#### John Archer *v.*A. N. M'Fall.

This was an action brought by the plaintiff, *Archer,*against the defendant as Sheriff, for an alleged trespass, in taking out of his possession a negro woman, named *Sarah,*and her two children, and selling them, as the property of one *Van. Lawhon,*under a judgment and execution against the latter, in favor of one *Cherry.*It appeared that Sarah was originally the property of *Archer;*that Van. Lawhon married the plaintiff’s daughter, and that soon after his marriage, he removed from Archer’s, where he had previously resided, and that Sarah went with him, and continued in his possession up to a short time before the levy, with all the usual indications of ownership. Cherry was previously a partner of Van. Lawhon’s, and, after the dissolution of the copartnership, a creditor to a considerable amount, for which he took Van. Lawhon’s note, and subsequently a confession of judgment, upon which the execution issued under which the property was sold. The jury found a verdict for the defendant, and the court refused to grant a new trial.

In the opinion expressed in this case, the court say “ *Archer*had been the owner of the negroes at one time, and to divest him of his title, it was necessary the defendant should have shown some contract whereby his title had been transferred to *Van. Lawhon,*or that he had done some *act, by means of which Van. Lawhon’s creditors*had been deceived and defrauded. In this case, the possession of Van. Lawhon, as proved was such as would in law be construed a gift, even in a controversy between him and *Archer,*but for the fact which was proved mainly by Van. Lawhon himself, (who was a witness in the case,) that the negro came into his possession as a loan ; others, however, who knew nothing of this understanding between the parties, had a right to regard Van. Lawhon as the owner.”

I take it to be well settled by a number of decisions, that if Van. Lawhon, thus in possession, acquired a credit upon the faith and confidence that Sarah and her children belonged to him, a creditor who trusted under these circumstances, had a right to subject the property to the payment of his debt. — Per Evans, J.

But to entitle a creditor to this position in such a case, it should be made to appear, 1st, that he is a *subsequent*creditor without *notice;*and, 2d, that he trusted his debtor on the faith and belief that the property was his_ Per Evans, J.

*Before EVANS, J., at Anderson, Fall Term,*1838.

The points made in this case, and the facts upon which they *74depend, will appear from the report of the case made by his honor, the presiding judge, which is as follows: *“*This was an action against M’Fall, as sheriff, for a trespass in selling a negro woman, named Sarah, and her two children, taken out of the plaintiff’s possession, and sold as the property of Yan. A. Lawhon, who married Lucretia, the plaintiff’s daughter. One Samuel Cherry, a creditor of Lawhon’s, was the real defendant. Sarah was originally the property of Archer, and the sole question was, whether he had ever parted from his right of property, so as to subject her to the debts of Yan. A. Lawhon. There were many witnesses examined on both sides, on the question whether Archer had or had not given Sarah to his daughter before her marriage. The evidence consisted mostly of declarations, which Archer had made to various persons; but this branch of the case, it is unnecessary to report. I thought, myself, the gift was not made out satisfactorily, and it was very clear the decisión of the jury on this part .of the case was in favor of the plaintiff. All the difficulties of the case arose out of Archer’s conduct* subsequent to the marriage of his daughter ; and as the grounds in the notice relate to errors in the charge, on this branch of the case, it will be necessary to state it somewhat in detail. Yan. A. Lawhon was married in June, 1831. He resided with Archer until December, 1832. During this time, Sarah nursed his child, and some of the witnesses said he seemed to exercise more authority over her than any of the other negroes. After Yan. A. Lawhon removed from Archer’s, Sarah went with him, and continued in his possession up to a short time before the levy, with all the usual indications of ownership. At public times, the girl was at Archer’s for a few days, and on one occasion, she was sent there on account of some suspicions against her, connected with the death of Van. A. Lawhon’s child. The evidence, independent of the testimony of Lawhon and his wife, was such as, to establish the gift after marriage, but from their statement, it appeared to have been considered by both parties as' a loan. Cherry, the creditor, at whose suit the negro was sold, was a merchant at Pendleton. Van. A. Lawhon had been his clerk for many years, and was *75greatly confided in; soon after the establishment of the court for Anderson, they entered into copartnership, in a store to be established at Anderson village, which continued up to January, 1833. By the terms of dissolution, dated 31st January, 1833, Lawhon agreed to pay Cherry $3600, and to discharge all the outstanding debts ; in consideration of which, Cherry released to him all his interest in the effects of the copartnership. Yan. A. Lawhon did not perform his part of the agreement, and Cherry was compelled, as one of the firm, to pay $4708, for which, on the 1st July, 1835, he took Yan. A. Lawhon’s notes, upon which there was a confession of judgment the 20th February, 1836, a levy in August, and sale in September of the same year, when the notes were given. Cherry took a mortgage, to secure the payment; which was afterwards given up. In this mortgage, Sarah was included; but, according to Lawhon’s evidence, at Cherry’s request, and with a knowledge on the part of Cherry that he did not claim her under any gift from Archer.

In my charge to the jury, on this part of the case, I said Cherry stood in the position of a subsequent creditor, without notice of Archer’s claim. If a father, on the marriage of his child, put property into the child’s possession, where it remained under such circumstances as ordinarily attend a gift, a subsequent purchaser or creditor would have a right to subject the property to his contracts, although as between the parent and child, it would amount only to a loan, and therefore, if Cherry knew that Sarah was in Van. A. Lawhon’s possession at the time he sold out his interest in the store, and at that time he -had not any notice of Archer’s claim, then the jury ought to find for the defendant. I explained to them the reasons of this principle of law, that a creditor had a right to look to all the property of which his debtor was the ostensible owner, for the satisfaction of his debt; and it would be a fraud to allow a third person to set up a secret agreement, to defeat the legal presumption of title in the debtor, arising out of the facts of the case. I put Cherry’s right to subject this property to the payment of his debt, expressly on the ground, he was a subsequent creditor, without notice, and that he knew the negro was in Lawhon’s possession, and therefore might *76be presumed to have trusted him on the faith of it. I did not charge the jury as stated in the 2d and 5th grounds, that if Cherry trusted Lawhon, not on the fact that Sarah was in his possession, but on the confidence which he, Cherry, had in Law-hon, without reference to Sarah, then they might find for the plaintiff. If there had been evidence that Cherry did not trust Van. A. Lawhon on the faith of the property, I should have thought the plaintiff entitled to recover, because Cherry would not be defrauded by taking away the fund upon the faith of which he had given credit. — But to deprive Cherry of this means of satisfying his debt, the fact that he had not trusted to it should be made out by proof, and not by conjecture. I did not therefore think it right to encumber the jury with legal propositions about which there was no proof. — If I was wrong in this, a new trial Should be granted. My opinion, as distinctly expressed, was, if Cherry knew that Sarah was in Lawhon’s possession, under the circumstances before stated, he had a right to look to her as a means of -satisfying his debt, and in the absence of any satisfactory proof to the contrary, should be presumed to have trusted Lawhon on the faith of this, as well as his other property.” The vei’dict was for the defendant.

The plaintiff gave notice of an appeal and now moves the court of appeals for a new trial on the following grounds: 1. Because the court charged the jury in the following words: “If Cherry knew Lawhon had the woman Sarah in possession at the time he sold out his interest in the store — and if he did not have notice of Archer’s claim, *then*you should find for the defendant. 2. Because the judge did *not*instruct the jury that if Cherry gave credit to Lawhon, on the confidence he had in him, independent of the woman Sarah, then that they might find for the plaintiff. 3. Because there was no proof whatever that Cherry at the time of the sale of the store interest, *knew*that Lawhon had Sarah in possession at that time. 4. Because the court required the jury to be satisfied that Archer gave notice of his claim to Cherry, or that he knew of plaintiff’s claim, before they could find for plaintiff, if he knew at the time of the sale of the possession of Sarah by Lawhon. 5. Because the court did not *77charge the jury that the true question was, whether or not Cherry gave the credit to Lawhon, on the faith of Sarah and her children, or upon the confidence he, Cherry, had in Lawhon, without reference to Sarah; but'held the plaintiff bound to prove that Cherry did not know of the possession of Sarah by Lawhon, or that Archer should show at the dissolution notice to Cherry of his claim by Sarah. 6. Because the verdict is contrary to law and the weight of evidence in the case.

Cuhia, per Evans, J.

To understand what was the charge to the jury, it will be necessary to state my views of the law, applicable to the case made by evidence. Archer had been the owner of the negroes at one time, and to divest him of his title, it was necessary the defendant should have shown some contract whereby his title had been transferred to Lawhon, or that he had done some act by means of which Lawhon’s creditors had been deceived and defrauded. This last point alone it is necessary to consider. This question involves two distinct propositions: 1st, Has Cherry, the creditor of Lawhon, been defrauded ? 2d, has this been accomplished by reason of any act of Archer’s ? In this case, the possession of Lawhon as proved, was such as would in law be construed a gift even in a controversy between him and Archer, but for the fact which was proved mainly by Law-hon himself, that the negro, came into his possession as a loan; others however who knew nothing of this understanding between the parties, had a right to regard Lawhon as the owner. Strictly speaking, Lawhon held the negro as a loan, but his possession was such as held him out to the world to be the true owner of the property. I take it to be well settled by a number of decisions, that if Lawhon, thus in possession, acquired a credit upon the faith and confidence that Sarah and her children belonged to him, a creditor who-trusted- under these circumstances, has a right to subject the property to the payment of his debt. In this view of the' case, it is wholly immaterial whether Archer intended to defraud or not, and in justice to him I ought to say no such imputation was cast on him at the trial. It is sufficient that the creditor has been deceived, and that such deception has been *78the result of Archer’s permitting Lawhon to have the negro in his possession, under such circumstances as would authorise others to believe he was the owner. But to give a: creditor the right to subject Archer’s property to the payment of Lawhon’s debts, it must be made to appear that such creditor, in truth and in fact, would be defrauded, if Archer were allowed to abstract these negroes from the fund to which the creditor had a right to look for payment when Lawhon became his debtor. To place Lawhon’s creditor in this position, I think it should be made to appear to the satisfaction of the jury : 1st. That he is a subsequent creditor without notice, for if his debt had been contracted before the property went into Lawhon’s possession, or if he knew the property was a loan and not a gift, there is no pretence to say he trusted on the faith, that Lawhon was the ownqr, or had been deceived by his apparent ownership. I do not say the notice to the creditor should be explicit notice, such as is required by the case of Tait v. Crawford, to dispense with the recording of deeds. But to deprive a creditor of his position as a subsequent creditor, some evidence must be given to satisfy the jury that he did know, or by the exercise of ordinary diligence he might have known, that Lawhon’s possession was a mere loan. 2d. That the creditor trusted Lawhon on the faith and belief the property was his. This is a question of fact, and no definite rules can be laid down as to the evidence necessary to establish it. The jury must be left to draw their conclusions from all the facts given in evidence. On the trial, I illustrated thistf position by saying, if Cherry did not know that the negroes were in Lawhon’s possession, he could not have trusted him on the faith that he was the owner. So, also, I would say, if the jury were satisfied from any other fact proved on the trial, that Cherry had not been deceived by Lawhon’s apparent ownership, or had not trusted him in reference to this, as well as the other property in his possession, then these negroes of Archer’s ought not to be subject to Lawhon’s debts.

I have thus, as intelligibly as I can, endeavored to explain and illustrate the principles of law which apply to the case. I intended to charge the jury in conformity with the opinions herein *79expressed. The counsel for the plaintiff, in whose candor I have confidence, think I was misunderstood. If I could believe so, I would, without hesitancy, agree to a new trial. Upon a careful review of my notes of' the charge, I am satisfied the legal principles were fully explained and' understood by the jury. — The motion is therefore refused.

*Whitner*and *Henry,*for the motion.

*Young*and *Perry,*contra.

Gantt, Richardson, Butler, Earle and O’Neall, Justices, concurred.