By the Court.
Lumpkin, J.
delivering the opinion.
Many interesting questions are raised in this record.
[1.] Had the execution in favor of Jesse Robinson, as guardian of Andrew J. Lamar, against John Schly, the right to proceed against the property which is the subject-matter of this claim ? The presiding Judge held that it was inoperative, and that the Jury could not find the property subject to it, as there was no assignment from Jesse Robinson, the plaintiff, to John B. Lamar, and no evidence of Lamar’s being the successor of Robinson in the guardianship. This defect, if it be one, is rather one of form than of substance.
[523]*523It will be borne in mind, that this fi.fa. was issued in the name of Jesse Eobinson, as guardian of-Andrew J. Lamar, and that for the sum of thirty-five hundred dollars, it was transferred by John B. Lamar to George Schly, the son of the defendant — John B. Lamar signing himself as guardian of Andrew J. Lamar, and successor of Jesse Eobinson, the former guardian. The objection is, that the proof shows no privity between Lamar and Eobinson. From the record it appears that, in order to show title out of Eobinson, the claimant himself introduced George Schly, who testified that th ef. fa. was proceeding for his benefit; that he purchased it of John B. Lamar, guardian of Andrew J, Lamar, and successor to Jesse Eobinson in that office, and the witness produced in Court the written assignment to that effect. It might with propriety, therefore, be insisted, that notwithstanding the evidence of the transfer from Eobinson to Lamar was of a secondary character, still, inasmuch as it was offered by the claimant himself, he may be considered as waiving any objection to its competency as proof.
We prefer, however, to put the decision of this point upon broader ground, and one more in accordance with the truth of the case. It is not pretended that the payment proven was made to Eobinson, but to Lamar. Unless, therefore, the claimant can connect Lamar with Eobinson, the transaction was wholly gratuitous as between Schly and Lamar; and there is nothing in the testimony to defeat the lien of the execution, as in favor of the original plaintiff, Eobinson. Lamar is a mere interloper,and the money paid to him is no satisfaction of the debt.
[2.] If, however, the execution has been assigned to Lamar by Eobinson, and there be no written proof of the transfer, while the legal title would remain in Eobinson, the equitable interest vests in Lamar, or in Schly,his assignee, who wouldhave the right to use the name of Eobinson, the original plaintiff, to collect the money. Dix vs. Cobb, 4 Mass. R. 511. Parker vs. Grant, 11 Mass. R. 157, note. Wheeler vs. Wheeler, 9 Cowen, 34. Eastman vs. Wright, 6 Pick. 316. Welch vs. Mandeville, 1 Wheat. 236. Dunn vs. Snell, 15 Mass. R. 481. Allen vs. Holden, 9 Mass. 133. Brown vs. Maine Bank, 11 Mass. R. 153. Purson vs. Tollet, 4 Ditt. 435. Southgate vs. Montgomery & Eivers, 1 Paige, 41. Andrews vs. McCoy, 8 Ala. 920.
[3.] The Court charged the Jury, that they might, under the [524]*524circumstances of the case, hold the consideration paid by John Schly to William Cooper, for the property in dispute, grossly inadequate, provided it were less than one-half its value.
Why the Judge should have fixed upon one-half the value, or any other definite proportion, as the test of inadequacy, under any circumstances, we are somewhat at a loss to understand. It is true, a moiety was the criterion of the Civil Law, when applied to immovable property; but even by that code, sales oí personal property were usually considered without redress, where there was no fraud, and the parties were turned over to the power of conscience and morals and religion.
[4.] We believe it to be well settled, that mere inadequacy of price, or any other inequality in the bargain, is not, per se, a distinct principle of relief in Equity. Much less does the Common Law know or recognize any such principle. The value of any commodity is its marketable price, which is, and always must be, forever changing; and it was well remarked by Lord Ch. Baron Eyre, in Griffin vs. Spratley, (1 Cox’s Rep. 383,) for the purpose of demonstrating the inconvenience and impracticability, if not the injustice, of adopting the doctrine that mere inadequacy of consideration should form a distinct ground for relief — “ that if Courts were to unravel all such transactions, they would throw every thing into confusion and set afloat the contracts of mankind.”
[5.] Where, however, there are other ingredients in the case, of a suspicious nature, or peculiar relations between the parties, gross inadequacy of price must necessarily furnish the most vehement suspicion of fraud. 1 Story’s Eq. Jur. §246.
The deed from Mary D. Moore to John Schly, purports to be founded on “ friendship and esteem, love and affection, and the many services rendered” by the grantee, who was an attorney; and while it is not denied that where the relation of client and attorney has completely ceased, a client may be generous to her attorney or counsel, as to any one else. No undue influence can in such case be rationally supposed longer to exist. Cicero, the father of his country, and second founder of Rome, whose eloquence and patriotism have been the admiration of every age and country, was enriched by the most munificent gifts from the patrons whom he had professionally served. Still, in all contracts between attorney and client, if made especially while the relation [525]*525subsists, Courts are bound, upon principles of public utility and public policy, to search the transaction to the bottom.
[6.] The question has been argued, aud like all others in this case, with much learning and ability,by the counsel on both sides, whether inadequacy of consideration can be set up to avoid a conveyance in a Court of Law. The doctrine that the “ Common Law kicks a suitor into the ditch, and Chancery has to come and pull him out,” has been distinctly repudiated by this Court. Wherever suitable relief can be administered, the forum is a matter of indifference; but in this case it cannot be done on the Common Law side of the Court, although it be a claim case; for if the Jury, upon the trial, should determine to set aside the conveyances, on account of the inadequacy of the consideration, coupled with the relationship of the parties, this would not be done until the price paid was refunded, or the services rendered were ascertained and compensated. For Courts will not grant relief until the parties are placed in statu quo; and this cannot.be done at law, until our Legislature, which has infused new life and energy into our judicial system, by the reforms already introduced, shall go one step farther, and authorize the verdict and judgment at Common Law to be framed to meet the exigencies of the case. And why should we falter ? Inquiry and progress are the vital elements of republican Government. Our free institutions, what are they but innovations ?
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By the Court.
Lumpkin, J.
delivering the opinion.
Many interesting questions are raised in this record.
[1.] Had the execution in favor of Jesse Robinson, as guardian of Andrew J. Lamar, against John Schly, the right to proceed against the property which is the subject-matter of this claim ? The presiding Judge held that it was inoperative, and that the Jury could not find the property subject to it, as there was no assignment from Jesse Robinson, the plaintiff, to John B. Lamar, and no evidence of Lamar’s being the successor of Robinson in the guardianship. This defect, if it be one, is rather one of form than of substance.
[523]*523It will be borne in mind, that this fi.fa. was issued in the name of Jesse Eobinson, as guardian of-Andrew J. Lamar, and that for the sum of thirty-five hundred dollars, it was transferred by John B. Lamar to George Schly, the son of the defendant — John B. Lamar signing himself as guardian of Andrew J. Lamar, and successor of Jesse Eobinson, the former guardian. The objection is, that the proof shows no privity between Lamar and Eobinson. From the record it appears that, in order to show title out of Eobinson, the claimant himself introduced George Schly, who testified that th ef. fa. was proceeding for his benefit; that he purchased it of John B. Lamar, guardian of Andrew J, Lamar, and successor to Jesse Eobinson in that office, and the witness produced in Court the written assignment to that effect. It might with propriety, therefore, be insisted, that notwithstanding the evidence of the transfer from Eobinson to Lamar was of a secondary character, still, inasmuch as it was offered by the claimant himself, he may be considered as waiving any objection to its competency as proof.
We prefer, however, to put the decision of this point upon broader ground, and one more in accordance with the truth of the case. It is not pretended that the payment proven was made to Eobinson, but to Lamar. Unless, therefore, the claimant can connect Lamar with Eobinson, the transaction was wholly gratuitous as between Schly and Lamar; and there is nothing in the testimony to defeat the lien of the execution, as in favor of the original plaintiff, Eobinson. Lamar is a mere interloper,and the money paid to him is no satisfaction of the debt.
[2.] If, however, the execution has been assigned to Lamar by Eobinson, and there be no written proof of the transfer, while the legal title would remain in Eobinson, the equitable interest vests in Lamar, or in Schly,his assignee, who wouldhave the right to use the name of Eobinson, the original plaintiff, to collect the money. Dix vs. Cobb, 4 Mass. R. 511. Parker vs. Grant, 11 Mass. R. 157, note. Wheeler vs. Wheeler, 9 Cowen, 34. Eastman vs. Wright, 6 Pick. 316. Welch vs. Mandeville, 1 Wheat. 236. Dunn vs. Snell, 15 Mass. R. 481. Allen vs. Holden, 9 Mass. 133. Brown vs. Maine Bank, 11 Mass. R. 153. Purson vs. Tollet, 4 Ditt. 435. Southgate vs. Montgomery & Eivers, 1 Paige, 41. Andrews vs. McCoy, 8 Ala. 920.
[3.] The Court charged the Jury, that they might, under the [524]*524circumstances of the case, hold the consideration paid by John Schly to William Cooper, for the property in dispute, grossly inadequate, provided it were less than one-half its value.
Why the Judge should have fixed upon one-half the value, or any other definite proportion, as the test of inadequacy, under any circumstances, we are somewhat at a loss to understand. It is true, a moiety was the criterion of the Civil Law, when applied to immovable property; but even by that code, sales oí personal property were usually considered without redress, where there was no fraud, and the parties were turned over to the power of conscience and morals and religion.
[4.] We believe it to be well settled, that mere inadequacy of price, or any other inequality in the bargain, is not, per se, a distinct principle of relief in Equity. Much less does the Common Law know or recognize any such principle. The value of any commodity is its marketable price, which is, and always must be, forever changing; and it was well remarked by Lord Ch. Baron Eyre, in Griffin vs. Spratley, (1 Cox’s Rep. 383,) for the purpose of demonstrating the inconvenience and impracticability, if not the injustice, of adopting the doctrine that mere inadequacy of consideration should form a distinct ground for relief — “ that if Courts were to unravel all such transactions, they would throw every thing into confusion and set afloat the contracts of mankind.”
[5.] Where, however, there are other ingredients in the case, of a suspicious nature, or peculiar relations between the parties, gross inadequacy of price must necessarily furnish the most vehement suspicion of fraud. 1 Story’s Eq. Jur. §246.
The deed from Mary D. Moore to John Schly, purports to be founded on “ friendship and esteem, love and affection, and the many services rendered” by the grantee, who was an attorney; and while it is not denied that where the relation of client and attorney has completely ceased, a client may be generous to her attorney or counsel, as to any one else. No undue influence can in such case be rationally supposed longer to exist. Cicero, the father of his country, and second founder of Rome, whose eloquence and patriotism have been the admiration of every age and country, was enriched by the most munificent gifts from the patrons whom he had professionally served. Still, in all contracts between attorney and client, if made especially while the relation [525]*525subsists, Courts are bound, upon principles of public utility and public policy, to search the transaction to the bottom.
[6.] The question has been argued, aud like all others in this case, with much learning and ability,by the counsel on both sides, whether inadequacy of consideration can be set up to avoid a conveyance in a Court of Law. The doctrine that the “ Common Law kicks a suitor into the ditch, and Chancery has to come and pull him out,” has been distinctly repudiated by this Court. Wherever suitable relief can be administered, the forum is a matter of indifference; but in this case it cannot be done on the Common Law side of the Court, although it be a claim case; for if the Jury, upon the trial, should determine to set aside the conveyances, on account of the inadequacy of the consideration, coupled with the relationship of the parties, this would not be done until the price paid was refunded, or the services rendered were ascertained and compensated. For Courts will not grant relief until the parties are placed in statu quo; and this cannot.be done at law, until our Legislature, which has infused new life and energy into our judicial system, by the reforms already introduced, shall go one step farther, and authorize the verdict and judgment at Common Law to be framed to meet the exigencies of the case. And why should we falter ? Inquiry and progress are the vital elements of republican Government. Our free institutions, what are they but innovations ? The bulk of our legislation is but the correction, reform and abolition of the past. We owe every thing, as a people, to the fearless spirit of Truth; and it is fortunate for the community, while the bar of this State exercises such a deserved influence on the public mind, as well as in the public councils, that as a class it is generally found on the side of common sense and liberal principles.
[7.] Before dismissing this branch of the case, we must condemn the practice in Courts of assuming that any fact is established by the proof, with the view to predicate a legal opinion thereon. The books abound with authority to show, that if the instructions of the Court assume or presuppose a fact proper for the decision of the Jury, it is error, and a new trial will, therefore, be granted. Lightburn vs. Cooper, 1 Dana, 273. Trotter vs. Sanders, 7 J. J. Marsh. 321. Dallam vs. Handley, 2 A. K. Marsh. 418. Sullivan vs. Endurs, 3 Dana, 66. Bowman vs. Bartlett, 3 A. K. Marsh, 86. United States vs. Tillotson, 12 Wheat. 180.
[526]*526Whether the circumstances to which the Court alludes, did or did not exist, were questions of fact, proper for the Jury alone to pass upon. The effect of such a charge is, to withdraw altogether from the consideration of the Jury, facts which it is their province alone to weigh. The growing intelligence of our people, and our special Jury trial, render this practice wholly unnecessary. The Jury are sworn to express their opinion upon the facts, by their verdict. The opinion of the Judge is not given, even under the sanction of his oath of office. He is sworn only to administer the law. Why should the presiding Judge be allowed to declare his opinion upon the facts without being sworn, when no one else, neither Juror nor witnesses, nor any other person, is permitted to do so 1 I trust that another Legislature will not intervene without its being made-a distinct ground of error, for the Court to intimate its opinion to the Jury, upon the facts and circumstances of the case. Until this is done, trial by Jury, if not nominal, will certainly not be what it has been fondly proclaimed by its eulogists — “A privilege of the highest and most beneficial nature.” Better abolish it altogether, if it cannot be protected from the control of the co-ordinate branch of the Judiciary. Life, liberty and properly derive but little security from the constitutional form of trial by Jury, if its constitutional force is undermined and destroyed.
[S.] A material matter to be adjudicated in this record is, the character of the conveyance from Mary D. Moore to John Schly. Counsel for the plaintiff vafi. fa. asked the Court to instruct the Jury, that in estimating the value of the property conveyed by the second instrument to John Schly, (in order to determine the inadequacy of consideration,) they were to estimate the value, so far as the negroes were concerned, only of the life estate which Mary D. Moore had reserved in the first instrument. This the Court refused to do ; but, on the contrary, charged the Jury, that the two instruments were to be taken as one, executed when the last was, and the value of the negroes estimated as if there was no remainder in the negroes vested in John Schly.
Now, the refusal of the Court to charge as requested, and the charge as given, can be justified only on the ground, that the first conveyance from Mary D. Moore to John Schly, was a testamentary paper. Is this its character as to the slaves in controversy ? To read this instrument correctly, the latter clause, reserving a [527]*527life estate to Mary D. Moore, should be transposed so as to follow immediately the conveyance of the negroes. It will then read, “ For and in consideration of the friendship and esteem, love and affection, and the many services rendered to me by John Sclily, of Jefferson, I do, by these presents, give, grant and convey unto said John Sclily, his heirs and assigns, forever, the following property, to wit: a negro woman, named Jane, about forty-three years of age, and her four children, 'William, a boy, about fourteen years of age, Rosey, a girl, about thirteen years of age, Matilda, about twelve years of age, Willaby about four years of age, together with the future increase and issue of said female slaves; but I, the said Mary D. Moore, do hereby save and reserve to myself, a life estate in the property above conveyed to the said John Schly, his heirs and assigns.” That this clause applies to the negroes, and them only, is manifest from the fact, that in all the rest of the property, she disposes only of what remains at her death.
What, then, is the proper interpretation of this paper, thus read? That it was intended to be a deed, is apparent from its face. It does not purport to be signed, sealed and published, as a will, but it is delivered as a deed. Of the numerous tests which have been suggested to distinguish between a deed and a will, we take this to be the plainest and broadest. Does the instrument, regardless of its form, pass a present interest? If this paper does not, language would seem to be incapable of effecting this object. Mary D. Moore does not convey such of these slaves as she may have at her death, but she conveys them now, by name, together with their future increase. As to the cattle, horses, furniture, money, bank stock, and real estate, she only disposes of so much, and such portions thereof, as may remain on hand at her death; but not so as to the slaves — she carves out of these a life estate to herself merely.
[9.] That a remainder maybe created in slaves, by deed or other writing, to take effect after the determination of a life estate, has been ruled again and again. Catterlin vs. Hardy, 10 Ala. 511. Banks vs. Monksberry, 3 Litt.275. Keen vs. Macey, 3 Bibb, 39. 3 Call. 50. “Another ground,” say the Court of Appeals of Kentucky, in the case from 3 Littell, “ assumed in support of the first position is, that the reservation of the slaves to the donor and his wife, for life, is incompatible with the gift, and that the [528]*528operation of the deed was thereby hindered and defeated. If either the reservation or the gift must be void, because of their inconsistency, it is obviously much more consonant to general principles, that the former should be so than the latter. We cannot, however, admit that they are inconsistent with each other, or that either is void.”
Had Mary D. Moore attempted to do any thing with this property, after the conveyance was executed, inconsistent with the title in Schly, the remainder-man, a bill in the nature of a bill quia timet would have been entertained for the purpose of securing him. 3 Call, 25. 2 Munf. 162. Or had her life estate in these slaves been sold by the Sheriff, under execution against her, John Schly would, under our Statute, have had the right to require the purchasers to have given security for its forthcoming at the death of the defendant.
[10.] The only doubt which could have been entertained, would seem to be as to the other clauses, in which Mary D. Moore only Conveys what she might leave or be possessed of, at her death. It has been held, that Where the limitation to the first taker is accompanied by a power of disposition, either express of implied, the limitation ever is void, both because of the inconsistency and the uncertainty as to what part of the property is to go over. 3 Ves. 7. 1 Hoven. Sup. 137. Thus, where there was a gift to Charlotte Williams, of the residue of the testator’s estate, with the right of disposition by will, and if she died without will, then Whatever might remain at her death, to go to W. Ashby, the remainder over was held void for Uncertainty. 1 Meri. 314. 8 Vin. Abr. 103. Pl. 50. 1 Ves. 9. So where an estate was given by Will to A and his heirs, and if he should die without issue living at his death, then so much of the estate as remained undisposed, of by A to B, the limitation over was held void, because of its uncertainty as to the property to go over. 4 Rand. 547.
I repeat, that inasmuch as Mary D. Moore disposes only of so much of the cattle, horses, furniture, money, bank stock, and real estate, as may remain at her death, doubts might arise whether these clauses were not void for uncertainty. They certainly would be, if the instrument, as to them, was held to be a deed. We believe, however, that upon a fair construction of the instrument, it is testamentary as to these.
[11.] Must a conveyance be necessarily homogeneous I Or [529]*529can it not be a deed in part,
If this view be correct, it is obvious that the charge as asked ought to have been given, and the instructions submitted were erroneous.
[12.] We cannot concur with counsel for the plaintiff in fi. fa. in the position, that the claimant could not attack the validity of the process on the ground of payment, unless he claimed under the defendant. Whoever undertakes to disturb another in the possession or enjoyment of his property, must be clothed with authority of law for so doing; and it is competent for the owner to ward off this attempt, by showing the invalidity of the process, by reason of payment or any other cause.
[13.] It is true, that the claimant will not be permitted to hinder or defeat the collection of the execution, by showing property out of the defendant. He has no right thus to interpose as a mere amateur combatant between the debtor and his creditor; but when his rights are assailed, he is at liberty to defend them by carrying the war into Afiica — the enemy’s country.
See Dudley vs. Mallery, 4 Ga. Rep. 52. — [Rep.