
    English vs. Tomlinson et als.
    
    Where slaves were sold at execution sale and purchased by a third person with an understanding that the defendant in the execution should have the right to redeem them, and obtained them at a reduced price by such understanding: It is held that the slaves were held in trust for the benefit of the execution debtor, and that a bill would lie at the instance of other creditors to subject the slaves to resale, and the surplus proceeds to the satisfaction of the claims of such creditors.
    Tomlinson was indebted to English and others, and the slaves of Tomlinson were offered for sale on execution. Hale procured Arrowsmith to purchase them with liberty to Tomlin-son to redeem them. Hale advanced part of the money to Ar-rowsmith to make the purchase. They were purchased by Ar-rowsmith. Tomlinson failed to redeem them, and English, a creditor, filed his hill in the chancery court at Pulaski against Tomlinson and Arrowsmith, praying that the slaves be sold, the amount advanced by Arrowsmith be refunded, and tbe balance decreed to be paid to him in discharge of his debt. Hale filed his cross bill, asserting the purchase of said slaves in part for himself. These bills were answered, and the proof brought forward. The chancellor, Cahal, ordered a decree to be entered, which is as follows:
    “It appearing to the satisfaction of the court, that the purchase of the slaves Caroline and her children, Ann and Ellik mentioned in the pleadings and proof, by defendant Arrow-smith, was fair and bona fide, and was made by him for defendant Hale, and to the amount of $300 paid for with the money of said Hale. And it appearing to the court, that defendant Tomlinson, has no interest in said slaves, either legal or equitable, and advanced none of the purchase money, and that the same are not and ought not to be subject to the claim of complainant; Itis therefore ordered, adjudged and decreed by the court that complainant’s bill be dismissed, and that complainant pay all the costs of the cause, except the costs of filing the crossbill and the proof thereon, by said Hale, which latter the said Hale will pay, and for all which executions will issue respectively. And it is further ordered and decreed, that the defendant Hale pay to the defendant Arrowsmith the balance of the purchase money for said slaves and interest, and upon such payment that said Arrowsmith convey to said Hale, the said slaves and their increase, and that this cause be retained in court until such conveyance and payment are made, and for the further action of the court thereon, if necessary.”
    
      A. Wright, for complainant.
    The complainant contends the decree of the chancellor is erroneous, and should be reversed, and that he should have a decree for his debt, interest and costs.
    1. Because the proof shows that Arrowsmith bid off these negroes for Tomlinson, under a contract that he might refund the money bid, and redeem the negroes, and that therefore Ai’rowsmith really holds them in trust for Tomlinson, the transaction, in effect, being a mortgage between them. If so, complainant being a creditor of Tomlinson, may redeem. Yoder vs. Standiford, 7 Monroe 480 cited 2 Harr, and Barb. Dig. 261; or may have a sale and apply the proceeds first to Arrow-smith’s debt and interest deducting for use, hire &c., and the surplus to complainant’s debt, interest and cofets. 2 Litt. 332, cited 2 Barb, and Harr. Dig. 306-7. 5 Paige 9, Denton vs. McKenzie, 1 Des. Rep. 289. The same thing will follow, if Hale furnished any part of the money. The court will order an account, pay Piale and Arrowsmith what is due them, and apply the residue to complainant’s debt.
    The fact that defendants have conspired to defraud complainant out of his debt, and now represent that as a sale, which was originally a trust or mortgage, cannot change the case, or impair complainant’s rights. Ballard vs. Jones & Ingram, 6 Hum. Rep. 455.
    2. Suppose the court shall be of opinion, that Arrowsmith or Hale did not buy the slaves in trust for Tomlinson, and that there is no equity existing in favor of the latter against them or either of them, and suppose further that there is not sufficient evidence of fraud to induce the court to avoid the purchased by Arrowsmith, and Hale absolutely, yet we say, here are such suspicious circumstances as to the adequacy of the consideration and fairness of the transaction, that the court will not let the sale stand absolutely, but only as security for the sum actually paid. Horne et als vs. Meeves, 1 Vern. 468; Boyd vs. Dunlap, 1 Johns Oh. Rep. 478; Loyd vs. Currin, 3 Hum. Rep. 465.
    3. It majr even be questioned whether a sale, conducted as this was, ought not to be set totally aside for fraud.. Smith et als. vs. Greenlee, 2 Dev. Law Rep. 126. Here is a man heavily indebted — far beyond his means of payment. His three slaves worth $750 are bid off for 501. The sheriff, debtor, and purchaser seem to have conspired to make the property bring as little as possible, that it may fall back to the debtor, his family or relation. How do they affect this? By a sale for specie — by stifling competition in the bidding — by a sale in the lump and not lots to suit purchasers — by representations every where made at and before the sale, that Arrowsmith is buying for Tomlinson, that he may redeem, and all of which it is clear had a most powerful influence at the sale. And yet now the debtor has the effrontery to tell us that the idea that he was to redeem, so eagerly held out on the day of sale was all false. The debtor has no right to give away his property and leave his debts unpaid; and what right has he to make an arrangement-through its sale, by which i or i of its value will be secured to his children or relations?
    
      N. S. Brown, for defendants.
    In this cause the complainant seeks to set aside the sale of the negroes purchased by the defendant Arrowsmith upon the ground of fraud and collusion between him and his co-defendant Tomlinson.
    1. For the complainant and his allegations, there is no direct proof; and the allegations are expressly denied by the answers. The bill must therefore fail because there is not, at most, the quantum of proof required to overturn the answers.
    2. The depositions of defendants Tomlinson and Arrow-smith, taken by defendant Hale, are full and positive, and establish beyond all doubt, that the purchase of the negroes by Arrowsmith, was made in good faith, and exclusively for the benefit of Hale, and under his instructions, and that none of Tomlinson’s money went into the payment, nor was he bound in any way for the payment of any portion of the purchase money.
   GReen, J.

delivered the opinion of the court.

In 1843, the defendant, Tomlinson, was the owner of these negroes, a woman, Caroline, and her two children, a girl 7 years old, and a boy 5 years old. These negroes having been levied on by virtue of an execution against him, and he being greatly indebted, the said Tomlinson went to Mississippi to see P. H. Hale, who was his brother-in-law, and possessed of means, to prevail on him to become the purchaser of said slaves. Hale agreed to furnish the money, if Tomlinson could get a friend to buy them, and pay for them in the first instance. Tomlinson told him the defendant Arrowsmith had money and could be relied on, and that he thought Arrowsmith could be prevailed on to purchase the negroes, and advance the money. Hale thereupon handed Tomlinson, $100, to be placed in the hands of Arrowsmith, and wrote Arrowsmith a letter, requésí-ing him to purchase the negroes for him, and promising, subsequently, to forward the entire sum which might be advanced in making said purchase; Tomlinson handed Arrowsmith Hale’s letter, and the $100, and Arrowsmith agreed to buy the negroes. At the sale there were a number of persons, and several men who were in attendance, failed to bid for the slaves, because all the slaves now in dispute, were at the instance of Tomlinson, put up together, and it was understood that Arrowsmith was to buy them, and permit Tomlinson to redeem them. This was suggested by Tomlinson, to several persons who had intended to bid, and who were thereby deterred from doing so; and it was generally understood among the persons in attendance at the sale, that Tomlinson was to be permitted to redeem the slaves.

Arrowsmith did become the purchaser of the slaves, for the price of $501, they being at the time, worth $700. Hale has, since the sale, advanced two hundred dollars to Arrowsmith, making in all $300 paid by him. Hale procured the negroes to be purchased by Arrowsmith, in order, that they might be kept together, and that Tomlinson might redeem them if he became able. The complainant, English, is a creditor of Tom-linson, and brings his bill to have a decree for an account, and sale of the slaves, and that the surplus be applied to his debt. We think the evidence in this case establishes that there was an understanding between Hale, Tomlinson and Arrowsmith, that the negroes were to be purchased by Arrowsmith and held by him, subject to a right on the part of Tomlinson to redeem them, if he should become able.

There may not have been an express agreement to this effect, but the circumstances convince us, that such was the distinct understanding. Tomlinson and Arrowsmith, in their answer, while they deny that there was any contract that Tomlinson might redeem, admit that “Hale made said advance to avoid a seperation of the negroes from each other, and their family, and it may be, that they could be repurchased by said Tomlin-son.” The witness Malone, was in Mississippi in March or April, 1845, and in a conversation, Hale told the witness that he had ■ furnished Tomlinson $300 to enable him save his negroes; that Tomlinson had. told him, he thought he could' make a friend in Tennessee, if he had the money, to buy in and save the negroes for him, but that if he- could not get the money to pay back, he, (Hale,) should have the negroes. Hale enquired of the witness if he thought Tomlinson had the means to save his negroes.

Arrowsmith since the sale, told the same witness, that Tom-linson was a singular man; that at first he seemed to be satisfied if he could only save the woman and children, but that afterwards he wanted to save the boy also; that he had agreed to purchase the woman and children for him, and had received $300 from Tomlinson, which he said he had got from his brother-in-law, P. H. Hale, of Mississippi. Tomlinson on the day of the sale, deterred bidders by representing to those present, that Arrowsmith was to purchase the negroes, and permit him to redeem them. By this means the negroes, worth $700, were sold for only $501. The evidence shows, that Tomlinson has not been enabled to redeem the negroes, and that he is hopelessly insolvent.

We, think Arrowsmith must be regarded as holding these negroes in trust for Tomlinson; and that the complainant, who is a creditor, is entitled to a decree for the resale of the slaves, and to have the surplus, after the payment of the amount advanced by Piale and Arrowsmith, applied to his debt.

2. But if the evidence of a contract, or understanding, that Tomlinson should be permitted to redeem, were less satisfactory than it is; still the circumstances connected with the sale, are such, that it would be inequitable to permit it to stand absolutely. Hale, it is true, was not at the sale, and personally, had nothing to do with the transactions concerning it; but he placed his money in the hands of Tomlinson, and authorized Tomlinson to procure a purchaser for the negroes, and thereby made Tomlinson’s representations on the day of sale,' that he was to be permitted to redeem the slaves, be regarded as evidence that there was a contract to that effect, or if not, certainly they had the eflect to prevent competition among the bidders, and to enable Arrowsmith' to get them for an inadequate price.

Creditors of Tomlinson, assured by him, that he was to have the privilege of redeeming the slaves might well forbear to bid, because such contract existing, the diminished price at which the negroes might sell, would work no injury to such creditors. If Tomlinson should not be enabled to redeem, the trust in his favor would enable his creditors to obtain the surplus after deducting the sum paid at the sale. But if this sale shall stand absolutely, Hale will, by means of these representations of his agent, have obtained these slaves for an inadequate price; where, had the representations not have been' made, the creditors, acting upon their interests, would have made the property sell for its full value. It is clear, that by these representations, the creditors of Tomlinson would be deprived of all the difference between the price for which the negroes sold, and their true value, which would be a fraud upon them. Boyd vs. Dunlap, 1 John. ch. Rep. 478. Loyd vs. Currin, 3 Humph. R. 465.

Upon either of the grounds stated, therefore, we think, the complainant is entitled to a decree.  