
    S. C. C. Richardson vs. Joel G. Rhodus.
    
      Trespass to Try Title — Debtor and Creditor — Fraudulent Conveyance.
    
    As against existing creditors, a voluntary conveyance is, as a general rule, fraudulent and void. It is not a question of intention, but tbe conclusion is declared by the law, and whether the donor had at the time sufficient property, not embraced in the conveyance, to pay his debts, is an inquiry not pertinent to the issue.
    The only qualification to the general rule is, that where the indebtedness is slight, as for the current expenses of the family, or the debts are inconsiderable as compared with the value of the donor’s estate, and the creditor, by his delay or laches, has allowed the reserved estate to be wasted — in such case the conveyance will be held valid.
    Where the debt is voluntary and the creditor is a subsequent one, or where the deed is for valuable consideration, the question whether the conveyance is valid is one of actual intent.
    BEFORE ALDRICH, J., AT CLARENDON, PALL TERM, 1866.
    The report of his Honor, the presiding Judge, is as follows: “ This was an action of trespass to try title. On 'motion of defendant’s attorneys Miss Emeline Rhodus was allowed to come in and defend the title.
    
      “ The following is a report of the evidence:
    “1.‘Record in case of 8. C. C. Richardson vs. Joel C?. Rhodus, Fxor.
    
    “2. Tf. N. Butler. — Was Sheriff in March, ’61. The records in Clerk’s and Sheriff’s offices have been destroyed. I levied on and sold a tract of land under an execution in the above case. The levy was regularly entered on the execution. The property levied was regularly advertised and sold. Plaintiff bought the land in dispute for fifteen dollars. It lies on Santee. Joel Gr. Rhodus and Miss Emeline were living there. Is the Home Tract — contains twenty-five acres. The same description in the levy as in the Sheriff’s deed. Sheriff’s deed, 28th March, ’61, from Y. N. Butler, Sheriff, to plaintiff, recites the writ and levy, twenty-five acres, more or less, situated in Clarendon District, known as the Home Tract, belonging to estate of William Rhodus, whereon Joel G\ Rhodus now lives. Recorded 80th-March, ’61.
    
      “Cross-examined. William Rhodus lived on the land before his death. Miss Emeline Rhodus forbid the sale. I was indemnified by plaintiff.
    “ Joel Gr. Rhodus still lives on the land:
    “ 3. Plat of land made by Mr. Richardson, surveyor, 25th September, 1866. No dispute as to location.”
    DEFENCE.
    
      “4. R. M. Thames.- — -William Rhodus, in his lifetime, executed a deed to Emeline Rhodus for the Home Tract. Federal army passed in three-fourths mile of house. Most óf my valuable papers were removed. Miss Rhodus had some of her papers at my house and some at the house of Joel Gr. Rhodus. The Yankees marched at night on the road where Rhodus’ house was. I have every -right to believe that the deed was in existence, but I do not know that I ever saw it. Did not assist her in searching for it.
    
      “ Cross-examined. I did not see the Yankees at Rhodus’, but I have every reason to believe they were there. It' was after the armistice, but they took a good deal.
    
      “5. Copy-deed offered and objected to. I admitted the copy.
    “ Certified copy of a deed, from William Rhodus to Eme-line Rhodus, dated 16th August, 1857, recorded 17th November, 1857. Among other property, it conveys a tract of twenty acres, more or less, upon which I now reside, and purchased by rue from William Hilton. Consideration, personal services and natural affection.”
    REPLY.
    “6. Dr. S. 0. 0. Richardson, plaintiff, recovered a judgment against the executor of William Rhodus, April Term, 1860. Fi. fa., 25th April, 1860. Cause of action a note and two accounts. J. R. Haynsworth, Esq., was my attorney. He is dead. The note was for one hundred and fifty dollars, dated 28th February, 1857.- Accounts for the year 1857. The consideration of the note was for medical services. One of the accounts was for one hundred dollars for attendance in his last illness. He died in the fall of 1857.
    
      “ Receipt of Mr. Haynsworth offered.
    
      “ Received of S. C. C. Richardson, for suit, an account on estate William Rhodus for 1857, for forty-four dollars and fifty cents. One do. William Rhodus, deceased, for one hundred dollars. One note of William Rhodus of one hundred and fifty dollars, payable to S. C. C. Richardson or bearer, one day after date. Dated 28th February, 1857. Receipt dated 28 October, 1859.
    
      “Gross-examined. The services were rendered to the family, which was William Rhodus, two daughters, and his negroes. The daughters were grown. It is impossible to state how much of the account was rendered, to William Rhodus. I think the account of one hundred dollars was all rendered to himself. Oan’t say how much was contracted before 1st August, 1857. There is a large balance of execution unpaid. The sale of the Home Tract was forbid, and I indemnified the Sheriff. Another tract of land was sold under the execution, on which William Rhodus, Jr., lived. I purchased the land, about two hundred acres, for one hundred and thirty-seven dollars. That amount was credited on my execution. Subsequently the tools, hogs, and furniture were sold and applied. No horses or mules sold. The tract of land in dispute is one of the tracts sold and which I also bought.”
    “ The interest in the Windham tract was also sold, and I bought it for five dollars. A large balance is still unpaid on the execution.
    “ The points which I submitted to the jury were reduced to writing before I made my charge, and are as follows:
    “ 1. Was the deed made to defeat the claims of creditors?
    “ 2. Did William Rhodus have sufficient property to pay his debts when he made it ?
    
      “ 3. Was Emeline Rhodus a creditor ?
    “4. A debtor has a right to prefer creditors, provided it is not a fraudulent preference.
    “ 5. Was the deed a contrivance on the part of the debtor to defeat his creditors ?
    
      “ The jury returned a verdict for the defendant. I returned the -copy of the deed, which was handed to me at the trial, to the attorney. It will be taken up with this report.”
    ABSTRACT OP DEED PROM -WILLIAM RHODUS TO EMELINE RHODUS.
    Deed dated August 6,1857; recorded 17th November, 1857.
    “In consideration of the personal service and attention rendered to me by and the natural love and affection I bear towards my daughter, Emeline Rhodus, have bargained,” &c., my distributive share of a tract of two hundred acres of land, a tract of twenty acres, “ more or less, upon which I now reside,” “together with all my stock of horses, cattle, and hogs, all my household and kitchen furniture, and also all my plantation tools and implements, to have and to hold” the same to her; “ saving and excepting unto myself a support from the same for and during the term of my natural life, her heirs, executors, and administrators, to her sole and separate use during the term of ber natural life, and at her death to be equally divided among such of her children as then may be living, the child or children of a deceased child to take that portion to which its parent would have been entitled,” with warranty against “all persons whomsoever lawfully claiming or to claim the same.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. That his Honor charged the jury that the question in the case was whether William Rhodus, deceased, at the time, he made' the deed to Emeline Rhodus, had sufficient property outside of the deed to satisfy the debt due by him to the plaintiff, which it is respectfully submitted was erroneous.
    2. That, upon the facts proved, the said deed was fraudulent and void as against the plaintiff’s demand, and his Honor should have so charged, and the jury should have so found.
    
      J. S. Q. Richardson, for appellant.
    
      Ooogler, contra.
   The opinion of the Court was delivered by

Inglis, J.

There are three several views that may be taken of this case, as presented in the brief. It may be considered, 1st, that the conveyance was voluntary, and the plaintiff a creditor of the donor at the date of its execution, and this view seems most consonant to the evidence reported; or, 2d, that the conveyance was voluntary, and the plaintiff became a creditor of the donor after its execution, and this has respect to a separation of the plaintiff’s demand into so much as was due before the execution of the deed, and so much as became due afterwards, as if these were the claims of two different creditors, the former of whom has perhaps obtained satisfaction of his demand without resort to the property conveyed, and the latter is now seeking satisfaction out of that property; or, Sd, that the conveyance was upon valuable consideration.

If either of the two latter propositions presents the correct view of the case, the conveyance could only be impeached on the ground of an actual fraudulent intent; and in its application to either of these views, the charge of his Honor, the Judge presiding below, does not seem objectionable for any thing therein said. If the deed was voluntary, a fraudulent intent is»to be legally inferred, where even a subsequent creditor is claiming to disregard the donee’s assertion of title and subject the property to the satisfaction of his debt, from the fact of indebtedness at the time to others, the embarrassed condition of the donor, and the insufficiency of his property not embraced in the deed to satisfy the existing debts. So also fraud may be inferred from other circumstances, appearing on the face of the transaction or aliunde; and all these inferences may be repelled. Or positive proof may affirm or deny fraud. It is a question of fact for the jury under proper instructions as to the legal inferences. To these views, then, the several propositions of the charge seem pertinent and proper.

But in reference to that view of the case which regards the deed as voluntary, and the plaintiff an existing creditor at its date, the charge was not in conformity with well-established law. The general rule is, that, as against creditors existing at the time of the conveyance, a voluntary conveyance is fraudulent in law and void. The only qualification of this rule which is clearly ascertained is, that slight indebtedness, such as for the current expenses of a family, or debts inconsiderable in comparison to the value of the donor’s estate,” will not generally avoid the conveyance. But this qualification is restricted, in its application, to the case where a resort to the property covered by the deed has been rendered necessary only by the voluntary delay or other laches of the creditor, who has thereby permitted the reserved property to be wasted or destroyed. Apart from such fault of the creditors, the test of the donor’s legal capacity to give, as against existing creditors, depends upon his final solvency.

If the plaintiff Richardson was a creditor of William Rhodus at the date of the conveyance to his daughter Erne-line, and it was voluntary; and if it is necessary for him to resort to the property conveyed to her in order to have satisfaction of his then existing debt, he may, treat the conveyance as void in law, and subject the property embraced in- it to the execution of judgment rendered for the recovery of his debt, unless it was shown that the debt was “slight” and inconsiderable in reference to the value of the donor’s whole estate uncovered by the deed, and the necessity of such resort has arisen from his own laches. Whether William Rhodus had' at the time of this conveyance “ sufficient” property to pay ]iis debts, is not an inquiry pertinent to the issue made by the claim of the plaintiff in this view of it, and the case must, therefore, be again submitted to a jury, with instructions on this point conformable to the present judgment.

If, upon such renewed investigation of the facts, the defendant, Emeline Rhodus, shall be able to show that the conveyance to herself .was upon a consideration valuable in law, and the onus of doing this is upon her, or that the debt existing at its date has been otherwise satisfied, without the necessity of resort to the propertjr conveyed to her, so that as to the debt of which the plaintiff seeks satisfaction out of this property he is a subsequent creditor, the inquiry as to an actual fraudulent intent in the execution of the conveyance will, in reference to these aspects of the case, be open. As to the law applicable in that inquiry, and the legal inference of fraud from circumstances appearing on the face of the conveyance or shown aliunde, the appeal does not call for any present judgment of this Court.

The motion for a new trial is granted.

Dunkin, C. J., and Wardlaw, A. J., concurred.

Motion granted.  