
    Walcott v. Brander and others.
    Where a claim to property levied on by attachment is interposed by one who doraigns his title from the defendant in tho attachment, it is not erroneous to permit the creditor, on the trial of the right of property, to introduce in evidence the judgment recovered by him in tho attachment suit against his debtor, tiio claimant’s vendor.
    A purchase of property with knowledge that the vendor is selling to hinder, delay, or defraud his creditors, although for a valuable and adequate consideration, is void as against creditors. (Note 78.)
    A charge that fraud could be proved by circumstances, and that the jury must look to all (lie circumstances connected with tho transacción to arrive at a correct conclusion, was hold to mean that tho jury were to look to the circumstances in proof and therefore, not to be erroneous.
    Error irom Cass. Suit was instituted by attachment by the defendants in error against one Drake.
    The attachment was levied on goods, &o., in the possession of the plaintiff in error. The plaintiff claimed the goods hy purchase for value, in good faith, from Drake, and gave bond to try the right of property. The defendants in error alleged that the sale to the plaintiff in error was void, because it was made to binder and delay the creditors of Drake, and that tlie defendant in error colluded with Drake. This was the issue. On the trial tlie defendants in error read to the jury the judgment which they had obtained in the attachment suit against Drake — the plaintiff in error excepting. The court charged tho jury that, if they believed from the testimony in tlie case that Drake made the sale of the goods in question for the purpose of defrauding his creditors, or hindering or delaying the collection of liis debts, and Walcott, the defendant, knew of said design on the part of Drake, then the sale was void. The court further charged the jury that fraud may he proved by circumstances, and that they must therefore look to all the circumstances connected with tlie transaction to arrive at a correct conclusion. Verdict and judgment for Brander, Williams & Co., tho creditors of Drake. Motion for a new trial overruled.
    
      T. J. Jennings and S. M. Hyde, for.plaintiff in error.
    I. The plaintiff in error says that the court below, upon the trial of this canse, erred in permitting the judgment, that had been recovered by the defendants in error against Reuben Drake, in the attachment suit, to be read in evidence after tlie same had been objected to.' Now, that evidence was irrelevant to the points in issue, and did doubtless tend to mislead tlie minds of tlie jury off from tlie true issue before them. It was an unnecessary incumbrance of the minds of the jury with irrelevant matter. The, only effect it was calculated to produce was eon-fusion by the commingling the issues of two suits, one of which was not before the jury. This is conclusive from tlie. fact that the jury found that tlie attachment was subject to a credit of one thousand dollars. When confusion is shown to liave been produced by tlie introduction of irrelevant testimony, tlie court is bound to conclude that tlie verdict of the jury was subject to tho same influence, and was a product ion of the same confusion. The face of the verdict shows that the jury believed that they were trying the question of the original indebtedness and payments of Drake, as well as tlie rights of property. One of the objects in making an issue is to narrow the questions in litigation down, so that the jury may readily see tlie application of the testimony. lienee the introduction of irrelevant matter, which is calculated to make, the jury believe that different issues are raised, produces confusion and defeats that object. That the admission of this record in evidence did have that effect is conclusive from tlie verdict itself. In the case of Butler & Alford v. O’Brien, surviving partner, <fce., 5 Ala. R., 822, tlie court, in its decision upon the proceedings had under a statute similar to our statute regulating the trials of tho right of property, say: “.It has been repeatedly held, where a third person claims “property levied on by execution, and executes a bond for the trial of “the right, that he shall not ho permitted to object to the regularity oí tho “judgment and execution, and that tiie plaintiff shall not be required to province any evidence of the justness of his demand other than the execution “affords.' We think the same rule must apply where, instead of an execution, “the properly is seized by an attachment. The only question to be litigated “is, wheiher'thc goods claimed really belong to the claimant or not, as against “the plaintiff, a creditor; for the purpose's of this controversy the plaintiff “must be regarded as a creditor without the production of proof of iudebted“ness. Tiie eleventh section of the attachment law, in providing for the trial “of the rigid of property, and directing tiie same proceedings tobe had as “ where a claim is interposed upon the levy of a fi. fu... together with the decisions which have been made touching tiie nature of such a controversy, seem “ to us to show not only that such evidence is unnecessary bnt irregular.”
    II. Tiie court erred in charging the jury “that if they believe from the testi- “ mony in the ease that Drake made said sale of tiie goods in question for the “ purpose of defrauding his creditors or hindering or delaying the collection of “his debts, and said Walcott, the defendant, knew of said designs on the part “of Drake, then the sale was void;” for if Walcott purchased tiie goods in good faith and paid an adequate and valuable consideration for them, and with no intent on hits part to hinder-, delay, or defraud Drake’s creditors, although Drake’s intentions may have been to hinder, delay, and defraud his creditors, and AValeott may have known of his designs, yet if he took no part therein, but merely purchased the goods because lie wanted them, the sale, to all intents and purposes, was a legal and valid one. In tiie case of AVhcaton v. Sexton’s Lessee, 4 AVheaton, 503, (4 Cond. It. S. C. U. S., 519,) the court say: “The instruction of the court, given on motion of tiie plaintiff below, is that “ the deed was void in law if it was made by the said Joseph AVheaton without “ a valuable consideration therefor, or was made by him with intent to “defeat, delay, or defraud his creditors. Had the conjunction ‘and’ been “substituted in tiiis instruction for ‘or’ it would have been entirely unimpeachable; hutas it now reads it must mean that even bad-a valuable con- “ sideration been paid, if the deed was made with intent to defeat creditors, it “was void. AVe know of no law which avoids a deed where a valuable (by “which to a general intent must also be understood adequate) consideration is “paid, and the change of property be bona fide or such as it professes to be. “ Of such a contract it cannot be predicted that it is with the intent to defeat “or defraud creditors, since, although the property itself no longer remains “subject to tiie judgment, a substitute is furmshed by which that judgment “ may be satisfied.’?
    HI. Tiie court erred in charging the jury “that fraud may be proved by “circumstances; that the jury must, therefore, look to all the circumstances “ connected with the transaction to arrive at a correct conclusion.” This is too indefinite. Tiie jury, not being conversant with the law, might have felt themselves authorized (and in this case doubtless did) to look to circumstances connected with the transaction that were not in proof upon the trial of the cause — circumstances that they may have heard of before — emanating from a source prejudical and unfavorable to the lights of AValeott. It may be that they heard of the levying of the attachment upon the goods in question, and of tiie charge made against him of attempting to defraud tiie creditors, of Drake, and that, too, from a source by them deemed creditable. Supposing such a state of facts to have existed, then, under the charge of'the court, that they must look to all the circumstances connected with the transaction, may not the jury have looked to these out-of-door circumstances, and made their verdict accordingly? I-Ience the necessity of a definite charge, confining the jury to the proof as developed upon tho trial of tiie cause, and not giving to them tiie latitude of looking to all tiie circumstances connected with the transaction.
    IV. The verdict of the jury was contrary to the law and evidence.
    
      
      T. J. Sf J. H. Rogers and J-Ienderson %• Jones, for defendant in error.
    1st. How did the admission of the judgment against Drake prejudice the defendants? If the evidence had not been proper it was immaterial. But it was proper, as showing the genuineness of the debt against Drake, in the suit against whom the attachment issued, which was levied on the property claimed in this case. There was no ground of exception to the reading of the judgment assigned.
    2d. The charge will speak for itself.
    3d. It is said “ the finding of the jury was contrary to the law and evidence.”
    It was just the other way. See statement of facts.
   Lipscomb, J.

We propose discussing the several grounds assigned for error, in the order presented by the counsel for the plaintiffs in error.

It is alleged that the court below erred in permitting the judgment that had been recovered by the defendants in error, in a suit brought by attachment against Reuben Drake, to be read to the jury on the trial iu the court below.

In this suit against Drake, in which the judgment referred to was rendered, that the attachment was levied upon goods as the property of Drake, and a claim of property was interposed by the "defendants in error, under our statute ; and the jury were trying this right of-property, on the claim of the plaintiff in error, when the judgment was read to them, and we can perceive no error in permitting the judgment to be read, because the conveyance of the goods by Drake to the plaintiff in error was sought to be avoided and set aside on the ground of fraud; and it was only iu the character of creditors could the defendants in error have any right or pretext for impeaching the fairness and legality of the conveyance. (Bryant v. Kelton & Uzzel, 1 Tex. R., 415.) And therefore there could be no objection to showing by the judgment that they were creditors.

The court charged the jury “that if they believed from the testimony that “Drake made the sale of the goods iu question for the purpose of defrauding his creditors or hindering or delaying the collection of his debts, “and the said Walcott, the defendant, knew of said design, then the sale was “void.” It is contended that the charge is erroneous, and that if Walcott paid an adequate price, although he might have known that Drake’s design in selling was to defraud or hinder and' delay his creditors, the sale would be valid,'because that by the purchase-money the vendor would be able to pay the debt, or a fund for that purpose would be created. The argument would have been souud if applied to a different face in the sale. If the purchaser did not know that it was the design of the vendor to defraud his creditors, he might well and reasonably suppose the object of the sale was to create a fund for the payment of debts; but a knowledge that he intended to defraud them would repel the presumption that he was providing a fund to pay them. His knowledge of the intended fraud made him a participant in it, ánd rendered the sale void under the second section of the statute of frauds. (Hart. Dig., art. 1452.)

There is nothing in the objection that the court charged the jury “ that fraud “could be provecí by circumstances, and they must .'look to all the cireum-“stances connected with the transaction.” The common-sense meaning of the language is that they are to look to the circumstances in proof, and it would be so understood by a juror of ordinary understanding. It would be a forced and strained construction to say it authorized them to go outside of the testimony and look to circumstances not in proof; and to claim a reversal on such a ground would be to ask tiffs court, as it was merely possible that a very stupid man may have misunderstood the judge, therefore this court ought to presume that he had been so misunderstood in his charge and reverse the judgment. The correct rule is the very reverse.

The last ground presented by the counsel for the plaintiff in error is that the verdict of the jury is contrary to law and the evidence. This objection does not seem to be well taken. From the statement of facts it is seen that there was a good (leal of evidence taken, but that it fully sustained the finding’of the. jury, and from those facts it would be exceedingly difficult to arrive at any other conclusion than that tho sale was designed to defraud creditors, and that this design was known to the plaintiff in error when he became the purchaser.

The judgment is affirmed.

Judgment affirmed.

Note 78. — Mosely v. Gainer, ante 303.  