
    Charlotte Lowry v. Marmaduke Pinson.
    A sale of lands, made for the purpose of defeating the recovery of damages for a breach of promise of marriage, is fraudulent and void, if the purchaser have notice of the fraudulent intent; although the agreement for the sale was made before suit brought for the breach of promise, and although the purchaser paid an adequate consideration, and went into immediate possession, and the whole of the purchase money was in fact applied to the payment of bona fide creditors of the vendor.
    The St. 13 Eliz. c. 5. extends to persons having a right of action for damages for a tort, as well as to creditors.
    Fraud avoids all contracts between the parties themselves, if one impose upon the other, and between them and third persons, where they conspire to defraud others.
    A party, impeaching a sale for fraud, may prove, by parol, that the vendor about the time of the sale, executed a conveyance to the same vendee and another person, of other portions of his property, for which no consideration was paid; and to intitle him to do so, it is not necessary to prove notice to the vendee, to produce the original.
    Where a written instrument, in the possession of one party, constitutes the' evidence pf the right of the other party to the thing in litigation, the latter cannot giye parol evidence of its contents, without notice to produce the original; but where it relates to a collateral circumstance, and an inference favourable to the party arises out of the fact of its existence and execution, and not out of its particular contents, parol evidence is admissible without notice.
    Tried before Mr. Justice Earle, at Laurens, February Term, 1831. • ‘
    Trespass to try titles. The plaintiff claimed by a conveyance from the sheriff, dated 25th February, 1830, made in virtue of- a sale under judgment and execution against Isaac J. Pin-son, at the suit of the present plaintiff: Cause of action, breach of promise of marriage; writ lodged 21st February, 1828, and judgment signed 23d February, 1829. The defendant claimed by a conveyance from the said Isaac J. Pinson, dated 23d February, 1829, reciting an agreement for the sale to the defendant, previous to the commencement of plaintiff’s suit for breach of promise of marriage. The trespass and location were admitted ; and the only question in the case was, whether the conveyance to defendant was valid, or void for fraud.
    
      James Cunningham and Isaac Pinson sen. testified to a verbal agreement, entered into between Isaac J. Pinson and his brother, the present defendant, for the sale of the land in question, sometime in January 1828, for the consideration stated in the conveyance, to wit, the payment of the debts of Isaac J. Pinson, which were estimated at about three hundred and twenty-five dollars. Isaac expressed no apprehension of a suit against him by the present plaintiff; and the reason given by him for the sale, was, an intention to emigrate to Alabama, and a desire to make arrangements for payment of his debts before his departure.
    It was fully established, that the defendant had paid the debts of the vendor, to'the amount stipulated, including a judgment in favour of S. B. Lewers, which was alien upon the land at the time of the agreement. Several witnesses concurred, that the amount of the debts was a fair and adequate price for the land; and this testimony was not controverted. Defendant had gone into possession immediately after the agreement; and at the sale made by the sheriff in 1830, at which the plaintiff purchased, defendant produced his conveyance and forbade the sale.
    Franklin Cleveland, a witness called by plaintiff, testified, that on the night of the day on which plaintiff’s writ against Isaac J. Pinson was lodged, he went, as deputy sheriff,, in search of him to the house of his mother, Mrs. Pinson, and there arrested the present defendant, Marmaduke, mistaking him for his brother Isaac. The present defendant did not undeceive him, but suffered himself to be carried to the Court-House, where the error was pointed out to witness by other persons.
    James Boyd, was called. At a late hour on the same night, Isaac J. Pinson and David Madden called at the house of witness, and waked him from bed, to witness the execution of a bill of sale of eight or nine negroes, from Isaac J. Pinson to Marmaduke Pinson and David Madden. Marmaduke was not there. The only persons present were witness, his son William Boyd, Isaac J. Pinson, and David Madden. The bill of sale made no mention of land. -No money was paid at the execution of the bill of sale., The next morning the deputy sheriff came in pursuit of Isaac, but witness has never seen him since that night.
    
      William Boyd, son of the last witness, was at Mrs. Pinson’s that night, and went to sleep there, but woke up during the night, and went towards home; on his way he overtook Isaac J. Pinson and Madden, and accompanied them to his father’s, where he witnessed the execution of the bill of sale. No mention was made of the land in the bill of sale. Isaac J. Pin-son said, however, that he had sold all his property to his brother Marmaduke and Madden ; he afterwards added, that he had left his land to pay his honest and just debts. Witness has never seen Isaac J. Pinson since that night. Isaac J. Pinson owned seven or eight negroes, which were worth about two thousand dollars; witness saw them on the land shortly after the execution of the bill of sale, but they have since been carried off. He owned also, the usual stock of a plantation, and made good crops. Witness was present at a sale, after Isaac’s departure, when cattle and hogs were sold to the amount of thirty-five dollars.
    An objection was taken by the defendant, to so much of the testimony of the two last witnesses, as related to the bill of sale; on the ground, that no notice having been given to produce the original, parol evidence was inadmissible. The presiding Judge however held, that as the witnesses both stated, that the land now in dispute was not included in the deed, the objection was groundless.
    George Moore testified, that in March, 1828, he offered to purchase the land, now in question, of the defendant; and after some discussion about the price, the latter said, that if the land were Ms, he would be better able to give an answer. Isaac had then been gone some days.
    Alford Blackwell was sworn. In March or April, 1828, he met with Isaac J. Pinson in Gwinnett county, Georgia, and they conversed about the sale of his land, and his affair with Charlotte Lowry. Isaac said he had made a liberal offer to compromise the business; but she had refused, and he did not intend she should have any thing of his, if he could avoid it. He added, that the reason he did not marry the girl was, that her father had used him harshly, and treated him unkindly.
    The sheriff testified, that he had been unable to find any other property of Isaac J. Pinson within the district to satisfy the plaintiff’s execution, except this land.
    
      His honor charged the jury, that a sale might be fraudulent as well as a gift, and if fraudulent, it was void. That it was true, a person indebted might prefer certain creditors to the exclusion of others; but it must be done bona fide, for the purpose of preferring some of them, not colourably merely, and in reality to defeat another. That their inquiry in the present case was as to the intention of the parties. If the sale was made to defendant, merely with the view of paying off certain creditors, it was valid; and the defendant was intitled to a verdict. If on the contrary, the sale had been made with the view of enabling Isaac Pinson, by removing his personal property from the State, to defeat the claim of the plaintiff, then it was fraudulent and void; and the price being appropriated to the payment of creditors made no difference. It was necessary indeed, that the present defendant should have had notice of the fraudulent purpose for which the sale was made; but if he did have such notice, he was not protected by having actually paid the full value of the land.
    The jury found for the plaintiff. The defendant now moved to set aside their verdict, and for a new trial, on the following grounds.
    1. That parol evidence was admitted of the contents of an alleged bill of sale, from Isaac J. Pinson to defendant and David Madden, without proof of notice to defendant to produce the original.
    2. That the presiding Judge erred in charging, that, if the jury believed it was the intention of Isaac J. Pinson, in making the sale to the defendant, to pay off his creditors with the proceeds, and then to remove his personal property beyond the reach of the plaintiff, the conveyance to defendant was void.
    3. That the conveyance to defendant gave him a legal and valid title to the land m dispute; for under no circumstances could he be regarded in a situation less favourable than that of the creditors, to whom the purchase 'money had been paid, one of whom was a creditor by judgment, having a lien on the land.
    A. W. Thomson, for the motion.
    Lynch, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The general rule, that parol evidence of the contents of a paper writing, which the party has in his possession, or which he may procure to be produced, by the process of the court, canil oí. be given in evidence, holds universally, wherever it constitutes the evidence of his right to the thing for which he sues: and that because it is the most certain, and therefore the best. But where the writing relates to a collateral circumstance, and an inference favourable to the party arises out of the fact of its execution and existence, and not out of its particular contents, parol evidence is admissible. Of this, the case of Spiers v. Willison, 4 Cranch, 398, is an instance. There, parol evidence of the existence of a deed of gift, was admitted, to show the nature of the possession that accompanied the deed. The allegation of the plaintiff here is, that Isaac J. Pinson conveyed the land in dispute to the defendant for the purpose of defrauding her; and the object of the evidence, that he about the same time also made a voluntary bill of sale to the defendant and David Madden, of all his negroes, the built of his remaining property, was to show the fraudulent intention by way of deduction, not from the particular provisions of the bill of sale, but from the fact of its execution without consideration. The evidence was therefore properly admitted.

We concur with the circuit court also, on the other questions which have been raised. In Twyne’s case, 3 Rep. 82 a, it is said, that the St. 13 Eliz. c. 5, extended “ not only to creditors, but to all others who had cause of suit, or action, or any penalty, or forfeiture, &c;” and that construction has been followed ever since. See also Jackson v. Myers, 18 Johns. 427, and Fox v. Hills, 1 Conn. Rep. 295.

The fact mainly relied on in support of the motion, is that the defendant paid full value for the land, in satisfying bona fide debts due by Isaac J. Pinson, and hence it is concluded, that whatever might have been Isaac J. Pinson’s intention, the conveyance could not be fraudulent as to the defendant.

The verdict of the jury has established as a conclusion from the facts proved, that Isaac J. Pinson conveyed to the defendant, with the intent to defraud* the plaintiff, and that the defendant purchased with a view to aid that intention; a conclusion well warranted by the evidence. In Twyne’s case, the consideration is said to have been more than sufficient, and although that was a criminal prosecution, the sale was held to be void. In Worsely v. De Mattos, 1 Bur. 474, Lord Mansfield says, that “ if a man knowing that a creditor has obtained judgment against his debtor, buys the debtor’s goods at a full price, to enable him to defeat the creditor’s execution, it is fraudulent;” and in Cadogan v. Kennett, Cowp. 434, the same Judge remarks^ that he had “ known several cases where persons had given a fair and full price for goods, and where the possession was actually changed; yet being done for the purpose of defeating creditors, the transaction had been held fraudulent, and therefore void.”

There is perhaps no principle of more universal application, than that fraud avoids all contracts between the parties themselves if one imposes on the other, and between them and third persons where they conspire to defraud others: And cases might arise, where that could as readily be effected when a full and fair price is paid, as when nothing is paid. One rich in lands, houses, or other permanent property, resolves not to pay his debts; and another, knowing this, treats with him and purchases his whole estate, at a fair and full price, and thus enables him to fly from the claims of his creditors. Now, although the purchaser has gained no advantage, he has enabled the debtor to evade the payment of his debts, and the effect upon the creditors is precisely the same as if nothing had been paid.

I do not perceive how the defendant’s case is helped by the circumstance, that the purchase money was disbursed in the payment of Isaac J. Pinson’s just debts. The defendant cannot be in a better situation than the creditors themselves would have been, and that relationship between them, could not sanctify a fraud, by which Isaac J. Pinson was enabled to evade the plaintiff’s demand. A debtor may, it is true, honestly prefer one, creditor to another, yet in the case of Worsely v. De Mattos, 1 Bur. 482, Lord Mansfield remarks, that the contract giving the preference to even a bona fide creditor would be void, if the means to attain such preference were fraudulent.

Motion refused.  