
    Burr Garland v. Maxfield Chambers.
    Although it is settled, that the possession of property by the vendor after a voluntary sale is primá facie evidence of fraud, yet this rule does not apply to public forced sales, under execution or deeds of trust; in such sales, the law does not infer fraud from the fact, that the property is left in the possession of the original owner, or that of his family; and where such a sale is made without a change of possession, it is for a jury to say, under all the circumstances, whether or not fraud in fact exists.
    In error from the circuit court of Madison county; lion. Robert C. Perry, judge.
    On the loth day of May, 1838, Maxfield Chambers recovered, in the said circuit court, a judgment against John D. King, for $ 103-10. Execution issued on this judgment, which was bonded, with Milton King and James Flowers, sureties, and the bond forfeited on the 29th day of June, 1842. A writ of fieri facias issued on this bond, which by the sheriff of Madison was levied upon a negro girl, named Press, as the property of John D. King, on the 28th day of October, 1842. On the 7th day of November, 1842, Burr Garland claimed the property, made affidavit, and gave bond, as required by law. The papers were returned to the circuit court, and at the November term, 1842, an issue was made up between the plaintiff in the execution, and Garland, as claimant. A trial was had at the May term, 1844. On the trial the plaintiff read his execution, and judgment, levy, &c., and proved by two witnesses, that the negro woman, Press, was in the possession of John D. King, or on the place where he lived, in Madison county, and appeared to be in his possession at the time of the levy. That, John D. King had been living on the premises for many years past, except a portion of the time when he was confined in jail; he was keeping a public house ; that the negro woman, Press, was waiting about the house, and on the table. One of the witnesses stated, that he understood about the time of the levy, that this negro, and the other property on the place, where King lived, belonged to claimant; that he understood this from claimant and King himself.
    For defendant, Augustus B. King testified, that he knew the negro, Press, before she was conveyed to Morgan & Rives, for the benefit of Martin, Pleasants & Co.; she belonged to witness. She was purchased by witness in part with his own means, and with funds borrowed by him of others, and in part with the means of his father, John D. King. Her name was inserted in the deed of trust, for the benefit of Martin, Pleasants & Co., with his consent. The debts mentioned in the deed of trust, were for advances by Martin, Pleasants & Co. to John D. King, as he understood from both parties. The sale was made under the deed of trust, in the fall of 1839, or 1840, after due'notice in a paper published in Clinton; witness was present. At the sale the negro, Press, was sold, with land, and other property, to Burr Garland. He thinks possession was delivered to Garland. The property was put into his possession, after the sale, by Garland. Witness rented the land and negroes from Garland, and held possession till 1841, when he left them in possession of his brother, Milton, and his mother, when he went to Louisiana. John D. King did not reside on the premises, at the time of the sale, being then confined in jail, and he had no right, that witness knew of, to control the property. John D. King returned to the premises in February, or March, 1841. He saw no' money paid at the sale.
    On cross-examination, the witness stated that the property, after the sale, was situated and controlled very much as before the sale; none of the negroes were taken off the place after the sale; there had been no sum for rent or hire agreed on between him and Garland; and no rent or hire had been paid.
    Milton King, in substance, testified to the same effect.
    The defendant read the deed of trust, dated the 14th day of April, 1836, acknowledged and filed for record the 4th day of November, 1836.
    This deed recites the drawing, by John D. King, of bills in favor of, and indorsed by, Garland, on Martin, Pleasants & Co., for $4000, at twelve months, and acceptance by said Martin, Pleasants & Co. for the accommodation of King; and conveys the land, and other property, including Press, to Morgan & Rives, to indemnify Martin, Pleasants & Co., and authorizing sale upon request of said Martin, Pleasants & Co., by either, or both, of the trustees. A sale was made in accordance with the provisions of the deed; purchase made by Garland; a conveyance by Morgan & Rives, on the second day of November, 1839, in consideration of twenty-five hundred dollars paid. The deed was recorded the 21st of December, 1839. The plaintiff proved, by the assessor’s book for 1842, that no personal property was assessed to Burr Garland, for that year.
    The court then, on the part of the plaintiff, instructed the jury,
    1. If the jury believe, from the evidence, that the property remained in the possession, and under the control of John D. King and his family, and that they had the benefit of it, this is prima facie evidence of fraud, and they must find for the plaintiff, unless such possession is explained to their satisfaction.
    2. That, if John D. King remained in the possession of the property, together with his son and family, and had the use and benefit of it, such possession was colorable and fraudulent, as to the creditors of John D. King, unless explained, and they must find for the plaintiff.
    3. That, when property is sold for any person to another, there must be a substantial and bona fide change of possession, and an exclusive possession by the purchaser, otherwise such sale is collusive and fraudulent, and void, as to the creditors of the vendor, unless satisfactorily explained.
    
      And for the defendant, as follows :
    1. A possession, by John D. King, of the property sold under the deed of trust, taken after the sale, without the consent of Garland, the purchaser, cannot affect the interest of Garland.
    2. The consideration stated in a deed is considered, in law, the true consideration, unless it be shown not to be true consideration.
    3. If the possession, at the sale, was in fact delivered to the purchaser, bona fide, then the sale is a good one, and a subsequent taking possession by John D. King, jointly with his family, will not render the transaction fraudulent.
    The jury found for the plaintiff.
    The defendant moved for a new trial.
    1st. Because the verdict is contrary to law and evidence.
    2d. Because the court erred in instructing the jury, as requested by plaintiff’s counsel.
    The motion for a new trial was overruled, and the defendant excepted, and prosecuted this writ of error.
    Hughes, for plaintiff in error.
    On the 2d day of November, 1839, the sale was made, and a deed executed, in consideration of the money paid, which divested John D. King of the title and right of possession to the land, on which the other property was situated. The witnesses believe the negroes were delivered to Garland, and they testify, that all the property was immediately delivered by Garland to Dr. King, on an agreement to rent and hire. John D. King was then absent, imprisoned in jail, and did not return until the spring of 1841. He no longer had the possession, after the sale of the land, and it could not have been delivered to him; but, as the testimony shows, was delivered to Dr. King, by Garland. It could not have been so delivered, unless the possession had been with Garland. The transaction needed no subsequent confirmation from John D. King. True, the testimony tends to show that the family of John D. King had the benefit of the property. But that was by virtue of an agreement between Dr. King and Garland. And true, also, that John D. King returned in 1841, and remained on the premises, but the witnesses testify that they know of no title which he had to control the property.
    The jury then should have found in accordance with the fact, that possession at the sale was delivered to Garland; and that the sale was not fraudulent; because if John D. King ever did have possession, it was taken long subsequent to the sale, and without authority from Garland.
    
      A. H. Handy, for defendant in error.
    1. The question of fraud is fully submitted to the jury by the instructions of the court. From the' evidence, the jury found that the transactions, after the deed in trust, the sale under it, and the continuing possession of John D. King and his family, after the sale under the deed in trust, were fraudulent. The only justification for the possession set up is, that Augustus King, a son of John D. King, rented the land, and hired the negroes from Garland. No price was agreed on; Augustus King' was insolvent at the time; has no knowledge in relation to the crops; has never been on the place since March, 1841, but has resided all the time in Louisiana; has paid nothing for the land or negroes all the while, from 1839 till 1845; and all this while John D. King, or his family, have had possession of, and been supported by, the property. Undoubtedly, if there ever was a case of colorable possession, this is the case. The evidence of Augustus King fully and clearly establishes this.
    2. It being a question of fraud, entirely to be judged of by the jury, their verdict cannot be disturbed, there being no error of the court in giving instructions as to the law.
   Mr. Justice Clayton

delivered, the opinion of the court.

This was a trial of the right of property, in the circuit court of Madison county.

One John D. King being indebted to Martin, Pleasants & Co., on account of acceptances by them, upon bills drawn in favor of Burr Garland, executed a deed of trust upon certain lands and slaves for their security. The property was afterwards publicly sold, in pursuance of the terms of the deed of trust, and was purchased by Garland, and conveyed to him by the trustees-The family of John D. King was, after this sale, permitted to remain in possession of the property, and one of the slaves was seized in execution under a judgment in favor of Chambers. This possession was alleged to be evidence of fraud, and it is for that cause attempted to render it liable to execution.

On the trial, the court, at the instance of the plaintiff in the execution, amongst other charges, gave the following: “If the jury believe, that the property remained in the possession of. John D. King and his family, and they had the benefit of it, that this is prima facie evidence of fraud, and they must find for' the plaintiff, unless such possession is explained to their satisfaction.” “That when property is sold for any person to another,, there must be a substantial and bona, fide change of possession, and an exclusive possession by the purchaser; otherwise, such sale is collusive and fraudulent, and void as to the creditors of the vendor, unless satisfactorily explained.”

These instructions lay down the rule too strongly against the claimant. It is true, that the general doctrine is now settled, that the possession of property by the vendor, after a voluntary sale, is prima facie evidence of fraud. Sales, under executions publicly and notoriously made, are regarded with nrore indulgence. On this head Chancellor Kent thus states the doctrine : “ The purchaser of goods, under execution, is protected from other executions, though the goods were suffered to continue in possession of the defendant, on the ground, that the transaction was necessarily notorious to the neighborhood, and the execution notice to the world. If the case be free from fraud in fact, it is, under such circumstances, free from the inference of fraud in law. But still the question of fraud; in such cases, is a question of fact for the jury.” 2 Kent, 518. See also Kidd v. Rawlinson, 2 Bos. &. Pul. 59; Latimer v. Batson, 4 Barn. & Cres. 652; 10 Eng. Com. Law Rep. 433; Jezeph v. Ingram, 8 Taunt. 838; 4 Eng. C. L. R. 303.

This doctrine was not sufficiently explained to the jury. The publicity of the transaction took away the presumption of fraud, which would otherwise have arisen. In Latimer v. Batson, above cited, the judge on the trial told the jury: “ that if they thought the sale to the plaintiff was bona, fide, and that the purchase money was really paid by him, he was entitled to a verdict; hut if they thought the purchase money was in reality paid by the defendant in the execution, and the sale to the plaintiff was colorable, they should find for the defendant.” A verdict was rendered for the plaintiff. When the case was determined in the King’s Bench, Bayley, J., said, “ the jury, in this case, were properly directed to give their verdict for the plaintiff, or defendant, according as they should be of opinion that the transaction was fair or fraudulent.”

The same notoriety attends public sales under deeds of trust, as sales under execution, and the same rule should prevail. Leonard v. Baker, 1 Mau. & Sel. 251. In a sale of such character the law does not infer fraud, from the leaving of the property in the possession of the original owner, or his family. Benevolent motives alone may induce the act. The case is to be left to the jury to determine, whether fraud in fact exists, in view of all the circumstances.

This case is clearly distinguishable from that of Rankin v. Holloway, 3 S. & M. 620. True, the sale in that case was public, but it was voluntary. The long possession of the vendor was also a circumstance of much weight; and this lapse of time was a fact of great prominence in the cause. There was also strong evidence of actual fraud.

The judgment is reversed, and a new trial awarded.

In the case of Burr Garland v. Fleming & Bennett, submitted with this, the same decision is made.  