Bozman v. Draughan

3 Stew. 243

Opinion

Ify JUDGE COLLIER.

The merits of this case are embraced, in a very small compass. The only-inquiry that need be made, is whether the transaction between Hollingsworth and Bozman, as exhibited by the proof, is fraudulent, or is accompanied by good.faith, and tained by a valuable consideration on the part of Hol-lingsworth. It is not enough that the notes, &c., were received by him as a consideration for the land conveyed, unless they were received without any design to delay or defeat the payment of the defendant’s demand. If such was his purpose and intention, the receipt of Boz-man’s property was iniquitous and fraudulent, in as much as it was contributing his assistance to delay or defeat the defendant in enforcing a collection of his judgment, either by garnishment against the debtors of Bozman, or execution against his estate. That the transaction must have been bona fide as well as upon a valuable consideration, in order to receive the approbation of law, is a rule sustained by indisputable authority.

a

Fraud, it is said, is the judgment of the law upon facts and intents, b and will not be gratuitously presumed. What are the facts which the proof offers for our consideration? They are briefly these; the father-in-law negotiates with the son-in-law on terms of friendship for the sale of lands on an advance of five hundred per cent on their market value, at a time too when judgments are expected soon to be obtained against the son-in-law for an amount beyond what his estate is worth. He receives in return all the property of the son-in-law, even that which is essential to the maintenance of his family. The title to the lands transferred is so situated, that they can only be sold under a decree in equity, and by the time a suit for that purpose could be brought to a close, they would in default of payment of the residue of the purchase money, have reverted to the government. These facts require no comment; when combined, they are evidence irresistible that Hollingsworth lent his agency to Bozman to enable him to delay or defeat the payment of the complainant’s demand.

Let it not however be inferred that the great disproportion in value between the lands conveyed by Hollings-worth and the notes, &c., received by him, have induced the conclusion that the transaction is fraudulent. It has been repeatedly ruled by this Court, that inadequacy of consideration is not of itself presumptive evidence of fraud, unless the disparity be so great as to force the mind* conclude that the transaction must have been conceived or consummated with a fraudulent intent. But when* coupled with other circumstances, it may be consider-as evidence of fraud. With this rule we are satisfied,, and-arc-not inclined, were we called on, to depart from it.

Though the transaction between Hollingsworth and' Bozman is a fraud upon Bozman’s creditors, we yet believe that the decree of the Court below is erroneous. 1. In decreeing the payment of two hundred and fifty dollars to the defendant, the half of the uncollected notes, &c., in the hands of Hollingsworth. 2. In decreeing the payment of one hundred and thirty-two dollars, the prico'1 of the cattle shewn by the proof to have been delivered by Bozman to Hollingsworth.

With regard to the uncollected notes and accounts, the Court should have made an interlocutory decree directing-them to be delivered'to the master, and an account to be taken by him of the sums collected between the time of the coming in of Hollingsworth’s answer, and the taking of the account, or else a decree in- some form by which the notes,- &c., would, have been secured for the satisfaction of the defendant’s judgments. No-absolute decree could be rendered for the sum expected.to be realized from their collection. The defendant could only be placed in the situation of Hollingsworth, and derive only the benefit-which lie was to derive from the contract.

For the price of the cattle, there could be-no decree iir favor of the defendant, though the proof may shew that he would be entitled to them or their proceeds. There is no allegation in the defendants bill with regard to them, and he can not subject to the satisfaction of' his judgments, what he does hot claim by his bill.a If the defendant would subject them, he must amend his bill.

Having examined the case upon its merits, the result of our conclusion is, that the decree should be reverse’ds and the cause remanded at the costs of the plaintiff Hollings-worth.

Reversed and remanded».

#ri*9E Limsomb presided below and did not sit.

1. Burr. Cowp. 434; 8 Tauton 678 8 Johns. Rep. 446 7 Serg. and Rawle 89.

1 Burr. 396.

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