
    
      A. M. Caston and wife v. Joseph Cunningham.
    
    Where one disposes of his property by a voluntary deed, and afterwards sells the same property to one who had no notice of the gift, for a valuable consideration, the gift is void.
    The defendant purchased several negroes, which had been levied on, from one who had previously, by a voluntary deed, given them to another, reserving the life estate. The defendant had no notice of the deed, and the money paid by him for the negroes had been applied to the satisfaction of the executions against the donor — held that the defendant had a right to stand on the footing of the creditor whose debt he had paid, and that as to him the deed was therefore void.
    
      Before Evans, J. at Kershaw — Fall Term, 1847.
    This was an action of trover to recover a negro woman named Charlotte, and her three children. The negro woman had once been the undisputed property of one Dicey Caston^ of Lancaster district. On the 3d of February, 1834, she made a voluntary deed, whereby she gave the woman Charlotte to the plaintiff, Eliza Caston. By the same deed she gave another negro to her daughter,' Mrs. Beckham, and five other ne-groes to her daughter Harriet, who married one James Se-crest in 1841. Dicey Caston was the administratrix of her husband, William Caston, whose estate had been divided about 1826. She was also the guardian of her daughter Harriet, and as such, received the profits of her estate. This estate consisted of three negroes and a distributive share of land, which was sold, and Harriet’s share, $525, paid to her guardian. On the 1st of May, 1834, Dicey Caston also received the further sum of §750 for the sale of one of her ward’s ne-groes. In 1842, Secrest and wife filed a bill against the guardian for account, and the Commissioner reported as due for the hire of the negroes, the amount received for the land and negro, with interest, the sum of §4,567. It appeared that no answer had been put in, but Dicey Caston attended the reference and expressed her satisfaction with the report, which was confirmed by the Court. At the death of William Cas-ton, Harriet was very young, and had been raised and educated by her mother, who had manifested a partiality for her, beyond her other children. On the accounting before the Commissioner, no charge was made for the expense of Harriet’s maintenance and education, which the witnesses thought could not be estimated at less than about §1200. On the decree above stated afi.fa. issued, which was levied on all defendant’s property, including the negroes embraced in the deed of gift of 1834. All except Charlotte and her children were sold, making in number 14. Of these, Secre'st purchased 12. There was no specification of the prices paid for each, or any description of them. The witnesses stated generally, that those bought by Secrest did not bring within 7 or $800 of their value, but that it was a fair public sale. The defendant, Dicey Qaston, then, and up to the time of her death, in 1845, lived with Secrest and wife, and expressed no discontent that her property had been sold. This sale was in October, 1842. When Charlotte and her children were offered by the sheriff, the plaintiff forbid the sale; within a short time after this, Dicey Caston carried off Charlotte and her children into Ker shaw district, about 20 miles, and offered to sell them to the defendant, who owned a plantation in Alabama, and was then preparing to start with a small gang of negroes to that State. The defendant declined to buy, as the negroes were not sueh as he wanted; she insisted that he should buy them, and after various offers, agreed to take 550 dollars, at which price the defendant bought them, and immediately afterwards, sent Charlotte and her youngest child to Alabama; the child, which had been badly burnt, died the next day. The other two children he kept at home. It did not appear that he'was informed of the existence of either the deed of gift or of the fi. fa. and levy.
    The deed of gift is in the ordinary form, giving in consideration of natural love and affection. The habendum of the deed is to them and “ the heirs of their bodies forever,” and-should either of my said daughters die without leaving issue of their bodies, then to the survivors, and if all of them should die without leaving issue of their bodies, then to her other children. To this was added a proviso that the donor should have the use and possession during her life, with a right to remove them to another State, which she then contemplated. This deed was recorded the day after its execution, in the Clerk’s office at Lancaster. At the time of its execution, the donor was not much in debt beyond what she owed her daughter Harriet, so far as the witnesses knew. She was not much sued, and she had some land and six or seven negroes over and above what she gave by the deed to her children. But in the winding up oí her affairs in 1842 by the sheriff’s sale, there were executions against her older than Secxest’s, to the amount of between eight hundred and one thousand dollars, and there were younger executions to the amount of five hundred dollars. After the sale of all her property, there remained unsatisfied near $2,000 of the decree in Secrest’s case, besides the junior executions.
    After the death of Dicey Caston, in 1845, the plaintiff, Eliza Caston, demanded the negroes. The defendant manifested great solicitude to settle the matter and avoid a lawsuit. He was an old man, and this was said to be the first suit he had ever had. He'offered to give her five hundred dollars, which she agreed to accept, but he afterwards declined, unless he could be indemnified against the claims of Mrs. Cas-ton’s children under the deed. — This he did by the advice of his attorney. At the time of the sale, the woman Charlotte and her children were worth, as the witnesses thought, more than the price ($550) which the defendant paid for them. One witness said they were worth $700, and another $850. Of the money received from the defendant for the negroes, Dicey Caston paid $300 into the sheriff’s office: $100 was paid to M. Clinton on account of fees which she owed him, and the rest the witness said he supposed she applied to the payment of her other debts.
    The first question made in the case was whether the deed could operate otherwise than as a testamentary paper. The Circuit Judge says he was somewhat inclined to take that view, but was not disposed to arrest the case without a full examination of all the authorities, which he had no opportunity of making. He therefore refused the defendant’s motion for a non-suit, and sent the case to the' jury on the other points. These were: 1. Was the defendant protected as a subsequent purchaser without notice, and for a valuable consideration? 2. Was he protected as one standing in the relation of a creditor? On the first point, he told the jury that in general, where one disposed of his property by voluntary deed and afterwards sold the same property to one who had no notice of the gift, for a valuable consideration, the gift was void. He did not lay this down as a rule of law, but said it was a reasonable inference, that the gift had been made with the intent to perpetrate the fraud which was afterwards effected. The fact that the price paid was something less than the real value could not affect the question in any other way than that it might be evidence (as was argued,) that the defendant knew of the gift, and consequently obtained the ne-groes at an under value. On the second point, he charged the jury, that if they believed the money paid for the negroes had been applied to the payment of Dicey Caston’s debts, then he thought the defendant had a right to stand on the footing of the creditor whose debts he had paid. — As regards creditors, the jury was instructed that there was a difference between subsequent creditors and creditors existing at the time of the gift. In relation to the former, a gift was not void unless made with intent to defraud, and with a view to future indebtedness; but as to the latter, the deed was void, because its necessary effect was to defraud a creditor. This was the general rule, but there might be exceptions growing out of the particular circumstances of the case, as where a very small amount remained due, and the donor’s estate was very ample, but had been absorbed by junior creditors, who had got a preference by bringing their actions first.
    Under these instructions, with a full review of the facts of the case, the jury found a verdict for the plaintiff for $458, which was less than half the present value of the negroes. Mr. Clinton, the plaintiff’s attorney, in the course of his argument, told the jury that the plaintiff would be satisfied "with what the defendant had once offered to give her ; she was willing that what the defendant had paid to her mother should be deducted from the value of the negroes.
    2 St b E ro '
    The defendant renewed his motion for a non-suit in the Court of Appeals, or for a new trial, on the following grounds:
    1. That his Honor charged the jury that the deed under which the plaintiff's claimed was good in law.
    2. That the defendant being a subsequent purchaser, without notice, for a valuable consideration, and his money having gone to pay executions against the donor irnthat deed, he, the defendant, was in the position of a subsequent creditor without notice, and consequently, the deed as against him was invalid.
    3. That the defendant, at the time of purchase, had neither constructive nor actual notice of the deed to plaintiff.
    4. That the verdict of the jury was directly contrary to the law and evidence, and clearly against the instructions of his Honor.
    
      John DeSaussure, for the motion.
    
      Clinton and Hanna, contra.
   Evans, J.

delivered the opinion of the Court.

The first ground in this case is settled by the case of Jagers v. Estes. But this does not settle the question whether the gift is not void as to the defendant. The deed does not purport to be founded on any other consideration than love and affection and is therefore purely gratuitous and voluntary. I think it may be fairly assumed that the defendant is a subsequent purchaser without notice of the prior gift. The inference to the contrary, attempted to be deduced from the smallness of the price and the fact that he sent the woman off to the west, is by no means authorized by the evidence. The proof was that Cunningham was in the act of starting his wagon with negroes, to a plantation in Alabama or Mississippi, when Dicey Caston came to his house with the ne-groes ; that he declined to buy them, because they were not such as he wanted, and was finally induced to buy by her importunity and the low price she offered to take. The price, although lower than some of the witnesses said was the value, yet was as much, if not more, than the rest of her negroes, about the same time, brought at a public and fair sale by the sheriff; from which I should suppose the price of negroes was very low at that time. The recording of the deed in the office at Lancaster was no constructive notice to the defendant. We have no law which requires such deeds to be recorded. The old Act of 1698, which is the only one on the registry of deeds of personal property, merely gives a preference, in cases of double sales, to the deed first recorded in the office of the Secretary of State. I think therefore the case rests entirely on the question whether the prior voluntary deed is void as to the defendant. By the statute, all conveyances of real estate made “ for the intent and purpose” to defraud a subsequent purchaser, are declared to be void. The construction given to this statute by the English Courts seems to have been that the title of the subsequent purchaser for valuable consideration was good, even with notice of the prior conveyance ; and in the case of Barino v. McMurray and McGill, Judge Brevard seems to have concurred in that opinion. But in the case of Hudnal v. Wilder, Judge Nott rejects this construction as unreasonable, and puts such conveyances of real and personal property on the same footing; and that, as well as other cases, since Moultrie v. Jennings, have decided a voluntary gift made bona fide, is not void as to a subsequent purchaser with notice. Some Judges have entertained the opinion that where there is no notice, the prior gift is void in law, but my own opinion is that which is expressed in the charge to the jury, and in the case of Howard v. Williams, that the act of selling, with a concealment of the prior conveyance, is a palpable fraud in itself. It is suppressio veri, and if men’s intentions can be inferred from their acts, the jury ought to conclude that the gift was made with the intent to do what was afterwards effected, viz: — to defraud a subsequent purchaser. We think that on this ground the jury should have rendered a verdict for the defendant. In addition to this I charged the jury that the defendant, under tire facts of the case, was entitled to stand on the footing of a creditor. His money, or a large part of it, had been paid into the sheriff’s office in satisfaction of the executions which had been levied on the negroes. This, in law, may not entitle him to be subrogated to the rights of creditors. But if he had purchased at sheriff’s sale he would certainly have a right to avoid the gift, if it was void as to creditors. This is so clear that I have never heard it questioned. The reason is that he has paid his money to the creditor; and that reason applies with equal force to this case. In the case of Hudnal v. Wilder, ex’tr. of Teasdale, Teasdale was a purchaser from Norris the voluntary donor fo Hudnal, yet he was allowed to impeach the gift as void because it was made by a man in insolvent circumstances and was a fraud on his creditors. Assuming therefore that Cunningham could impeach the deed as a frand on creditors, the question arises whether this deed was fraudulent. The deed was dated the 3d of February, 1834, at the time the donor’s debt as guardian of her daughter, who afterwards married Secrest, was more than 1000 dollars. In May after, it was increased $750. It went on increasing, until in 1842 it was $4,600. How much she owed to other persons at the time of the gift, did not appear, but in 1842 she was indebted on judgments and executions, twelve or thirteen hundred dollars, making in all the sum of near $6,000, besides other debts not in execution: a sum greater by far than the value of all the property she possessed at the time of the gift. There was remaining unpaid a considerable debt due at the time of the gift; her debts, instead of being paid, went on increasing rapidly from year to year, until on the winding up of her affairs her debts greatly exceeded not only the value of what she had reserved, but the value of all she possessed when the gift was made. There is no case in which a voluntary gift has been supported under these circumstances. The verdict is wrong, and the motion for a new trial must be granted.

37 Ea¿ Ci ¿

50S

1 Bail. 580.

RichardsoN, J. O’Neall, J.. and Frost, J. concurred.

Motion granted.  