#### *A. E. Ingram v. Benj. Phillips et al.*

Under the oldest execution against a father, who was insolvent, his land, worth 800 dollars, was sold by the sheriff, bid off by his son for 5 dollars, and conveyed by him, without any valuable consideration, to his sister — the father paying the bid and retaining the possession of the land d.uring his life. By a subsequent sale of the father’s other property, after his death, this oldest execution and others were satisfied in full, leaving, however, several executions junior to them remaining unpaid. A surety of the father alleging that the sale of the land was fraudulent, at his instance the sheriff re-sold and the plaintiff became the purchaser of it, under an execution which was recovered after the first sale, and on a debt subsequently contracted. The jury found that the first sale was made by collusion between the father, son and oldest execution creditor, to defraud the creditors of the father, and also that the deed of the son to his sister was a part of the scheme. The Court sustained the verdict, and *held*that the execution under which the second sale was made, was rightfully levied on the land.

If the donor be indebted beyond his means of payment, the gift is a fraud against his creditors, and void as to them. In such case, even if no dishonest intention can be imputed to the donor, the gift will be set aside in favor of creditors. If it be void against prior creditors, it is void as to all creditors; for by the fraud against some, the gift is void as to all.

*Before*Evans, J., *at*Lancaster, *Spring*Term, 1850.

This case having been sent back for a new trial, was again tried at Spring Term, 1850, with the same result, a verdict for the plaintiff. The facts stated in the former report, were again proved at this trial, with much additional evidence to establish the indebtedness and insolvency of John Ingram.

In 1840, one John E. Ingram obtained a judgment against John Ingram, for $1353 40. The *fi. fa.*in this case was levied on the land in dispute by Secrest, the sheriff, in 1841. It was sold on the4th March, 1844, by Hancock, sheiiff, and bid off by John A. Ingram, son of John Ingram, for five dollars. A deed was made to the purchaser, who, on the 21st June, conveyed the land to his sister, Charlotte Ingram, who has since intermarried with the defendant, Benjamin Phillips. John Ingram gave his note to the sheriff for the price of the *201title, and there was no doubt he paid also the purchase money. At the time of this sale, there had been large payments made on the *ji. fa.*by John Ingram to J. E. Ingram, which, on the day of sale, were endorsed on the execution by the sheriff, but there was a balance of above $ 150 still due. In the course of the next year, the sheriff sold all the property of John Ingram, which brought only about five or six hundred dollars, which paid off the balance of John E. Ingram’s case, and other cases, six orseven in number. But there were still left unpaid several cases. - In November, 1845, John Ingram died, and the sales made as above, were after his death. After applying the proceeds of the sale of his property, there was a considerable amount still unpaid. One Aran is had a judgment against him — one hundred dollars, besides interest and costs. The execution was lodged in November, 1845. There was also a judgment in favor of the Bank at Camden, for three hundred dollars and upwards; a.lso, a *ji. fa.*lodged in August, 1844, against Ingram, Mcllvaine, McKennie and others, sureties of Secrest, former sheriff, for official default, amounting to upwards of four thousand dollars. There were five sureties, but the whole was paid finally by Mcllvaine and McKennie, except about forty-five dollars, arising from the last sale of John Ingram’s property. The debt to the Bank had existed for some years before the sale above mentioned. It was, originally, a debt of John A. Ingram, but on his death, John Ingram’s note was substituted, with Isbon Ingram and James B. Ingram as endorsers. The note had been under protest, and the one hundred dollars debt to Arants, was for money borrowed to make a payment and reinstate the note in Bank. Secrest went out of office in 1841, and the liability for him had accrued before that time. The debt to the Bank was paid by Isbon Ingram, one of the endorsers, the other endorser, James B. Ingram, having proved to be wholly insolvent; he was also the surety of John Ingram to Arauts, for the debt above mentioned.

Sometime after John Ingram’s death, James B. Ingram alleged that the sale of the land in March, 1844, was fraudulent, and at his instance, the sheriff, Adams, levied on it again, under Arants’^. *fa.*on the 16th November, 1846. It was sold in January after, and bid off by Arants for one hundred and forty-seven dollars, but he failed to comply, as the money would go to cases older than his; It was re-sold in February, and bid off by the plaintiff, A. E. Ingram, for ten dollars, to whom the sheriff made a title. From this statement it is clear, that the defendant’s title is the oldest and must prevail, unless, as alleged, it was void for fraud. This was, in fact, the whole matter in issue, and the following is t*he evidence on that point.

John who was the of Hancock and *202his successor, said that old Ingram was very unwilling, and, apparently, very solicitous that his land should not be sold, but the sale was forced by John E. Ingram, who was unfriendly with John Ingram on the day of sale, and would not speak to him. He urged the sale, and said he would give six hundred dollars for the land. James B. Ingram was present at the sale, as were also, Young, Mcllvaine, McKennie and others, who were interested.

James B. Ingram said he was the surety for the debt due to Arants, and there was a judgment against him for the debt, as well as against John Ingram. He was the son-in-law of John Ingram, and lived near him. On the day of sale, he came to the Court House with John and John A. Ingram. An arrangement was made between them, that John A. was to bid oft the land for his sister, Charlotte, and the father was to furnish the money to pay the bid. This arrangement was not to deprive him of the use of the land, or his just creditors of their debts, but to prevent the liability for Secrest from taking his property. The subject had been talked of in the family for two or three weeks. John E. Ingram was *friendly*with the old man at the time of the sale. There had been some difference between them, about a debt due to John E. but this had been pretty much paid off by the sale of two negroes. John E. was a visitor at the house of John Ingram, both before and after the sale. They returned home in company from the sale. John Ingram remained in possession of the laud until his death, in November, 1845. The land, in 1844, was worth eight hundred dollars. It is now worth more. John Ingram gave a note to one Smith for negro hire, for the year 1844, no part of which has been paid. He (James B.) was friendly with John Ingram. After his death, he had a disagreement with the family. After this, he told Arants he knew enough to set aside the sale, and told the sheriff to levy on the land. He went to see Mcllvaine, one of Secrest’s sureties, to get him to have the land sold, but he declined to have any thing to do with it. The understanding between him and Arants was, that Arants was to bid off the - land, and he was to take the title if he could raise the money. This he was unable to do, and the land was re-sold. This witness said he was insolvent, but none of his property had been sold.

Mr. Andrews said he was at the first sale. The land was near him, and he would have bid for it, if it had been brought into fair sale.' He saw one of the family bidding, and declined to bid.

Capt. Mcllvaine, (son of A. Mcllvaine, the co-surety of Se-crest,) said he was at the Court House the day the land was sold. He made some inquiries about the sale, of John E. Ingiam. He appeared to be very angry with John Ingram, *203and said he would give six hundred dollars for the land, with which Mcllvaine said .he was satisfied. James B. wished him to have the land levied on and sold again. He said enough could be proved to set the sale aside, but he declined.

Thomas D. Ballard said, John E. Ingram was boarding at his house at the time of the sale. He said he intended to buy the land or make it bring its value. He visited old Ingram, both before and after the sale. He said sometimes he and old Ingram were friendly, and at other times, they were not.

James Hunter said he was at the second sale. He heard Adams, the sheriff, say to some one, “it was likely there would be a lawsuit about the land, and that fraud would be proved.” This was at or about the time the land was setup.

Rush Hudson said, that on the evening of the first sale, he met John E. Ingram going home by himself, and not in company with John or James B. Ingram.

J. H. Witherspoon said, that there were five sureties of Secrest, and that the aliquot part of each, was twenty-four hundred dollars.

Mr. Adams, the sheriff, said, that when he sold the land the second time, the sale was forbid by Phillips, and he gave notice that he had sold the land before.

The charge of the Circuit Judge to the jury, embraced the following legal propositions:

1. That neither the sheriff nor the owner can re-sell any property, unless the first sale was void for fraud, and, therefore, they must find for the defendants, unless there was fraud in the first sale.

2. That even if there be fraud, the contract would be good between the parties. Only those who were effected by the fraud could vacate the sale.

3. If the creditor forces the sale of the property, there was nothing unlawful or fraudulent in the debtor arranging that it should be bid off by one of his family, provided the sale is fair, and no improper means are used to prevent competition, although the price may be merely nominal.

4. Nor would the fact, that the debtor' himself paid the money, vitiate the sale at law. It might create a resulting trust in equity.

5. A man may dispose of his property as he pleases, and in what manner he pleases. He may resort to a sheriff sale, or any other indirect mode of doing it; but if the purchaser pays nothing, it would be a mere voluntary conveyance, which would be good as between them, but void as to existing creditors, or subsequent creditors, if so intended.

These were the abstract propositions submitted. As applicable to this case, the jury were instructed to inquire, as a matter of fact, whether there was collusion between John, *204John A. and John E. Ingram, to efFeet an unfair sale, by the iatter’s assuming a hostile attitude to the former, and declar-the sale should go on and he would give six hundred ¿}0]]ars for the land, when, in reality, he intended only to carry out a previous arrangement, and to enable John A. to buy the land for his sister Charlotte, at a nominal price. If the evidence was satisfactory on this point, then his Honor thought the purchaser could stand on no better footing than a voluntary donee. There was very satisfactory proof that John Ingram was indebted at the time, to an amount greater than the real value of his whole estate. After the sale of all his property, there remained, of debts due at the time of the sale, his aliquot part of Secrest’s defalcation, at least three hundred dollars, and the debt to the Bank, at least two hundred dollars at that,time, aird his part of the debt to Smith, for negro hire, which was contracted in January, 1844. All which exceed one thousand dollars, which is more than the present estimated value of the land. The gift was, therefore, in his judgment, clearly void as to existing creditors. The only remaining questions are those made in the 1st and *3d*grounds, in the notice of appeal, whether the plaintiff, being a voluntary purchaser with notice of the prior sale, could avoid that sale for fraitd. His Honor was of opinion, and so instructed the jury, that a purchaser at sheriff sale had a right to avoid a sale or gift if it was void as to the creditors for whose benéfit the sale was made. In this case, the creditors of Secrest were the oldest, and the money arising from the sale would go to them. The levy, although made under Arants’ execution, was, in fact, a levy under the oldest *fi. fa.*But even if not so, the money borrowed from Arants was to pay, and did pay in part, the debt due to the Bank at the time of the first sale; and for this reason, he might be considered so far an existing creditor as to vacate a voluntary conveyance made a few months before his debt was contracted, by a man at that time wholly insolvent. On legal principles, he thought it clear the plaintiff was entitled to recover, if the fact of collusion was established. In any other aspect of the case, the jury were instructed to find for the defendants.

The defendants moved the Court of Appeals for,a new trial, on the following grounds, viz :

1. Because his Honor erred in charging the jury, that the plaintiff, under his purchase, occupied the position of a creditor, when, it is submitted, he could occupy only the place of M. B. Arants, under whose execution the land was sold, and who was no creditor at the time of the first sale, when the land was bid off by John A. Ingram.

2. Because the plaintiff'cannot occupy the position of any other creditor than the creditor at whose instance the land was sold.

*2053. Because his Honor erred in charging the jury, that the plaintiff was entitled to occupy the position of the official creditors of Secrest, when the said creditors are not likely to suffer, and have not moved in the matter, and when the sureties of Secrest refused to have any thing to do with the last levy and sale.

4. Because there was not sufficient proof to authorize the jury to find that the sale, under which defendants claimed, was fraudulent; but on the contrary, it was clearly proved that the sale was fair, and against the wishes of John Ingram.

*Clinton &¡'*Hanna, for the motion.

*Hammond Sp Coolce,*contra.

*Curia, per*Frost, J.

Benjamin Phillips claims the land in dispute, in right of his wife Charlotte Ingram, to whom her brother, John A. Ingram conveyed it, without any valuable consideration. In March, 1844, John A. Ingram had bid off the land, at a sale by the sheriff, under an execution of John E. Ingram against old John Ingram, for five dollars, and received a title deed from the sheriff to himself. Old John Ingram paid the bid. The plaintiff, alleging that the sale was fraudulent, in 1846 directed a levy on the land, under an execution which one Arants had recovered against old John Ingram soon after the first sale, for a subsequent debt; and at this second sale became the purchaser. This is the plaintiff’s title; which he undertook to maintain by proof that the first sale, under which the defendant claims, was fraudulent and void. It was shown that, at the time of the first sale, a number of unsatisfied executions were in the sheriff’s office against old John Ingram; of which that of John E. Ingram was the oldest; and debts, enough to render him totally insolvent, were then due by old John Ingram and were soon after carried into judgment. Two juries have found, that the first sale was made by collusion between old John Ingram and his son, John A. Ingram, and John E. Ingram, the senior execution creditor, to defraud the creditors of old John Ingram; and that by the deceitful and false pre-tences of these parties, practised at the sale, John A. Ingram succeeded in purchasing the land, then worth eight hundred dollars, for five dollars. The conveyance by John A. Ingram, soon after the sale, to his sister Charlotte, is also found, by the last verdict, to have been a part of the scheme.

Under these circumstances the defendants "claim protection under John A. Ingram, as voluntary donees of the land from his father; and contend that the plaintiff, having purchased under the execution of Arants, which was recovered after the first sale, on a debt subsequently contracted, cannot impeach the gift; and that the plaintiff cannot occupy the position of any prior creditor to sot it aside.

*206The law certainly is, that one who is not indebted may *j 4 j*(give away his property, and that the gift shall be valid against the donor and all other persons. But if the donor be indebted q,ey0nci his means of payment, the gift is a fraud against his creditors and void as to them. In such case, even if no dishonest intention can be imputed to the donor, the gift will be set aside in favor of creditors. If it be void against prior creditors, it is void as to all creditors ; for by the fraud against some) the gift is void as to all. When a person is indebted, having made a voluntary deed, the property shall still becon-sidered a part of his estate. If a deed is fraudulent as to creditors, the subject is thrown into assets, and all 'subsequent creditors are allowed to participate in the distri&bution. In *McElwee*v. *Sutton,*the plaintiff claimed, as purchaser, at a sale by the sheriff Under an execution for a debt contracted subsequently to the gift, and it was held that if the debts, antecedent to the gift, are discharged by contracting new ones; or they shall remain until, out of the wreck of the donor’s estate, they are paid off, on account of their priority, and the donor was, in fact, never free of debt, from the date of the gift, it is void as to subsequent, as well as antecedent creditors. In *Howard*v. *Williams,*it is said the question, in every case, is whether the act done is a *bona fide*transaction, or a trick and contrivance to defeat creditors.

The defendant’s title was acquired by collusion and craft, employed for the avowed purpose of defeating the recovery of a debt from old John Ingram, which yet remains unpaid and in judgment; — the land was to be held for the use of old John Ingram, and he possessed it as long as he lived, which is incontrovertible evidence of fraud. The parties pro-lessed that the arrangement was not designed to defeat the claims of any other creditors than those whose demands arose of Secrest’s official bond. The present action and the unsatisfied executions against old John Ingram refute this pretence. If the defendant can maintain a title and possession, thus acquired, against a creditor of old John Ingram, pursuing his claim to the land, under legal process, into this Court, then it is vain for a creditor to expect redress against fraudulent conveyances of property by his debtor.

If the defendant’s possession of the land in dispute be fraudulent, it is illegal. The law can neither protect nor enforce what is illegal. It cannot sanction dishonest practices, by enabling an individual to acquire, by means of his deception, any right or interest. Even if it be admitted, then, that the plaintiff cannot make title to the land under the execution of the Bank of Camden, because it was satisfied ; nor under the judgment against the sureties to Secrest’s official bond, because the plaintiffs in that record were paid their demands, and there was a stay_of execution, yet Aranl’s execution was *207rightfully levied on the land ; the title to which was not divested from old John Ingram, by the'fraudulent contrivances which were employed to put it out of the reach of his creditors.

The motion is dismissed.

(See the same case reported 3 Strob. 565.)

Evans, Wardlaw and Withers, JJ., concurred.

*Motion refused.*