
    Boyce’s Executrix vs Waller.
    Chancery.
    Error to the Fayette Circuit.
    
      Case 44.
    
      Fraud. Fraudulent conveyance. Purchaser.
    
    
      October 18.
    The case stated*
   Chief Justice Robertson

delivered the Opinion of the Court.

This case was once before in this Court, and the opinion then rendered will be found in 9 Dana, 478.

After the return of the case to the Court below Waller and the executrix of Daniel Boyce submitted to the decision of the Circuit Judge, certain admitted facts, and agreed that, without any supplemental pleading or further preparation, such a decree might be made between those parties as those facts and the former opinion of this Court should authorize.

The effect of Boyce’s purchase under the execution against M’Kinney was left, by the agreement, to be decided on the facts appearing in the record, when the case was first decided by this Court; and this involves the first and principal question for decision on the agreed case. The executrix contends that M’Kinney’s entire interest was sold under execution, and that, therefore, as this Court had since determined that his previous conveyance, in trust for himself for life, remainder to his appointees or to his wife’s children in the event of a non. appointment, was void as to his creditors, the absolute title had passed to her testator, in virtue of his purchase under the execution of one of those creditors. But Waller insists that Boyce bought only such vendible interest as MKinney was supposed to possess under his said conveyance in trust, the validity of w'hich had not been assailed by the said execution creditor—arid therefore, he argues, that this deed being void as to himself, Boyce acquired no interest against him as one of M’Kinney precedent creditors.

It was agreed that Boyce and his executrix had enjoyed, ever since his purchase, the profits of the slaves bought by him under the execution against MKinney, and that if, in any form of suit, either at law or in chancery, Waller could recover those profits or any portion thereof, a decree might be rendered accordingly, on the agreed facts.

The Circuit Judge seems to have decided that, as against Waller as a judgment creditor of MKinney, Boyce had acquired no title, and therefore, decreed the subjection of the slaves to sale for satisfying his judgment, and also decreed in his favor, against the executrix, $1500 as the conventional balance of the amount of the profits after deducting the sum which had been paid by Boyce to M’Kinney’s execution creditor, for whose benefit the slaves &c. had been sold.

The executrix now complains that this last decree on the agreed facts is altogether erroneous.

When a debtor ?EeioS trustees P°wer of appointment, reserving a life es-b^made ofthe o?Eithoutd impeaching the no°thingy passes estate?1 the

The sale of a life by1EdebtEin (thougEey?u3i £°nveyance may creditors) Is not Emore EE llfe estate.

It does not appear, and should not be presumed from the facts exhibited, that, at the time of Boyce’s purchase or before, there had been any question as to the validity of the trust conveyance of 1827; and the sheriff’s deed to Boyce recites that he had bought M!Kinney’s interest in J the property designated m his said conveyance of 1827. Moreover, Boyce, in his bill, suggested that he had bought an equity supposed to exist in M’Kinney under that deed, and to be vendible under the the execution; and the originalbill claims an enforcement of the trusts created by that deed. From these circumstances we cannot resist the conclusion that, in the sale to Boyce, the validity of the deed of 1827 was recognized, and that MKinney’s trust estate for life therein was alone sold under the execution; and consequently, MKinney being now dead, Boyce’s interest as purchaser under the execution has ceased, and the property so bought by him is subject to Waller’s judgment, according to the former opinion of this Court. There seems, therefore, to have been no error in decreeing the sale of that property for Waller’s benefit.

But it does seem to us that there is error in the decree for profits.

Whenever, by MKinney’s death, Boyce’s title as purchaser under execution had expired, his continued retention and use of the purchased property may have subjected him, as executor de son tort, for the profits actually received by him. And, in this aspect of the agreed case and to this extent, the decree in Waller’s favor for profits admitted to have been received by Boyce may be proper.

But Boyce either purchased the entire title which Hi’Kinney’s creditors had a right to sell, on the hypothesis that the whole title was still in the debtor for the benefit of those creditors, or he purchased MKinney’s trust estatefor life, pui'porting to have been reserved to him by the conveyance of 1827, and which was certainly subject to sale under execution against him.

And if, as we presume, he bought only the latter interest, then admitting that, so far as MKinney’s creditors were concerned, a greater interest was and is still subject to sale, surely a sale of only a life estate was not void merely because a larger estate might have been sold, had the execution creditor thought fit to attempt such a sale. The fact that the conveyance of 1827 may have been void as to M’Kinney’s creditors, cannot affect the validity or the value of Boyce’s purchase—for he bought only a part of that entire interest, the right to sell which resulted from avoiding that conveyance. He did not purchase an interest which would not have existed in M’Kinney and been subject to sale independently of the void deed of trust; but he bought only that which would have been subject to sale under execution against M’Kinney, had that deed never been made.

A tova fide purchaser ofproper'ty, fraudulently conveyed, is entitled to protection against a defrauded creditor, who can pursue the property only in the hands of the fraudulent party or his alienees, without consideration or with notice of the fraud.

Owsley and Pindell for appellant; Robinson Johnson for appellee.

But moreover, as a bona fide purchaser, without notice of the invalidity of the deed of trust, Boyce might have been entitled to protection against the creditors of M’Kinney, even had the interest which he so bought been created by or existed only under the deed' which any one of those creditors may avoid; for it is settled that such a purchaser of property, fraudulently conveyed to his vendor, is- entitled to protection against the defrauded creditor, who can pursue the estate only in the hands of the fraudulent party or his alienees, without valuable consideration or with notice of- the fraud.

We are, therefore, of the opinion that Boyce used the slaves properly in his own exclusive right during the life of M Kinney, who lived several years after the date of the sale under execution in 1828; and that, consequently, he was not, as executor de son tort or otherwise, responsible to Waller for the profits which accrued during M’Kinney’s life.

And, therefore, as it appears probable and almost certain that the amount decreed against the executrix in this case exceeds the aggregate of the- profits accruing since M’Kinney’s death, the decree for $1500 must, on this ground, be reversed, and the cause remanded for a further decree in this branch of the case, according to the prim ciples of the foregoing opinion.  