
    Simeon Stovall vs. The Farmers and Merchants Bank of Memphis.
    Where personal property is purchased at sheriff’s or marshal’s sale, and is left by the vendee in the possession of the defendant in the execution, in whoso possession it is permitted to remain for two years or more, the facts will be at least prima facie fraudulent as to creditors.
    Where a witness swears positively one way, 'and facts and opposing circumstances conduce to establish the opposite, and the jury find against the positive swearing of the witness, the court will not disturb their verdict; as the credibility of the witness is exclusively a matter for the determination of the jury-
    Statements of persons not parties to the suit, when they constitute paTts of the res gestee are evidence, though not made in the presence of the party to be affected by them ; as where J., a judgment debtor, was about to have his property sold under execution, and tried to make an arrangement with Q. to buy it for his (J.’s) benefit, but Q, not being willing to buy, proposed to S. to do it, and S. afterwards bought the property ; it was held, in a proceeding against S. to subject the property thus bought to J.’s debts, that the statements of Q. made to different bidders at the time of sale, that S. was buying for J.’s benefit,, whereby they were deterred from bidding, were competent testimony, even though not overheard by S.
    The statement of one conspirator in a fraudulent design is evidence against his co-conspirator; as where A., and B. and C. have united to defraud the creditors of C., by purchasing in his property at sheriff’s sale in the name of B., but really for C.’s benefit; the statements of A., made at the sale to prevent competition, and to enable B. to buy the property low, that B. was buying for C.’s benefit, are competent testimony in a proceeding against B. to subject the property to C.’s debts.
    Where S. purchased the property of J., under execution against him, and Q., by connivance with J. and S., induced persons not to bid for the property, whereby S. purchased it for two-thirds of its value, by which J. was to be benefited, the whole sale will be fraudulent and void as to the creditors of J.
    If a purchaser at sheriff’s sale, by a fraudulent combination with the judgment debtor and others, is enabled to purchase the property of the judgment debtor for less than it is really worth, the benefit of which the judgment debtor is to reap, the whole sale is fraudulent and void as to the creditors of the judgment debtor ; and even though the purchaser has paid his own money at the sale, he will have no right to retain the property purchased as a security for the money he has paid.
    Where a fraudulent combination is entered into to defeat the claims of creditors of a judgment debtor, there is no difference, between those who form the design, and those who afterwards enter into it with a knowledge of its character, and aid in carrying it out; all are equally affected by the fraud.
    In error from the Tallahatchie circuit court; Hon. Francis M. Rogers, judge.
    Seven negro slaves having been levied on by the Farmers and Merchants Bank of Memphis, as the property of Edmund Jenkins, their judgment debtor, Simeon Stovall made affidavit that they belonged to him.
    A claimant’s bond having been executed, an issue to try the right was made up in the Yalabusha circuit court; but the venue was changed afterwards to Tallahatchie county, where, in June, 1846, a trial was had. and verdict and judgment rendered for the plaintiff in the execution.
    On the trial, as appears by the bill of exceptions, the following facts were elicited:
    After reading his judgment, execution and levy, the plaintiff in execution proved by the sheriff, that when he levied on the negroes in controversy,-which was on the 8th of January, 1843, he found them in the possession of Jenkins; that he refused to levy on the negroes for the plaintiff until he was indemnified, because he knew, and it was known generally in the neighborhood, that Stovall had bought the slaves,previously, both under a sheriff’s sale made by the witness, and under a marshal’s sale made by the marshal of the circuit of the United States.
    It was admitted that Stovall had bought the slaves at the marshal’s sale, and received from him a bill of sale for them. The sheriff also proved on behalf of the claimant, that he was present at the marshal’s sale, and saw Stovall count out the money and pay the marshal for the negroes.
    The claimant then called Edmund Jenkins, the defendant in the execution, who stated, that after the purchase by Stovall at the marshal’s sale, he hired the negroes to the witness. That Stovall bought with his own funds; none of the money having been, either directly or indirectly., furnished by the witness. That he had paid no part of the hire to Stovall, having been preventéd by his crop being taken to pay other creditors. That he had paid neither the first nor second year’s hire; but had delivered all of the negroes bought by Stovall to him during the previous winter, except three which Stovall had sold to his wife on credit. That the contract of hire was made in good faith, and was generally known in the neighborhood.
    On cross-examination, he stated that the marshal’s sale was made in March, 1844; on the day of sale he had made an arrangement with William Quarles, that Quarles should buy the negroes, and allow the witness until the ensuing June to redeem them; this arrangement was not made to defraud his creditors, but to enable him the better to pay them, as he really hoped to be able to redeem the negroes with money which he hoped to get from a debtor of his in Hinds county. That at the sale Quarles declined to buy, saying that he was afraid the negroes were going too high; Stovall, who married the niece of the witness, bought the negroes; previous to the sale he had made no agreement whatever with Stovall that he should purchase the property, and no arrangement between them whatever was made until after the sale, when Stovall informed the witness that he would do as well with him as Quarles would have done; and he then agreed with Stovall that he should hire the negroes, and have the right of redemption by paying him the purchase-money by the first day of June thereafter; this was the only agreement he and Stovall had made.
    R. Robson proved that shortly after the marshal’s sale, Sto-vall came into his counting-room angry and excited, and stated that after having bought Jenkins’s negroes with his own money, the sherifi'was about to take the money under an older execution ; that he had bought the negroes for Jenkins’s benefit, and allowed him the privilege of redeeming them, but did not want to get into any difficulty about it.
    On cross-examination, he stated that the only benefit for Jenkins of which Stovall spoke was the right of redemption.
    
      Bullock stated that he was present at the marshal’s sale, and saw Quarles and Stovall together, and heard Quarles tell Sto-vall that he was afraid to purchase, but that he would bid off the property in Stovall’s name for the old man Jenkins’s benefit. That Stovall made no reply to Quarles, either assenting or dissenting, but afterwards bid off the property in his own name.
    Mr. Staton, a witness for plaintiff, stated that he attended the marshal’s sale to purchase negroes, and made one bid against Stovall; Quarles instantly came to him and requested him not to bid, that Stovall was buying the negroes for old man Jenkins. Stovall was standing four paces distant; he could not tell whether Stovall heard or not; the’ remark was made in the usual tone of speaking, and it might have been heard at that distance.
    The same facts as to Quarles’s statements and prevention of bidders were proved also by Harvey and King; the latter also testifying that such was the common rumor in the crowd.
    The statements of Quarles were excepted to.
    One Dorn proved, that the negroes sold for greatly less than their value; and that on the day subsequent to the sale, he offered Stovall what he bid for the negroes, and to pay another execution of about six or seven hundred dollars against Jenkins; this Stovall declined, stating, that if any one was to make anything by the transaction, he desired his uncle Jenkins to do it. In the same conversation, Jenkins stated that Stovall had bought the negroes for his benefit, and he was to have till the first of June to redeem them in.
    Jenkins, on re-cross-examination, stated, that at the sale he requested several persons not to bid, and that Quarles did the same thing; that the negroes were worth about twenty-two hundred and fifty dollars, and sold for twelve hundred and eighty. Other witnesses testified to the same thing as to the value of the slaves.
    The court, on motion for the plaintiff in the execution, gave the following instructions to the jury: 1. If Simeon Stovall purchased the negroes in controversy in a manner to operate as a fraud upon the other creditors of Jenkins, the said negroes are still liable to plaintiff’s execution.
    
      2. If they believe from the evidence that there was an agreement between Jenkins, Quarles and Stovall, to purchase the negroes for the benefit of Jenkins, or between Jenkins and Quarles, and Stovall afterwards became a party to it, and in carrying it into effect they induced persons not to bid for the negroes under the belief that Jenkins was to be benefited by the purchase by Stovall; and in consequence thereof the negroes did not bring by one-third their real value, Stovall acquired his title in a fraudulent manner; and if so acquired, it is void as to Jenkins’s other creditors.
    3. If Stovall purchased the negroes in controversy with a meditated intent to defraud Jenkins’s creditors, he has no right to retain the same as a security for money he may have paid for the said negroes.
    4. Fraud may be imputed to the parties, either by direct cooperation in the original design at the time of its concoction, or by constructive cooperation from notice of it, and carrying the design from such notice into operation.
    The counsel for the claimant asked the court to instruct the jury,
    1. That the purchase of the negroes at the public sale is not void, unless they believe from the evidence, that Stovall purchased in pursuance of a fraudulent agreement by Stovall with Jenkins, to hinder, delay and defraud the creditors of Jenkins. (This was given.)
    2. That any act by which bidders were deterred from purchasing the property, and which prevented the property from bringing a fair value, did not render the sale void unless it was done with intent to hinder, delay, and defraud the creditors.
    This the court refused to give, but made a qualification that it does not render the sale void, unless it had the effect, or was done with intent to hinder and defraud other creditors.
    The claimant moved for a new trial; 1st, because the verdict was not sustained by the evidence; 2d, the court erred in admitting the acts and declarations of others; and 3d, in giving the charges to the jury. The motion was overruled, exceptions signed, and this writ of error prosecuted.
    
      Sheppard, for the plaintiff in error.
    1. The court erred in the first instruction.
    It is the corrupt and fraudulent intent to hinder and delay other creditors, and not the consequence which may result, that vitiates the sale under the statute of frauds.
    The result or consequence may be regarded as the medium of proof, from which, in a proper case, the intent may be inferred by a jury.
    2. The second instruction given is also erroneous.
    The expression used by the court in this instruction, “if Stovall purchased for the benefit of Jenkins,” must be considered in reference to the nature and character of that benefit, as disclosed by the proof.
    If it had been intended as a secret benefit and trust, that the purchaser should have the legal title, and the debtor all the advantages which would result from his absolute ownership, the charge would be correct. But this is not the view in which it was given by the court, and received by the jury.
    The charge as applied to the facts of this cause, in effect determined that an agreement 'on the part of the purchaser at judicial sale, to allow the debtor to redeem the property by repaying the purchase-money, would render the sale Void under the statute of frauds, if in consequence of such agreement the property did not sell for a fair price.
    Such circumstances, with other proof, might be regarded as indicia of fraud, but surely could not warrant the court to charge the sale per se void.
    3. The court erred in allowing the acts and declarations of Quarles and Jenkins to be offered in evidence against Stovall. There is no proof of that common design and conspiracy, which would make the act of one the act of all.
    Jenkins states positively that he had no agreement or understanding with Stovall until after the sale.
    Quarles’s conduct may be explained by a desire on his part that Stovall should get the property, believing that he would more readily assent to the desire of Jenkins to have an opportunity to redeem.
    
      Lastly, the proof does not warrant the conclusion of fraud to delay creditors.
    The possession of Jenkins is explained, and was consistent with the contract to redeem and pay hire. The character of the possession was notorious in the neighborhood, and the sale was public.
    Stovall purchased with his own funds. The agreement to allow Jenkins to redeem was open and public, and there was no concealment from any one, on the part of Stovall,- of the true nature of the transaction.
    These circumstances all repel the presumption of a fraudulent intent to hinder and delay other creditors; and they are strengthened by the positive testimony of Jenkins, who denies the existence of such intent, but states that he acted in good faith, and expected to have been able to redeem the property.
    -, for the defendant in error.
    1. On the first point, the admission of Quarles's statement, the proof is conclusive of a conspiracy or fraudulent combination. His acts and conversations establish most conclusively that he was acting for his uncle Edmund; that he was aiding him in a fraudulent purpose to screen his property from the payment of honest debts. The combination may be proved either by direct and positive evidence, or from circumstances. The evidence here is positive and circumstantial. As to proof of conspiracy or fraudulent combination, see 2 Stark. Ev. 400 — 403.
    The act of one conspirator may be proved to be the act of all. The admission of one is good against the others; each is the agent of all the rest. 2 Ibid. 403; 3 Serg. & Rawle, 222.
    “ Whatever is done in pursuance .by any one of the parties concerned the act of all. Tappan v. Poiuers,
    of a fraudulent combination in it, may be averred to be 2 Hall, 277.
    We will next proceed to notice the second question, whether the purchase and disposition of the property operated as a fraud on Jenkins’s creditors.
    2. Was this purchase, then, fraudulent? 1st. It was a fraud upon the public in preventing competition. 2d. It was a fraud upon Jenkins’s creditors. Suppose there had been no combination to purchase at a great sacrifice at the marshal’s sale for the benefit of Jenkins, what would have been the consequence? Harvey, Staton, King and others, who went to the sale, would have given full and fair prices for the negroes; and the marshal instead of selling four to pay his execution, would have only sold two. Does not, therefore, this claimant take two negroes from Jenkins’s creditors, which he at a fair sale could not have taken ? The fraud is perfectly clear and conclusive. Jenkins held possession after the marshal’s sale until the levy of the bank’s execution ; this is fraudulent. See Fonda v. Gross, 15 Wend. 628.
    Fraud is a mixed question of law and fact; and the jury are called upon to draw a conclusion from equivocal facts and suspicious circumstances. 7 Cow, 301. The pretended contract to hire the negroes by Jenkins, is too suspicious to be regarded. The proof is conclusive that Stovall purchased for Jenkins; of course the latter was not to pay hire. It was a mere stratagem to keep up appearances, and to mislead the public. A bidding for the defendant at sheriff’s sale is fraudulent, and renders the sale void.
    The third question now presents itself, whether the claimant by his fraudulent acts, acquired a lien upon the negroes for his money advanced. If he advanced his money to aid Jenkins ' in hindering, delaying or defrauding his creditors, he can claim no relief. The question is, whether he has been guilty of fraud; not how much he paid for the luxury, and to what extent he shall be rewarded. If he advanced his money to accomplish a fraudulent purpose, in which he had no interest, so much the darker the transaction; it proves his native love for the particular vocation; and while we could mitigate the offence on the part of one who was a mere volunteer, without paying for the enjoyment of the luxury, we would feel wholly at loss to excuse a man whose natural propensity prompted him to a prodigal expenditure of his means, for the mere gratification of an evil disposition.
    If the claimant advanced his money to aid another in a fraudulent purpose, he can claim nothing for his advance. 2 Peters’s Dig. 364, sect. 47. Bean v. Smith, 2 Mason’s C. C. R. 252.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

This case originated in the circuit court in a trial of the right of property, consisting of slaves, which had been levied on by the sheriff under an execution in favor of the defendants in error against Edmund Jenkins et al. The points presented for our determination, arise out of a motion for a new trial made by the claimant, against whom the jury had found a verdict, to the overruling of which a bill of exceptions was taken. A new trial was asked because the verdict was contrary to the evidence, — because the court permitted improper evidence to go to the jury, — and because the court erred in the instructions to the jury.

We cannot interfere with the verdict on the first ground. It seems that the same property had been sold by the marshal as the property of Jenkins. Stovall became the purchaser at that sale, but left the property in Jenkins’s possession for two years or more, and then it was found by the sheriff when he made this levy. This, was, at least, prima facie fraudulent as to creditors. To rebut this prima facie case, the claimant introduced Jenkins, the defendant in execution, and other witnesses were also introduced on both sides. The testimony is somewhat conflicting. The object was to prove the purchase of Stovall at the marshal’s sale to have been fraudulent, and, although Jenkins testified to its fairness, and claimed to have held possession of the slaves by a contract for hire, yet many of the other witnesses disclosed facts and circumstances strongly conducing to establish the fraud. It is perfectly obvious that the credibility of Jenkins was questioned by the jury. They had a better opportunity to decide that question than we have, and it was a question exclusively for their determination.

In the next place was improper evidence admitted 1 The objectionable evidence consists in declarations and statements made by one Quarles, who was not sworn. It seems from, the testimony of Jenkins, that he had made an arrangement with Quarles to buy the negroes, and that he should be allowed to redeem them; Quarles, however, on the day of sale, declined to buy the negroes. Bullock, a witness who was present at the marshal’s sale, stated that he saw Quarles and Stovall together, and heard Quarles tell Stovall that he was afraid to purchase, but that he would bid off the property in the name of Stovall for Jenkins’s benefit. Stovall made no reply of assent or dissent, but afterwards bid off the property in his own name. Another witness went to the marshal’s sale to buy negroes, and made one bid against Stovall, when Quarles instantly came to him and requested him not to bid, as Stovall was buying the negroes for Jenkins. The witness did not know that Stovall heard the remark, though he was about four paces off, and the remark was made in the usual tone of conversation, and might have been heard at that distance. Another witness went to the sale for the purpose of buying a certain negro boy, but was requested by Quarles not to bid, as Stovall was buying the property for Jenkins’s benefit, in consequence of which he did not bid; he thought the negro worth $600, and would have given that sum. A similar request was made by Quarles to another witness. The property, it seems, sold for much less than its value. It is true, as a general rule, that mere hearsay is not to be admitted as evidence, but the rule is subject to many exceptions, some depending on necessity, and others depending on a privity of interest; and there is also another class in which the declarations or statements of third persons are admissible when they constitute the res gestee, which is clearly the case in this instance. An effort is made to establish fraud in the marshal’s sale. It bears one of the most conclusive badges of fraud, the permitting of the property to remain in possession of Jenkins. Quarles was instrumental in bringing about that result. By holding out that Stovall was purchasing for Jenkins’s benefit, he induced others not to bid. He was an accomplice in the design of Stovall and Jenkins, if it was fraudulent. His acts constituted part of the res gestee. His exertions were made whilst the sale was going on, and in law and in design they were fraudulent as to other creditors of Jenkins. They constituted parts of the transaction, on which the rights of the execution creditors must turn. The statements of a person who has participated in an act, are not considered as mere hearsay, but as legitimate evidence of the act done. After a very careful examination of this question we think the authorities fully sustain us in holding that the evidence was properly admitted as part of the res gestee. Phelps v. Foot, 1 Conn. Rep. 387; Pool v. Bridges, 4 Pick. 378; Babb v. Clemson, 10 Serg. & Rawle, 419; Claylor v. Anthony, 6 Rand. 285; Willies v. Farley, 3 Carr. & Payne, 395.

But such testimony is admissible as the statement of a co-conspirator in a fraudulent design. Jenkins had first engaged Quarles to buy the property and allow him to redeem it. This he declined to do on the day of sale, but proposed to Stovall that he would buy in his (Stovall’s) name, and as a proof that there was a preconcerted plan, he prevented others from bidding, by assuring them that Stovall was bidding for Jenkins’s benefit. He made this statement to one witness in hearing of Stovall, or at least so near to him that he might have heard it, and most probably did. When the combination or conspiracy is established, the declarations of one are evidence against the others. 2 Cowen’s and Hill’s notes to Phillips, 177, Note 180.

We come then to the charges given by the court to the jury. The first was that if Stovall purchased the negroes in a manner to operate as a fraud upon the other creditors of Jenkins,” the negroes are still liable to the plaintiff’s execution. We cannot be precisely certain as to what idea was here intended to be conveyed. It must be very clear' that the purchase could not “operate” as a fraud unless it were fraudulent in fact, or in law. A purchase for an under value would not necessarily “operate” as a fraud, although other creditors might be the losers. The charge in substance amounts to nothing more than this, that if the purchase was fraudulent, it was void. We can give it no other construction, although it seems possible that it was intended to have some other bearing.

The court also charged the jury that if there was an agreement between Jenkins, Quarles and Stovall to purchase the negroes for thebeneíb of Jenkins, and if, in carrying the agreement into effect, they induced persons not to bid, so that Jenkins might be benefited by the purchase, and that in consequence thereof the negroes did not bring by one-third their full value, Stovall acquired his title in a fraudulent manner, and if so acquired it is void as to other creditors of Jenkins. It cannot be questioned that a purchase under such circumstances is fraudulent as to creditors. Such an understanding as that mentioned in the charge, amounts to a combination to prejudice or defeat the just rights of creditors, and is consequently fraudulent as to them.

In the third place the court charged that if Stovall purchased with a meditated intent to defraud Jenkins’s creditors, he has no right to retain the negroes as a security for the money he may have paid. This, as a legal proposition is undoubtedly true. A fraudulent intent vitiates a purchase made in consummation of the design, as against creditors. We know of no rule which gives a lien under a fraudulent contract. Every one who engages in a fraudulent scheme forfeits all right to protection either at law or in equity. The law does not so far countenance, fraudulent contracts as to protect the perpetrator to the extent of his investment. This would be to hold out inducements to engage in schemes of fraud, as nothing could be lost by a failure to effectuate the entire plan. It would seem, from the testimony of Jenkins, that Stovall paid his own money for the negroes, and if so it is a hard case on him, but he is not entitled to relief. The jury, who were the proper judges of the matter, found that the contract of Stovall was fraudulent; if so it was void, and cannot constitute the foundation of a lien. To sanction such a lien would in effect carry out and sustain the design, as it would defeat the rights of creditors by postponing them until the lien was satisfied. This would be to give preference to a fraudulent creditor over an honest one.

The lqst charge given at the request of the plaintiff in execution was that fraud may be imputed to the parties either by cooperation in the original design, or by constructive cooperation from notice of it, and from carrying the design into operation with such notice. There is no difference between those who formed the design and those who afterwards enter into it, with a knowledge of its character, and aid in carrying it out.

The charges which were asked for the claimant were in substance given. The court gave one with a qualification ; but the modification does not vary, in substance, the charge as it was asked. It might as well have been given in the words asked, as the court did-not change the sense.

It is worthy of remark on ,the whole case that there are other circumstances, besides those mentioned, which tend strongly to show that the verdict was not contrary to the evidence, but that the jury had at least strong circumstantial evidence to warrant their finding. For instance, it appears that Stovall declared after the sale that he had bought for Jenkins’s benefit. Another witness stated that if there had been no understanding that the property was to be purchased for Jenkins’s benefit, it would have sold for better prices, and that but for bids made by the marshal, it would have sold lower.

Let the judgment be affirmed,  