Opinion · Supreme Court of North Carolina

Henderson v. . Hoke

Henderson v. . Hoke, 21 N.C. 119 (N.C. 1835)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1835-06-05
Topic: general

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“[i]t is sufficient if [the evidence] be suppressed, without regard to the intent of that act”

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HENDERSONv. HOKE,21 N.C. 119(1835)

LAWSON HENDERSON v. JOHN D. HOKE.

Supreme Court of North Carolina

June Term, 1835.

Where A. purchases the land of B. at execution sale, and assigns his bid to C., and it is again sold under an execution against C. and bought by D., and A., conferring with C. to defeat D.'s title, takes a deed from the sheriff, a court of Equity will compel him to convey to D.

THE original bill charged that in April, 1826, one Joseph Wier entered into recognizance to the State in a large sum in the Superior Court of Lincoln, which he forfeited in October, 1826; that such proceedingsPage 99were thereon had that judgment was rendered in favor of the State, on which execution was sued out and a sale made by the sheriff of Lincoln on 22 October, 1827, of the lands in controversy in this suit, when the plaintiff became the purchaser, and afterwards took the sheriff's deed, dated 26 November, 1827. The title of Joseph Wier to the lands purchased by the plaintiff, which were distinguished in the pleadings and depositions by the designation of the Home Place, is stated in the bill to the following effect: That of a tract containing two hundred and thirty-three acres, part thereof, Joseph (120) Wier was the grantee of the State by patent dated 30 November, 1812; that of nine hundred acres, the residue thereof, Robert Wier was seized in fee, and by deed dated 6 March, 1809 (which was exhibited), conveyed the same to Joseph in consideration, as expressed in the deed, of one thousand dollars; that Joseph was the son of Robert, and that the plaintiff was unable to ascertain whether any part of the consideration was paid or not, and that the father and son resided together on the land until 1826 or thereabout; but that the defendant and one John Wier, hereafter mentioned, alleged that no part of the consideration was paid, and that the deed was voluntary and fraudulent against the creditors of Robert, and was particularly designed to defeat one Robertson, who was then prosecuting a suit against the father, in which he recovered a large sum. This recovery the bill stated to have been satisfied without a sale, leaving Robert still in possession of a valuable property. It was not stated clearly in the bill whether the plaintiff insisted upon the foregoing conveyance as a valid title in Joseph or not, as against the creditors of the father, and it was rather to be inferred from the whole bill that he did not. The answer, however, affirmed directly that it was expressly fraudulent; and the proof by the witnesses was clear that the payment of the consideration was merely fictitious, being made in the depreciated Continental money of the Revolution. On the argument the counsel on both sides admitted that deed to be void, and so treated it as between the parties to this suit. As a further title in Joseph, which was insisted on as a valid and subsisting one, the bill stated that John Wier obtained a judgment against the said Robert and sued execution, on which the sheriff, on 21 October, 1822, sold the land which had been conveyed by Robert to Joseph, when the defendant became the purchaser at the price of twenty dollars. That this purchase was made in trust and for the use and benefit of Joseph Wier, who paid to the defendant the money advanced by him, or that within a few days after the sale Joseph Wier purchased those lands from the defendant, and being in possession, (121) claiming under his father's deed to him, took a deed of release for the land from the defendant, with a transfer of his bid andPage 100an order to the sheriff (Coulter) to make a deed to Joseph Wier instead of the defendant; and that Joseph Wier then paid or secured the price to the defendant, and afterwards satisfied it, in particular, by the sale of a slave called Anthony to the defendant. The bill further charged that this arrangement was communicated to Coulter, the sheriff, who was directed by the defendant to convey to Joseph, and that the latter applied to him for that purpose, but that he did not execute the deed because the parties had not furnished him with the boundaries of the land so that he could describe it; that Joseph Wier in 1825 committed a capital felony, and that being in prison in the latter part of the year 1826 on that charge, with a view of defeating his creditors, and particularly the State, of the benefit of his forfeited recognizance, he came to some secret agreement with the defendant whereby, without adequate consideration, he abandoned all claim to the said land, and allowed the defendant to take the sheriff's deed to himself; or that the defendant, having or pretending some other claim to the said land under some other purchase at sheriff's sale then recently made, applied to Joseph Wier, then in prison, for the inspection of his title papers, that he might ascertain the parcels of which the whole tract consisted and have it surveyed for the purpose of taking deeds under such last pretended purchases or claims; that said Joseph Wier delivered to the defendant or his surveyor some of his title papers for the purpose aforesaid, and gave him a letter or sent him a message to his, Wier's, wife (who was residing on the land) to put into the defendant's hands his other title papers, which were at home, or give him free access to them for his inspection and information, and that he did have such access to the papers and took them into possession, when about Christmas, 1826, he went upon the land to survey it; that among the deeds and papers which thus came to the hands of the defendant by (122) the delivery of Joseph Wier or his wife was the release or transfer made by the defendant himself to the said Joseph as aforesaid, which either upon the fraudulent agreement between the defendant and the said Joseph before alleged was canceled without having been proved or registered, or was, without the privity or consent of the said Joseph, spoliated and suppressed by the defendant; that the said Joseph was convicted and executed for the crime with which he stood charged, without having received a deed from the sheriff, and that soon afterwards the defendant procured the sheriff (Coulter) to execute to the defendant a deed bearing date 26 April, 1827, under his purchase of 21 October, 1822, in which was included much more land than the defendant actually purchased, and particularly the tract of two hundred and twenty-three acres before mentioned, which was granted to Joseph Wier himself, and had never belonged to Robert Wier. ThePage 101bill further stated that the defendant, until within a very short time before he obtained the deed from the sheriff, did not claim the land under his purchase of October, 1822; that he did not list it for taxation as his property, nor pay the taxes, nor receive rent therefor from Joseph Wier, who occupied it as owner; that after his purchase the plaintiff entered into possession and now occupies the land.

The prayer was for a discovery of the agreements between the defendant and Joseph Wier; for the discovery and production of the release or deed of assignment by the defendant to said Joseph, that it may be proved and registered; and for a conveyance from the defendant to the plaintiff, and for general relief.

The answer admitted the title of the plaintiff under the execution in favor of the State against Joseph Wier, as stated in the bill; also the deed from Robert to Joseph of 6 March, 1809, and affirmed to be fraudulent against creditors. It also admitted the judgment and execution in favor of John Wier against Robert, and insisted that the land was subject thereto. It admitted the defendant's purchase at the sale under that execution in October, 1822, and that he took the deed from the sheriff on 26 April, 1827. It admitted that the tract of two hundred and thirty-three acres never belonged to Robert, (123) but was granted to Joseph; but stated that the defendant was ignorant of that fact when he took his deed. In relation to this subject, the answer stated that he was ignorant of the boundaries of the land, and for the purpose of procuring this deed from Mr. Coulter he employed Mr. Cansler, then the sheriff of the county, to make a survey. That Mr. Cansler had procured from Joseph Wier, while in his custody, his title papers, and that from them and the information derived by Cansler from Joseph Wier he made the survey and ascertained the boundaries and drew a plat, which by mistake included the two hundred and thirty-three acres, according to which Mr. Coulter conveyed; but that as soon as the defendant discovered the error he disclaimed the title to that part of the land of which the plaintiff had notice. The answer further stated that the defendant entered into the lands in the spring of 1827, and was peaceably possessed until, during his absence from the county in the succeeding autumn, the plaintiff, by threats or promises to his tenants, obtained possession, and compelled the defendant to sue at law to recover it.

The answer denied positively the contract or agreement between the defendant and Joseph Wier, as alleged in the bill, and stated that the allegation "that at the time the defendant purchased from Coulter, or at any time afterwards, he transferred his bid or right to said Joseph is entirely untrue."The answer set forth the transactions in which such a transfer was made, but affirmed that there was none ofPage 102the Home Place. It stated that in March, 1821, a tract of land containing six hundred and forty acres, situated on Muddy Fork, and belonging to Robert Wier, was sold at the suit of one Magness and purchased by the defendant at sixty-three dollars, and that at a sale under the execution of John Wier against Robert Wier in July, 1822, the defendant purchased another tract containing three hundred and thirty-three acres, situated on Such Fork, at one hundred and fifty-three dollars; that these last were distinct parcels from the Home Place, situated several miles distant from it, and that they were (124) worth about fifteen hundred and fifty dollars; that he did transfer to Joseph the parcel of three hundred and thirty-three acres, and at the same time held his bond for three hundred and twenty-one dollars and thirty-seven and a half cents, on which subsequent payments were made, to the amount of one hundred and forty-five dollars; that the defendant called on Joseph Wier to repay him the sums he had advanced when he bid off said lands and to discharge the balance due on said bond, and that thereupon it was agreed that the defendant should take the slave Anthony into possession as a security for the debt, and that his hire should discharge the accruing interest; that about a year afterwards, finding that Joseph Wier would probably become insolvent, he purchased the slave absolutely and took a bill of sale from Joseph in discharge of the debts for which he was mortgaged, as aforesaid; that said slave was really the property of Robert Wier, and that afterwards he also conveyed him to the defendant. The defendant exhibited with his answer and as a part of it the bills of sale: that by Joseph, bearing date 21 March, 1825, and expressed to be in consideration of three hundred and twenty-one dollars and thirty-seven and a half cents then paid; that by Robert, bearing date 12 March, 1827, recited that Robert had sued the said Joseph in equity for said slave (amongst others), but that the defendant had purchased him from Joseph for a fair consideration expressed in his bill of sale; and then, in consideration of the sum thus paid to Joseph, conveyed all the right and title of Robert, either at law or in equity, of and in said Anthony, to the defendant. The defendant also exhibited, as parts of his answer, two receipts of the sheriff for the sums of sixty-three dollars and one hundred and fifty-three dollars for the purchase-money of the Muddy Fork and Suck Fork tracts, dated as stated in the answer; and on the latter there was an endorsement by the defendant bearing date 24 July, 1823, that he had "received full satisfaction from Joseph Wier for his claim of the within." The answer then denied positively that the price of the slave went towards paying for the Home Place, or that the defendant ever received fromPage 103Joseph Wier or any person for him one cent on that account, (125) or that the defendant ever informed the sheriff, Coulter, or any other person, that he had released the Home Place or his bid to the Home Place, now in controversy, to said Joseph; but admitted it to be probable that he told Coulter that he had released or intended to release the other two tracts. The answer further admitted that it was true that he also intended that Joseph or his father might redeem the land in controversy upon the payment of the purchase-money with a reasonable compensation; and that for that reason they were permitted to remain in possession without rent, the defendant expecting that they would pay the taxes out of the profits. The answer denied, therefore, having made any written transfer of the Home Place to Joseph Wier, and also the suppression of any such. It stated that Mr. Cansler had Joseph Wier's papers in possession for a considerable time, and after examining them and ascertaining the location of the land in dispute, he delivered them to the defendant as the evidence of defendant's title; that among them there was but one release from the defendant, and that it did not relate to the Home Place but to the tract of three hundred and thirty-three acres before mentioned.

The answer then stated that the defendant had another and further title to the Home Place, which he insisted on as a bar to the relief of the plaintiff, at all events. It set forth that Joseph Wilson, Esq., obtained a judgment against Robert Wier, and upon execution thereon had the Home Place sold, and became himself the purchaser on 23 October, 1826, and in consideration of one hundred and three dollars sold it to the defendant on 19 January, 1827, and directed the sheriff to convey to the defendant, which was accordingly done, 21 January, 1828. The defendant exhibited as part of his answer the sheriff's deed last mentioned, which described the land by the same metes and bounds with those set forth in the subsequent deed of Coulter of 26 April, 1827; and he also exhibited two written instruments executed by Mr. Wilson, 19 January, 1827, by one of which, after reciting (126) his judgment and execution against Robert Wier, and his purchase of two tracts of land under them, of which one was that on which Robert Wier lived and claimed by Joseph Wier, Wilson, in consideration of one hundred and three dollars, transferred to the defendant the balance due on the judgment, and all the interest acquired by his purchase of that tract, and agreed to refund the price if the defendant should lose the land, and by the other he directed the sheriff to convey to the defendant the land purchased by him, Wilson, "where Robert Wier now lives, and where Jo. Wier did live, meaning the eight-hundred-acre tract on Buffaloe, which Colonel Hoke now claims on a purchasePage 104as the property of Joseph Wier in October, last, on a sale made by you as sheriff." The judgment of Wilson was rendered by a justice of the peace, 18 July, 1826, and there was an order of sale in the county court in the same month.

The plaintiff thereupon filed an amended bill, which charged that the purchase of Wilson and the sheriff's deed thereon to the defendant did not pass any title to the defendant for the several reasons following: that Robert Wier had no title to the lands, because whatever interest he had was sold at the execution sale in October, 1822, and purchased by the defendant and transferred to Joseph Wier; that, at all events, Wilson's purchase was void from the manner in which it had been conducted and the circumstances under which it took place, and that Robert Wier, if he had any interest in the land, had only a mere equity, which could not be sold, especially at the instance of Wilson. In support of these propositions the amended bill charged that Robert Wier exhibited his bill in the court of Equity against Joseph Wier in February, 1826, in which he alleged that the deed of 1809 made by him to his son was voluntary, except that Joseph engaged, in consideration thereof and of a conveyance of a number of slaves made at the same time, to maintain Robert and his wife comfortably during their lives; that Joseph became dissipated, so that it was probable he would be unable to do so, and that the father and mother would be left destitute, and that in consequence thereof they came to (127) a new agreement in 1818 or 1819, whereby the negroes, about twenty in number, were to be equally divided between them, as well as the crops of that year, and Robert should have the Home Place and the Muddy Fork tract, and that Joseph should convey those lands to his father, and also one-half of the negroes at the end of the year, and have the other half of the slaves and the other lands for himself; that no such conveyances were made, but that Joseph had sold twelve of the slaves (which are named, and of which one was Anthony aforesaid), and the remainder (ten in number) were in the possession of Robert, except two, which had lately been seduced from him and held by other defendants for the benefit of Joseph; and that the said Robert prayed thereupon that an actual division of the slaves might be made, and those sold by said Joseph should be allotted as his share, and the remaining ten, not being more than one-half in value, allotted to said Robert; and that said Joseph should convey to him the said two tracts of land and such of the slaves as should fall to the part of said Robert in such division; that Joseph Wier did not answer the said bill, but that it was takenpro confessoagainst him; and that upon the hearing of the cause in April, 1827, a decree was made in favor of the plaintiff Robert, and that Joseph should convey to him the saidPage 105two tracts of land, and also the ten slaves mentioned, among whom Anthony was not included.

The amended bill then charged that this decree was never performed so far as respected the actual execution of conveyances; that Mr. Wilson was the solicitor and counsel of Robert Wier, who filed and prosecuted the said suit; and that pending the same, and before the hearing, he instituted his action against Robert Wier, and upon his execution sold the said two tracts of land, and purchased the same at the price of twenty-seven dollars, although they were worth five or six thousand dollars. The amended bill further charged that those tracts of land were situated several miles apart but yet the sheriff put them up together, and said Wilson purchased them as one lot; that Wilson took, on 21 April, 1827, a sheriff's deed to himself for the tract (128) on Muddy Fork, expressed to be in consideration of twenty-seven dollars paid for that, which amounted to an abandonment of the other, of all of which the defendant had notice. The amended bill then interrogated the defendant as to the date of the bond for three hundred and twenty-one dollars and thirty-seven and a half cents and its consideration, and who attested it, and whether Joseph Wier gave defendant any other bonds since October, 1822; for what amount and by what persons witnessed, and whether he did not come to some agreement, and what, with Joseph Wier, touching the Home Place; and the prayer was that the defendant might be restrained from setting up his sheriff's deed under Wilson's judgment and execution as a title at law, and might be compelled to convey to the plaintiff.

Accompanying the bill were exhibits of the sheriff's deed to Wilson for the Muddy Fork tract, as stated in the bill, and a transcript of the suit of Robert Wier against Joseph, and the decree therein, of the tenor and effect charged by the plaintiff.

The answer to the amended bill admitted the suit between Robert and Joseph as charged, but did not admit the allegations of Robert in his bill to be true, and left the plaintiff to his proof, and insisted that if they were true, yet Robert Wier had an interest legally subject to sale and execution, being the whole trust of the land; and that if the defendant did not by the sheriff's deed obtain a legal title under the sale the same could not prejudice the plaintiff, who is the defendant at law, and therefore the plaintiff is not entitled to any relief here. The answer denied that Wilson purchased both tracts together, and averred they were sold separately, though the defendant was unable to set out the price of each, and insisted that the mistake in stating the consideration in the sheriff's deed to Wilson, or the act of the sheriff and Wilson on 21 April, 1827, could not affect the defendant'sPage 106(129) purchase from Wilson made on 19 January, 1827, but that he had a right thereunder to take a deed for the Home Place.

The answer then denied that the defendant did agree to convey to Joseph in fee, at any time after Coulter or Cansler had conveyed to him, and stated that "as far as he ever did agree with Joseph (and that was before the execution of the deed to him by either sheriff) was that he would release, as stated in his original answer, but that he never did release his interest in the Home Place, though he always intended to do so, provided his money advanced in the purchase of those lands should be paid back to him, with a reasonable profit upon it." The answer then stated that the defendant was a merchant, and as such dealt largely with the Wiers, father and son, and had many notes of theirs, but that he is unable to specify them except that for three hundred and twenty-one dollars and thirty-seven and a half cents; and as to that one, he is unable to state the consideration, the date, or whether it was attested.

Upon the hearing all the exhibits annexed to the pleadings were read, and also another exhibit filed by the plaintiff, namely, the copy of a deed for the same lands, bearing date 10 March, 1827, made by Mr. Cansler, the sheriff, to the defendant, purporting to be under a purchase made by the defendant on 23 October, 1826, under sundry executions against the estate of Joseph Wier, at the instance of Fullenwider and others.

Numerous and voluminous depositions were also read on the hearing, many of which it is not necessary to set out at large.

It was clearly proved and admitted on both sides that the conveyances of the lands and slaves from Robert to Joseph in 1809 were fraudulent as against John Wier and his other creditors at that time.

John Coulter stated that he was the sheriff of Lincoln in 1822, and that the executions of John Wier against Robert came to his hands, and that under them the tract of three hundred and thirty-three acres was purchased by the defendant in July; and that at October (130) court following, the home tract, on which Robert and Joseph lived, supposed to contain about one thousand acres, was bid off by the defendant; that either at the time of the last sale, or when the deponent went to receive the money on it that week, and certainly not later than January court, 1823, the defendant directed him to make the deed to Joseph Wier, saying either that he had purchased for Joseph or that he had transferred his purchase to Joseph Wier, but which was the particular expression the witness did not recollect positively. The witness was positive, however, that for the one reason or the other the defendant then directed him to convey the Home Place to Joseph Wier; that said Joseph often called on him for a deed, which he couldPage 107not make for want of information as to the boundaries; and that while in prison for the felony, some time in 1826, said Joseph sent for him and again requested him to execute the deed, which the witness declined for his former reason; and that thereupon said Joseph said that he would get his title papers from home and make out the description, and witness promised that when that should be done he would make him a deed. The witness further stated that at April Superior Court, 1827, at which time the judgment was taken for the State upon the forfeited recognizance entered into by Joseph Wier in April, 1826, the defendant applied to him for the first time to execute a deed for the Home Place to him, the defendant; that witness declined doing so, replying that the defendant had never claimed the land, and had directed him to convey to said Joseph, whereupon the defendant said that said Joseph had nothing to do with the land, and insisted on having a deed; and that then the witness went himself to see Wier in the jail, and inquired what he must do, and was told by him to make the deed to the defendant, and that he, Wier, had nothing to do with the land; and that accordingly he immediately made to the defendant the deed of 26 April, 1827; that witness did not know the particular land, but objected at first that, according to the boundaries, much more than one thousand acres would be conveyed, to which defendant replied that it made no difference, as the boundaries (131) included the land he did buy.

Michael Goodson stated that he witnessed a written instrument of release or transfer made by the defendant to Joseph Wier of the Home Place on Buffalo Creek, where Joseph Wier then lived; that it was read to Wier and the witness by the defendant, and executed in the defendant's own store in the year 1822, as well as he can recollect, and was for the land sold by Coulter, late sheriff, to defendant, under John Wier's execution against Robert.

The defendant did not cross-examine the last witness, but for the purpose of discrediting him examined six persons to his character, all of whom spoke more or less to the impeachment of his moral character, and some of them explicitly stated that he ought not to be believed on oath, according to their knowledge of his general reputation, unless supported by corroborating circumstances.

In answer to that testimony the plaintiff read the testimony of Joseph Green and Samuel Green. The former stated that in 1827, several weeks before the sale, for the forfeited recognizance, Goodson requested this witness to purchase a part of the land for him, as he said that he was not then able to do so himself, and that the witness Green expressed a doubt of the title; that Goodson then stated that Joseph Wier had managed so as to get all the titles into his own name;Page 108that John Wier had judgment against the old man and had the land sold, and John Hoke purchased it; that he, Goodson, was at the courthouse during a court, and Joseph Wier requested him to go with him to Hoke's, saying that Colonel Hoke had purchased his father's land and was about to make a deed or relinquishment to him (Joseph) for the same, and he wanted Goodson to attest it; that he went and became a witness to an instrument of writing by which Hoke transferred his title in that land to Joseph Wier.

Samuel Green stated that when the plaintiff made his purchase the defendant made known his claim to the land, and that shortly afterwards, being in company with Goodson, this witness (Green) asked him which of them he thought would hold the land, and Goodson (132) replied that he expected Henderson would; that he, Green, then mentioned that he understood that Hoke had two claims to it — one under Wilson's purchase and the other under a purchase made by Hoke himself, several years before; but Goodson replied that Hoke had not that claim but had given it up to Joseph Wier, for that at a time when he was in Lincolnton Joseph Wier told him he was going to Hoke's house to lift a claim Hoke had on the land, and requested him to go and witness it; that they went together, and Hoke and Joseph had a settlement, and Mr. Hoke assigned his claim to Joseph Wier, and he, Goodson, became the witness to it.

Henry Coulter, the sheriff of Lincoln in 1826, 1827, and 1828, mentioned in the pleadings, stated that about 1826 he surveyed the lands for the defendant and in company with him, and that he embraced in the survey about two thousand two hundred and fifty acres, consisting of thirteen or fourteen tracts, including a tract of two hundred and thirty-three acres that was granted to Joseph Wier; that this last-mentioned tract was not included by mistake, for that all the lands were surveyed as those of Joseph Wier, which Hoke had purchased from the witness at sheriff's sale in October, 1826, under the executions of Fullenwider and others against Joseph Wier, and to enable the defendant to get a deed from the witness under that sale, and not to enable him to get a deed from Coulter under any former sale; that they were several days engaged in the survey, and that Hoke spent one of the nights at the house of Joseph Gladden; that they first went to the house of Joseph Wier for the purpose of examining his title deeds to ascertain his titles and the boundaries, and that Wier's wife produced her husband's papers for their inspection, but he did not recollect them nor whether Hoke took away any of them, or which. This witness then stated positively that the defendant did not set up any title to any of these lands under Robert Wier except as derived through Joseph Wier, and that his only claim at that time was under the sale of thePage 109land as Joseph's under Fullenwider's execution; and that he (133) repeatedly said, expressly, that the title was not in Robert, but in Joseph alone; particularly, that at one time John Wier insisted to him that he would not get a good title under the execution against Joseph because Robert, the father, had filed a bill in the court of Equity against Joseph for a conveyance, to which the defendant replied that his title could not be affected by that, for that he, Hoke, had before purchased Robert's title at sheriff's sale and transferred it to Joseph Wier, and that now his purchase under Joseph must make his title a good one. The witness further stated that, accordingly, he executed the deed to the defendant, dated 10 March, 1827, in conformity with the survey and the sale under the executions against Joseph.

The defendant examined the above-mentioned John Wier to prove the deed from Robert to Joseph to be fraudulent; but neither party interrogated him to the conversation stated by Mr. Cansler. Upon his cross-examination by the plaintiff he stated that he came to Lincolnton after the sale in 1822, either at the same or next court, and there saw Joseph Wier, and in a short time went to the house of the defendant; that he seemed to be in a passion with Joseph and abused him, and regretted that the witness had not come a little sooner; that he might have let him have the land instead of Joseph. The witness said that Hoke then told him that he had just relinquished to Joseph the old place or Home Place, calling it sometimes by the one name and sometimes by the other, and also that Joseph had paid or satisfied him for it, as he understood him.

The defendant also examined Joseph Gladden, who was the witness to the deed of 1809 from Robert to Joseph Wier, to establish the fraudulent intent of it. On his cross-examination in that deposition, and on his original examination in another deposition taken by the plaintiff, he stated that while Cansler was surveying in December, 1826, the defendant went home with the witness and stayed all night, and that during the evening he, Hoke, took out a number of title deeds which he said he had received from Joseph Wier's wife, and examined and read them, and interrogated the witness respecting the lines, with the view of obtaining a knowledge of the boundaries of (134) the tract commonly called Wier's Home Place; that in looking through the deeds the defendant Hoke took up a paper, and upon opening it said immediately "that he knew that paper, for it was in his own handwriting and was a release which he had given to Joseph Wier for the Home Place, which he, Hoke, had purchased several years before under an execution against Robert Wier." The witness further stated that he and the defendant had just previously been conversingPage 110about the suit in equity instituted by Robert Wier against his son Joseph, and that when Colonel Hoke stated the nature of the instrument he had given Joseph and which he, Hoke, then said he had in his hands, the witness remarked to him that Joseph could have defended himself on that title at any rate, for he expected there was no fraud in that, and Hoke replied that there was no fraud in that title, and fully sanctioned the witness' inference. The witness further stated that he was confident that the conversation and release spoken of related to the Home Place, and that the defendant expressly mentioned it as having been bought by him under John Wier's execution and transferred to Joseph by the deed or release several years before; and that he then claimed Joseph's title to the land derived through that release by virtue of the purchase under the execution against Joseph shortly before. To interrogatories on the part of the defendant, the witness stated that he did not recollect that he knew at that time that the defendant had purchased the two tracts on Muddy Fork and Suck Fork; but that, although he did not read the deed himself, he could not be mistaken in supposing it to relate to the Home Place, and not to these two tracts, because they only talked about the Home Place and no other.

Mrs. Wier, the widow of Joseph, stated that about Christmas, 1826, the defendant came to her house, in company with Mr. Cansler, and informed her that he was about to survey the land, which he had purchased as her husband's lands a little while before, in order to get the sheriff's deed; that he said if he thought her husband would (135) get clear of the prosecution he would let him have the land again, as he had once done, but that he was then about to take possession of the land, though he would not hold it for what he had paid for it, but would satisfy her and her children for it; that he then told her her husband directed him to call on her for his title papers that were in a certain drawer, and she accordingly delivered to him several bundles, some of which he took away, but which in particular she did not state, as she was illiterate. To an interrogatory by the defendant whether she did not know that he had bought the Suck Fork and Muddy Fork tracts, and released them to Joseph Wier for the negro boy Anthony, she replied that she did not know of any sale of those two tracts, but that her husband had told her that the negro was mortgaged for the Home Place, which was sold to Hoke under John Wier's execution against Robert; and to another interrogatory by defendant, whether he did not tell her when he was surveying the land that he had first bought Robert's title, and then Joseph's and that under both he must hold it, she replied that she did not recollect suchPage 111conversation; she then stated that Hoke then told her that Robert Wier's title (then set up by him in his bill against her husband) was of no account, and that he, Hoke, would hold the land under Joseph's title, for that he had before bid off the land (when sold as Robert's) for Joseph, and had made Joseph a title to it, or that he had bid off the land and let Joseph have it; the exact expression the witness could not positively state, though she thought the latter were the defendant's words.

Robert Williamson stated that he had two conversations with the defendant. In the first the defendant, after remarking that he never made anything by buying at sheriff's sales, because he gave up his purchases, said that he had bought Wier's land, but had given it up again, and witness understood the defendant to mean all the Wier lands which he had purchased; that this conversation certainly occurred after 1822, but in what particular year he could not state. In a second interview (which took place after the defendant took the slave Anthony into possession) the witness applied to the defendant (136) to release to him two tracts of land which Joseph Wier had sold to the witness, and that Colonel Hoke informed him that he had not bought those lands in any of his purchases, but he professed a willingness to release, if witness wished for greater security, and at the same time said that Joseph Wier had satisfied him, or he was satisfied, for all the land he had bought, by a negro sold or mortgaged to him by Joseph.

William J. Wilson stated that after the year 1822 and, as he thinks, in 1825 or 1826, the defendant informed him that he had given up to Joseph Wier the purchases he had made at sheriff's sale of the lands of his father, Robert. The defendant regretted having done so as they were so dishonest and troublesome; that if it were to do again he would not give it up unless the family would leave the State. The defendant referred to the Home Place, as the witness clearly understood him. He could not say that he then knew that the defendant had purchased the two other tracts; but if he did, and if they were alluded to at all, the Home Place was also mentioned, and the one particularly meant by the defendant and understood by the witness as having been given up to Joseph Wier for Robert Wier, and Joseph or his family were then living on that place; and the defendant said that he once had it in his power to remove the Wiers, but could not do so now because he had given up the land, as before stated. To an interrogatory by the defendant whether he then knew that the defendant had given Joseph Wier a release for the other two tracts, he replied that at the time of the conversation he did not, as he thought, know it, but at the time ofPage 112giving his deposition (29 November, 1832) he did know it, and that it was produced on a trial at law between these parties for the land now in dispute.

Benjamin S. Johnson stated that he was the deputy sheriff who sold to Wilson under his own execution; that the two tracts are distinct and several miles apart; that he had no recollection whether they were sold separately or together, but that it was his practice to sell each (137) tract by itself unless there were particular circumstances or directions to the contrary, and he did not remember any such; that he made a return of the sale of both for one sum, and thought that if they had not been sold together he would have set out the price of each, but he could not say how the fact was.

Badger for plaintiff.Devereux for defendant.

RUFFIN, C. J.,

after stating the pleadings and proofs as above set forth, proceeded as follows: The object of the original bill is to set up the contract between the defendant and Joseph Wier, and on the footing of it to have a decree for a conveyance from the defendant of the title derived by the defendant under the deed made by Coulter. The equity is founded on the existence and validity of the alleged contract, and the destruction or suppression of it by the defendant, with or without the privity of Joseph Wier, with the intent to defeat the claim of the State on the forfeited recognizance, and to the prejudice of the plaintiff's rights as a purchaser under the State's execution.

In the cases supposed by the bill there can be little hesitation in pronouncing the equity asserted by it to be sound.

The answer admits the facts, upon which the plaintiff's title rests, respecting the recognizance and the proceedings upon it, to be true as stated in the bill, although the answer does not raise the question, nor was it brought forward in the argument, yet the Court does not think it proper to overlook the doubt that might be stated, whether Joseph Wier had such an interest as could be affected by the lien and be sold under the execution. The Court is of opinion that he had.

We think it clear that the interest of a purchaser at sheriff's sale who has paid his money but not taken a deed, is a trust estate within the act of 1812. The whole equitable interest is in him, and (138) he has a right to call for a conveyance to himself at any moment. Such an estate it is the policy of that statute to make available to the owner's creditors. The purview of the act is to treat the keeping of the legal estate by a debtor out of himself and in a trustee for him, and for him alone, as a fraud upon his creditors. It is therefore toPage 113receive a construction, liberal and beneficial to creditors, by extending it to every case in which the legal estate is a naked one, and the whole beneficial interest is in the party or parties against whom execution is sued. As there is no third party in interest, there is no possibility of injury to any one. Although a purchaser at sheriff's sale of the estate of a former purchaser at a like sale gets, by force of the act, a legal title by the deed simply of his immediate vendor, without any deed from the sheriff who first sold, yet that is the effect of the express words of the statute, and is a consequence which furnishes no just argument for a construction which would take a case out of it that falls both within its words and policy. Probably the cases immediately in the contemplation of the Legislature were trusts, honest in their creation, and plainly expressed in the deed by which the trustee gained his estate. In that case the rights of thecestui que trustand trustee both appearing on the same instrument, the latter could not assert his title without showing that of the former. As that would be the whole beneficial interest, and be at all times obviously seen, the sale of it might well be treated as the sale of the land itself as against the trustee. But the act is not confined to such express trusts in its words. The phraseology extends it to all cases in which any other person is in any manner or wise seized in trust for him or them against whom execution is sued, and thus includes the cases of a declaration of trust by a separate and subsequent instrument, of a sale by articles where the vendee has paid the purchase money and done all the acts on his part to be performed, and of resulting trusts where the purchase money is paid by one person and the deed executed to another, and the like. These cases are within the mischief against which the act provides, as well as within the letter of the law; and an execution runs against the estate of the (139) owner of the entire valuable interest, without injury to others, and with as little prejudice to his own as in the case of express trusts. They may, indeed, present difficulties to the purchaser in respect of getting evidence at law to establish the trust, and also in showing it to be of that clear and explicit kind on which alone, perhaps, a court of law would be inclined to act, without resorting to the implication of it, from refined equities. But those difficulties do not prevent the estate of such acestui que trustfrom being seized and sold on execution, though they may render it necessary that the purchaser should come into a court of Equity for the discovery, declaration, and establishment of the trust, and of a permanent evidence of it, on which his legal title depends. To that end, there would seem to be a jurisdiction here to decree a conveyance from the trustee, where the trust is not express, as the most simple, durable, and permanent muniment of title — one which the trustee, after the establishment of the trust and the purchaser's ownershipPage 114of it, could not, in good conscience, refuse to give. We need not embarrass this inquiry with the difficulty of a technical kind, whether the sheriff who sold under the first execution, or the defendant in that execution, be the trustee. The legal estate is in neither, after a sale of the land for the debt of thecestui que trust. The object is not to get the legal estate, but to get legal and accessible evidence of it. If the deed of Coulter, therefore, be not indispensable to the legal estate, it is convenient, necessary and proper, and, indeed, the only means known to the law to establish conclusively at law, in respect of land, that the first sale was in fact made and the purchase money paid. Had not Coulter made a deed to the defendant, and would not make one to a second purchaser, qualified to demand it, by having a deed from the sheriff, who was his immediate vendor, it seems to us that the purchaser would be entitled to a decree for such a conveyance as a link in a clear paper title. Here he has made a deed to the defendant which was executed before the plaintiff purchased, and, therefore, apparently, at least, vests the legal (140) title in the defendant. Whether there is a jurisdiction in the Court of Equity to decree a conveyance by a purchaser at sheriff's sale, who gets his deed from the sheriff after the land so purchased by him had been sold under an execution against himself, it is unnecessary to say. It is not easy, in ordinary cases, to see the utility of a deed from the first to the second purchaser under such circumstances.

But in the present case the jurisdiction rests on other grounds. The defendant has the apparent legal title, and the plaintiff is in possession. The plaintiff does not claim under an execution against this defendant, but against another person, to whom, it is alleged, the defendant sold the land. That contract of sale is disputed, and the defendant is charged with its spoliation or suppression. The plaintiff comes to establish those facts and bring in possession, supposing it to be on a legal title — to be protected against a deed taken by the defendant in fraud of the contract made by him with Joseph Wier, and of the title now vested in the plaintiff, under which he may be harassed at law from time to time. In such a case the jurisdiction to give relief by calling in the deed or decreeing a conveyance is as clear, we think, as that for establishing the contract of sale to Joseph Wier.

If a purchaser of the defendant's interest, under execution, could have called on Coulter, in equity, for a deed, so may a purchaser of the land at execution sale, as the property of the defendant's assignee. If the defendant assigned his interest absolutely to Joseph Wier, and received the consideration money, so that, as between themselves, the defendant had no valuable interest in the land, it was liable to Wier's creditors, upon the same principles upon which, before the assignment, it would have been liable to the defendants. Wier was then the solecestui quePage 115trust;and the Court cannot, in executing a statute for the benefit of creditors, stop at the first use, as was done with respect to the statute, 27 Hen., VIII, and thus put it in the power of debtors to render ineffectual a remedial law and elude their creditors.

The decision, then, must depend upon the merits of the case as (141) shown by the proofs, whether there was a contract between the defendant and Joseph Wier whereby the equitable title of the lands became vested in the latter, and so continued, in respect of his creditors, up to the day on which he acknowledged his debt to the State.

In considering the case, the Court is relieved from any difficulty that might be raised, on the statute of frauds, either as invalidating a parol contract between the defendant and Joseph Wier, or in precluding the defendant from insisting on the statute at the hearing, because it is not relied on in the pleadings. The bill is understood as charging the specific agreement, on which the relief is sought, as a written agreement, although it also charges many parol declarations. Those declarations are charged to be of such a nature as presupposes a written agreement, are consistent with the existence of such an one. The defendant could not, therefore, have availed himself of the statute; and the Court, upon these pleadings, can only regard the evidence of such declarations as refer to a written instrument as being proof of its existence, and must treat the rest as merely tending to sustain the credit of the witnesses who depose to such an instrument.

The answer denies, directly and peremptorily, more than once, the agreement charged in the bill. It is a part of the law of evidence in this Court that such a denial is a bar to relief unless disproved by two witnesses, or by one and such collateral circumstances in corroboration, as show that the single witness is credible, and has in fact deposed to the truth in the particular case before the Court. But if there be two witnesses, or only one, and he sustained by incidental circumstances, clearly established, which leave no fair doubt in the judge's mind that the witness has in fact told the truth, then there is evidence which preponderates; and the most positive and unequivocal statement of the answer — coming, as it does, from an interested person — must yield to the opposing depositions of the disinterested witnesses or witness. The Court is then bound to determine according to the actual convictions produced by all the testimony and circumstances, taken together.

Of the existence of a written instrument in this case, whereby (142) the defendant sold and conveyed the land in dispute, or assigned his interest in it, in 1822, to Joseph Wier, there is direct evidence given by Michael Goodson, who deposes that he heard the defendant read it to Wier, and that he attested its execution. He does not profess to give its contents but in those general terms, nor does he state whether it wasPage 116in form a deed, or not, nor the consideration expressed in it, nor that upon which it was in fact founded. This is a single witness to the fact of its execution, and the only one, also, who speaks of its contents, from personal knowledge.

If the effect to be given to the testimony of this witness depended entirely upon his credit, estimated by the evidence to character, on the one hand, and on the other by that of his consistent declarations to the two Greens, it might not be deemed safe by any tribunal to found an adjudication on it. Those declarations raise a presumption that he may have spoken the truth in his deposition. But that, at most, only rebuts the contrary inferences from bad character. Something more is necessary — something in the admissions of the defendant, of his veracity, in this particular instance, or of such other acts of the defendant as are consistent with the narrative of the witness and inconsistent with its falsehood. If other witnesses had seen the deed, for instance, or if the defendant were to declare expressly that he made such a deed, and such declarations were clearly proved, such evidence would satisfy the rule of this Court, and ought to satisfy every court, because no better proof of a lost or suppressed writing can be made.

Here, looking at the proofs judicially, and without any knowledge of the parties or witnesses; the Court cannot but say that the requisite additional evidence abounds.

To the witness Gladden the defendant made such declarations, under circumstances that rendered them peculiarly impressive on the witness, and gave them great weight with the Court. With the paper in his hand, he declared it to be a release from himself to Joseph Wier for the home place, which he had then lately bought as the property of Joseph (143) Wier. The witness did not read the instrument, nor does he say that the defendant read it to him. But he states what is tantamount. The defendant professed to know the paper perfectly, as soon as he saw it, saying that he had himself written it. He had it then before him, and claimed title under it, as by it those lands became vested in Joseph Wier. This witness is unimpeached, and is, indeed, the defendant's own witness. His testimony establishes the written contract charged in the bill, independent of Goodson's evidence, and consequently sustains the credit and veracity of that witness. He also proves that the defendant had the paper in his custody in December, 1826, and then set up title under it. The defendant suggests that the paper of which he spoke was a release for the other two tracts, and that, as Gladden did not see it, he might be mistaken as to its nature. But the witness is positive as to the defendant's words — that is was a release for the Home Place. Besides that, he says that, from the colloquium, that tract must have been referred to, and no other. Under the paper then spoken of,Page 117the witness, according to his understanding of its contents, as represented by the defendant, inferred that Joseph Wier could have successfully defended the suit brought by his father against him for the land which the defendant had bought as Joseph's, and that inference was expressly sanctioned by the defendant. Now, although Robert Wier claimed in his bill both the home tract and that on Muddy Fork, yet the defendant had not purchased the latter tract as Joseph's; he then set up no claim to that tract, and it is not embraced in his deed from the sheriff. That deed conveys only the home place, or what the defendant claimed as the home place. The release must, therefore, have extended to that, and to that only. Indeed, the only claim then asserted by the defendant to the home place was by virtue of the purchase of it as Joseph's, and for that reason it then concerned the defendant to establish Joseph's title to it to be good. The Home Place was sold under the execution of Fullenwider and others, but not the other tracts. The defendant does not rely on nor state that title in his answer — probably, because he has discovered that those judgments were (144) posterior to the recognizance. But during the survey, he claimed only under the execution sale of Joseph, which explains why the tract of 233 acres which had been granted to Joseph was included in that survey and in the deed which Cansler made on 10 March, 1827; that the defendant then asserted that claim only is sworn to by Gladden, by Mrs. Wier, and strongly by Cansler, and is to be inferred from a document exhibited by the defendant, which is more to be relied on than the recollection of all the witnesses. The defendant purchased the land as Joseph's on 23 October, 1826 — on the same day Wilson purchased the same land as Robert's. After the survey, and so immediately after it that everything must have been fresh in memory, the defendant purchased from Wilson, and took the instruments of 19 January, 1827, in which Wilson transfers to the defendant his right to "the 800-acre tract on Buffalo, where Robert Wier now lives, and where Joseph Wier did live, which Colonel Hokenowclaims as the property ofJosephWier, under a purchase made in October last at sheriff's sale." It is not easy, with this document before us, and with the concurring testimony of so many witnesses, to admit a possible doubt that the defendant's only claim to the home place was then under Joseph, and that the release to Joseph, which he then had in his hands, was not for the home place, and no other. Mr. Cansler states that, during the survey, the defendant, in reference to the same suit between Robert and Joseph, insisted that the title of the latter was good, by means of the defendant's own transfer to him of his father's right, and that, consequently, the defendant's title to the same lands, under Joseph, must also be good. He traced his title to each witness in the same way, and the only difference between hisPage 118statements to them, respectively, is that he left the one to infer, naturally, that his transfer was in writing, and to the other he expressly stated that fact, and actually showed him the paper, which he said was the deed. The defendant insists that there was no release, because (145) it was not seen by Cansler, through whom, the answer states, the defendant derived the possession of Joseph Wier's papers. But that fact, from which the inference is deduced, is contradicted by the witnesses. Cansler and Mrs. Wier prove that she delivered the deeds to the defendant himself when they began the survey; and Gladden proves that the defendant had them, during the survey, at his house, in the absence of Cansler. No doubt, Cansler used such deeds as were useful for the purposes of discovering the lines, and afterwards returned those to the defendant. It is not probable that the defendant would deliver to him any deed or paper that was not necessary for that purpose. Hence, Cansler does not seem to have seen any release whatever, though the defendant admits that one for the Suck Fork land was among the papers.

If to this direct evidence of the existence of the instrument be added the general conversations with Mr. Williamson and Mr. Wilson, to the latter of whom the defendant pointed particularly to the residence of the Wiers; the testimony of John Wier, that in a short time after the defendant purchased, he told the witness that on that very day he had transferred this land to his brother; the testimony of Coulter to repeated declarations to that effect, both by the defendant and Joseph Wier; and, superadded, the admitted fact that, although the defendant took his deed from Cansler under the sale of October, 1826, on 10 March, 1827, he yet took the deed from Coulter under his purchase of October, 1822, on 26 April, 1827, and never applied for it until that day, when the State was taking judgment against Joseph Wier, under which the land of Joseph Wier might be sold. The direct testimony is so entirely corroborated as to establish conclusions not to be refuted by the denials or explanations of the answer, upon any just principle for weighing evidence by a judicial or other mind.

Upon it the Court must declare that the written agreement between the defendant and Joseph Wier for the Home Place purchased by the defendant in October, 1822, must be established, as the same is charged in the bill, and that it afterwards came into the hands of the (146) defendant himself. It follows, as the defendant refuses to produce it, and denies that it ever existed, that the defendant must be held to have suppressed or destroyed it.

It is probable that Joseph Wier voluntarily surrendered the instrument and concurred in the purpose of suppressing it. The motive of each of those persons for the act is obvious enough. Until the State was about to take judgment on the recognizance, in April, 1827, thePage 119defendant was not aware that his title under Joseph could be invalid, and therefore asserted that, and that alone, to be his title. But when the lien of the recognizance was discovered, it then became important that the defendant should make out a title without deducing it through Joseph. To the latter it was immaterial, as he was to lose the land, at all events, whether the defendant or the State held it. But his wife proves a circumstance calculated to produce in his mind a strong bias towards the defendant. She says the defendant informed her that if her husband should get clear, he would let him have the land again, as he had once before done, and, at all events, if he held the land, he would not do so at the price he had given, but would make satisfaction to herself and the children. In this state of affairs the defendant applied to Coulter for the deed, and Joseph Wier consented to the execution of it, although he had, but a short time before, asked the sheriff to make the deed to himself. The rescinding the contract (if it can be called rescinding) without consideration, and under such circumstances, would be manifestly in fraud of the State, and would in this case be altogether inoperative, as the recognizance constituted a lien which would render abona fidesale by Wier void. Whether the defendant has destroyed or withholds the contract, with or without the privity of Wier, is not therefore material. It is sufficient if it be suppressed, without regard to the intent of that act.

It is insisted, however, that there is no proof, more than an executory agreement, which is not binding, unless there was a valuable consideration, of which there is no sufficient evidence.

If this were an ordinary bill for specific performance, and (147) depended solely upon the sufficiency of the consideration to make the agreement effectual against the defendant as the contracting party merely, and without reference to his claim under Wilson, we think the evidence fully sufficient. It is unquestionable that the defendant, about the period of the transaction, received the slave, Anthony, from Joseph Wier. The defendant admits that he first took him in pledge for some debt, and afterwards, in March, 1825, took an absolute bill of sale in satisfaction of the same debt. The debt is stated in the answers to have been for the prices of the two other tracts of land, and the balance due on a bond for $321.37 1/2, on which $145 had been paid — that is, $392.37 1/2, without any previous interest. But the bill of sale states the consideration to be the precise sum of $321.37 1/2, the amount of the bond without deduction, though $145 had been paid on it. The account of the defendant of the manner of paying for the slave is, therefore, altogether unsatisfactory. But that bond cannot be taken for granted without some proof, and there is no proof of its existence, nor of any debt from Joseph Wier to the defendant, nor of any dealingsPage 120between them, except for the lands; and the balance due for all the lands, after a payment of $145, would be $282, which, with the accruing interest, may have constituted the debt of $321.37 1/2. This is consistent with the testimony of the witnesses. Mrs. Wier says that the negro was a payment for the Home Place; Mr. Williamson, that he understood him to be a payment or security for the money due for all the land; and John Wier, that at the day of the contract he understood from the defendant that his brother hadsettledfor the home place. This is affirmative evidence of some satisfactory price in general terms, though as to the particulars it is not precise. But the want of precision (148) is fully supplied by another fact already found upon the evidence. The defendant stands before the Court upon this part of the case as a spoliator, against whom everything that may be presumed is to be presumed. Although the consideration need not be expressed in the agreement, it is generally expressed, and must be supposed to have been in this. The contrary not being shown by the defendant, it is a presumption of fact from the course of business between man and man, and from the admitted dealings between the parties, that Joseph Wier reimbursed or secured the money advanced by the defendant; otherwise, the defendant would neither have released nor authorized the sheriff to convey immediately to Joseph Wier, but would have retained the title as a security.

But it is urged in argument that if the slave was the price of the land, he was not the property of Joseph, but of Robert Wier, and that the defendant derived a good title to him under the latter.

That, if true, could not affect the contract, for the defendant paid nothing to Robert, who, as between them, may have voluntarily made good his son's contract. The defendant has not been disturbed in his enjoyment.

It is said, however, that in law the purchase of the land insured to Robert, whose slave went to pay for it — at least, in respect of Robert's creditors. And it is contended that the land was consequently liable to Wilson's execution.

It might be questioned whether the defendant can be allowed that argument. It is inconsistent with his own answer, in which he affirms that the slave was not the price of this land, but the payment for other debts.

But, yielding the position that the negro was the price, it is not perceived how it can help the defendant. It is admitted that the deed of 1809 was fraudulent, and that the land was liable to Robert Wier's creditors. But it was once sold for his debt, in October, 1822, and bought by the defendant. It could not be sold again by anotherPage 121creditor unless Robert reacquired it. That the defendant's counsel insists he did, because the slave belonged to him.

If one person buys an estate for another, and with his money, (149) the trust certainly results to him who advances the price. But this is not a case of that sort. There is no evidence that Joseph bought for his father. It is not even alleged in the father's bill against the son, which sets up a different title to the land; and all the witnesses prove that this defendant stated Joseph, and not Robert, to be the person to whom and for whose benefit he transferred the land.

But what is the proof that the slave belonged to Robert, and not to Joseph? The allegations of the father's bill, and the proceedings on it, are not evidence against the parties to this suit, unless the defendant has made them so, as against himself, by taking a subsequent release of the slave from Robert. But if they were, that bill states Anthony to have been a part of the joint property of Robert and Joseph and that the latter had sold him; and the bill claims that he shall be considered a part of the son's share, and thus affirms the sale.

If the negro is to be regarded simply as a part of the property fraudulently conveyed in 1809, then he was not the property of the father, in the sense now insisted on. As between the father and son, he belonged to the son. As against the father's creditors, he remained the father's. The donor's creditors can resort to the property fraudulently conveyed. That, and not what he got in exchange for it, by the donee, is the fund for the satisfaction of the creditor. If a debtor conveys property upon a secret trust for himself, and to the intent that the donee shall change its character and invest it in other property, doubtless the fund, of whatever it may consist, may be reached in equity, for the donee is but the donor's agent and trustee, and the purchase is made for the donor. But when the conveyance is made to the intent that the donee shall have the estate, and he asserts his title, both against the donor and his creditors, and deals with the property as his own, and with a part of it buys an estate, the creditor cannot take that estate at law, for that would be to give the creditor both the thing fraudulently conveyed and that exchanged for it. If Joseph's title to the negro was not good under the deed of 1809, Wilson's remedy was, in this aspect (150) of the case, against the negro, and not against the land. Joseph's title to the land was derived from this defendant; and as against Robert Wier and his creditors, the defendant's transfer was equally good, with or without a consideration moving from Joseph.

There was therefore no trust for Robert Wier in this land, which rendered it subject to Wilson's execution, and no estate was acquired under his sale, even if he, a creditor in 1826, could impeach the deed of 1809.Page 122

It may be said that the question upon that title is a legal question, and ought not to be decided here. That would be true if the object of the bill was to try that question. But it is not. The plaintiff seeks a discovery and declaration of a trust attached to the title derived under Coulter's deed, which is apparently the legal title. It is the defendant who brings forward the deed from Cansler as a bar to the relief by a decree for a conveyance. To every bill to enforce a trust the owner of the legal title must be a party; and so far the court of Equity must judge of it and determine in whom it is. If the plaintiff relies on his title as a legal title, then his relief is at law; but if he establishes a trust, and attaches it to a particular estate, apparently vested in the defendant under a conveyance which purports to convey a legal title, it will be different. The subject is, then, one of equitable jurisdiction, and the Court must see which is the legal title in order to determine whether the trust can be supported as arising out of it, or must fail, as arising out of a defective legal title. This case furnishes an example of both sorts. The defendant included in this deed from Coulter two hundred and thirty-three acres of land which never had belonged to Robert Wier, but belonged to Joseph, under whom the plaintiff purchased and took a deed. Again, the plaintiff alleges that Wilson bought both tracts at once, and therefore that the sheriff's deed is void. Now these are questions purely at law, and do not fall within the cognizance of this Court. The plaintiff does not seek relief in respect of the two hundred and thirty-three acres, because he has a trust, and the defendant the legal title; but he seeks to set aside that deed because it did not convey the legal title. But in respect of the Home Place, (151) the relief sought by the plaintiff is upon equitable grounds, which entitle him to a conveyance from the defendant, if the estate on which his equity attaches be that on which the defendant would hold the land in the judgment of a court of law. If that were the only estate claimed by the defendant, the relief would be undoubted. We think he cannot defeat it by merely taking another deed from a stranger. He may bring forward another title, and if it be the true and better title, the relief may be defeated, because the alleged trust did not arise out of it, and it may be cannot be made to attach to it through the fiduciary character of the defendant. But if a party defendant does bring forward such a title for this purpose, he must not expect it to be a bar to an equity unless it be truly a distinct, good, legal title. That point must be determined in the cause before the plaintiff can be turned out of court. In England, it is probable that it would be sent to law upon an issue or a case, but that would be by an order in the cause, and because the Chancellor does not choose to encumber himself with a question on which he can get advice fromPage 123those within whose province it more particularly falls. In this State that practice has never prevailed, and would be ridiculous, as the same persons are the judges in both courts. As it is clear, therefore, upon the pleadings and evidence that the sale under Wilson's execution passed nothing, the title set up by the defendant under it cannot stand in the way of the plaintiff's relief.

There must be a decree for the plaintiff that the defendant convey to him in fee, with special warranty against himself and those claiming by, through or under him, by deed to be approved by the master, all the lands (except the tract of two hundred and thirty-three acres, mentioned in the pleadings as having been granted to Joseph Wier) which were conveyed by the sheriff, Coulter, to the defendant, and which were also conveyed to the plaintiff by the sheriff, Cansler, as in the pleadings mentioned, and stated in the deeds of Coulter and Cansler, which are exhibited, and that the defendant pay the costs.Cited: Morisey v. Hill,31 N.C. 68;Patterson v. Bodenhammer, id., 98;Rutherford v. Green,37 N.C. 126;Hall v. Harris,38 N.C. 298;Justicev. Scott,39 N.C. 116;Frost v. Reynolds, id., 497;Thigpen v. Pitt,54 N.C. 64;Clement v. Clement, id., 185;Ferguson v. Haas,64 N.C. 778.

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