Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-04-01
LEGAL.
Decision of the Supreme Court OF Ten-
nessee. af Nashville. December Term,


1867.
Reported for the Union and Dispatch by 5. ).
Henderson, Attorney az Law
list RuL OF Recommendation 296s of the
Code provides The truth OF the case being
fairly stated in the bill Of exceptions, the
Judge shall sign the same. which thereupon
becomes n part Of the record OF the cause
Held that IL il not necessary 10 enter the ae-
ton Of the court upon the minutes. to make
the bill Of exceptions part OF me me record.
"a. SALE OF GOODs ABSOLUTELY possession
does not accompany and follow the sale. IL Is
D,lna facie fraudulent, and the onus of proof
is on the purchaser. 10 show the sale was iair,
and for an adequate consideration.
"a. SAME.-rhe fact that a person purchased
property for which he had no use, Is OF itself
no evidence Of fraud.
Jane T.. Grubbs us. O. G. Greer.
This is an action of repevin brought by
the plaintiff against the defendant in the
Circuit Court of Robertson county, TO re-
cover the possession OF various articles of
personal property. The writ was executed
and the property delivered to plaintiff.
The cause was tried by jury at the term
1867, of the Circuit Court, and resulted in
a verdict for the defendant
The proof is very voluminous, and 1t is
only necessary 10 state so much oil II as
will be requisite TO understand the princi-
piles involved.
=. II. WilliaL 4, the brother of the plain
tiff, was indebted to her in the sum Of $3.50,
by note dated June, 1862, due one day
after date. the consideration of which was
a negro slave, valued at $3.50, a horse at
SIS, the balance loaned money. Williams,
on the 18th Of April, 1865, sold TO plaintlffi
the property replevied, consisting Of MULE,
cattle and household furniture, wheat
and pork. for which she executed 10
him the following receipt on the back of the
note: Received on the within note $500,
in household furniture, farming utensils,
wheat, etc, etc. August 10, 1868" He ex-
ecuted 10 her bill ofsale for the property.
Williams wasin embarrassed circumstances
The plaintiff having no special use for the
property, left il on the place in the posses
sion of Williams The plaintiff was in
easy circumstances. Williams was living
on the farm Of the plaintiff and never set
up any claim or title to the property. He
used part Of il for his family; sold some
Of the cattle; made bacon Of the pork hogs
and sold about 800 pounds aud bought
groceries for his family; aud used part of
the wheat. The property not used re-
manned upon the farm until it was levied
upon by the defendant, as a Constable, to
satisfy various executions in his hands
against Williams, from whom the plaintiff
had purchased the property. A motion for
a new trial and in arrest of judgment was
entered and overruled, 10 which the plaintiff
excepted and rendered a bill Of exceptions,
which were signed and sealed by the Judge,
and made part Of the record the signing
and sealing the bill Of exceptions in this
case was not entered upon the minutes of
;he court. An appeal was prayed and
granted TO this court. Several questions
have been discussed in argument
First. IL is insisted for the defendant, it
not appearing on the minutes of the court,
the bin ofexceptions was signed and sealed
and made part of the record. Ii does
not become a part thereof. We do not
think so. BY the provisions of section
1868 Of the Code, il is made part Of the
record. That section provides, the truth
of the case being fairly stated in the bill
of exceptions, the Judge shall sign the
same, which therefore becomes part of
the record for the cause. This section is
conclusive OF the question. IL is the
usual form alone TO enter upon the min
utes the action Of the court, hut il is not
necessary TO do so 10 make the bill CT ex-
oeptions a part of the record.
Second. IL is insisted for the plaintiff
that part of his Honor's charge is erroneous
in which he instructed the jury, il the sale
was for a part and adequate consideration,
vet if the object Of the plaintiff was 10 let
the property remain in the possession and
20 be controlled by Williams, it would be
fraudulent. We think this instruction er-
roneous. Ii is clear misapplicaton Of
the principles where property is conveyed
in trust 10 secure the payments of debts
and the deed contains articles censursble
in their use the conveyance is void as to
creditors Of the maker of the deed. The
rule does not apply where there is not an
absolute sale Of property. IL the debtor
retains the possession it is prin'a fdcie fraudu-
lent. The onus Of proof is on the purCha-
ser that il is fair and bona fde.
II cannot alter the rules Of law il the
purchaser, for motives of kindness or az
lection for relative, permit the property
TO remain in the possession Of a debtor.
IL is sufficient TO hold il primG fdcie fraud
ulent, and permit the purchaser in the
contest with the purchaser TO show IL bona |
f9e. To hold IL a fraud,po- Sc would prevent |
ihe exercise Of the kind and benevolent |
feelings of those in prosperous circumstan- |
ces TO their unfortunate friends and rela- |
,ives when they are willing aud able TO |
assist. IL the sale is absolute and bona fde, |
il can make no difference 10 the creditor |
what disposition the purchaser makes of |
the property. NoprinSiple Of law has been |
more clearly and definitely settled than |
the one under consideration. In the case |
Of Collin u.s. Thompson, 3 Yer, AIS, the |
English and American authorities were |
and reviewed, and the princi- |
ple clearly settled that, upon the sale |
Of goods absolute. if possession does not &C
count any and follow the sale, il is primiI
faoic fraudulent that the onus Of proof is
ON the purchaser TO show the sale was fair,
and for an adequate consideration. The /
court say "this rule held COMFORTS with |
the understanding and interest of society"
The principles have been re-aflirmed and /
recognized in decisions Of this court.
Third. We think His Honor erred in 1
that part Of his instructions to the jury in
which he stated, IL the plaintiff had no use
for the property il would be presumption
n fraud. ID may, under some circnmstan-
,es awaken a suspicion, but is Of itself no
evidence Of fraud.
We apprehead no case can be found /
where IL has been held to be fraudulent
where person purchased property for
which he had no particular use. Other
questions have been discussed, but 10 the
view we have taken Of the case 1t Ia I'M
necessary 10 express any opinion upon
hem.
The Judgment will be reversed, and the
..nsa rauaanded
SHAcKALFoRD, Judge.