#### Mason v. Bond & Co.

February, 1838,

Bichmond.

[33 Am. Dec. 243.]

Sale oí Personalty — Retention of Possession by Vendor— Fraud Per Se.* — It is a general rule, that an absolute sale of chattels not accompanied and followed by transfer of possession to the vendee, is per se fraudulent and void as against creditors of the vendor, and though there are exceptions to the rule, yet it is no ground of exception, that the possession at the time of the sale was in a third person, if, notwithstanding such possession, the vendor had a right, and it was in his power, to take the possession and deliver it to the vendee.

This was an action of detinue for two slaves, Rolla and Peggy, brought by Mason and Heath against Bond *& co. in the circuit superiour court of Peters-burg. Plea, the general issue. The suit abated as to the plaintiff Heath, by his death, and was prosecuted by Mason alone.

Mason filed exceptions to opinions of the court given at the trial; from which it appeared, that the plaintiff gave in evidence on his part, a bill of sale executed by Richard Epes of Nottoway to him and Heath, dated the 11th March 1827, whereby, in consideration of 1800 dollars, he conveyed to them nine slaves, among whom were the two slaves in question, Rolla and Peggy ; under which bill of sale the plaintiff claimed. And then the plaintiff proved by a witness, Peter Epes, son of the vendor Richard, that the slave Peggy was the property of the vendor, and in his possession at the date of the bill of sale, and remained in his possession until she was taken under an execution sued out by the defendants as hereafter mentioned. That the slave Rolla was also the property of the vendor on the day the bill of sale was executed, but he was then, and had been for some months before, in the possession of the witness, under the following circumstances: the witness had leased a farm in the neighbourhood of his father’s residence, for a term of seven years ; and after his contract for the lease, it was agreed between him and' his father, that the lease should be held on their joint account, that each should furnish six hands to cultivate the farm for their equal benefit, and that the witness should reside on the leased premises, and have the management thereof : that in January 1827, Richard Epes the father sent six hands to the farm, of whom *74the slave Rolla was one; and this slave remained at the leased farm, until the day the bill of sale was executed to Mason and Heath ; upon which day, the slave was sent by the witness at his father’s request to his residence, and there sold to Mason and Heath: that Rolla was then again sent back by the witness’s father to the leased farm, and remained *there till some time in September following; when he was again sent by the witness to his father, who had sent for him in order to deliver him to Mason and Heath, the purchasers ; but, on the same day, while the slave was thus at the father’s residence, he was taken under the execution of the defendants ; that some three or four weeks after Mason and Heath’s purchase, one of those vendees.informed the witness of their purchase of this slave Rolla, and he was informed thereof, either previously or subsequently, by his father also ; and though the witness was of opinion that he might refuse to deliver the slave unless another was substituted in his place, yet he waived his rights in that respect, and made no objection to the sale. And then the defendants gave in evidence on their part, two writs of elegit sued out by them against Richard Epes, the vendor under whom Mason and Heath claimed ; and proved that these executions came to the hands of the sheriff of Nottoway in July 1827, and were by him levied on some day in September following, on the two slaves in question, Rolla and Peggy, then at Richard Epes’s house and in his possession, and these slaves were delivered by the sheriff to the defendants, at their reasonable value ascertained by inquisition of a jury. And this being all the evidence in the case, I. the defendants asked the court to instruct the jury, that if they believed the evidence, they were bound to find for them : the court declined to give the instruction in that form, but told the jury, that if the slaves were in possession of Richard Epes at the time of his sale to Mason and Heath, and remained in his possession until the seizure thereof by the sheriff under the defendants’ execution, the bill of sale was void as against the defendants. And then II. the plaintiff moved the court to instruct the jury, that if they believed from the evidence, that Richard Epes, the vendor, had parted with the slave Rolla for one year under his agreement with the witness Peter Epes, that *the slave was actually in possession of Peter from and after the date of the bill of sale, and that Peter was authorized to detain him till the end of the year; then the possession of Peter was not the possession of Richard, the vendor, and the bill of sale was not fraudulent in law : but the court refused to give this instruction, because whatever might be the law upon the state of facts supposed in the motion for the instruction, the court was of opinion that the evidence did not prove any such state of facts, and it would not give an instruction upon a hypothetical case. The plaintiff excepted.

The jury found a verdict for the defendants. And then the plaintiff moved for a new trial, on three grounds : 1. that the verdiet was contrary to the evidence; 2. that the court erred in the instruction it gave at the instance of the defendants, and in refusing the instruction asked by the plaintiff ; and 3. that the court, in assigning its reasons for such refusal, had declared its opinion touching the weight and effect of the evidence. The court overruled the motion for the new trial, and the plaintiff excepted.

The court proceeded to give judgment upon the verdict for the defendants. The plaintiff applied by petition to this court for an appeal from the judgment; which was allowed.

Macfarland, for the plaintiff in error.

Spooner, for the defendants.

*

SaIe of Personalty — Retention of Possession by Vendor — Fraud Per Se. — The principal case was cited with approval in Tavenner v. Robinson, 2 Rob. 286. But in Davis v. Turner, 4 Gratt. 422, the doctrine of fraud *per se*is examined and repudiated. *See footnote*to this case (Davis v. Turner) for a somewhat extended discussion of the subject.

TUCKER, P.

I am clearly of opinion, that the judgment should be affirmed. The errors assigned are, that the verdict was against evidence; that the instruction given was erroneous; that that refused ought to have been given ; and .that the court improperly, declared its opinion on the weight of the evidence. All these objections are, I think, without foundation.

*As to the first: Was the verdict against evidence ? This depends upon the question, whether there was, in this case, a sufficient excuse for not delivering the possession of the slaves to the vendees ; for if not, then the sale was void, according to the principles of that class of cases of which that of Edwards v. Harben, 2 T. R. 587, has always been considered a leading one. Eor, although the doctrine of those cases has been much and very properly modified, yet they apply in their full force, where possession does not follow the deed, and there is no apology for the nondelivery. In the cases of Land v. Jeffries, 5 Rand. 252, and Sydnor v. Gee, 4 Leigh 535, the modification and exceptions to the general rule are very carefully stated: they all admit, that if the property can be conveniently delivered, and is not delivered, but is retained in the service and for the use of the vendor, notwithstanding the sale purports to be immediate and absolute, the transaction is fraudulent per se. Now, this was precisely the case here. The slave Peggy was, notwithstanding the sale, retained by the vendor in his own immediate possession. It was theretofore as to her, confessedly, fraud per se. The slave Rolla, the subject of contest here, was kept on a farm held jointly by the vendor and his son, each being bound to furnish six hands. Rolla was one of those furnished by the vendor. He was, therefore, in the vendor’s possession, held jointly by him with his son. But as his contract was indefinite to furnish six hands, and Rolla was not expressly among them,’ he had at any time a right to take him out of the concern, and put in another in his place. That slave was, therefore, not only in his possession, but under his control, and might have been delivered at the time o.f the sale. He was, in point of fact, sent to the vendor by his son at the time of the sale : the son did not object to the sale; nor did he even insist on the substitution of another ; for he says, that not intending to assert such right, he accordingly sent the *slave , to his father at the time of the sale, at his father’s request. But the father, instead *75of delivering him to the purchasers, sent him back to labour for his own profit in the joint concern. Subsequently, when the execution was in the sheriff’s hands, the slave was again sent to be delivered to the purchasers, the vendor having sent for him for that purpose. These facts prove a complete control over the property, and power of delivery. The failure to deliver, therefore, is not satisfactorily accounted for, and the case falls within the influence of the principle, that an absolute bill of sale is void, unless possession follows and accompanies the deed, or the want of it is satisfactorily accountedfor.

It cannot but be remarked, in this case, that the deed is absolute and immediate ; whereas the pretence is, that the son of the vendor was entitled to the possession of the property for seven years. This fact, together with the want of proof of consideration, creates a strong suspicion of fraud in fact; which is fortified by the circumstances, that the vendor retained others of the slaves sold, that about the date of the sale there must have been judgments against the vendor, and that the slaves were sent over to be delivered to the purchasers, just at the time when the levy was about to take place. Upon the whole, I think the verdict is abundantly sustained by the evidence.

As to the instructions : that given on the defendants’ motion was strictly correct, as the general rule. .It was not necessary or proper to set forth the exceptions or modifications of that rule, unless the plaintiff had asked it. Were it otherwise, every instruction must contain a perfect institute of the law of the subject.

The instruction moved by the plaintiff was properly refused. He moved the court to instruct the jury, that if they believed that the vendor had parted with the slave Rolla for a year to his son, and that his son was actually in possession and authorized to detain him till *the end of the year, the bill of sale was not fraudulent in law. The court refused to give the instruction, because it was of opinion that the evidence did not prove such a state of facts, and it would not give an instruction on a hypothetical case. The court did right: there was no such state of facts. The vendor, if the witness was credible, did not part with Rolla for a year to the son, and the son was not authorized to detain him till the end of the year. He was in the possession both of father and son, with the right of the father at any time to withdraw him, and put another in his place, and with the power (as the son did not insist, on the substitution) to deliver him to the vendees without putting another in his place. There was no testimony which even tended to prove a right of exclusive possession in the son, or a right to detain the slave against the father’s will. The instruction therefore was rightly refused.

Uastly, it is said, the court improperly expressed its opinion upon the facts. I do not think so. Ho opinion would have been expressed, but for the motion of the plaintiff to give an opinion upon an entirely fictitious state of facts. It then became necessary that the court should say, in justification of its refusal to instruct, that the facts upon which the instruction was based, had no existence in the cause. It is true, that the court, under our system of jurisprudence, cannot assume the right to instruct the jury upon the facts ; yet it would be very mischievous, if every incidental remark of the court, in deciding the matters of law arising upon the trial, should be tortured into an invasion of the rights of the jury.

Upon the whole, I see no error in the record.

The other judges concurred. Judgment affirmed.