
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1808.
    Bickley ads. Norris, Trustee of Mrs. Wilson.
    If negroes be mortgaged, and sold by virtue of the mortgage, and the mortgager should furnish a friend with money to purchase them in his own name, as trustee for the mortgager’s children, and the trustee should accordingly purchase, and take a conveyance to himself, absolutely, subject to the secret trust; this conveyance, if Iona fide, will be good, and not within the statute of Eliz.
    Motion for a new trial. The action was trover, for a negro slave named Jenny, and her son Prince. The plaintiff produced in evidence a deed of conveyance to himself, from Ezekiel Calhoun, in trust for the use of Mrs. Wilson, the wife of Hamilton Wilson^ dated in the year 1806 ; and it appeared in evidence, that Ezekiel Calhoun purchased the slaves in question, at a sale made by the sheriff of Abbeville district, under a mortgage. The mortgage was given by Benjamin Howard, the father of Mrs. Wilson, to Messrs. Banks and Lockwood, of Charleston.
    Bowie, attorney for Banks and Lockwood,
    proved that Benja. min Howard was largely and truly indebted to Banks and Lockwood, who had been indulgent creditors, but were necessitated to sell under their mortgage ; and that the sale was perfectly fair. The mort. gage contained a covenant, that in case the mortgager should make default in the payment of the money, meant to be secured, that the mortgagees should be authorized to take the said negroes, and sell them. The mortgage was dated the 1st December, 1804. The sale under it was made the 2d of June, 1806. It was proved that (the áefendant had possession of the negroes in question, and refused to give them up, on demand. -
    The defence set up, was,.that the purchase by Calhoun, and the conveyance in trust to the plaintiff, were-collusive and fraudulent transactions ; and that the defendant being a judgment creditor of Benjamin Howard, had a right to take the negroes under an execution, which he had done, as the property of Howard, and sell them. In support of this defence, it was- proved, that Bickley and Clark obtained a judgment against Benjamin Howard in October, 1806, in an action of trover, for the conversion of a bond; in pursuance of which, a ji, fa. issued, under which the negroes in dis. pute were levied on and sold, and bought by the plaintiff. To shew that the purchase under the mortgage, and the conveyance from Ezekiel Calhoun, were fraudulent as to creditors, Bowie proved that $ 150, part of $400, for which sum the negroes were sold to Calhoun, was money which was due to Benjamin Howard, on a judgment recovered, which was discounted in part of the purchase. The .sheriff, who made the sale under the mortgage, proved his receipt of $400, from Calhoun, for the negroes sold to him. It was proved, that Calhoun was heard to say, that the money advanced by him for this purchase was refunded, or words importing as much. It was also proved, that the plaintiff had not the actual possession of the negroes after the sale, but that they continued in Howard’s possession. It, however, appeared that Mrs. Wilson, the cestui que trust, lived with her father, Benjamin Howard. Bowie further proved, that he drew the mortgage, and obtained the judgment against Howard, and that he had several .conversations with him concerning the same. That he had disap. pointed Bowie, as to some payments he promised to make, for which, being reproached, he intimated that his intention was to suffer the negroes to be sold by the sheriff, and buy some of them at .sheriff's sale. Another witness said, that he heard Howard say .something darkly about fixing his property.
    The arguments of counsel, in the District Court, turned chiefiy •on the evidence of fraud ; and the defendants’ counsel insisted, .strongly, .that as part of the money which was paid by Calhoun to the sheriff, appeared to belong to Howard, and as there was reason to presume the balance of the purchase money was refunded to him by Howard, and that the deed of trust'was founded on collu.sion, with a view to defeat and hinder creditors of their just claims on Howard, the whole of these transfers were fraudulent and void ; and the negroes were liable to the defendants’ execution, It ^raa not, however, even insinuated, that Banks and Lockwood had acted unfairly in the transaction.
    In charging the jury, the presiding judge, Bkevaed, told them that the rules and principles of the common, as well as the express terms of the stat. of Eliz. which had been quoted, makes void any alienation of property by a debtor, or any one against whom there exists a just claim for debt or damages, at the time of such alienation, as far as the same affects the claims of just creditors. But that under the circumstances of this case, he could discover no ground on which this doctrine could be made to serve the defendant, unless it were contended that the sale by Banks and Lockwood was collusive and fraudulent, which there was no color to do. He explained to the jury the nature and legal effect of the mortgage, and told them that before the sale under the mortgage, the other creditors of Howard, whose claims on his property were posterior in date and inferior to theirs had no lien on the mortgaged property, except as to the equity of redemption. That as the mortgagees were authorized to sell, and as they had fairly sold the same property, the equity of redemption was forever gone; and after the sale, the lien on the property was totally extinguished. That with whatever view the purchaser bought the property under the mortgage, or whosoever might have furnished the money to make that purchase, was immaterial; and that the transfer of the property by a convey, anee under the sale was legal and valid. That the claim of creditors was not against the property transferred, but against the money furnished by Howard, unless it should appear that the purchase was made by Howard himself, and not for the uses stated in the trust deed, which there was no reason to presume from the evidence, That a debtor might part with his money in spite of the statute against fraudulent alienations; for that cannot be considered such an alienation as is within the scope and meaning of the statutes. That all the advantage a creditor can take of his debtor for making such a dishonest use, or misapplication of his money is, by taking his body on a ca. sa, and opposing his taking the benefit of the insolvent debtors act. That with his money the debtor may buy his own, property at sheriff’s sale, if the sale be fair, as well as any other. purchaser. Or he might let another person have his money, who might fairly buy with it for his own benefit; or he might give away his money gratuitously.
    Verdict for the plaintiff. Damages sufficient to compel a surrender of the negroes.
    In support of the motion for a new trial, Bowie, for the defend!-antj
    contended, that if the purchase by Calhoun, was made with Howard’s money, which the evidence was very strong to prove, the property vested in Howard by the sale, and not in the nominal purchaser. That the jury should have been charged so. If the money was not Calhoun s, but Howard s, the deed ot trust was invalid. That the jury should have been charged as in a case within the stat. of Eliz.
    Yancet, on the same side.
    Said that Norris ought to be considered as trustee for Howard. That Howard’s remaining in pos. session was a strong badge of fraud. Cited 2 Bl. Com. 1 Cranch, 314.
    Simpkins, contra.
    
    Insisted the case was out of the stat. Eliz. Cited 2 Bos. and P. 59, Kidd v. JEtawlinson. . Bull. 258.
   Waties, J.,

declared the opinion cf the court, who were all satisfied that the direction of the District Court was correct, and that there was no sufficient ground for setting aside the verdict. It was, however, the opinion of the court, that if evidence had been offered to prove, and it had been insisted on that the evidence did prove that Howard was the réal purchaser, or real cestui que trust, that that, might have been aground of defence; and that the question arising on that ground might have been submitted to the jury; but that there was no color of evidence which could have been submitted to the jury, applicable to any question arising on the stat. of Eliz.

Motion dismissed.  