
    Thomas & Ashby v. Jeter & Abney.
    necessary an A survey is not pwonto°£ry' u-established by
    possession^ hols O1¿ducequirctho0 judgment & the ancefls'agSt tilo judgment & dorlfm insSub“-qucntiy to the ini® hoids by Í veytmeefromthe TOtedbefole'tiio '«nlSS* r stindTi the Smthe “originé
    eon-veyanco was made to defraud creditors, & the thrt0frauduLit himseif'a'party to the ñaua, and his conveyance is void, although eon sTcler a do Ptasou,L2Bdiy,' 3S4->
    
    
      Tried before Mr. Justice Evans, at Union — Fall Term, 1833.
    Trespass to try titles. The plaintiffs claimed under a deed from the sheriff to themselves. The land in question had been levied on, and sold as the proof Wm. J. Thomas, under a judgment against ffi favor of the plaintiffs. The defendants elaim-ed under a deed from Wm. J. Thomas to the defend-Jeter, executed previously to the signing of the j udgment. Much evidence was given, which, it is unnecessary to detail, for the purpose of shewing that this deed was made with a view to defraud creditors, and that Jeter, when he bought, was aware of the fraudulent intent. It appeared however, that Jeter hnd paid a full consideration. There was no survey made, nor any plat produced to identify the land, The plaintiff’s deed déscríbed it, as the land where Thomas lately lived, containing fifty acres, and boun-hy the lands of certain persons named ; and the ev^ence vvas, that the sheriff had sold the land where Thomas resided, that Thomas owned no other land, and that the defendants were in possession of the same land, under the deed from Thomas to Jeter,
    The defendants counsel moved for a nonsuit on the _ grOllllUSj
    1. That there being no survey, the evidence did not sufficiently identify the land in dispute.
    2. That the plaintiffs had failed to prove title in 1 J-themselves. '
    That there was no legal evidence of fraud.
    The presiding Judge however, held that the evidence was sufficient to identify the land without a survey, and that as both parties claimed the land from the same source, it was unnecessary for the plaintiffs to go farther in tracing their title than they did; and therefore he refused the motion. He charged the jury in conformity with the decision of this court, in the case of Lowry v. Pinson, 2 Bailey, 324, that if Thomas sold the land with the intent to do-fraud the plaintiffs of their debt, and Jeter, when bought, knew of such fraudulent intent, the convey-anee from Thomas to Jeter was fraudulent and void, although Jeter had paid the price stated in the deed.
    FÓaSt™So. 3‘Jl
    The jury found for the plaintiffs the land and damages. The defendant now renews" his motion for a nonsuit before this court, on the grounds taken below, and failing in that, he moves for n new trial on the ground, that the verdict was contrary to law and evidence.
   Harper, J.

With respect to the first ground of the motion for nonsuit, we perceive little room to doubt. It is agreed that a survey made .in the cause is not necessary, but that the identity may be established by any other competent testimony. The deed of Thomas to Jeter, and the deed of the sheriff to plaintiffs, were both before the jury (though they are not before us) and from an inspection of these, it is to be presumed the jury could determine whether they described the same land. Besides, the presiding Judge reports enough of the testimony to establish the identity. He states that “the deed described it as the land where Thomas lately lived, containing fifty acres, and bounded by the lands of certain persons named,” and that “the evidence was, that the sheriff sold the land where Thomas lately resided, and that the defendant and his tenant Abney, were in possession the same land, under Thomas’ deed to Jeter.” It is besides reported, that Thomas owned no other land. It would be extravagant to doubt of the identity.

The second ground is equally unsustainable* The rule is, that where a purchaser of land at sheriff’s sale, brings suit against the defendant to recover possession, he need show nothing but the judgment and the sheriff’s conveyance. The same rule applies when the suit is against one in possession, claiming under the defendant, whether as tenant or by a conveyance subsequent to the judgment, otherwise the salé would be nugatory. Here the conveyance was not subsequent to the judgment, but it is established to have been void for fraud. The defendant then stands in situation of one put into possession by the original defandant, Thomas, without any title at all. It was suggested that the proof of the nature of defendants’ title came out m evidence in the defence, and that the motion for nonsuit, made when the plaintiffs’ evidence was closed, ought to have prevailed. From the report of the Judge, I should clearly infer that the testimony with respect to the character of defendants’ title was given on the part of the plaintiffs; and this was confirmed by the statements of counsel. If the defendants claimed by any other title, they might have shewn it in their defence. Besides, even if the presiding Judge had erroneously refused the nonsuit, and the defendants in their defence, had supplied the proof necessary to make out the plaintiffs’ case, a nonsuit could not be directed here. It was their own imprudence to supply the proof; and when, upon the whole case, it appears that the plaintiffs are clearly entitled to recover, it would be sporting with justice to say, they should be turned out of court on account of such an error of the Judge.

Herndon, for the motion.

The third ground for nonsuit, and the ground for a new trial, may be considered together. No doubt Thomas made the conveyance with a view of defrauding his creditors. If the defendant knew of that intention, he made himself a party to the fraud, and his conveyance was vitiated, even although he paid a full consideration’. The circumstances are very strong to shew that he was aware of it, and even if they had been less so, we should not be authorized to interfere with the verdict of the jury, to whom it belonged to judge of them.

The motion is dismissed.

Johnson & O’Neall, Js.'concurred.  