Marriott & Hardesty, et al. v. Givens.

4. A note dated 10th January, 1839, at one day for $2,750, was produced, purporting to be signed by Herndon and one Russel J. Allen, payable to Wm. T. Givens and James Cox, as executors of Maberry's estate. Allen states in his deposition that he executed it as Herndon's surety, and that he believes it was given for borrowed money. Edward L. Givens states, in relation to this note, that some time in 1839, or 1840, Herndon came to Alexandria, the residence of the witness, and Wm. T. Givens, and brought with him a blank, upon which were written the names of Herndon and Russel J. Allen. By the instructions of Herndon and Wm. T. Givens, the witness wrote above the signatures, a note, payable to Wm. T. Givens, as executor of J. A. Maberry, deceased, for $2,700, or thereabout. Witness understood, from both Herndon and Givens, that the note was given for money belonging to the estate of Maberry, and loaned by Givens to Herndon.

5. As to the debt described in the deed as a receipt, dated 16th January, 1839, for $910, the only testimony is that of Edward L. Givens, who says he has seen a receipt in the possession of Wm. T. Givens, which he understood, both from Givens and Herndon, was given by the latter for money collected by him in Sparta, Tennessee, and belonging to Givens, as the executor of Maberry. This receipt, as the witness believed, was for about $900.

The depositions of Joseph Davenport, and John F. Pate, taken in behalf of the complainant, declare, in answer to the crossinterrogatorics, that they visited Alabama in 1843, and took from Wm. T. Givens a deed of trust, on lands and negroes, to secure Allen Campbell and William Morriss, who were Givens' sureties for his administration, as one of the executors of Maberry's estate; this deed of trust was intended to cover the claim due from Herndon to the executor, or executors; Pate holding Givens responsible, as the latter had made settlement for the amount, and Pate being the guardian of the minor heirs of Maberry. These witnesses, as well as Cox, the co-executor, speak of no other indebtedness from Herndon, than for the Carnick note, and the one made for the slaves purchased at the sale, and answer that they know of no other, if any such existed.

The depositions of Thomas R. Williams, Christopher Haynes, and William C. Kelly, established, that about the time of the execution of the trust deeds, Herndon had sent many of the slaves

Marriott & Hardesty, et al. v. Givens.

conveyed by these instruments to the counties of Greene and Perry; that the two first named persons were employed as agents for the Bank at Rome, to pursue the slaves with an attachment; that they overtook the slaves, and levied on them in Greene county, in the possession of Kelly, and one Brown. Kelly left Benton county after the suing out the attachment, and before the execution of the deeds of trust, which however he had heard spoken of. He passed Williams and Haynes on the road, and was invested with the power to dispose of the slaves as he chose.

The charge, insisted on by some of the answers, that Givens permitted Herndon to deal with the property conveyed by the trust deeds, after the law day, in payment of his debts, is attempted to be sustained by the depositions of Thomas R. Williams, Christopher Haynes, and W. C. Kelly. The two first named state, that Herndon, in 1841, sold to the Bank of Rome, a tract of land of 300 or more acres, and six or seven slaves, covered by the deeds; that the contract was made in the presence, and with the assent of Givens, who executed a quit claim in writing, to the land, which was conveyed by Herndon. Kelly states the sale, by Herndon, of some five lots, on two of which were houses, and also, that the purchasers were informed they were covered by the deed, and that Givens would make titles. But he knew nothing of his own knowledge of any titles being made by Givens, or that he took any part in the sale.

As to the four slaves, which the bill asserts are the individual property of Givens, but claimed by Cobb, under a mistaken notion that they were included in the deeds of trust, there is no evidence of ownership on the part of the complainant. On the part of the defendant it was proved, by the deposition of Lawrence Brock, that he sold a slave named Henry, one of the three slaves, to Herndon, in February or March, 1841, and received payment from him in notes due to Herndon & Kelly. The bill of sale was made to Givens, at the request of Herndon. Kelly's deposition proves, that when Schuyler and Bill, two others of the slaves were sold at sheriff's sale, Schuyler was bid off by one Copeland, but paid for by Herndon; but who furnished the money, the witness did not know. Kelly bid off Bill, and took the bill of sale in his own name. He furnished half the money, and Afterwards, he sold the slave to Givens,

Herndon the other half.

Marriott & Hardesty. et al. v. Givens.

and executed a bill of sale to him; both these slaves have remained in Herndon's possession ever since the sheriff's sale. What consideration was paid by Givens to Kelly, is not stated by the witness.

At the final hearing, the Chancellor decreed a perpetual injunction as to the four slaves asserted by the bill to belong to Givens; sustained the trust deeds, and directed the master to state an account of the indebtedness from Herndon to Givens, as well as the amount paid by the latter on account of the previous incumbrance arising out of the judgments in favor of Bright and Ledyard.

The master stated his account, consisting of these items:

1. The note given on account of the purchase of slaves, with interest, $5,562 12.

2. The sum due for the loan of the Carnick note, and interest, $8,621 45.

3. The amount of the note for two thousand seven hundred and fifty dollars, and interest, $3,960 67.

4. The amount paid on the prior incumbrances of Bright & Ledyard, $1,708 23.

The defendants excepted to this report, but the exceptions need not be stated, as the judgment here turns on other reasons. The report was confirmed, and a decree made directing a sale of the trust property, to satisfy the debts due to Givens.

The defendants appealed from this decree, and the creditors. here open the cause entirely by the several assignments of error.

PRYOR and T. A. WALKER for the appellants made the following points:

1. There is no equity in the bill, inasmuch as the party had a clear remedy at law, which has been determined, so far as Marriott & Hardesty are concerned. Cobb represented the interest of his cestui que trust, and was competent to do so.

2. As to the four slaves asserted to be the property of the complainant, there is no reason whatever that the claim suits should not proceed.

3. The demurrers should have been sustained, 1. Because the bill is multifarious in confounding the remedy as to the four slaves with the remedy for the trust property. 2. Because improper parties are joined as defendants. There is no reason why one of

Marriott & Ilardesty, et al. v. Givens.

the creditors should be at the delay and cost of examining the matters in dispute between the complainant and other creditors. 3. The matters introduced into the amended bill are properly matters for a supplemental bill, and one good cause of demurrer appearing on the record, others may be insisted on in this Court. [Story's E. P. § 332, 443.]

4. The final decree is erroneous, 1. Because the complainant did not prove that the debts named in the trust deeds were due and owing to him. 2. The deeds were not made upon a sufficient legal consideration to support them as against creditors. 3. The deeds were not made in good faith.

The evidence describes debts which are essentially different from those stated in the deeds, and the bill contains no allegation of mistake. Conceding that an indebtedness on account of the Carnick note is made out, that is not the ground of the deed. The note for $4,370 is due to another person as well as the complainant, and no consideration is proved for the note of $2,750. The mere production of the note, without proof of the consideration, is not sufficient against a creditor. [McCain v. Wood, 4 Ala. Rep. 258; Smith v. Acker, 23 Wend. 653, 679; Hanford v. Aulden, 4 Hill, 271, 295; Russell v. Woodward, 10 Pick. 408; Blew v. Maynard, 2 Leigh, 29.]

5. But if the consideration of the deeds was sufficiently established, still they are void as having the effect to defraud creditors, and the proof is that they were made for that purpose.

1. On account of the pretended consideration of debts which had no existence, the bill alledges that the complainant procured the deeds to be executed. It was then a fraudulent attempt to cover the property of Herndon from other creditors. The bill alleges that the second deed was executed to secure several claims not embraced by the first, thus seeking to impose the recitals in the deeds as proof that there were different debts of the

same amount.

2. The reservation of the use of the property to Herndon is such, that other creditors must be delayed. [Garland v. Rives, 4 Rand. 282; 2 B. Monroe, 239.]

As this possession was liable to be defeated at every moment, by Cobb, the trustee, it was not such an interest as the creditors could levy on and sell. [Otis v. Ward, 3 Wend. 498; 2 Cowen, 543; Harford v. Artcher, 4 Hill, 271.]

Marriott & Hardesty, et al. v. Givens.

3. The deeds had the effect to defraud creditors then in existence, and were made with this intention. The proof shows they were made about the time when the Rome Bank sued out an attachment, and the property was run off. In addition to this, agents were invested with authority to sell the slaves, independent of the deeds. [Head v. Folenertack, 8 Watts, 489; Damer v. Pickering, 2 Pick. 411; Davis v. McLaughlin, 2 Wend. 596; Collins v. Brush, 9 Wend. 189.]

4. Possession was retained by Herndon until the filing of the bill, 29th October, 1842, nearly two years after the law day, and there is no sufficient excuse or reason alledged or proved for thus favoring the debtor. This is evidence of fraud. [Camp v. Camp, 2 Hill, 623; Harford v. Artcher, 4 Hill, 271; Wiswall v. Ticknor, 6 Ala. R. 178; White v. Cole, 24 Wend. 131; Collins v Brush, 9 Ib. 198; Deene v. Eddy, 16 Wend. 522.] When a sale is impeached for fraud by creditors, it is the duty of the party claiming to remove all doubt of the fairness of the transaction. [Struper v. Echart, 2 Whart. 302.]

5. The bill should contain an allegation that the property was not more than sufficient to pay the debts secured by it; without such allegation the bill is fatally defective. [Widgery v. Haskell, 5 Mass. 144; Borden v. Sumner, 4 Pick. 265; Struper v. Echart, 2 Whart. 302.] If the deed as to the overplus, is fraudulent, it is void. [Murray v. Riggs, 15 Johns. 586; Meeker v. Cain, 5 Cowen, 547.]

WM. P. CHILTON and S. F. RICE, contra,

1. The possession remaining with the grantor, is consistent with the deed, and therefore no badge of fraud.

2. As a debtor may lawfully secure one creditor in preference to another, he may do so, notwithstanding the creditor, who is not to be preferred, endeavors to obtain a preference by attachment. The right to prefer cannot be impaired by any effort of the creditor, which is not complete at the time of conveyance.

3. The admission of Herndon, that it was his intention to delay the Rome Bank, cannot defeat the conveyance. [McCain v. Wood, 4 Ala. Rep. 258; Jones v. Norris, 2 Ala. Rep. 526; Haden v. Baird, 1 Litt. S. Ca. 340; Turpin v. Marksberry, 3 J. J. M. 627.]

4. It was competent for Givens to consent that Herndon should