#### JONATHAN JENKINS v. LUCY T. PEACE.

Where a father, who was in embarrassed circumstances, sold to his two daughters, who lived with him, three slaves, for a fair price, a part of which was paid down, and the remainder was to bo paid toward *bona fide*debts which the father owed, which payments were made accordingly: Held by the Court, that this was not a fraud, inlaw, upon the rights of a creditor, existing at the time of the transaction, so as to authorize a Court thus to declare it.

This was an action of Replevin, tried before bis Honor Judge Caldwell, at the Spring Term, 1854, of Warren Superior Court.

The action was brought to recover a slave by the name of Mourning, formerly the property of John T. Peace : the plaintiff claimed title as a purchaser at an execution sale. The execution, under which the sale was made, was in favor of the plaintiff, against John T. Peace, returnable to May Term, 1846, of Granville County Court.

The defendant claimed title under a bill of sale from her father, John T. Peace, above named, dated May 4th, 1844, which purported to convey to her the slave in question also' another slave, named Peyton, at the price of $400. It appear* ed in evidence, that John T. Peace made a bill of sale, of the same date, to his daughter Elizabeth, of a slave by the name of William, at the price of $250; both of the said bills of sale were in due form, and were proved and registered. It was proved, by the subscribing witness to the bills of sale, and by another witness, who was present at the time of their execution, that, immediately before the time of the execution of these in-*414gtruments, it was agreed between John T. Peace and bis daughters, that he should convey these three negroes to them, at the price of $650, for which they were to pay him $250 in cash, and were to pay four debts which the father owed, making, as was proved, about the balance of the $650, which sum of $650 was proved to be about the value of the slaves. Immediately after the bills of sale were made, the daughters paid their father the sum of $250, and agreed and undertook verbally with John T. Peace, to pay the debts above mentioned. The subscribing witness to the bills of sale, who was also one of the creditors, testified that, about eight months after the date of the bills of gale, the daughters, Lucy and Elizabeth, put their parol undertaking for the payment of these debts into writing, and after-wards paid the same, except a portion of the interest, which was not charged. It also appeared in evidence, that, sometime after the date of the bill of sale, the daughters gave their note to one Rosa Jinkens, one of the father’s creditors, for the amount of her debt, and afterwards paid the same: they also paid a debt between the years 1846 and 1850, to one Rosa Blackwell, with the exception of a small portion of interest, which was given them. It was also in evidence, that, shortly after thi3 contract and sale, the defendant applied to James Hockady, on» of James T. Peace’s creditors, to settle his debt, and that she afterwards paid it. It appeared from the evidence, that these debts were *bona fide*due, and owing at the date of the bills of gale. The defendant lived with her father before the date of the bills of sale, and continued so to reside with him, up to the time of his death in 1846. What control, if any, was exercised by John T. Peace over the slaves, after the making of the bill of sale, did not appear in evidence. Josiah Peace, the witness to the bill of sale, who was also a creditor, stated that the amount of his debt was not mentioned at the time of this transaction ; indeed, that at that time, it was not known to him.

The plaintiff was a creditor of the father in 1842 or ’48. In July, 1844, he brought suit and prosecuted it to a judgment, and, in March 1846, caused the slave in question to be sold un*415der the execution issuing thereon, when he purchased her. It was in evidence, that JohnT. Peace was in embarrassed circumstances, in May 1844, that he had been so for years before, and remained so afterwards, until the time of his death. There was a great deal of other testimony in relation ^o the fraud, which it was agreed, by counsel below, need not be stated. The facts stated, concerning the execution of the bill of sale, and the existence of the four debts, and their assumption and payment, were proved by witnesses introduced by the defendant.

The counsel for the plaintiff insisted that supposing all that had been proved by the defendant to be true, it was a fraud in law, and moved the Court so to charge the jury; the Court declined so to charge, remarking that it was a mixed question, and Went on tp explain the law arising from the facts.

For refusing to instruct the jury as requested by counsel, the plaintiff excepted.

The jury found a verdict for the defendant.

Rule for a *venire de novo ;*rule discharged, and appeal to the Supreme Court.

*Winston*and Ransom, for the plaintiff.

Miller, *J. H. Bryan*and Moore, for the defendant.

Nash, C. J.

His Honor, who tried the case below, could not give the instructions prayed for. If all the facts proved in behalf of the defendant were true, the transaction between her and her father was not in law a fraud. John T. Pearce, the father, was the owner of three slaves, whom ho sold to his two daughters, the defendant and her sister, Elizabeth, at the price of $650. Two of the slaves, of whom the negro in question was one, were conveyed to the defendant at the price of $400, and the other to Elizabeth, at the price of $250. At the time of making and executing the contract, the sisters paid in cash $250, and the remaining $400, it was agreed, should be discharged by the payment of certain specified debts then due and owing by the father, and amounting to about the sum of $400. The price agreed on was a free and fair one, and the specified debts to be paid by *416the sisters were afterwards paid by them. The father at the time was in embarrassed circumstances, and then owed a debt to the plaintiff, which is still due and unpaid, and the negro now in dispute is looked to by him as the source from which he is to get his judgment. The whole question was properly left to the jury. Before us it has been urged that the Court ought to have given the instruction asked for, because the promise by the daughters was a promise to pay the debts of another, and not being in writing, was under the Statute void, and their subsequent payment of them could not render the previous promise good, as it was a voluntary agreement on their part. The principle on which the argument rests is correct, but the argument itself rests on an ■assumption not warranted by the facts. The promise by the daughters to p- y the creditors of their father, was not a promise to pay the debt of another, but an original promise to discharge their own debt in a particular and agreed way — a promise founded on a new and valuable consideration. There is nothing in the law of debtor and creditor which forbids the latter, however much indebted, from selling any portion of his property, provided he does it *bona*fide, without any intent to defraud, hinder, or delay his creditors. Nor can the sale be otherwise than legal, when he sells for the purpose of paying his creditors, though they may be preferred creditors, Lee v. FlaNNAGAN, 7th Ired. 471. Nor is a parent forbidden to sell to his child; the only difference would be, that the latter would be held to fuller and stricter proof of the fairness of the transaction. In this case, one of the creditors of the father Í3 the subscribing witness to the conveyance. By the purchase of the negroes, the daughters became indebted to the father for the amount of the purchase money. They paid more than two-thirds at the time, and the remainder was left in their hands to discharge certain debts due by the father; and the debts so specified were paid by them, and the payment discharged the debts the father owed, and the debt they owed him. In fact, the amount left in their hands was the money of the father, which might have been recovered of them by him, at any time, before *417tbey bad appropriated it as directed, or before they had made themselves responsible to the creditors for it. It is true, the original indebtedness discharged by the plaintiff and her sister, was that of the father ; but their promise was a new and original promise for a new and valuable' consideration, and is not within the Statute of 1826, ch. 10, sec. 1st; Sdn. 211., note a.; Cooper v. Chambers, 4th Dev. 261; Ashford, v. Robinson, 8th Ired 117. The principle there decided meets this entirely. The case does not come within the operation of our statute, and is not an attempt to substitute a valid for a void contract. The promise to pay over the amount of the deferred payment to the creditors of the father was a valid promise, and their actual payment a valid one.

Judgment affirmed.