pinkard; and being further of the opinion that M. P. Pink-ard was the next of kin to his deceased children, and entitled to the interest of Oliver and Angelina in the property, ordered, adjudged and decreed that two-thirds of the interest in said five slaves be vested in complainant, and that commissioners be appointed for the purpose of making such division, and that they report, &c.
    The chancellor also ordered an account of the hire of said slaves since they had come to the hands of Edward Pinkard, and that Coleman pay two-thirds of the costs, and that Marshall and Edward Pinkard pay the other third.
    Complainant and defendants appealed.
    
      Alexander, for complainant.
    1. As to the original bill, by which is meant the two bills filed the 7th and 8th May, 1838, complainant insists that Marshall P. Pinkard is the owner of the two-thirds of said slaves which belonged to Oliver C. and Angelina, his two deceased children, as their next of kin. I Wms. on Ex’rs. 253 : 2 Wms. on Ex’rs. 924: Blackborough vs. Davis, 1 P. Wms. 49, 50, 51: Toller, 382.
    2, As to the equity endeavored to be set up by the cross bill of Mary A. Pinkard, by charging the slaves with one-third of the hire of the slaves and the price of tlasen, the complainant cannot succeed for the following reasons: Mary A. Pinkard cannot recover in this suit without a judgment against her father. Act of 1832, ch. II, C.&N. 222-3: 1 Paige R. 305, 308-9: 3 Atk. 200: Hen-drick vs. Robinson, 2 John. C. R. 296-7: Meigs R. 256,261. She cannot reach this specific property except through the medium of the administrator of her deceased brother and sister. 10 Yer. R. 383. Coleman having recovered his judgment first, and filed his bill first, his lien has thereby attached, and by the levy of the attachment on the property, he has acquired a priority and preference over all other-creditors. Peacock vs. Tompkins, Meigs Rep. 317, 329. Since the act, 1784, ch. 22, (C. & N. 417,) abolishing survivorship of estates of joint tenants, and the act of 1789, ch?> 57, (C. & N. 415,) making all contracts joint and several, any prim ciple of the old law, favoring the doctrine contended for in the cross.bill, may be considered as abolished in this country;
    3.As to the amended bill, complainant insists that said deed was a voluntary conveyance and void as to subsequent purchasers, the negro Hasen having been sold by the'grantor in 1834. 5 Peters* 264, 279, 280-1-2. If the deed was fraudulentas to the purchaser of Hasen, the whole deed is void, and subsequent creditors are let in. 3 John. C. R. 499: Young vs. Pate, 5 Yer. R. 164.
    This conveyance was made by M. P. Pinkard, with the intention of becoming indebted and securing the property from the creditors which he then designed to create, one of which was complainant and said deed is void as to him. 1 Story Eq. 348, 354: 2 Hov. on F. 75: Stileman-vs. Ashdoion, 2 Atk. R. 477,481: Iley vs. Nis-wenger, 1 McCord’s Ch. R. 521: Reade vs. Livingston, 3 John C. R. 481, 494r-5-7: Richardson vs. Smallwood, 4 Eng. Cond. C. R. 262: Jacob R. 552: Russel vs. Stinson, 3 Hay. R-. 11-12.
    If the court shall be of opinion that actual fraud must be proved on M. P. Pinkard in making the deed of gift, then such may be shown by circumstances, some of the-strongest of which appearing in this case, are as follows:
    1. The deed is voluntary. It is a' conveyance to children'.
    2. It was registered in Williamson .county, from which he‘ intended immediately to remove, and it was not registered'nr MauryV to which county he removed with the property^
    3. Possession remained with the grantor.
    4. M. P. Pinkard made this deed just ds he' was embarking in merchandizing.
    5. He uniformly said before and after the date of the deed, that it was made to preserve the property to his children if he should be unfortunate in trade.
    6. He used the property as his own, sold Hasen and used the:pur> chase money, and never charged himself with hire:
    
      Marshall, for defendants,
    cited, 1 Story Eq. 608: 6- Mad. 223.-
   Gbeen, J.

delivered the opinion of the court.-

M. P. Pinkard conveyed the negroes in controversy in 1831- to' his three children, Oliver, Angelina and Mary. He was then in good circumstances, and not involved in-debt, but- has- since by misfortune become insolvent. Oliver died, in May, and Angelina in August, 1834. In 1835, M. P. Pinkard sold one of the negroes, 'Hasen, for $850.

The complainant is a judgment creditor of M. P. Pinkard, and has administered on the estate of Oliver and Angelina. His original bill is filed as administrator of these children, and he claims as 'their representative, to have partition of the negroes, and that ‘their share (to which M. P. Pinkard is entitled as next of kin) be •applied to the payment of his debt against said M. P. Pinkard.

The second amended bill is filed in the original character of the complainant, as creditor of M. P. Pinkard, and alledges that the 'deed of gift, of the negroes, to the children, is fraudulent and void j 'and that all the negroes belong to M. P. Pinkard, and are liable for the payment of his debts.

1. The first question is, whether this amended bill can bo coupled with, and made part of the original, so as to entitle the complainant to a decree upon it. In other words, the question is, whether the administrator of the children, claiming under the deed, :and deriving his title from the deed, can join in the same bill, a :creditor of the donor, who seeks to avoid the deed, and whose right ■to a recovery depends upon his showing that it is fraudulent. The 'two claims are directly antagonistical to each other.

Although both parties claim the same property, they claim it in entirely distinct rights; and the one can only succeed by defeating the other. That the same individual is both creditor and administrator, can make no difference. The question would be the same, if they were distinct individuals.

In the original bill, the creditor and administrator are properly joined; for there the administrator seeks the property to distribute to the next of kin, and the creditor asks that the debt due from the next of kin (who is insolvent) shall be satisfied out of this property, before it is distributed to him by the administrator. The claims in that bill, of the parties, are consistent with each other, and the decree in favor of the creditor must depend upon the success of the administrator. But in the amended bill it is far otherwise: The rights of the plaintiff and defendant, are not more repugnant: they cannot, therefore, be properly joined in the same bill. But we are satisfied that there is no fraud proved in this case, and, therefore, upon both grounds, the complainant’s amended bill was properly dismissed.

2. The nest question is, whether Mary Pinkard has a right ta-snsist that the complainant shall account for the negro Hasen, which her father sold, before he shall be entitled to partition of the remaining negroes. Unquestionably the complainant, who.-as creditor, seeks to have the share of M. P. Pinkard subjected t©.the payment of Ms debt, is entitled to claim no larger share of the property for that purpose, than M. P. Pinkard could obtain, were he seeking to have partition of this property. The only ground upon which the complainant can get a decree, is, that M. P. Pinkard is entitled as distributee of his deceased children to this property and being insolvent, the aid of a court of equity is invoked,, to subject his equitable interest in these estates to the payment of the complainant’s debt.

What then could M. P. Pinkard obtain, were he seeking partitions ©f these negroes? Certainly not two-thirds of those that remain, without accounting for the price of the one he sold. Instead of doing equity, when he comes asking equity, this method of division would reward him for wrong done by him in selling the negro before a partition was made.

Where a party has laid out large sums in improvements on the estate, a court of equity will not grant partition, without first directing an account, and compelling the party applying for partition to make compensation. 1 Story Eq. 608, 609: 8 Price, 518.

Nor will a court of equity grant partition without making a pan-tj who has received more than his share of rents and profits, account for them. 6 Mad. 223. These principles apply to this case, and fully justify the court in requiring M. P. Pinkard, (or in this case the complainant,) to account for the price of the negro that was sold, before he shall have partition of those remaining.

Reverse the decree, and reform it according to the principles above stated.  