#### Rhoda Waller v. John Mills.

Where a father in pursuance of a family arrangement, conveyed part of his property to a daughter, and the residue to a son, upon condition the latter should pay his debts, the son is bound as a party to the deed to the daughter, although it is void as to tho creditors of tho father; and if the son takes an assignment of a judgment against the father, and buys tho property of the daughter under it, he acquires no title.

Troyek, for a slave. *Tlea*— Not guilty — and on the trial, at Lenoir, before Marti», Judge, on the last Spring Circuit, the case was as follows:

*John Waller,*the father of the plaintiff, in November, ■1826, conveyed the slaves in dispute, to the plaintiff by *516a bin 0f sale, reciting a consideration of g 260 ; at that time, Waller, the father, owed debts to the amount of $1700 *;*besides the slaves conveyed to the plaintiff, he then owned land worth g75Q, and other slaves worth more than g 900, and some debts due him, and chattel property of value.

At the date of the bill of sale to the plaintiff, he conveyed a small slave, not one of the two above mentioned, to another daughter; to whom and to the plaintiff he also conveyed his land ; at the same time, he conveyed all the rest of his property to a son-in-law, one *Bradham,*upon condition, that he, *Bradham,*would pay all his debts. Some time in the year 1827, *Bradham,*having in his possession judgments and executions in favor of several different persons, against *Waller,*the father, placed them in the hands of a constable, and directed him to satisfy them out of the property which had belonged to *Waller.*Under these executions, and another in favor of one Jones, the slave in dispute, together with, the one conveyed to the sister of the plaintiff, and also several horses, &c. were advertised for sale. At the sale, but before it commenced, *Bradham*purchased *Jones’*judgment and execution, and thus becoming entitled to receive all the money to be raised, he instructed the officer to sell for *specie*only, and pu rch ased all the property sold at an under value, and took a bill of sale for the slaves conveyed to his sisters-in-law. These slaves were left by *Bradham,*in the custody of the plaintiff and her sister, until the month of April, 1828, when they were seized by the defendant, by *Bradham’s*directions, under an execution, against the latter.

The defendant offered *Bradham*as a witness, hut he was rejected as incompetent. He then offered to prove, by common reputation, that *Waller,*the father, who died in 1831, was insolvent at that time, but his Honor rejected the evidence as irrelevant.

The judge charged the jury, that although the bill of sale to the defendant, might be fraudulent and void as to the creditors of her father, yet that it was valid to pass the title of the slave in dispute, to the plaintiff *517against all other persons ; that they should enquire whether the title of the plaintiff was ever divested by a sale legally made, at the instance of a creditor of the father : that as to the sale under the judgments and executions' which had been assigned to *Bradham,*they ought to ascertain whether those executions were for debts of the father, which *Bradham-*was bound to pay; if they were, and that sale was made for the benefit of *Bradham,*and for the purpose of fraudulently defeating, for his profit, the title of the plaintiff, they ought to find for her.

In- an action *a,*gainst a constable for wrongfully seizing goods of A under an execution against B.tbe latter is not a competent witness to prove title to them in himself.

A verdict was returned for the plaintiff and the defendant appealed.

*J. II. Bryan*and *Mordecai,*for the plaintiff,

as to the competency of *Bradham,*cited *Purviance*v. *Dry den,*(3 *Scrg.*& *Harvle*402.) *Mderman*v. *Tirrell,*(8 *John. Rep.*418.) *'Slockham*v. Jones, (10 *lb.*2f.)' *Nix*v. *Catling,*(4 *Taunt.*18.) They urged that the conveyances by the father were fraudulent in- law, if he was insolvent, evidence of which was proper, and they cited *State*v. Cochran, *(jinlc*2 *vol. p.*63.)

*Gaston, contra.*

Ruffin, Judge

The case of *Bland*v. *Ansley,*(2 *Bos.*& *Pul. New Reps.*331,) establishes the incompetency of *Bradham*upon a clear principle. The slave had been seised by the defendant under a *fi. fa.*as the goods of the witness, and he is offered to prove property in himself. He has a direct interest in the event; for, if successful, he pays his own judgment debt. And our statute which makes the defendant in execution liable to the purchaser, if the latter be evicted by a paramount claimant, renders the reason for excluding the witness stronger here, than it is in England. '

It is unnecessary to discuss the questions, whether the conveyance to the plaintiff was fraudulent in law; and whether, by consequence, the evidence of the father’s insolvency in 1831, ought not to have been received. The judge assumed, that the deed was void as against credi-

*518A settlement whereby the properly of a father is vested in a son, and the latter charged with the debts of the former is void as to creditors.

I tors generally ; but admitting it to be so, he held, and we think properly, that it was valid as against *Bradham,*supposing the debt, for which the negro was sold, to have been then contracted. At the sale under execution, *Bradham*owned that debt; and if it existed when the deed was made to the plaintiff, he was, by his contract with old *Waller,*to pay it. For the purposes of this controversy, that debt must be considered as satisfied. *Bradham*cannot hold the estates conveyed to him, and yet go against the residue of the father’s property for the very money which constituted the consideration of the conveyance to himself.' The only question remaining, was one of fact, whether the debt to *Jones existed at*the time of the contract between *Waller*and *Bradham.*and so was one of those to be paid by the latter. That was left to the jury, and found affirmatively. If so found without sufficient evidence, the Superior Court might have granted a new trial. We cannot. But it is said, there was no evidence; and therefore the court erred in leaving it to the jury at all. If such were the fact, it would be error in a case where the *onus probandi*was on the side of the plaintiff. But we cannot take that to be the fact. It is not to bo presumed, that the judge would go out of the case made, and deal in mere abstract propositions. The record docs not contain any objection in the Superior Court, on this ground ; and it was therefore unnecessary to state the evidence relative to it.

I have no doubt, however, that the debt existed in November, 18&6 ; and think it extremely probable, that all the deeds then made to *Bradham*and the daughters, were fraudulent against *Jones,*and *Waller’s*other creditors. It was a family arrangement in the nature of a voluntary settlement of all, or nearly all, the father’s *property;*and this, I say, notwithstanding the price agreed to be paid by *Bradham*for what was then conveyed to him. If that price wex*e the full value, yet his embarrassments, which plainly appear, shew his responsibility to be an inadequate security to the creditors. A debtor cannot substitute for the solid value of his pro-*519derty, the colorable provision of an insolvent’s engage- . merit to pay the debts. The presumption is very strong, . that the object of the sale under execution, was to supply this defect, and that in this object all the parties con-civrred. The debt was in the name of *Jones,*who had a right to treat the deeds as nullities *; specie*was demanded, to keep off other bidders; *Bradham*purchased, but, instead of taking the property, left it still with his sisters-in-law. It can hardly be doubted, that *Bradham*and the. plaintiff then understood each other; and that the design was, not to deprive her of the negro, but to confirm her title — she trusting to *Bradham*not to use his legal title to her *prejudice*— Bradham seems to have kept his faith until April of the next year; and then he and the present defendant commenced that course of conduct, which produced the present action. If such was the true state of facts, and *Bradham*was the owner of *Jones’*judgment, it is manifest that the last.sale was but a continuation of the first fraud ; and a court of justice can, in such case, help neither party. The law leaves them where they place themselves. Had the defence been put on that point, and the jury drawn the same inferences of fact from the circumstances which I do, the plaintiff would have been barred; because sheparticipated throughout, in each act of fraud. But the jury was not required to make such inferences, nor the court asked to instruct them upon their effect, if drawn. This court cannot, therefore, act on this part of the case ; because we cannot say how it was. or might have been answered, by evidence from the other side, if it had been relied on. Indeed, the point would not have been adverted to at all in this opinion, except for the wish not to be misunderstood. This construction of the acts of the parties, seems to us to be so obvious, as to induce the belief that it will be deemed the natural one by all other persons ; and if no notice had been taken of it, it might be supposed the court meant to approve and support such dealings. But the decision steers clear of the point, which is not open to this court.

Neither party to a fraudulent conveyance can he aided by a court of justice.

Points which were ^-iai*ancf if°taken might then have j^ot^r'exa-mined on appeal,

Per Curiam. — Judgment aeeirmed.