Hobbs v. Davis

McCay, Judge.

1. We do not think that, even at the common law, or under any English statute before we adopted the English law, the landlord had a lien on his tenant’s property, as against a purchaser from him, during the term. But even if this were so, our law regulates their rights very differently. The lien of the landlord, except on the crop, does not commence until his distress warrant issues: R. Code, sec. 2260.

2. Without question, there are suspicious circumstances attending this transfer of the goods to Davis, and had the jury found the transaction fraudulent, we would not have interfered. But it is equally true that the affair may have been honest. If Davis tells the truth, (and the jury had a right to believe him,) it was an honest transaction. Nor is it illegal to do as Davis says he did. One has a right, under our law to buy, in good faith, of a debtor in insolvent circumstances, and pay in a debt due from the insolvent to the purchaser, if it be in truth a purchase; if it be not a mere scheme to get the effects away from the creditors; if there be no trust or reserve of any surplus to the debtor’s benefit. That, in addition to the purchaser’s debt, the purchaser gives something more, either in money or in his own note, does not alter the case. There must be some interest left to the debtor in the property; some reservation inconsistent with a true sale; some hiding or cloaking of the surplus, so as to cover it up for the benefit of the debtor or his family. Here, if Davis tells the truth, the sale was complete; the goods were delivered, the debt canceled, and a note given for the bal *215 anee, a fixed snm, which Davis was bound to pay, notwithstanding future losses. It was as much a sale as though he had paid the money in full. Whether the intent was to defraud creditors, was for the jury. If they believed Davis, there was no such intent. Davis was as much a creditor as the plaintiffs, and the defendant had a right, under our law, to sell to him, and thus pay him in preference to others: Irwin’s R. Code, 1943.

Judgment affirmed.