#### *B. Staton v. Pittman, Sheriff. Pittman, Sheriff, v. R. Staton.

April Term, 1854,

Richmond.

Case at Bar—Fraud against Creditors.*—Judgments bad been recovered against N, and executions sued out thereon had been returned “no effects. ” In this state of things, slaves sold at public auction on a credit were cried out to N, and he induced T to take them and give his bond for the price, upon the understanding that N would afterwards take them and pay T the price: and he told The was indebted to his sister B for washing, mending, &c., and owed her a good deal of money, and he wished to give the slaves to her as compensation for what he owed her. T kept the slaves about three months, and then N paid T the price of the slaves, and T gave N a receipt in the name of B; and a day or two afterwards T sen t the slaves to the house of B the father of B, where B then Uvea, she being about fourteen years old; and the slaves and B both remained there, she claiming *53them as hers, hut it not appearing that I! set up any claim to them. Whilst the slaves were thus at the house of B, the sheriff attempted to levy upon them as the property of N, but when he came in sight, the doors of the servants’ houses were shut. Afterwards Tf was taken on a *ca. sa.*and took the insolvent debtors’ oath; and then the sheriff brought separate actions of detinue against I! and li to recover the slaves. Held:

1. Same—Same.—The arrangement by 1ST was fraudulent as to his creditors.

2. Same—Same.—Though N never had possession of the slaves, yet as he paid the purchase money to T, they became the property of Tv, upon which his creditors would have been entitled to levy their executions; and the subsequent transfer of the possession to B without consideration, and upon a fraudulent arrangement between Tí and It, did not bar the action of the sheriff for the slaves.

3. Same—Infants—Judgment.—Though It was an infant when the action was instituted, yet as she did not set up her infancy to deicat the action, and as it may be reasonably interred from the evidence that she was of full age when the cause was heard upon a demurrer to evidence, and appeared and defended herself by counsel, she is bound by the judgment.

4. Same.—Though the slaves were sent to and remained on the premises of B, yet as his daughter It also lived there, and It claimed *the slaves, but it did not appear that B ever claimed them, the action cannot be maintained against B.

5. Same—Evidence—Receipts on Bond.—Upon the trial It, to prove that she gave a valuable consideration for the slaves, introduced a bond executed by N to B, and assigned by B to It, before N’s purchase of the slaves. On this bond there were several receipts, the last of which, for the balance of the bond, was dated before the purchase of the slaves by N, and to this receipt there were four subscribing witnesses, none of whom were introduced upon the trial. It having introduced the bond with the receipts upon it, these receipts were in evidence for the beneiit of the plaintiff, without his calling a subscribing witness to prove them. And it was for It to show that there was an error in the date of the receipt.

These were two actions of detinue brought in the Circuit court of Buckingham county, one by Thomas Pittman, sheriff, who sued for the benefit of Wardsworth, Williams & Co. against Benjamin Staton; and the other by the same plaintiff for the same parties, against Rosetta Staton. The object of both suits was to recover the same two slaves.

The two cases were tried together, and the jury found verdicts for the plaintiff, subject to demurrers to the evidence by the defendants.

It appears from the evidence of the plaintiff that three judgments had been recovered against Nicholas Staton, the son of the defendant Benjamin, and the brother of Rosetta Staton, in September 1841, upon which executions had soon after been issued and had been returned “no effects.” One of these was at the suit of Wardsworth, Williams & Co. Afterwards in 1844, executions had been issued against the body of Nicholas Staton, upon which he was taken in custody, and took the benefit of the act for the relief of insolvent debtors, and was discharged, having surrendered a few trifling articles in his schedule. Previous to this last period, viz: on the 12th of September 1842, at a public sale made at Buckingham court-house, by W. P. Bocock as commissioner, the two slaves in controversy were bid off to Nicholas *Staton at two hundred and twenty-two dollars ; and on the same day he informed William Tapscott of his purchase and requested him to take them, saying that he would afterwards take them and pay Tapscott for them ; and at the same time he told Tapscott that he was indebted to his sister Rosetta Staton for washing, mending, &c. and that he owed her a good deal of money, and wished to buy this woman and child and give them to her as compensation for what he owed her. Tapscott took the negroes and gave his bond to Bocock for the price, and kept them about three months, when Nicholas Staton paid him the purchase money, and Tapscott gave a receipt to Nicholas In the name of Rosetta Staton; and a day or two afterwards sent the slaves to the house of Benjamin Staton. The slaves continued at the house of Benjamin Staton,-where Rosetta Staton also lived; she being at the time of this purchase by Nicholas Staton about fourteen years ofd. At that time Tapscott considered Nicholas Staton very good for the amount of the purchase money of the slaves, and he was always punctual in every transaction he had with him. After the slaves went to the house of Benjamin Staton, the sheriff went there to levy upon them, but after he arrived in sight of the house, the doors of the out-houses were closed, and the entry of the officer prevented.

The defendants introduced Nicholas Staton as a witness, who testified that he first wanted to buy the slaves for his sister Rosetta Staton; that she authorized him to buy them for her; that he owed her a bond, and she told him to buy them and she would give him credit for them; that he did so, and paid off the whole bond. That he owed Benjamin Staton for the hire of negroes, for which he gave the bond to him. That the bond was assigned to Rosetta Staton by Benjamin, before the negroes were purchased ; and that the bond had been paid off by the purchase of *the negroes, and a balance paid in money. That he owed Rosetta Staton on other accounts ; that she had wove for him and done some sewing for him. He had never heard Benjamin Staton claim the negroes; but that Rosetta Staton had always claimed them as hers, and still did so. The bond referred to by the witness was produced, and there was no question that it was genuine, and had been given for the hire of slaves. It was dated the 1st of January 1840, and payable on the 1st of January 1841, and was for four hundred and fifty *54dollars. The assignment b3r Benjamin to his daughter Rosetta Staton is dated the 1st 'of January 1842, and purports to be a .gift. There are four credits on the bond, the two first of which amount to two hundred dollars, and are not dated. The third bears date the 7th of July 1842, for a due bill on A. Tong for one hundred dollars; and the fourth, purporting to be the receipt of the balance of the bond in cash, bears date the 10th of August 1842, and is attested by four witnesses, none of whom were introduced on the trial.

The court rendered a judgment upon the demurrer to evidence against Benjamin Staton, and in favor of Rosetta Staton; and Benjamin Staton in the first case, and the sheriff in the second, applied to this court for a supersedeas, which was awarded.

Stanard and Bouldin, for Benjamin Staton.

Morson, for the sheriff.

Irving, for Rosetta Staton.

*

Fraudulent Conveyances.—The principal case is cited in Billingsley v. Clelland, 41 W. Va. 258, 23 S. E. Rep. 821, and Burns v. Morrison, 36 W. Va. 425, 15 S. E. Rep. 63. See also, 5 Am. & Eng. Enc. Law (1st Ed.) article Detinue 652, 653.

See monographic *note*on "Fraudulent and Voluntary Conveyances."

LEE, J.

It is not to be questioned that if Nicholas Staton was the legal owner of the slaves in controversy, and made the transfer to his sister Rosetta for the purpose of hindering, delaying and defrauding his creditors, the transfer was as to them utterly void; and upon his . taking the oath of an insolvent debtor, *the sheriff became entitled to recover the slaves for the benefit of the creditors, from any one unlawfully detaining the possession of them. Upon this subject the cases of Shirley v. Long, 6 Rand. 735, and Clough v. Thompson, 7 Gratt. 25, may be regarded as decisive. And I think the facts proven by the evidence in these causes, and the inferences which a jury legitimately might and should make from them, are such as to present a case which cannot be satisfactorily explained, except upon the hypothesis of fraud on the part of Nicholas Staton in the transaction in question. At the time of the sale made by Commissioner Bocock, he was much embarrassed with debts, there being unsatisfied judgments to a considerable amount standing against him, the executions upon which had been returned “no effects.” The slaves are struck off to him as the highest bidder; but being unwilling, for a reason which we are at no loss to understand, to complete the purchase by giving the requisite bond in his own name, he gets Tapscott to take his place as ostensible purchaser, and give his bond to the commissioner for the purchase money, and receive possession of the slaves, stating that he owed his sister Rosetta for washing, mending, &c., and that he wished to give her the slaves to compensate her. That he could have given the bond and the security required, in his own name, if he had chosen, may be fairly inferred from what Tapscott states: for he says he regarded N. Staton as perfectly good for the amount of the purchase money, and he had always found him remarkably punctual in meeting his engagements with him; and ho doubt he would have been as willing to become his security if Nicholas Staton had chosen to give his own bond on the credit of the sale, as he was to make himself the convenient instrument in the arrangement which Nicholas Staton preferred to adopt. Tapscott retains possession for about three months, and Nicholas '*Staton then pays over the amount of the purchase to him, taking a receipt in the name of Rosetta Staton, who was at that time about fourteen or fifteen years of age; and in a day or two after, Tapscott sends the slaves to the house of Benjamin Staton, the father of Rosetta, with whom she then lived. Now it does not appear whether at this time the credit of the commissioner’s sale had expired, or whether Tapscott had paid for the negroes or not; but from his sthence on this point, and from the questionable position which he occupies in relation to this affair, it might not be unwarrantable to infer that he had not then paid for the negroes, and that the payment, when made, was with the funds provided by Nicholas Staton himself.

As to the pretended consideration for the transfer of the slaves b3r Nicholas Staton to his sister Rosetta, I think it comes in too questionable a shape to afford an3T sufficient support to the transaction. She was at the time a mere child, and it would seem very improbable that he could owe her any considerable sum for washing and mending. He is introduced as a witness indeed on the part of the defendant in the action, in each case, and he states that he purchased the negroes by the direction of this young- girl, and with them paid off the balance of the bond which had been assigned to her by her father. And though he does sa3_ that he owed her on other accounts for personal services, yet this is rather auxiliary and cumulative, and the stress of the consideration is placed on the balance due on the bond. But upon the demurrer to evidence, his evidence, so far as it conflicts with that of the plaintiff in the action, is, of course, to be disregarded; and if it were even to be taken into consideration, I think it entitled to not the slightest weight. It is true, the fairness of the bond executed b3’Nicholas Staton to his father for the hire of the watermen, or of the assignment of it by the father to Rosetta Stat'on, is not impeached *by the plaintiff, nor do I perceive anything in the evidence upon which either could be successfully assathed. The evidence of Tapscott proves that the hiring of the three negroes for the year 1840, was a real transaction between Benjamin Staton and Nicholas Staton; and the bond of the latter, produced by himself on his examination as a witness, shows that it was given for the amount of their hire. This bond Benjamin Staton had a perfect right to give to his daughter, if he chose so to do; nor is there any one here questioning or entitled to question the validity of such a gift. But when Nicholas Staton spoke of his indebtedness to his sister at the time he procured Tapscott to take his place as ostensible purchaser of *55the slaves, and to hold them subject lo his disposal, he made no allusion to *any*bond held by Rosetta upon him, but intimated that what he owed her was for washing, mending, &c. ; and upon examining the bond produced by Nicholas Staton, it would seem that the balance due upon it had been paid off in cash, on the 10th of August 1842, before the purchase by Nicholas Staton at the commissioner’s sale, and some four months before he paid over the money to Tapscott. So that however justly he may have been indebted to Rosetta on account of that bond previously to the sale, lie had at that time ceased to be so, having paid off the balance, and no doubt then having the bond in his own possession.

But it is said that the receipt endorsed on the bond is not proven, and that although there are four attesting witnesses, not one was called to testify concerning it. But what need of proof on the part of the plaintiff in the action? The bond, with the receipt endorsed upon it, is produced by the defendants and their witness, and the plaintiff certainly had the right to take it as they exhibited it. And if there was a mistake in the date of that receipt, as it is suggested x'by the counsel there maj' be, it was for the defendants to show it, I apprehend, not for the plaintiff to show there was none.

I think the indicias furnished by the evidence, of the true character of this transaction, are such as fully to warrant a jury in finding that it was a fraudulent arrangement made by Nicholas Staton for the purpose of screening the slaves from the creditors who then held unsatisfied judgments against him, by holding them out to the world as the property of Rosetta Staton; and that she was but a too willing instrument in his hands to effect his fraudulent purpose. But whether a willing or an innocent instrument, I conceive no substantial or valid consideration is shown for the transfer of the slaves to her, and that she can take no benefit from an arrangement tainted with the fraud too justly imputed to Nicholas Staton.

But it is said Nicholas Staton never had title to these slaves: that even if there was no debt due from him to Rosetta, and the money paid to Tapscott for them was his own money and not that of Rosetta, still he never had the possession of the slaves, because they were delivered by the commissioner to Tapscott, and by him directly to Rosetta Staton ; and that the most that can be made of the case is that it is one of a resulting trust in the slaves for the benefit of the creditors, which they can only enforce in equity, but of which they cannot have the benefit in an action at law for the slaves themselves, in the name of the sheriff, for want of a sufficient legal title upon which to base such an action and recovery. A purchase alone, it is argued, of the slaves without delivery of possession, will not pass a title to the purchaser.

This view in my judgment cannot be maintained. As already intimated, I look upon Tapscott as but the ostensible, while I regard Nicholas Staton as the real purchaser of the slaves: and Tapscott’s possession, if *(as I think a not unwarrantable inference), the slaves

were actually paid for with the money provided by Nicholas Staton, might be regarded as his possession, so far as creditors were concerned, subject at most to Tapscott’s right to be indemnified against the bond which he had given. But if this were going too far, clearly I think after Nicholas Staton had paid over the purchase money to Tapscott, the possession of the latter during the interval between the payment and the delivery of the negroes to Rosetta Staton, was the possession of Nicholas Staton, and whether Tapscott had yet paid the amount of his bond to the commissioner or not, an execution against Nicholas Staton might properly have been levied upon the slaves during that interval while yet in the hands of Tapscott. To this Tapscott could not object, for having received the money, his interest in the slaves had ceased by his own act and consent. Rosetta Staton could have no right to object: the money paid for the slaves was not hers, and she had not yet acquired the possession of them. So that there was no one who could successfully interpose to arrest a creditor in the pursuit of this property during that period, nor could his right to subject it to his debt be defeated by a subsequent transfer, except upon sufficient consideration, and untainted by the fraudulent purpose reprobated by the law.

I am of opinion, therefore, that the plaintiff did show a sufficient right to recover the slaves for the benefit of the creditors at whose suit Nicholas Staton took the oath of insolvency, against any and all persons unlawfully detaining them; and as Rosetta Staton claims both title and possession, and wholly denies any right in the plaintiff, she is clearly liable in the action against her. Nor do I think that her infanc3' at the time of suit brought and plea pleaded can protect her from a judgment against her upon the demurrer to evidence. It is undoubtedly true that an infant cannot 'x'appoint an attorney, nor appear or plead otherwise than by guardian ; but waiving the question whether the point can be made in this form, or whether the court must take notice of the infancy of the defendant whenever and however it is brought to its knowledge, it is equals true that the disability of infancy is a privthege personal to the party, and which, after he attain his age, he may well ivaive if he please: And such a waiver must be intended in this case. Tor taking the evidence most strongÍ3, as it must be taken, against the demurrant, it may be inferred that at the time of the argument of the demurrer and the rendition of the judgment in April 1848, Rosetta Staton had then attained her full age, and as she then proceeded by her attorney to the argument of the demurrer without making the objection of her previous infancy, it is to be considered that *56she waived her privthege, and sought the judgment of the court upon the merits of the case.

As it respects Benjamin Staton, however, I can perceive no just ground upon which he should be subjected to a recovery in the action against him. As I have already in•timated, there is no impeachment of the fairness of the bond executed to him by Nicholas Staton, or of the assignment of the same by him to his daughter Rosetta. He is not proven to have had any connection whatever with the purchase of the slaves, or with the transfer of them to Rosetta. He has set up no claim to them in any form, nor exercised any act of ownership over them. Nor can he be said in any just sense to have had possession of them or to have detained them from the plaintiff. That he suffered his daughter to keep the slaves that she claimed as hers, at his house where she still lived, is a circumstance too slight and equivocal of itself to charge him with the grave responsibilities of an unlawful detainer from the right owner. It is not incompatible, but strictly consistent with perfect freedom from any participation *in the fraudulent arrangement between the brother and sister, and with entire ignorance of its true character. What more natural than that a father would permit his young daughter to keep slaves, that she claimed as hers by purchase or gift from her brother, upon his premises while she continued a member of his family? He might be totally ignorant of any vice in the arrangement between them; or if a doubt had suggested itself, he might be neither able nor willing to take upon himself the unpleasant task of resolving it. The circumstance alluded toby the witness Haskins of the closing of the doors of the out-houses when he approached with the sheriff for the purpose of levying on the slaves, is left in too much uncertainty to constitute a sufficient ground on which to charge Benjamin Staton. It is not shown to have been done by his authority or with his knowledge, privity or consent. It does not appear that he was even at home at the time. Nothing is shown by which he can be fairly ’ connected with it. That the premises were his cannot make him responsible for what might be done upon them without his authority; and for aught that appears, this closing of the doors might have been the act of the negroes themselves. The plaintiff might have readily placed Benjamin Staton in his true position by demanding to know if the slaves were withheld by his authority, and might then treat him as the nature of his response should direct. He made no such call, however, upon him; and under such circumstances, to charge Benjamin Staton with the consequences of an illegal detainer of these slaves, would be, as it seems to me, to convict a man upon bare suspicion of being privy to and participant' in the unlawful act of others, although remaining passive throughout, or at most, doing what perhaps almost any other father might do in similar circumstances, in permitting a child to keep property 'that she claimed, *upon his premises whilst she was herself a member of bis family. The injustice in this case would be gross and manifest. For if the plaintiff in the action should enforce his judgment against Benjamin Staton, bjr compelling payment of the alternative value and damages found by the jury, and the costs, he will be without indemnity of any kind. Thus he is compelled to pay a large sum towards a debt of Nicholas Staton, for which he was never in any form responsible, for which he has received nothing in the form of an equivalent, nor can claim anything in the way of indemnity: and this fora transaction in which he is in no manner implicated, and without any proof that he has in any manner obstructed the plaintiff in the pursuit of his remedies against those who were justly responsible to him.

I am of opinion, therefore, to reverse the judgment in each case; and in the case of Rosetta Staton, to render judgment against her on the demurrer to evidence, and in that of Benjamin Staton, to render judgment for the defendant.

ALLEN and SAMUELS, Js., concurred in the opinion of Lee, J.

DANIEL and MONCURE, Js., concurred in the opinion of Lee, J., as to Rosetta Staton; but they thought that the judgment against Benjamin Staton was correct.

Both judgments reversed.