
    JANUARY TERM, 1844.
    John Reed v. Jonathan Carl.
    B., while suit was pending against him, bought a piece of land from his infant brother, for a high price, gave his note, payable immediately, for it, and executed a deed of trust to C. upon that land and nearly all his other property, to secure the payment of the note, and in this deed included the crops of cotton to be grown, with power to sell upon ten days’ notice, at any time; held, that the transaction was a contrivance to hinder and delay creditors.
    A deed made to hinder and delay creditors, is void.
    Error from the Circuit Court of Yalabusha county.
    The facts are set out in the opinion of the Court.
    
      Sainé, for plaintiff in error.
    The first thing to be remarked by the Court, is the last thing that occurs in the bill of exceptions, to wit; the Court instructed an abstract point of law, that had no application to the evidence, and was well calculated, and no doubt did influence- the jury to disregard the testimony and the law, as applicable to the instruction asked for by the plaintiff in execution. It was clearly erroneous to give such an abstract charge under the then state of the testimony. And there can scarcely be conceived a conjuncture of circumstances where the charge of an" abstract point of law would be more dangerous.
    What is the testimony ? What are the circumstances attending it ? At the first blush, on the front of its presentation, it seems remarkable that Thomas Beatty should buy from his brother, an infant, a quarter section of land, limited and encumbered as this was by his father’s will, and give a deed of trust on the same quarter section, so bought, and also on the quarter section bought from plaintiff, Reed (to wit, north-west quarter of section 20), together with seven negroes, and all his stock, cattle, &c., and the future crops (to be sold in ten days), to pay for this single quarter section so bought. This is the first circumstance in this cause to which we will call the attention of the Court; a fact so glaring, as at once to put the question of fraud beyond doubt in this- case. But $600 more is pretended to be secured by the deed. This amount is shown to have been paid for this quarter at the time of the trade ; leaving, in fact, but the price of the land to be secured. Here, too, he was buying a quarter,section of land subject to the life estate of Mrs. 'Beatty, and to the charge of $3S0 pecuniary legacies to the sisters. Not only so, but he was buying from an infant, who had but one-half of an undivided interest in this estate ; an infant who he knew had no authority to convey; and to get over this point of the case, resorts to the pitiful subterfuge of taking a title bond for $8000 when this infant should come of age. If his deed were of no account, and this he knew, of what account was his title bond ? He will probably reply, that he took a title bond so as to get clear of paying the money in case the deed was not made in accordance with the bond. But this is indeed a shallow artifice ; a pretence as much deformed with fraud as any in this whole transaction. For you see the deed could be closed and the property sold under it in ten days from the time it was made. For if Beatty failed to pay any of the money secured by the deed, on request, then the property was to be sold, to pay it, — the future crops throim in. Now can it be possible that such a transaction as this, a family one too, can or could have been one of good faith ? Could it have been so contrived for any honest purpose ?
    Another, and second circumstance and point of view in which this case may be examined, is this ; at the very time he bought this property and gave this deed of trust, he was insolvent. He was not merely preferring a previous existing creditor, but he created a new debt and then preferred it. He says he bought at the time he gave the deed of trust, and paid $600 at the time in property. Now I conceive this is not preferring a creditor. It is creating a new debt and attempting to get it a preference ; doing this, too, ten days after the plaintiff’s writ is sued out against him ; doing it too, by giving a deed, not only upon the property bought, but also on seven negroes and all his other property, including the land bought from the ^plaintiff. Now, if what was right and honest was intended, why did he not leave the quarter section bought from Reed free from the deed ? And this immense new debt was created at a time when he was begging day from Reed. For he says that he did not know Reed was going to sue ; that the last time he talked with him, Reed “promised not to sue.” Now would an honest and reasonable'man, begging day from his creditor, incur a new debt to this extent, and give a deed of trust on his whole estate, to be closed in ten days, to secure it ? It is not consistent with honesty; and can in no way, upon no supposition, be reconciled with honesty.
    3. A third point in this case, conclusively showing the fraudulent design of this deed, is the provision in relation to the crops “ to, be grown.'” Now, upon principles of honesty, can this provision be reconciled with the authority in the deed to sell in ten days. When we look at these two provisions in the deed, it is impossible to conclude that they were inserted for any other purpose than to hinder and delay creditors. For no other reason that I can conceive, could it have been introduced. Now if the object was to bona fide secure a debt, in accordance with the terms of the deed, to wit, the payment of the money in ten days, why was the “ crops to be grown ” covered ? Can human ingenuity explain or reconcile it with honesty ?
    4. But not a word is said about the honest intent, the bona fide of this transaction, nor is he even asked any question, to show it, by the claimant, when he introduces -his witness, Beatty, the defendant in the execution.'
    It is laid down in Jlyres v. Moore, 2 Stewart, Ala. Rep. 336, that, “ it is not sufficient, however, that the consideration be bona fide paid, if the purchaser knew that the sale was made to defraud creditors, although the possession had been changed, nor would publicity in such a case give any additional validity.” See Rogers v. Hall, 4 Watts, Rep. 369 ; 10 Serg. & Rawle, 419. See particularly, 9 Wendell, 198 ; 12 ib. 297; 17 ib. 53.
    Again, it has always been ruled, that a conveyance during the pendency of the writ, is prima facie fraudulent, and must be explained. Twine's case, and all the succeeding cases adjudging this point.
   Mr. Justice Clayton

delivered the opinion of the Court.

This was a proceeding in the Circuit Court of Yalabusha county, to try the right of property to several slaves, which had been' seized under an execution in favor of the plaintiff in error, and which were claimed by the defendant in error, as trustee, under a deed of trust. The judgment under which the execution issued, • was rendered against Thomas B. Beatty, in November, T842, for about the sum of $>2100. During the pendency of the suit, Beatty conveyed nearly the whole of his property to Carl, the claimant in trust, to pay certain debts therein enumerated. This conveyance, upon the trial, was impeached, upon the ground of fraud. One of the debts for which it provides, is for $2750, due to an infant brother of the defendant in execution. It is insisted, that this debt is fraudulent, and that the provision for its payment vitiates the conveyance.

The circumstances in regard to this transaction, are peculiar. The contract, out of which the indebtedness grew, was made after the suit of the plaintiff was instituted. About one hundred and twenty acres of land were purchased at a high price, a note was executed, made payable immediately, and to secure the payment, a deed of trust was given upon nearly all the property of the defendant, including the land purchased. The crops of cotton to be grown were also conveyed, and a power to sell conferred, upon ten days’ notice, at any time. The land purchased was encumbered by a life estate still in existence, and no title could be obtained until the vendor arrived at full age. The jury found in favor of the claimant, and the case is thence brought to this Court.

All the circumstances of the case, combined, in our opinion make the transaction a merely colorable one ; a contrivance to hinder and delay creditors. We therefore think the Court erred in refusing to grant a new trial.

The judgment will be reversed, and a new trial granted.  