
    NOVEMBER TERM, 1844.
    William M. Rankin v. Burwell W. Holloway.
    Nothing which does riot properly belong to the record is part of it, unless it be inserted in the bill of exceptions.
    A bill of exceptions stating that “ the following evidence was offered,” then adding, “ here insert the same,” is incomplete, and does not make part of the record the evidence thus attempted to be embraced in it, even though contained in the transcript of the record.
    A defective bill of exceptions will not preclude the examination of the rest of the record to ascertain if there be error irrespective of the imperfect bill of exceptions taken.
    In the year 1823, E. F. being in debt, sold his slaves at public sale to F., who, as consideration, agreed to pay some of E. F.’s debts, and left the slaves in E. F.’s possession. F. afterwards sold the slaves to J. F., the father of E. F., on condition J. F. would pay F. the debts he had paid for E. F.; whereupon c J. F. still left the slaves with E. F., who retained possession of them till 1840; held, that this long possession of the slaves by. E. F. established a prima, facie case of fraud against J. F., when claiming the slaves against an execution creditor of E. F.
    Where the vendor of slaves is permitted to retain the possession of them, such possession will establish a prima facie case of fraud against the vendee when claiming the slaves against a judgment-creditor of the vendor, even though his debt was contracted subsequent to the sale.
    On appeal from the judgment of the Marion Circuit Court.
    This was an issue in the Court below, to try the right to property.
    On the 14th day of April, 1842, execution issued upon the judgment rendered in the Marion Circuit Court bn the 13th April, 1842, in favor of William M. Rankin, against the goods and chattels, rights and credits, which were of Elias Ford, deceased, who died intestate, in the hands of James McDonald, his administrator, to be administered for the sum of seventeen hundred and twenty-five dollars and nine and one-half cents, besides interest and costs ; which execution, on the said 14th April, 1842, came to the hands of the sheriff of Marion, and was by him levied on the following named negroes, to wit: Milley and child, Moses, Marge, Daniel, Thomas, Henry, Alexander, John, Dick, Amelia, Flora, Phillis, Francis, Eliza, Agnes, and Angeline, as the property of said Elias Ford, deceased. Whereupon, the defendant in this suit, Burwell W. Holloway, claimed the said property, gave bond, &c., and the same was delivered to him, and the execution-bond, &c. returned to Court. At the October term, 1842, of the Circuit Court, for said county of Marion, an issue was - duly made up between the said William M. Rankin and said Burwell W. Holloway, to try the right to said property. At the same term, the case was brought on to trial, submitted to a jury, who rendered a verdict for4he defendant, the claimant of the property. A motion for á new trial was made, and overruled. Whereupon plaintiff excepted, and appealed to this Court.
    There were two bills of exception taken ; the first commences as follows : “Be it remembered, that, on the trial of the issue in this case, the following was the testimony given on the trial [here insert the same]. The jury found a verdict in favor of the claimant, &c.” This bill of exceptions then recited the motion for a new trial, the fact that it was overruled, and the appeal; which was all that was contained in this bill of exceptions.
    The second bill of exceptions was as follows : “ Be it remembered, that on the trial of the above-stated issue, the plaintiff first introduced in evidence his judgment in the above-stated case, then the writ of fieri facias with the indorsements and the return thereon [here insert a copy of the judgment proceedings, and fieri facias, and proceedings on the same], and then introduced proof that said Elias Ford was the owner of the elder slaves levied on (of which the younger were proven to be their increase), in the year 1818, and continued to own and possess the same up to about 1823 or 1824, and then, at a public sale (not under any legal process), the slaves were sold all in one lot, and Ebenezer Ford became the purchaser; that Elias Ford transferred them to Ebenezer Ford by writing, which has not been recorded, with this understanding between said Elias and Ebenezer, that Ebenezer Ford was to pay certain debts of said Elias, but not all the debts for which he was bound ; that Ebenezer Ford, although the slaves wer.e present, did not remove them, but suffered them to remain’in the possession of the said Elias; afterwards, said Ebenezer Ford transferred the slaves to John Ford," the father of Elias Ford, without changing the possession of the slaves, upon the agreement with the said John Ford, that the said John Ford should account to him for the debts of said Elias Ford, by him, the said Ebenezer, paid for Elias Ford, which was in and about the value of the slaves, and John Ford did pay said 'debts paid by Ebenezer; that there was no fraud between Ebenezer and jNhn Ford in the transfer, and no understanding of any kind between Ebenezer and Elias Ford ; that John Ford suggested that said sale was made to prevent the property from being sacrificed : that they still remained in the possession of said Elias Ford up to the time of the death of said John Ford, which took place in 1826, and up to the death of Elias Ford, which happened in 1840 ; that said Elias Ford removed to Copiah county with all of said slaves in -, and removed back with them to Marion county, where he _diecL But a short time before his death, he offered to sell two of the grown slaves, and several of the children, for the purpose of paying his debts, preparatory to removing away. It was also proven, that the slaves were pointed out to the sheriff, at the time of making the levy, as aforesaid, by the administrator of Elias Ford, as property in the possession of Elias Ford at the time of his death ; and the plaintiff in execution further proved the value of each of said slaves.
    “ The claimant of the property then introduced the last will and testament of said John Ford, deceased [here insert a copy of the same]. He then proved that David Ford, executor of said will, hired out one of said slaves for one year (while Elias Ford was absent at Franldinston, Louisiana) for fifty dollars, hut that part of said sum, to wit, twenty-five dollars, was to pay^a debt due from Elias Ford to the person to whom'the slave was hired ; it was also proved by the claimant, that, after the death of Elias Ford, the said David Ford came to the house of the widow of said Elias (some of the slaves being about the house, and the balance on the plantation), and told her .that he delivered her possession of said slaves ; that the slaves remained on said plantation until the widow intermarried with the claimant, David Ford ;'said that the slaves were free from incumbrance, and that he delivered her a very pretty property, and presumed at the time his object was to get the acceptance of Mrs. Ford to a certain note due, to which Elias and David Ford were liable ; it was also proven, that, at the time of making the will, Elias Ford had one child living, and now has two children diving (the issue of said Elias and his wife Ruth, now the wife of the claimant) ; that, on cross examination, one of the claimant’s witnesses, Joseph Warren, proved that he was at the sale of said property, when Ebenezer Ford became the . purchaser ; that said John Ford tapped him on the shoulder, and asked him privately if he came to purchase any of the slaves ; he answered, that he had come for that purpose ; whereupon, said John Ford told him, that the slaves were not to go out of the family, but that the sale was made for the purpose of screening his son, Elias Ford, from the judgment of a certain debt, which was a security-debt in Louisiana. And Ebenezer Ford, on the part of claimant, stated further, that David Ford, as executor of John Ford, exercised control over said property for some time, how long he could not tell.
    “ The foregoing is a statement, in substance, of the prominent points of all the testimony given on the trial. V. T.’ Crawford, Judge of the 11th Judicial District of Mississippi.”
    After this bill of exceptions, in the record followed the order granting an appeal; then came a copy of John Ford’s will; then a transcript of the record in the suit against the administrator of Elias Ford, and a copy of the execution levied on the negroes in controversy.
    The issue to try the right of property, tendered by the plaintiff in the execution, is in the ordinary form.
    The error assigned is, the refusal of the Court below to grant a new trial.
    
      Robert Hughes, for appellant.
    It is evident that a new trial should have been granted in the Court below.
    1. Because there was no consideration given by Ebenezer Ford, or those claiming under him, for the negroes sold in 1823 or 1824, and which are in contest. The testimony shows that no money was paid at the sale, but that Ebenezer Ford engaged to pay the debts mentioned in the proof; and afterwards Ebenezer sold to John Ford, the father of Elias, upon his agreeing to pay to Ebenezer the debts which had been paid by him for Elias ; which was done. But the payment was not made by Ebenezer at the time of the sale ; of course, as to the creditors of Elias at the time of the sale, no title passed, — but the sale as to them was void.
    2. But if the consideration agreed to be paid was paid, then it is insisted that the sale was not bona fide, because it is proved that John Ford, at the sale, informed a witness, who testifies to the fact, that the sale was to prevent the property being reached by a judgment which was- expected to be rendered on a debt from Louisiana.
    3. Possession at the sale remained with Elias Ford, the vendor, and continued with him up to the time of his death, which was in 1840.
    If either of these three positions are sustained by the proof, then the law is clear, that the sale was void, and the negroes were subject to the appellant’s execution, and a new trial should be granted. See Twine’s case, 3 Coke, 80.
    4. The pretended sale, by Ebenezer Ford, took place in 1823 or 1824 ; after which, and up to the death of Elias, in 1840, the negroes remained with him, without demand made and pursued by due course of law. This, by the statute of fraud, vested the title in Ebenezer, if as to creditors the sale had been-good. Revised Code, 192, sec. 2.
    
      V. E. and B. D. Howard, for appellee.
    This was a proceeding for the trial of the right of property in the Court below. There was a verdict for the claimant, on issue joined. The record is defective in not reciting any formal judgment of the Court.
    -Two bills of exceptions were taken, both of which are defective, and do not show any error in the proceedings below. The first was taken to the admission of testimony on the trial, which is not set out, but, as it would appear, a blank was left, with directions to the clerk to insert the same without so designating it as to identify the evidence designated. This has been held insufficient. Berry v. Hale, 1 How. 315 ; 4 How. 222, 370, 431; 5 How. 14.
    ' Indeed, it does not appear that there was any exception taken at the time to the admission of any testimony upon the trial. The Judge, in certifying the bill of exceptions overruling the motion for a new trial, does not certify that it contains all the evidence given, but only the “ substance of the prominent points,” which is insufficient. 5 How. 503 ;-l How. 478.
    The judgment in this case was against the administrator of Elias Ford, for a debt contracted by the intestate, and due, as appears by indorsement on plaintiff’s writ, in the year 1841, for 1725 dollars 91 cents.
    The bill of exceptions recites,"that the plaintiff in the execution proved, that in the year 1823 or 1824, Elias Ford was the owner of the slaves levied on, or their ancestors, and then by a public sale tranferred them to Ebenezer Ford by writing, which was never recorded, with an understanding that Ebenezer should pay certain debts of Elias, which were not all his debts. The slaves were not removed from the possession of the vendor. Afterwards Ebenezer, without a change of possession, transferred the slaves to John Ford, the-father of Elias, upon the agreement with John that he should account to him for the debts which he had paid for Elias, which amounted to about the value of the slaves. It appeared that John Ford did pay the debts, and the bill of exceptions states that there was no fraud between John and Ebenezer. The slaves remained in the possession of Elias, up to the time of the death of John, in 1826, and up to the time of the dqath of Elias, in 1840. It further appeared, that the executors of John Ford had exercised control over the-property.
    The claimant, who had intermarried with the widow of Elias Ford, relied on the will of John Ford, which was executed and probated in 1826. By this will the testator reserved for himself, as his own legal property, the slaves in controversy, under the management of his executors, until a certain debt of Elias Ford was discharged, then to be delivered to Elias and his wife during their lives, remainder to their children. It was in proof that, after the death of Elias Ford, the slaves were delivered to his widow by the executor of John Ford.
    
      In a case where the bill of exceptions is so defective as in this, the presumption must be strongly in favor of the verdict and judgment.
    2. On a motion for a new trial in a question of fraud, the Court will not disturb the verdict of the jury, as it is their province to weigh and decide upon the evidence. Graham on New Trials, 289, 525.
    It is quite manifest that the verdict is in conformity with the weight of evidence as it appears in the record. There is certainly nothing to induce an opinion that another trial would change the result. 5 How. 495.
    3. It appears sufficiently, that the sale of the property by Elias Ford to Ebenezer Ford, and by him to John Ford, as well as the will of the latter disposing of the same, were all made long previous to the existence of the debt of the plaintiff in execution. They cannot, therefore, be held fraudulent with reference to this debt. It is quite certain, that the will was on record when this debt was contracted, and that the plaintiff had notice of the title of Elias Ford. There is no pretence that there was any intent to defraud the plaintiff in execution in this case by those conveyances. 1 McCord, 521.
    4. It was argued in the Court below, that the will gave to the defendant in the execution a fee simple estate. It is however very clear, that the will gave to Elias Ford and wife, at most, only a joint life estate in the slaves. If the gift to them was not good as a life estate, the fee simple was vested in their children living at the time. H. & H. 348. The children were living at the time of execution of the will.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

This case originated out of a trial of the right of property, consisting of slaves, which were levied on by virtue of an execution in favor of the plaintiff against James McDonald, administrator of the goods and chattels of Elias Ford. The property was claimed by Holloway, the defendant, and on an issue to try the right, a verdict was found in his favor.

A technical question is raised in the first instance, by an objection to the bill of exceptions. Two bills of exceptions, it seems, were taken to the decision of the Court in overruling a motion for a new trial. By the first, it "is stated “ that on the trial of the issue the following was the testimony given on the trial,” and the words here insert the same,” enclosed in brackets. It is further stated, that the jury found a verdict for the claimant, and the plaintiff moved for a new trial. This bill of exceptions does not inform us what evidence was given, and we have often held that nothing is part of the record, which does not properly belong to it, unless it be inserted in the bill of exceptions. This rule would exclude the execution which is appended to the record. The same defect is found in the second bill of exceptions, and excludes the execution of the plaintiff, and also the will of John Ford, which was a part of' the claimant’s evidence. But the effect of this rule is, that only such matters as are not properly placed upon record, by incorporating them in the bill of exceptions, are to be excluded. It does not reject the whole record, and if the error be apparent without them, then we must reverse ; and if it is not, then we must affirm. The judgment on its face may be erroneous, or the record divested of matters not properly placed on it may show error. 6 Howard, 630. This rule sometimes operates as a hardship, .-by compelling us to decide on an imperfect statement of the case, or on a case different from that which was tried in the Court below; but it is the fault of parties in not having their cases properly prepared.

Let us see, then, what this record does properly contain. In the first place, we have the issue tendered by the plaintiff in exécution, which recites the judgment and the date of its rendition, together with the names of the parties ; that execution emanated thereon on the 14th day of April, 1842, which was levied on certain slaves, nineteen in number, naming them, which were claimed by the defendant, who gave a bond to try the right, and concludes by averring that the property was liable to the execution. In this issue the claimant joined. Then it appears a jury was empannelled, and we have also their verdict in favor of the claimant. Then follows a motion to set aside the verdict and grant a new trial, because the verdict of the jury was contrary to law and evidence ; and an order overruling the motion. The first bill of exceptions follows, which is of little value, as it contains none of the evidence. It also shows, however, that the jury found a verdict for the claimant; that the plaintiff moved, for a new trial; that the motion was overruled, and that the plaintiff excepted, Then follows the second bill of exceptions, which commences by'professing to set out the evidence ; the documentary evidence is however not inserted, but it goes on to state the parol evidence, and concludes with the certificate of the Judge that it contained the substance of the prominent points of all the evidence given on the trial.” Then follows the prayer for an appeal, and the order granting it, and approving the bond. We have then a record before us, by which it appears that under a judgment rendered in favor of the plaintiff,, an execution was levied on certain slaves, which were 'claimed by the defendant; that the plaintiff tendered an issue, in which the defendant joined to try the right; on which the jury found a verdict for the claimant, which the plaintiff moved to set aside, because it was contrary to law and evidence, and that the Court overruled the motion ; whereupon the plaintiff appealed. This is enough to 'make a fair case for adjudication, and we must presume that the judgment was right, unless the plaintiff shows affirmatively that it was wrong. This showing must depend upon the evidence which is legitimately before us- by’the second bill of exceptions, which is in substance as follows —

The plaintiff proved that Elias Ford owned the slaves in 1818, and up to 1823 or 1824, when they were sold at public sale, not under legal process, to Ebenezer Ford, who received a transfer in writing which was never recorded,-and who, as a consideration, agreed to pay certain debts for Elias Ford, but not all his debts. The slaves were present at the sale, but were not. delivered, and they continued in the possession of Elias Ford up to the time of his death, in 1840. Ebenezer afterwards transferred the slaves to John Ford, the father of Elias, without changing the possession, upon an agreement that he, John, should account to him, Ebenezer, for the debts he had paid for Elias, amounting to the value of the slaves, which John did ; that there was no fraud between Ebenezer and John, and no understanding between Ebenezer and Elias. John Ford sugT gested that the sale was made to prevent the property from being sacrificed. John Ford died in 1826, the property still being in the possession of Elias, who once changed his residence to Copiah county, taking the slaves with him, and who, on 'one occasion, shortly before his death, offered to sell several of them to pay his debts. The slaves were pointed out to the sheriff as property which was in possession of Elias Ford at the» time of his death, by the administrator ; and here the plaintiff closed his evidence.

The,claimant first introduced the will of John Ford, which, as it was not inserted in the bill of exceptions, constitutes no part of the evidence. He proved by Warren, a witness, that David Ford, executor óf John, hired out one of the slaves for fifty dollars, half of which sum went in discharge of á debt due by Elias, who was then absent. It was also in proof that after the death of Elias, David, the executor of John, went to the house of the widow, with whom the claimant has intermarried, and told her that he delivered her possession of the slaves, some of them being about the house, and the balance on the plantation ; that, they were free from incum-brance, and a very handsome property, &c., which delivery was doubtless owing to a provision in the will of his testator. On cross examination this witness stated that he was at the public sale made by Elias Ford, at which' Ebenezer became the purchaser, when John Ford tapped him on the shoulder, and asked him privately if he had come to purchase any of the slaves ; and being answered in the affirmative, he told the witness that they were not to go out of the family ; that the sale was made for the purpose of screening his son from the payment of a judgment for a security-debt. It also appeared, that the executor of John Ford had exercised some control over the property, but how long he had done so, the witness did not know; and this was all the evidence. It presents a case which requires but little comment. When the plaintiff had proved that after the sale the possession remained with the vendor from 1818 until his death, in 1840, and afterwards with his widow, at least a very strong prima facie case of fraud was made out, and it devolved on the claimant to rebut it. His proof, however, tended to strengthen, instead of to destroy, the presumption of fraud.

But it is said the transaction as between Ebenezer and John Ford was not fraudulent. It was as much prima facie fraud for John to leave the possession for so long a time with his son, as though he had been the original purchaser ; besides which, his declaration to the witness as to the object of the sale, made a stronger case of fraud against him than that which existed between Elias and Eben-ezer. He had communicated the fraudulent design of the sale, and everything which occurred subsequently, confirmed the truth of his statement to the witness. It is also said that the transaction was not fraudulent as to this creditor, whose debt was subsequently contracted. Fraud vitiates everything into which it enters. Permitting the negroes to remain with the son was enabling him to obtain a credit on his apparent ownership, and was fraudulent as to all creditors whose debts were contracted during such possession, who had not an actual knowledge of the nature of that possession. The verdict was therefore contrary to law and must be set aside, and a n.ew trial granted.  