
    J. L. Gregg, v. S. Bigham.
    JJJ iwte-thopMntiffcon-.“V f'ra.u,clulcnt #nd party or privy,
    j,” °fm/orfraidS judgments ¿Ms Smo’timVwero '¿"cutio”, in &“ °f “ty'ffr jf «>« sdo had 0
    al-ietíodetoan^ 
      ty to fraudulent !?uSappm,úm sup-
    
      
      Tried before Mr. Justice Martin,at Marion — Spring Term, 1833.
    Trover, for negroes. It appeared from the evidence, that Jane Gregg, the mother of the plaintiff, being the security to a bond to one Howard, and suits pending against her, had given the plaintiff, who was then about fourteen or fifteen years of age, two notes, expressed to be ior ins ser vices m managing her iarming interest. On these notes, judgments were obtained immediately by the acceptance of the writ, and under them, the ne-groes in question, were levied on at the instance the plaintiff and sold, and the plaintiff became the purchaser. After the sale, the negroes returned to the plantation of Mrs. Gregg, and continued as before, under the management of the plaintiff until he there, when he hired them out. L he negroes, were afterwards levied on by the defendant as sheriff, on an execution at the suit of Howard, and sold as perty of Jane Gregg; and for this alledged wrong, the plaintiff brings this action. It appeared, however, that altho’ the negroes were levied on, and sold to the plaintiff under his own executions, yet they had sobeenlevied on at the same time, by the sheriff, un» der an execution then in his office, in favor of How-ard; and after the sale, the plaintiff gave his note to *he sheriff, for the whole amount applicable to hisjudg-ments out of this sale, on which, judgment has since been recovered against him. If the possession of the negroes after the plaintiff’s purchase, and whilst they remained on his mother’s plantation, was to be re-gadded as his separate and adverse possession, then sufficient time had elapsed before the second sale, to him title under the stat. of limitations. But if possession commenced only from the time he left there, and hired out the negroes, then the stat-had n°t run out.
    cars*ex duZeyS tóíoy’i,nder eao t“ou htlle' session eommea-cad
    The plaintiff relied on his purchase and possession; and the defendant contended, that the judgments and purchase of the plaintiff, were merely colourable and intended to defeat creditors. That the possession of the negroes whilst the plaintiff lived with his mother, was her possession; and that in any event, the possession being'founded in fraud, could confer no title. The presiding Judge charged the jury, that the judgments of the plaintiff and his purchase under them, were fraudulent as to creditors, and that the possession which followed, he regarded, as the possession of the mother so long as the negroes remained on her plantation. But this was a question of fact for them to determine, and if from the time of the purchase, the plaintiff had the actual, unqualified, and exclusive possession, that he must hold them by that possession; for more than four years had elapsed since that time and until the sale by the defendant; and although fraudulent, originally, the title had become perfect.
    The jury found for the plaintiff. The defendant now moves for a new trial on the grounds, 1. That the plaintiff’s title under his purchase, was fraudulent and void as to creditors; 2: That the plaintiff had no such adverse and exclusive possession as would give title under the stat. of limitations, and that if the possession was that of the plaintiff, yet having originated in fraud, the statute of limitations would only run from the discovery of the fraud.
    
      Dargan for the motion.
    Contended, that the transaction between the plaintiff and his mother, was manifestly fraudulent; and the possession of the negroes, until the plaintiff hired them out, was the possession of the mother, for that after the age of fourteen, the parent has no right to the possession of the child’s property. He cited and relied on, 2 Kent’s Com. 471; 7 Vesey, 348; Com. Dig. Tit. Guardian — Smith v. Hemy, 2 Bailey 118; Howard v. Williams, Law Jour. 231; Briggs v. Walker, (January, 1833.)
    Ervin, contra.
    Insisted, that the ' judgments were founded on a fair and valuable consideration, and the possession under the purchase, the exclusive possession of the plaintiff, who had thereby acquired a perfect right, whatever the character of his title might originally have been — that this case was distinguishable from the cases cited: here, the plaintiff had the sole management and control, of the property. That, even conceding the plaintiff’s judgment to be fraudulent and void, the property had been levied on by an execution of Howard; and besides, the plaintiff had derived no benefit from his judgments, for he had given his note to the plaintiff for the amount claimed on them out of the sale, and on this note, judgment hasbeen obtained. He cited Kidd?;. Mitchell, 1 N. & M’C. 334, M’Donald?;. Kirkley, (Record Book, No. 10L6.)
    Graham in reply,
    [requiredby the Court to confine his argument, to the effect of the levy on Howard’s execution, at the time the plaintiff purchased,] Concede the fact, that the plaintiff’s purchase was'made under Howard’s execution, and not his own, still by means of his executions, he has been enabled to do that, which he could not otherwise have done — obtain possession of the property, and return it back for the benefit of the debtor. It will not be pretended, that without his judgments, he could have purchased. Had there been no judgments in his favor, the sheriff would not' have permitted him to have taken possession under his purchase, merely on giving his note for Ms share of the sale. This case comes within the principle of Smith v. Henry, (decided in January last,) that where a creditor purchases the property of his debtor and permits it to remain in the possession of the debtor, the sale is fraudulent. But the sale in this case, was made under the plaintiff’s judgment. Is he not estop-ped by his deed from the sheriff, from shewing that he purchased under Howard’s execution ? The ne-groes were sold at different times, and whenever money enough was made by the sales to satisfy Howard’s execution, the sale of the balance of the negroes, must-have been on the fraudulent executions.
   O’Neall J.

lentertainno doubt, that if the result of this case depended on the bonajides of the plaintiff’s judgments against his mother, a new trial must be granted; for I think that the proof is sufficient to shew, that they were fraudulent as against her creditors. But there are some views of the ease, which will entitle the plaintiff to retain his verdict.

Before i proceed to state them, it will be necessary to dispose of an objection which is preliminary to all others. It was supposed, that the plaintiff’s judgments could not be inquired into when they came in issue collaterally. But. it must be borne in mind, that the judgments are part of the plaintiff’s title, and are of course examinable by the defendant, unless they operate as an estoppel. To have this effect against the defendant, he must be either a party or privy to them. He is a stranger to the judgments, and is concluded by nothing in them. Whatever will avoid them, he may shew, to prevent them from having operation against him. As part of the plaintiff’s title, they are prima facie evidence of what they purport, but no more, and the defendant may shew, that they were fraudulent and covinous, and therefore void as against him. Treasurers v. Bates, 2 Bail. 380. 381. 1 Stark. on Ev. 242. 252. In a note to 1. Stark. on Ev. 242, it is said “when a person who has committed thefraud, attempts to avail himself of the act, so as to discharge himself from a previously existing obligation, or to acquire a benefit, the judgment thus obtained, is declared void as to that purpose,” — from which it would seem to be clear, that the judgments of the plaintiff against his mother, so far as he sets them up for the purpose of acquiring title to his mother’s slaves, may be sheAvn by the defendant, to be fraudulent and therefore void. For all other purposes, such as a justification to the sheriff for a levy and sale under them, or as part of a stranger’s title who purchased under them, they would be good. Sims et al v. Slacum 3 Cranch 300.

It appears that although the slaves were levied on, and sold under the plaintiff’s executions, yet that they were also levied on, under one of the executions in favor of Howard. This was beyond all doubt, a good authority to the sheriff to sell. In the case of McElwee v. Sutton 2 Bail. 361, two executions were levied on the slave, he was sold under one which at the time it ivas levied, was inoperative, the other was however operative ; the sale was referrd to the latter, and held to be good; and so in this case, if the sale had been made to a stranger, there could be no doubt that the same rule would have prevailed. And notwithstanding the sale is to a party to the fraudulent judgments, yet if it appears he has not received any benefit from them, the sale may be supported. On looking into the evidence, it appears that this plaintiff gave his note to the sheriff, Tart, for $363,98, which seems to be the whole sum arising from the sale applicable to his judgments. Upon this note he has been sued, and judgment recovered by the executor or administrator of Tart, the sheriff. The money is therefore to be regarded as paid to Tart by the plaintiff on his purchase, and if so, the executors of Howard have a plain and direct remedy against Tart’s representatives for the recovery of it.

It appears too, that nearly five years elapsed, after the sale of the negroes to the plaintiff by sheriff Tart, before they were re-sold by the defendant, at the suit of Howard. This alone might have sustained the plaintiff’s title, on the ground, that four years exclusive and adverse possession, would give him a good title against his mother, and of course her creditors. But when added to the other view of the case, it shews that, the plaintiff’s title to the slaves, ought not to be disturbed, and that Howard’s executors ought to look to Tart, for the proceeds of the sale.

Motion for neto trial dismissed.

Johnson & Harper Js. concurred.  