
    James S. Guignard and others vs. Alfred P. Aldrich, and others.
    Evidence— Witness— Creditors — Fraud—Equity.
    Upon the trial of a creditor’s bill, filed to set aside a judgment confessed by the debtor, and certain purchases made by the plaintiff in that judgment of the debtor’s property, at Sheriff’s sale, and for an account from the plaintiff in the judgment, of all moneys received by him on the judgment, and from sales he had made of the property purchased by him, all creditors of the debtor, whether by judgment or simple contract, are incompetent witnesses for the complainants.
    Where the object of a bill, filed by judgment creditors, is to subject equitable assets to their demands, simple contract creditors are incompetent witnesses for complainants — equitable assets being always distributed fro rata among all creditors.
    Permitting the debtor to remain in possession of property purchased at Sheriffs sale, is, of itself, an insufficient badge of fraud, the sale being otherwise fair and unimpeached.
    A debtor having an equitable right to become the owner of property on paying for it, may without the consent of his judgment creditors, waive his equity and consent to a sale of the property to a third person.
    BEFORE WARDLAW, CH., AT BARNWELL,
    FEBRUARY, 1857.
    Wardlaw, Ch. The plaintiffs are, James S. Guignard, Charles Neuffer, Joseph J. Harley and John A. Hayes, judgment creditors of William J. Harley, who sue for themselves and all others who may come in and contribute to the expenses of the suit, and by this bill, filed January 14, 1856, they pursue William J. Harley, Alfred P. Aldrich, John J. Ryan, William H. Peyton, and Joseph J. Harley, as defendants, with the purpose that a judgment confessed by the said William J. Harley to said Alfred P. Aldrich, March 23, 1849, for $15,102 19 may be vacated as a fraud on the creditors of said William J.; and that a judgment confessed by said William to said A. P. Aldrich, J. J. Ryan, W. H. Peyton, and J. T. Harley, March 24, 1849, for $15,000, may be vacated for the same reason, so far as said Aldrich and Ryan are concerned, and upheld as a security for the said Peyton and J. T. Harley and the plaintiffs, J. J". Harley and Hayes as sureties in the ' bond given by W. J. Harley for the faithful performance of his duties as Sheriff; and that purchases of certain lands and negroes of said William J. made by said Aldrich, at sales of the property of said William J., by the Sheriff under executions and mortgages, and other purchases by said Aldrich from one Alex. Smets, of Savannah, of land and slaves once belonging to said William J. should likewise be set aside as fraudulent.
    The pleadings and testimony, all in writing, are of immense extent, requiring from a diligent man a day or two’s time even to read them; and I cannot attempt a synopsis of them, for this would involve a sacrifice of my time and labor more legitimately demanded by other duties.
    The bill has been- dismissed by consent as to J. J. Ryan, who was used as a witness; and this dismissal necessarily involves plaintiff’s abandonment of his prayer to vacate as to Aldrich the judgment in favor of all the defendants, for Aldrich had no interest in that judgment, except in common with Ryan, for the amount secured by a mortgage given to them both for their joint indemnity, as W. J. Harley’s sureties or endorsers upon two promissory notes. The plaintiffs seek' no remedy against the defendants, Peyton and J. T. Harley, and have offered them as witnesses. I shall hereafter speak of W. J. Harley and A. P. Aldrich, as the defendants.
    1. As to the confession of judgment to A. P. Aldrich. This judgment was founded on a bond taken for convenience to consolidate the numerous demands of Aldrich, but a schedule was filed- with it detailing the particulars of claim. It was confessed and entered up after the return-day of a term, and while suits to a large amount were pending against Harley. It appears that Aldrich, becoming alarmed as to his own security and Harley’s solvency by the magnitude of these claims, prepared a statement of his demands and submitted it to Harley, with a representation that the earnings of his life would be wasted if he were not secured as to payments; and that Harley, after retaining and examining the statement, for several days consented to prefer him as a creditor by confessing judgment. The judgment includes two claims, for which Aid-rich had previously some security by mortgages of slaves. In tfieir answers the defendants respectively and explicitly aver that every cent included in the judgment was justly due to Aldrich, and as to most of the items, they make clear proof of the fact. The plaintiffs object that there is no precise proof as to the justness of some of the items, particularly as to judgments and other debts of third persons, said to be paid by Aldrich and assumed by Harley, and that some of the items were out of date at the time of the confessions. These objections have little weight. There is no disproof of Aldrich’s title as to these judgments and debts, and no claim of them by third persons. Defendants swear that Aldrich paid, and Harley agreed to reimburse him for these items, and they were the persons most cognizant of the facts, and primarily and principally interested in adjusting their mutual demands; and their adjustment must bind creditors and all claiming through them, who do not show fraudulent collusions of the parties, which has not been done here. If Aldrich paid these items, he is entitled to be reimbursed; and if he did not pay them, he might still be treated as trustee for the real owners of the moneys, and in their behalf the judgment might be supported. Whether the items were due or not,-the parties supposed them to be due, and were not guilty of any design to magnify and surcharge the sum of the judgment, which, if proved, might have avoided the whole judgment. Bowie vs. Free, 3 Rich. Eq. 403. The fact that a schedule accompanied the judgment, and that it contained such items difficult of proof extrinsically, is strong evidence of the fairness of the transaction, for if the parties had intended fraud, they would, in a natural course, have fabricated bonds, notes, or other evidences of debt susceptible of easy proof. The same remark is applicable, to some extent, to the notes out of date. Harley might have protected himself from the payment of the items, by pleading the statute of limitations, but no principle of equity or ethics required him to -defend himself in this mode from his unfulfilled promises; and his creditors cannot impute it to him as a fault that he acknowledged and revived his unpaid debts. It is further objected, that when some of these debts were contracted Harley was reputed to be embarrassed; but it is of no consequence that Aldrich, in prudence, should not have trusted him, if he did, in fact, extend the credit.
    Again, it is objected that the confession was made without any strict settlement between the parties, and that certain demands on both sides were not brought in to adjustment. The bill contains no -mention of particulars, as to mutual demands, but the answers mention that anote of $300,given by Aldrich to Harley, was considered at the time of the confession, and agreed to be greatly over balanced by unsettled claims of Aldrich upon Harley for professional services. Some proof is offered by plaintiffs of another demand of $475, of Harley upon Aldrich, for the sale of a slave named Sam, as to which defendants give no satisfactory explanation by evidence. But it may be that this sum had been previously settled between them, or that it too was covered by the adverse claim for professional services. At all events there is nó intimation in the evidence that this claim, or the note for $300, was dropped with the view of fraudulently swelling the judgment; and it is quite clear that the parties to a confession of judgment are under no obligation to'have an exact and complete settlement of all outstanding claims on both sides, but may settle and secure in part, and leave other matters to be adjusted in future.
    Again, it is urged that the confession was made while suits against Harley for a large amount were pending. Undoubtedly a debtor may prefer one creditor to another, and if simple preference be intended, without purpose to hinder or defeat other creditors beyond postponing them to the preferred creditor, the transaction is unimpeachable. Where the concurring circumstances indicate a fraudulent purpose, the pendancy of other suits may corroborate the conclusion of fraud, but in itself it is of little weight. Here there is no reason to infer more than the single design to prefer.
    It is supposed to be a suspicious circumstance, that, after the confession, Aldrich kept in his possession and now produces the vouchers of Harley’s indebtedness; but really this seems no more than reasonable precaution on his part. He may have released Harley from these demands when the judgment was taken, although this is not very probable. It is certain that he could not again have recovered these demands from Harley, for not only were they specified in the schedule, but they were merged and extinguished in the bond and judgment. It was natural and conformable to the usual course, that Aldrich should keep these vouchers.
    The whole argument of the plaintiffs-against the judgment proceeds on the assumption that it must be regarded as fraudulent, unless defendants completely demonstrate its fairness. Whereas, the rule in every enlightened tribunal is that fraud is not to be presumed except from controlling circumstances, and that the burden of proof is on the party impeaching. The judgment of a competent tribunal must stand until overthrown by proof.
    It is argued that such controlling circumstances raising the prima facie presumption of fraud, is to.be found here in the relation of client and attorney which had subsisted between Harley and Aldrich. No such ground is taken in the bill, and no proof is given of such relation beyond the naked fact that Aldrich had some unsettled claim on Harley for past professional services. There is nothing in the fact that one has acted as attorney for another in ordinary litigation, not specially affecting a particular estate concerning which they afterwards deal, which disables the attorney from contracting with the 'client or imposes on him the necessity of proving 
      uberrima fides in any particular transaction not otherwise ; assailed than by proof of the relation. The emoluments of the bar would be in a most precarious condition if lawyers were disabled from securing their just compensation by ordinary remedies. All this doctrine, concerning client and attorney, is founded on the principle that the subordinate in the relation should be protected from oppression and injury on account of any advantage taken by the superior from his skill or influence; but where the inferior, as in this case, after full information of his rights, confirms and ratifies the dealing, the interference of his creditors or others in his right is altogether officious and impertinent. This point was more particu- 1 larly pressed in respect to the purchases of Aldrich, but the reasoning applicable both to judgment and purchases, is now stated once for all.
    Finally, it is strongly urged that the judgment is fatally j impaired by certain admissions of Harley before and after the Í judgment, that he owed Aldrich nothing. These admissions ) are proved by Peyton and Ashley, who are judgment creditors j of William J. Harley, and consequently substantially plaintiffs : in this suit, and directly interested in the object and event of ( the suit to increase the fund from which creditors may be paid. The defendants object to the competency of these witnesses and of others in like condition, as Joseph T. Harley, James T. Harley, James Cochran and Jones Williams, and in my judgment on sound principles. In general, a creditor is a ■ competent witness for his debtor; but where he occupies substantially the position of a distributee, and from the insolvency ( of his debtor must look to a specific fund for payment, he is \ not competent to testify, when called by a party in like interest, for the establishment or increase of this fund. He is not ! allowed to swear himself into the means of satisfying his ) demand. This distinction is clearly taken in the case of ( Haseltine fy Walton vs. Madden, 7 Rich. L. 16, and is sup- j ported by all the cases. McCall vs. Smith, 2 McC. L. 375 ; Brown vs. O’Brien, 1 Rich. L. 26S. Nothing to the contrary is ' 
      implied in the cases, I Bail. 473; 3 Rich. 97. This decision affects this case to a large extent, for striking out the testimony of these incompetent witnesses, there is scarcely an adminicle of evidence impeaching the judgment and purchases.
    Harley’s representations, if proved by competent witnesses, could not affect Aldrich’s rights until a fraudulent collusion or conspiracy between them had been established. It is most illogical to reason in a circle that Harley’s admissions prove the conspiracy, and then that the conspiracy being thus proved, his admissions are competent, perhaps conclusive, against his co-defendant. The interest of Harley is with ’the plaintiffs and against his co-defendant, to diminish his liabilities and augment the fund for their satisfaction ; and he cannot be received to effect this before his co-defendant and himself have been Shown aliunde to be participes criminis. This principle includes his letters and written statements as well as his oral declarations. There is no pretence of extrinsic proof of conspiracy.
    Reliance is placed on the fact that Aldrich being called from his seat at the bar during term time, and informed that Harley said he owed him nothing, merely uttered the exclamation pish ! and without further exclamation returned to his employment. In the first place and conclusively, the fact is not proved by a competent witness; but if it were, the course of Aldrich is just such as a busy man of character would be^ likely to pursue.
    After all, the fairness or fraud of Mr. Aldrich’s judgment does not materially affect the main issue of this? case, which is as to the validity of Aldrich’s purchases. If Harley did not owe the whole amount of the judgment, he certainly owed the greater part of it; and of the sum of Aldrich’s purchases, fully paid by him, not more than about $560 (exclusive of the mortgages included, which are hardly assailed even in pre-tence) were justly applied to this judgment; and, at-the utmost, as the Sheriff had full authority to sell from other unimpeached executions and mortgages, equity would not require more than that Aldrich should pay on his purchases the additional sum of $560. Gist vs. McJunkin, 1 McMul. 342; Muchat vs. Brown, 3 Rich. L. 117.
    I am of opinion, however, that Aldrich’s judgment is intact by the impeaching evidence.
    
      2. As to Aldrich’s purchases at Sheriff’s sale. This sale was made under various executions and mortgages, by Sheriff Walker, on September 3, 1849, and included all of the visible property of Harley. Aldrich became the purchaser of lands, negroes, horses and mules, for the aggregate price of $24,824.75, all of which he was compelled to pay to the Sheriff, as applicable to liens superior to his judgment, except about the sum of, $560. The sale under the executions, and one mortgage, was extensively advertised in Charleston, Augusta and Barn-well district, and was attended by a large number of persons, including creditors and their counsel, and some from a distance, engaged in the traffic of slaves. The biddings were animated, and the competition earnest, and the property brought as full prices as are usual at such sales. It is not proved that the sales, although partly made under mortgages of slaves to Aldrich, had been advertised to take place under these mortgages ; but, before the sale, Harley consented in writing (drawn by Aldrich) that these mortgages should be foreclosed by the Sheriff’s selling the mortgaged slaves, and this was necessary to the completion of the title of purchasers of these slaves. Aldrich had urged the postponement of the sales, particularly when advertised for August; representing that the season was unfavorable as money was scarce, and the planters had not sold their crops; but J. M. Harle}' and Dewit pushed the Sheriff forward. The bill alleges that Aldrich’s purchases were made in whole, or part with Harley’s funds; but this is explicitly denied in the answers, and there is no affirmative proof, and much proof to the contrary.
    The sale is directly assailed only on the ground that certain acts and declarations of Harley and Ryan were adapted to chill competition. This ground is not taken in the bill. The testimony as to these acts and declarations comes, mostly, from incompetent witnesses; yet Spears swears that he heard Harley bid at the sale, and that he looked angrily at some other bidder; and G. Sanders swears that lie heard Harley bid and say to the auctioneer, “knock it down,” “ enter it to the same.”
    The Sheriff and other witnesses swear that Harley did not bid, and the fact 'is not clearly established, but if it be, it is a trivial circumstance — his bids augmented the price, and I do not see what impaired his right to bid in common with other’ competitors for the property. Thompson and Ryan were the agents of Aldrich in buying. The exclamations “knock it down,” “to the same,” are just such as frequently come from indifferent spectators in the crowd surrounding the auctioneer on such occasions.
    Besides we have the general fact that competition was not chilled.
    The great stress of the plaintiffs i's on the fact, that after the sale Harley resumed possession and control of the lands and chattels bought by Aldrich. It is insisted that the sale was essentially voluntary, and equivalent to the private, voluntary sale of Plarley to Aldrich, and having the consequence that the debtor’s remaining in possession implied a fraudulent agreement'between him and his creditor before the sale. To. denominate this sale voluntary, sounds like mere caviling. It was made by the officer of the Court under mandatory precepts, at Ihe pressing instance of some oí the plaintiffs in execution. In point of fact the property was not levied upon, nor advertised, nor1 sold under Aldrich’s execution; but the character of the sale would not have been varied if he had not only assented to the sale but urged it to be made. He was as much entitled to the execution of his judgment as any other like.creditor. The prominent reason given for calling the sale voluntary and distinguishing it from other Sheriff’s sales, is that Aldrich had obtained control of most of the liens superior to his execution, and might have had paid the $2,000 necessary to satisfy the clamorous creditors, J. R. Harley and Dewit, as in fact he was compelled to do after the sale. But Aldrich was under no obligation to advance his money to satisfy these creditors, and possibly did not have the present means to pay their claims. The sale must be treated as an ordinary Sheriff’s sale; and the doctrine concerning such sales is well stated by Chancellor Dun-kin in Coleman vs. Bank of Hamburg, in which the defendant in execution was permitted to remain in possession of land sold by the Sheriff. (2 Strob. Eq. 286.) “Since Kidd vs. Rawlenson, 2 Bos. and Pul. 59,it has not been doubted that even chattels, bid off at Sheriff’s sales, may be permitted to remain in the possession of the defendant in execution. The distinction is recognized in Smith vs. Henry, 1 Hill 16, as well as in Martin and Walter vs. Evans, 2 Rich., Eq. 374. It is not 'the voluntary sale of his property by a debtor to one of several creditors, who permits him to remain in possession, thereby implying some secret agreement; but it is a public and forced sale in which all had the opportunity of competition. The purchaser at such sales is protected because, says Chancellor Kent, 2 Corn-519; ‘though the. goods were suffered to continue in the possession of the defendants, yet the transaction was necessarily notorious to the whole neighborhood, and the execution notice to the world, and the cases, being free from fraud in fact, were under these, circumstances, free from the inference of fraud in law.”’
    Even in a private sale by a debtor to his creditor, the fact of the debtor’s remaining in .possession after the sale, is not conclusive of fraud, although that with concurring suspicious circumstances may justify that portion of the Court which determines the facts in inferring fraud. This inference may be repelled by proof of bona fide hiring to the debtor, or something equivalent. Jones and Briggs ví¡. Blake, 2 Hill, Ch. 636 ; Pringle vs. Rhame, 10 Rich. L. 72.
    In the present case, Aldrich and Harley entered into an agreement, October 8, 1849, which was recorded in the Register’s Office, November 17, 1849, whereby Harley was 'constituted the overseer and agent of Aldrich for the management of the lands and chattels bought from the Sheriff, for an indefinite time, at the compensation of ten per ■cent, of the net products of the lumber and timber cut, of the crops made and the stock raised. It is said for the plaintiffs that this agreement contains unusual and suspicious stipulations, such as that Harley should deliver up the property when called for, should send this lumber as directed by Aldrich, and should not contract about the property without Aldrich’s permission. This is really straining for a point. The conveyancer who drew the instrument, testifies that he mainly followed a precedent in Oliver’s conveyancing. The stipulations attacked are merely formal expressions of what may have been implied from the relation of the parties, and do not impress me as being very peculiar.
    It is more strongly urged that Harley did not comply with his covenant to account to Aldrich for the net products of the mills and plantations, and on the contrary appropriated much of the products to his own use in the support of his family, and the payment of his debts, and the purchase of a carriage and mules, and some other chattels. Such appropriation by Harley is to some extent proved, but whether with the knowledge and permission of Aldrich or not does not appear. It may be that Harley, as agent, dealt unjustly with his principal, as Aldrich sometimes complained, or that the parties subsequently modified their agreement of October, 1849. It must be borne in mind, that Harley’s remaining-in possession of the property and dealing with it are unimportant, except as tending to raise the presumption of a compact between the parties before the sale by which Aldrich secured an advantage to himself at^he expense of other creditors, effecting his purchases, by permitting his debtor to remain in possession. If we start our investigation of the case with the foregone conclusion, that there was such fraudulent precon-cert, we may find in trivial circumstances “ confirmation strong as proof from holy writ.” On the other hand, if Aldrich purchased fairly without such preconcert, he could deal with the property as any othqr proprietor, and contract about it at his caprice, and even give away the income or the corpus to his debtor or any other person. The inference of corrupt agreement'from thé debtor’s remaining in possession is deduced for the reason that this course is obviously against the creditor’s interest. Here, however, from the great rise in price , of property since the sale, Aldrich has ample security in the corpus for reimbursement of the price paid by him, and for the balance of Harley’s indebtedness to him ; and he has frequently avowed since the sale that he would be content with such reimbursement. With this view he may have been supine and inexact of late years in requiring strict settlement and full payment from his agent as to the net income. It appears that for some months Harley permitted two young female slaves of this property to be in the employment of his son-in-law, Langley, and upon some contract as to the lumber cut, permitted three or four other of the slaves to cut timber on Langley’s land; that when Aldrich heard of these transactions, he disapproved of them, and resumed possession of the girls and made a new contract with Langley as to cutting timber. It may be that the irregularities of Harley in the management of the property, where not expressly permitted, were without the knowledge of his principal. Aldrich is unskilled in agriculture and milling, and engaged in professional pursuits, requiring steady attention ; and it is proved that his visits are unfrequent even to his Edisto plantation, and his superintendence of it slight and casual, although his attention to Harley’s Mills is even less. The defendants, in their answers, swear that they have made repeated and satisfactory settlements as to the income, of which they have not always preserved the evidence; still it is proved that Aldrich has received large sums of money from the income; and to several of the witnesses of plaintiffs he stated that he had received what was equal to the interest due to him. I con-elude that Harley’s remaining in possession is sufficiently explained, and is quite inadequate to raise the presumption of any corrupt agreement, with Aldrich.
    It is not improbable that Harley may have preferred Aldrich, who had done him many kindnesses, to be the purchaser of' his property, and may have entertained at the time of the sale, some vague and secret expectation of further kindness from him ; and that Aldrich may have wished and purposed at the time of the sale, in consideration of past favors bestowed by Harley upon him, when he was starting in life, further to befriend Harley, so far as consistent with the security of his own interests. But that any engagement or promise was made, and accepted by which advantage was given to Aldrich in effecting the purchase, is not supported by the evidence. Harley and Aldrich sometimes conferred during the sale, at an open window of the Ordinary’s office, near the auctioneer; but it can hardly be questioned that such conference was concerning the condition and value of the property. There really was no motive for any corrupt agreement of these parties, respecting the sale, for no agreement between them would assure any advantage to Aldrich at a public sale, open to the competition of all, and when in fact, the competition was active and produced full prices.
    Reliance is placed by the plaintiffs on Aldrich’s admissions since the sale, of his purpose, after the purchase money, and Harley’s debt to him were paid by the produce of the property, to convey the property for the use of Mrs. Harley and her children. He offered to sell the land to James Patterson, and stipulated that one-half of the profits of re-sale should be settled on Mrs. Harley. Such intention to favor Harley’s family, formed after sale, is totally distinct from an antecedent agreement to pursue such course, and is altogether < consistent with law, morals, and honor. It may afford evidence of Aldrich’s generosity, but not of his fraud. One witness, Bowman, thinks Aldrich stated to him that he would allow Harley to redeem the property, but if the witness has not erred in detailing the conversation, which is not unlikely, it only shows that the parties had modified the overseer’s agreement. Another witness, whom I have, adjudged to be incompetent, testifies that Aldrich remarked to him “ our best friends ■will be first satisfied,” from which the witness inferred the meaning, that the creditors of Harley, favored by Harley and Aldrich, should be first paid ; but the remark is too equivocal to require this interpretation, and it is quite as probable that it referred to loans of Mr. Ayer’s money, managed by Aldrich, about which the parties had been conversing, or meant merely, that Aldrich’s friends would be soonest satisfied of his innocence.
    I am of opinion that Aldrich’s purchases from the Sheriff must stand.
    As to the land and negroes purchased by Aldrich from A. A. Smets—
    It appears that Harley, several years ago, bargained with Norman Wallace for what is called the Isaac’s land at a certain price and applied to Smets, who was his factor, in Savannah, to advance for him the purchase money. This Smets at first altogether declined, but ultimately agreed to pay the price to Wallace, which he did, and take the conveyance to himself and hold the land as security, not only for the price, but for existing and future indebtedness' of Harley to him. In the course of their dealings Harley paid to Smets more money than the price of the land, but was never out of debt to him; and ultimately, on January 27, 1848, Smets obtained a judgment against him, older than Aldrich’s, for about $4,760 75.
    At the Sheriff’s sale of Harley’s property, Smets purchased certain negroes for $4,375, and to obtain possession of them, paid $1,800 towards the James’judgment, which was older than his own. He permitted these negroes to return to the land purchased by Aldrich, and entered into an agreement with Harley, October 18, 1849, for their management, similar to that of Aldrich with Harley of October 8, 1849. On December 1, 1849, Aldrich and Smets entered into articles of agreement, stipulating that the net proceeds of the lumber business conducted on the land, and by the negroes purchased by Aldrich, should be first appropriated to the extinguishment of the balance due on the James’ judgment, and next to repayment of the $1,800 advanced by Smets, and then that the proceeds should be divided between them proportionately to the respective amounts of their purchases ; and further, that if Aldrich paid to Smets within two years, including Smets’ share of the proceeds of lumber, $4,303 91, with interest on $4,200, from the date of the agreement, Smets would convey to Aldrich the Isaac’s land and the slaves purchased by him at the Sheriff’s sale. From the proceeds of rafts of lumber consigned to Smets,'Aldrich paid to him the $1,800, and the $4,303 91 and interest, and on 15th and 28th January, 1852? by separate deeds, Smets conveyed to Aldrich the Isaac’s land and the negroes so purchased. It does not appear what price Aldrich paid for the land, as the land and negroes were jointly bargained for. No plausible objection is made to the purchase of the negroes. Smets, who is examined as a witness by plaintiffs, testifies that he conveyed the land with the approbation of Harley, but neither he nor Harley communicated this fact to Aldrich, and the last avers in his answer, that he had no notice of Harley’s equitable title until after Smets’ conveyance to him.
    It is contended for plaintiffs that there is a resulting trust for the land in Harley, which attached to it, first in the hands of Smets and then of Aldrich, who are to be considered successively as his trustees. It cannot safely be affirmed that there was any resulting trust, at least until Smets’ judgment was satisfied, for there was no investment of H.’s money in the land. I incline to the opinion that Harley might waive this equity, as he did according to Smets’ testimony, and that after this waiver, and perhaps without it, his creditors have no standing in Court to compel the execution of the trust. It is a bald attempt to pursue the debtor of a debtor when the latter claims no demand. Then one cannot be converted into a trustee without notice of the trust, and no notice is fixed on Aldrich until his legal title was consummated, previously to which he had paid the purchase money. I am less firm in my conclusions as to this branch of the case than any other.
    This case was ably and most elaborately argued before me? and many minute' points were discussed which it would be excessively tedious to consider separately. I have mentioned those . which occur to me which are supposed to bear most strongly on the issues between the parties.
    The defendant, Aldrich, formally declines to avail himself of the statute of limitations, preferring, for the sake of his character, that the charges against him should be investigated. Still it is a fact proper for consideration in his behalf, that the plaintiffs sought no relief for more than six years' after his purchases; It is affirmed by the plaintiffs, Guignard and Neuffer? that they did not discover the frauds of which they complain until a time within four years before the filing of their bill; but they can mean no more than that they discovered the supposed evidence of the alleged frauds within four years.
    It is ordered and decreed that the bill be dismissed'.
    The complainants appealed on the grounds :
    1. Because the decree should have set aside and vacated the judgment confessed by W. J. Harley to. A.„ P. Aldrich, for $ 15,102 19, as a fraud .upon said Harley’s creditors.
    2. Because the decree should, upon the pleadings and proofs of the case, have set aside the purchases of W. J. Harley’s property, made by A. P. Aldrich at Sheriff’s sale, as a fraud upon said Harley’s creditors.
    3. Because the decree upon the pleadings and proofs of the case, should have vacated the purchases of the property made by A. P. Aldrich from A. A. Smets, on the ground of fraud on said Harley’s creditors.
    4. Because, at all events, the Isaac’s land, part pf the last named purchase by Aldrich, should have been decreed a trust, in Aldrich’s hands for said Harley’s creditors, and should have been ordered to be sold by the Commissioner, and the proceeds applied to the judgment debts of said Harley. _
    5. Because his Honor, Chancellor Wardlaw, in and by his decree, held that the witnesses who were creditors of W. J Harley were incompetent to testify in this cause, and therefore excluded from his consideration the whole of their testimony, whereas it is respectfully submitted that all of said creditors, who were not parties to this cause, were in law and equity competent to testily for complainants.
    Graham, for appellants.
    
      J. T. Aldrich, Hutson, contra.
   The opinion of the Court was delivered by

Dar&an, Ch.

The first question which would naturally arise in the discussion of this case is that which is made in the fifth and last ground of appeal, and relates to the competency of several witnesses, which the Chancellor, on the circuit trial, held to be incompetent; the correctness of which decision is called in question by this appeal.

This is a creditor’s bill. The plaintiffs, Guignard, Neuffer, Jos. J. Harley, and Hays, in behalf of themselves and all others, the creditors of William J. Harley, who shall come in and contribute to the expenses of this suit, complain that a judgment against the said William J. Harley in favor of A. P. Aldrich, for the sum of $15,102 1.9, bearing date the 9th day of March, 1848, was fraudulent and void against the creditors of the said William J. Harley. They also complain, that on the 3d day of September, 1848, one N. G. W. Walker, Sheriff of Barnwell District, under and by virtue of sundry writs of fieri facias, and in foreclosure of sundry mortgages, offered and exposed for sale, and did sell, at public auction, all of the visible property of the said W. J. Harley, except an inconsiderable portion thereof; that at said sale, A. P. Aldrich became the purchaser of several tracts, of land, which are particularly described in the bill, and of thirty-three slaves that are described by their names, and of horses, mules, &c. The allegation further is, that the purchase by Aldrich of said real and personal property was fraudulent, null and void, by reason of an illegal and corrupt bargain between the said Aldrich and the said Harley, that the said Aldrich should purchase and hold the said property for the benefit of the said Harley, in fraud of and to the injury of the latter’s creditors. This is substantially the complaint of the bill, though there are many and minute specifications of these charges. Inter alia, the plaintiffs pray that the judgment confessed by W. J. Harley to Alfred P. Aldrich for $15,102 19, entered 23d March, 1848, be vacated and set aside, and that the said Alfred P. Aldrich be required to accouut for and pay over to the execution creditors of the said William, J. Harley all moneys heretofore received by him on said judgment, with interest; and that a judgment confessed by W. J. Harley to Alfred P. Aldrich, John J. Ryan, William H. Peyton, and Jos. T. Harley, for $15,000, entered 24th March, 1849, be set aside as to the rights of A. P. Aldrich and John J. Ryan therein, &c. And that the said Alfred P. Aldrich be required to account for and pay over to the execution creditors of the said IV. J. Harley all such sums of money, and the interest thereon, as have heretofore been received by him from sales of any portion of the property aforesaid. They also pray for general relief.

On the trial, for the purpose of substantiating the charges of fraud against Aldrich and Harley, the plaintiffs called a number of witnesses; some of whom were execution creditors, and some simple contract creditors of the said Harley. Their evidence was taken very fully by the Commissioner, under protest, and subject to the objection of their being incompetent. The question as to their competency was raised on the circuit trial, and the Chancellor held them to be incompetent. It is again raised on this appeal, and this Court concurs with the Chancellor.

It seems to me that a bare statement of the case shows the judgment creditors to be incompetent. It is a creditor’s bill, to which any creditor of Harley may make himself a party by application to the Court at any time during the progress of the cause. The prayer of the bill is that the judgment in favor of Aldrich be set aside, and that all the moneys, with interest thereon, which he has received on said judgment, be paid over to the execution creditors of the said Harley; that is to say, to the very parties who are now brought forward as witnesses to prove the fraud by which the judgment in favor of Aldrich is to be set aside, and the money he recovered thereon be paid over to themselves. It is impossible to conceive a more direct interest in the event of the suit. The case is different from the common one of a creditor testifying in favor of his debtor, by which the debtor’s estate may be enlarged, and the probability increased of his being able to pay the debt due to the witness. In that case, the witness is interested more or less, according to the pecuniary resources of the debtor. Such an interest does not exclude his testimony, but goes to his credibility. He has no immediate and direct interest in the event of the suit.

In the same way and upon the same principles, the simple contract creditors of Harley are incompetent as witnesses. If the fraud is established, and the prayer of the bill is granted; if the judgment in favor of Aldrich be vacated, and his purchases declared fraudulent and void, then, as a necessary legal consequence, he would be decreed to account for the mesne rents and profits, and these rents and profits would be equitable assets. And in like manner, if the prayer of the bill in reference to the purchase of the Isaac’s land from Smets be granted, and that land be decreed to be sold for the benefit of Harley’s creditors, the proceeds of such sale would be equitable assets. Equitable assets are always distributed, in this Court, joro rata among all the creditors. The simple contract creditors are allowed to come in on equality with judgment creditors. It is obvious, therefore, that the testimony of- any simple contract creditor, called as a witness to prove the frauds charged in this bill, tends directly to create a fund out of which his own debt would or might be paid. Any witness, therefore, who was a simple contract creditor of Harley was incompetent to testify against the defendants in this case. All the evidence given by the creditors of Harley must be ruled out. And when, in addition to this, all thatjpart of the testimony which relates to the declarations of Harley, which is confessedly incompetent, is also excluded, there is very little left to support the allegations of the bill.

But we are of opinion that if all the evidence hereby excluded, were held to.be competent and admissible, it would still be insufficient to entitle the plaintiffs to the relief which they ask of the Court. Upon the whole evidence, and considering the time, and all the circumstances attending the sale, the Court cannot see otherwise than that the prices were as full and fair as could have been reasonably expected. There is no proof of any interference with the sales on the part of Aldrich. In fact, he endeavored to procure their postponement. It is not shewn that he or any one else endeavored to suppress or check competition. The bidding was full and animated, and the property was knocked down to him, because his bids were the highest. The Court has looked with a scrutinizing eye into the circumstances attending these sales, and has perceived no feature that can, in justice, be considered as casting a reasonable suspicion upon it. Undue weight, in the view of the plaintiffs, has been attached to the fact that Harley reriiained in possession of the property after the sale. In the first place, the principle that the vendors remaining in possession of the property is a badge of fraud, does not apply to Sheriff’s sales, as has been shewn in the Circuit decree. Conceding the sale to»have been fair, and the prices full, and at that conclusion we have arrived, what mischief or injustice is there to any one, if the defendant in execution is permitted by the purchaser to> resume the possession of the property which has been sold ? Suppose it to have been proved that Aldrich, before the sale, had said to Harley, that if he purchased his property he would let him have it back, and give him an opportunity of redeeming it; and that after his purchase he had fulfilled this promise and agreement; and Harley had, accordingly, resumed the possession of his property — the sales being otherwise fair, and the prices adequate, where is the fraud or vice of such an arrangement ? My impression is, that such arrangements at the calls of friendship, are not at all infrequent, nor condemned by any legal or moral obligation. In this case the bids of Aldrich were all accounted for and paid in to the Sheriff, and by him have been distributed and applied to the-executions, according to their priority. None of the execution creditors whose executions have been satisfied, can or do complain; nor have those whose executions have not been reached, a right to complain, provided the sale was fairly conducted and the prices full. These propositions are not controverted, but it is contended that the fact that Harley after the sale went immediately into the possession of the whole property purchased by Aldrich, being nearly the whole that was sold, raises an irresistible presumption that Aldrich’s purchases were paid for by Harley’s funds. There might be considerable force in this assumption, if it had been shewn that Harley had the possession or control of funds sufficient to have carried out such a fraudulent arrangement, and that Aldrich had not. In the first place, Aldrich and Harley answering to the pointed interrogatories of the plaintiff’s bill, positively deny that the purchases of Aldrich were effected by any pecuniary aid from Harley. It is not shewn that Harley, had the necessary funds for such a scheme. The presumption is the contrary. He would not willingly have suffered this total wreck of his fortunes to have taken place, and himself and family reduced to a state of dependence and beggary. It . further appears that Aldrich obtained the legitimate control of some of the executions, on which the proceeds of the sale would apply, and by the assistance of friends, raised funds to a sufficient extent at least, to repel any necessary or probable inference that his purchases were paid for by Harley’s money.

A vehement effort has been made to shew that the confession of judgment by Harley to Aldrich for $15,102.18, is fraudulent. This Court perceives no reasons for believing that this judgment was based upon fictitious considerations. The plaintiffs have purged the defendants consciences by an answer, on oath, to their charge of fraud in this respect. Both Aldrich and Harley, on oath, have denied the allegation of fraud. So far from the answers having been impeached by two witnesses, or by one and corroborating circumstances, they have been strengthened by the investigation. The particulars of the schedule filed with the confession, as being the consideration of the note on which the confession was given, have been verified to a considerable extent. Nor have thex plaintiffs been able to disprove that schedule in a single particular. It is shewn by an unimpeachable witness that Harley was reluctant to give the confession. When first appealed to by Aldrich, he hesitated. He expressed surprise at the magnitude of Aldrich’s aggregate demand. Without consenting or refusing, he took time to consider, and several days afterwards gave the confession. This is totally unlike the conduct of two confederate parties, concocting a fraudulent, confession of judgment to defeat just creditors.

In regard to the question made in this appeal concerning the transaction of Aldrich with Smets about the Isaac’s land, I deem it necessary to add very little to what has been said on this subject in the circuit decree. I do not perceive that there was any resulting trust, as the plaintiffs contend; for the land was not bought "with Harley’s, but with Smet’s funds. But I j I do not think that this view about the resulting trust is very \ material. Harley certainly had an equity to demand a title ,* from Smets on discharging the equitable claims of Smets. Before he could have a right to demand a title from Smets, he \ must not only have paid up the purchase money in full, but all claims of Smets against him on account. This was Harley’s equity; call it a resulting trust, or by any other name It was a mere right of action, like any other chose. It was not bound by the executions, nor subject to any other liens. Unfettered by liens of any kind, it was entirely subject to Harley’s control. He had a right to waive, and did waive his equity as against Smets, and consented that the latter should convey the land to Aldrich. This is fully established by the ^testimony of Smets. The price paid by Aldrich for the land was about 11,800; how much less than its value does not appear. I cannot perceive any fraud in this transaction.

It is not my purpose to follow the learned and ingenious counsel of the'plaintiffs through all the minutiae of his zealous and protracted argument. It is not necessary that I should do so, nor would it be profitable. Suffice it to say that this Court concurs fully with the Chancellor who heard the cause on circuit in the views which he has taken.

It is ordered and decreed, that the circuit decree be affirmed, and the appeal be dismissed.

Dunkin and Wahdlaw, CC., concurred.

Appeal dismissed.  