#### *Williamson’s Ex’or v. Goodwyn & als.

October Term, 1852,

Richmond.

(Absent Allen, J.)

1. Fraudulent Conveyances — Liability of Vendee — Case at Bar.* — A sells to B a number of slaves at a price much below their value, for the purpose of de^ frauding his creditors, and soon afterwards dies. B executes to him her bonds for the purchase money, and he assigns the bonds to *bona fide*creditors. B sells a part of the property and discharges the bonds, and then conveys the remainder of the property to the widow and child of A. Upon a bill by other creditors of A to set aside these deeds as fraudulent, they are set aside, and the property conveyed in the last of them is sold and the proceeds are applied to pay the claims of the creditors. All the creditors of A not being satisfied out of this fund, B is held, liable to satisfy them to the extent of the price of the property sold by her.

2. Appellate Practice — Decree—Amendment.†—A commissioner’s report made in the cause showing that there is a small sum in the hands of A’s administrator, which the court below omitted to decree to be paid,to the creditors in exoneration uro *tanto*of B, the court will amend the decree in this respect, and affirm it with costs to the appellees.

This was a suit in equity in the Circuit court of the town of Petersburg, by William H. Goodwyn and others, creditors of John Hardaway deceased, against the executor- of Holly T. Williamson deceased, and a former administratrix and present administrator de bonis non of Hardaway. The object of the bill was to set aside two deeds, one of them bearing date the 29th of March 1843, whereby John Hardaway in his lifetime conveyed to his mother, Mrs. Williamson, all his personal property, including his slaves, in consideration of the sum of 3926 dollars. For this sum Mrs. Williamson executed several bonds, payable on demand, to John Hardaway, which he transferred to different bona fide creditors of his; and he died within a *few months after the execution of this deed, leaving a widow and one child. Mrs. Williamson proceeded to-sell a part of the property so conveyed to her in the lifetime of her son; and after his death she sold still more of it, and out of the proceeds of sale she paid off the bonds she had executed to John Hardaway, or reimbursed herself for the payment of them; and then by deed bearing date the 21st day of February 1844, she conveyed the remainder of said property to the widow and child of John Hardaway deceased.

• The proofs left no doubt that the deed of the 29th of March 1843 was fraudulent and void as to the creditors of John Hardaway; and when the cause came on to be heard the court set aside the deeds and directed the property which was conveyed by Mrs. Williamson to the widow and child of John Hardaway deceased, to be. sold by commissioners. This sale was made, producing the net sum of 2760 dollars 95 cents, applicable to the payment of the debts of Hardaway, a sum which was not sufficient fully to discharge them. In the progress of the cause an account of the debts was taken, as was also an account of the two administrations upon John Hardaway’s estate, the latter accounts showing small balances, which are stated in the opinion of the court.

In December 1846, the court made a decree distributing the amount of the sales of the property among the. creditors having priority; and another report being made stating the debts still outstanding, amounting to less than the purchase money of the property sold by Mrs.. Williamson, on the 4th day of June 1847 the court made a final decree, directing the executor of Mrs. Williamson out of the assets of her estate in his hands, to pay to each of these creditors the amount .which appeared by the commissioner’s report to be due to him, with interest. From this decree the executor applied to this court for an appeal, which was allowed.

*Joynes, for the appellant.

Spooner, for the appellee.

*

Fraudulent Conveyances — Liability of Vendee.- — See principal case cited in Bolling v. Harrison, 3 P. & H. 542; Almond v. Wilson, 75 Va. 627; Ringold v. Suiter, 35 W. Va. 190, 13 S. E. Rep. 47.

See monographic *note*on “Fraudulent Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.

Same — Retention of Possession by Vendor. — Where property conveyed by an absolute bill of sale is permitted to remain in the possession of the vendor, without any reason shown why it should so remain, the statute of frauds and perjuries and the principles of the common law, of which this statute is declaratory, utterly condemn and avoid the conveyance thus infected by fraud. Davis v. Landcraft, 10 W. Va. 744, citing the principal case. See also, Garland v. Rives, 4 Rand. 282; Wright v. Hencock, 3 Munf. 521; Lang v. Lee, 3 Rand. 410, 425; Shields v. Anderson, 3 Leigh 729; Davis v. Turner, 4 Gratt. 422; Forkner v. Stuart, 6 Gratt. 197

†

Appellate Practice — Decree — Amendment. — See monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.

SAMUELS, J.,

delivered the opinion of the court.

The contract of March 29, 1843, as between John Hardaway and Holly T. Williamson, must be regarded a sale by Hardaway to Williamson, and as passing his title to the property embraced in that transaction ; for the price bonds were given in various amounts by the buyer to the seller, which bonds were assigned by the seller to some of his creditors in satisfaction of their debts; the bonds having been drawn for amounts corresponding with the amounts of Hardaway’s debts to the creditors, to whom they were respectively assigned. These bonds were the evidence of the debt due from Williamson to Hardaway, contracted in consideration of the property bought by her from him. If Williamson *241and Hardaway were the only persons interested in the disposition of the property, the contract would be regarded as valid and binding. The contract, however, is impeached by certain creditors of Hardaway on the ground of fraud. The record before this court is made out in pursuance of the act of assembly of February 28th, 1846. Sess. Acts, chap. 69, p. 56. It does not show whether or not all the creditors were creditors by judgments on which executions had issued without procuring satisfaction ; and thus does not show whether all the parties impeaching the conveyance were competent to do so, as the law was at the time of rendering the decree. On this record we must hold that this question is not one on which “it is desired to take the judgment of the appellate court;” and that it is not now to be decided. Holding, therefore, that complainants in the court below were competent to enquire into the fraud alleged, we are brought to the consideration of that subject upon the evidence contained in the record. It appears then that John Hardaway executed *the conveyance of March 29, 1843, with the fraudulent intent to hinder, delay and defraud his creditors; and that Holly T. Williamson, the other party to that conveyance, was fully apprised of the fraudulent intent, and actively assisted in carrying it into execution. That the property conveyed was sold at .a price far below its real value, with a design of selling it again for a better price, and thereby secure a provision for Hardaway’s wife and child, to the prejudice of his creditors. The property conveyed by absolute bill of sale was permitted to remain in the possession of Hardaway, the vendor, without any reason shown why it should have so remained. The statute of frauds and perjuries and the principles of common law, of which that statute is declaratory, utterly condemn and avoid a conveyance thus infected by fraud. 1 Rev. Code, ch. 101, p. 372, 3; Garland v. Rives, 4 Rand. 282; Wright v. Hencock, 3 Munf. 521; Lang v. Lee, 3 Rand. 410; Shields’ adm’r' v. Anderson’s adm’r, 3 Leigh 729; Davis v. Turner, 4 Gratt. 422; Forkner v. Stuart, 6 Gratt. 197. This court is of opinion there is no error in the decree of the court below setting aside the conveyance impeached. The record does not show that any of the creditors had a preference over others of the creditors, and the decree is therefore held proper in putting all the creditors upon the same level.

The appellant’s counsel, whilst he admitted that the conveyance of March 29, 1843, was fraudulent, yet insisted that so far as the price of the property was applied by Mrs. Williamson to pay Hardaway’s just debts, she should be protected against other creditors. The letter and spirit of the statute of frauds and perjuries would be contravened by such a construction as this. After the fraud is detected and brought to light, the fraudulent vendor should not be allowed to compound the fraud by giving tip a portion of the property or its avails, and being exempt from liability for ^another portion, although that portion may have gone to pay bona fide debts. This question however is not material in this case, inasmuch as at Hardaway’s death enough remained of the property conveyed to pay all the debts decreed for. In the opinion of this court there is no error for which the decree should be reversed. The court below omitted however to direct the payment of 13 dollars 49 cents, with interest on 12 dollars 44 cents, due from Susan A. Hardaway, administratrix of John Hardaway deceased, and of 5 dollars 26 cents, with interest from April 1st, 1846, in the hands of H. H. Lewis, the administrator de bonis non of the same intestate. Inasmuch as H. T. Williamson’s estate would be liable in the last resort for all Hardaway’s debts, reported in the case, if these balances be never paid, the court here is of opinion, that after payment of the money decreed against Williamson’s executor, he may be allowed, on showing the fact to the Circuit court, to recover against Susan A. Hardaway and H. H. Lewis the balances in their hands respectively. And if Williamson’s executor shall not pay the money decreed against him, or any part thereof, any creditor of Hardaway, reported as such in this case, and having the right to the balances mentioned, may apply to the Circuit court for a decree therefor, the amount of which recovery is to be deducted from the decree of such party against Williamson’s executor. With this amendment the decree is affirmed with costs to the appellees.