#### *Reed vs. Greathouse.*

Detikue.

Caso 118.

Appeal from the Mason Circuit; William P. Roper, Judge.

*Fraud in sales. Instructions. Error.*

Detinue for a slave by Reed; verdict and judgment for Greathouse.

Title of Greathouse t.o the slave.

R’eed’s title.

Error complained of by Reed.

*October 13.*

Judge Owsley

delivered tho opinion of the court.

■ This is a contest involving the right to a negro slave named Ájáx, possessed by Great-house, and claimed by Reed, and to recover which tbé latter brought his action of detinue against the former, and was defeated by a verdict and judgment in the circuit court.

The slave was purchased by Greathouse, at a sale made by a sheriff, under an execution, which came to his hands against the ’estate of a certain John _ Merrick, in whose possession the slave then was, and had been for several years previously; and it was by setting up and relying upon that sale and purchase, that Greathouse aided by instructions from the court, succeeded in defeating a recovery by Reed, at the trial in the circuit court

The sale and purchase of the negro as aforesaid, is not contested by Reed, but he contends that at the time the executions under which the *sale*was made, came to the hands of the sheriff, and when the sale was made, Merrick had but a life estate in the negro; the *estate*in remainder after Merrick’s death being vested in a certain George George, who has since sold that interest to him, Reed, and that it was not the estate in fee of the slave, but the life estate of Merrick which was sold by the sheriff, and purchased by Greathouse.

■ — And he complains of *the instructions*which were given by the court as, being calculated to mislead the jury, by withdrawing their attention and enquiry from the extent of interest which was purchased at the sheriff’s sale by Greathouse, to the question of fraud in an agreement which was previously reduced to writing, signed and delivered by Merrick and George George, and duly recorded by which the former acknowledged *the*negro in question, together with several others, to belong after his death, to the latter, and by which the latter also *559acknowledged the right of the same slaves to be in the former during his life.

¿Parchaserof a life estate only, cannot impeach as fraudulent, a prior conveyance of the remainder, and on that ground claim the entire estate.

We will therefore without entering upon a more particular statement of the facts proved, turn our attention to the instructions which were given to the jury, and see whether they are liable to the objection taken by Reed.

- It is undoubtedly true that if Greathouse purchased nothing more than the interest which MstófmT had for life in the negro in question, he slveiilu not after holding the possession of the slaye during Mer- , rick’s life, be permitted to defeat a recovery by Reed, who is the alienee of George George’s interest in remainder, on the ground that the writing, which was executed by Merrick and George, and by which the right in remainder after the death of the former was acknowledged, was fraudulent as to the creditors of Merrick. For though fraudulent, the writing is unquestionably valid between the parties; and if Great-house only purchased the life estate of Merrick in the negro, *he has no pretext for*assuming the station of a creditor or purchaser, so as to draw in question the right of George, or his alienee, to the interest in remainder. As to that interest he occupies no better position than a mere volunteer, and whether the writing be fraudulent or not, is a matter of no interest with him, and cannot be enquired into by him.

It would therefore seem naturally to follow, that any instructions from the court calculated to withdraw the minds of the jury from the materiality or Importance of the enquiry, whether more than an estate in the negro for the life of Merrick was purchased by Greathouse, would be irregular, provided evidence conducing to prove that but a life estate was purchased was introduced. Evidence conducing to that end was introduced; and without informing the jury that if but a life estate was purchased by Greathouse he lias no right to make the question, or go into the enquiry as to the writing between Merrick and George being fraudulent, or if fraudulent it could avail nothing in favor of a purchaser of the life estate against the estate *in*re*560mainder, the court assuming the writing to be *per se*fraudulent, instructed the jury accordingly. j *j*& ‘

üon cMcul'a ted to'divert the attention Rom'ho facts on which their verdict oughl to dewlietheVright er wrong in fho abstract.

*Haggin*for appellant; *Crittenden*for appellee.

Tiie instruction thus given we think was calcuto prejudice the right of Reed, by inducing a ^ie jury, that whatever might be the extent of interest sold to Greathouse by the sheriff, as defendant Greathouse was at liberty to avail himse‘f °f ^1C frai,d in the writing. A jury, looking to the bench for an exposition of the law, and being disposed to be guided by its indications, would naturally conclude that an unconditional instruction as io the writing being fraudulent, would not be given if, from any conclusion to which they might come on the evidence, the fraud should have no influence; and acting under the influence of such an impression, they would not be disposed to scrutinize the evidence as to the interest sold by the sheriff, or feel the importance of turning their attention *to*that point. Whether fraudulent or not, therefore, the writing ought not to have been so declared by the court, without pointing out to the jury the bearing or influence which the fraud should have upon their deliberations and ascertainment of the facts which the evidence conduced to prove.

The judgment must be reversed with cost, the cause remanded to the court below, and further proceedings *there*had *not inconsistent with this*opinion.