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Colquitt vs. Thomas et al.

No. 45.-Walter T. Colquitt, plaintiff in error, vs. Nicholas

S, Thomas et al. defendants.

(1.) A sells lands to B, and gets judgment on the notes given for the purchase

money, and levies on the lands in the possession of C, a purchaser from B; C puts in his claim; Held, that upon the trial of the claim, it is not competent for A to set up, by proof, his lien as vendor, but that he must go into Equity to establish his lien, and there get a decree that the land be sold to

satisfy it. [2.] The Circuit Judge, in opening his charge to the Jury, said, "that he

wished counsel to take notice of his charge, for he supposed the case would be taken up, and if he erred, he could be corrected; and if the Jury found contrary to evidence, they could be corrected:Held, that the remark, relative to the Jury, was improper, as tending to relieve them from the exclusive

responsibility of trying the facts of the cause. [3.] Fraud cannot be presumed at Law, but it may be proven, from circum

stances. [4.] To hear reports about an incumbrance upon land, which the purchaser is

about to buy, does not amount to notice, nor is report or rumor a badge of

fraud. [5.] The presiding Judge is requested, by counsel, in the hearing of the Jury,

to give in charge a legal proposition, to which request, he replies, "well, I

charge it,” without anything more. This, held to be error. [6.] Upon the trial of a claim, it is not competent for the claimant to prove the

bona fides of his purchase, by proving the conversation that passed between himself and his vendor, in relation to what he gave for the land, at a time

subsequent to the purchase. [7.] The pendency of suits against a debtor, at the time that a purchaser buys

lands of him, is a badge of fraud and a fact which the Jury are at liberty to consider, in determining whether the purchaser bought with notice or not,

under the Statate 13 Elizabeth. (8.) To subject land to a judgment, sold by the defendant, before the judg

ment, to A, and by A sold to B, it is necessary that the plaintiff prove that the defendant sold fraudulently, and that both A and B had notice of the

fraud, under the Statute 13 Elizabeth. [9.] One who buys from a fraudulent grantee, without notice of the fraud,

and one who buys from an innocent grantee, with notice of the fraud, will

be protected under the proviso in the Statute 13 Elizabeth. (10.) If one buys lands of a debtor, and pays a part of the purchase money be

fore getting a deed, and before paying the balance of the purchase money and before getting a deed, learns that the purchase money is unpaid by the debtor--that he is insolvent, and that suits are pending against him: these facts may be submitted to the Jury, as evidence that he purchased with 20tice of the fraud, under Statute 13 Elizabeth.

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Colqnitt vs. Thomas et al. [11.] The sayings of an agent, after his actings as agent, are not competent

to prove his agency.

Claim, in Campbell County. Issue joined, October, 1847. Verdiet, "not subjeet," and decisions complained of-by Judge Hill, at October Term, 1849.

This was a claim case. Walter T. Colquitt had sold certain lands to Nicholas S. Thomas, taking in part pay certain notes, which he sued to judgment, and levied the fi. fa, issued therefrom for $5,999 994 upon said lands, or a portion thereof the defendant, Thomas, admitting in his plea that the notes were for the lands afterwards levied on. On the claim trial, plaintiff in f. fa. showed the grant to one Hiram Howard, then a deed from Howard to said N.S. Thomas and John P. Timberlake, (showed no title passing through himself,) and read other fi. fas. and judg. ments, at suit of other plaintiffs vs. said Thomas.

It appeared that said Thomas had sold said lands to A. H. Harrison and C. Williams, who subsequently sold to Nathaniel Harrison, who was the claimant on said trial. After the above testimony by plaintiff in f. fa. claimant offered the said deed from Thomas, dated 30th March, 1844, then the deed from A. H. Harrison and Williams to claimant, dated 27th May, 1845. Celquitt's declaration vs. Thomas was returnable to April Term, 1844, and service acknowledged by Thomas, 6th January, 1844, and judgment in October, 1845. Plaintiff introduced various other testimony, and so did the claimant, which so far as material, and as elucidating the issues, will appear in what follows:

When claimant offered the testimony of a witness, as to what " he understood from the claimant, Abel Harrison and Clayton Williams," plaintiff below. objected. The Court overruled it, and let in the testimony.

After the testimony closed, the Court charged the Jury, among other things, that he “ wished counsel to take notice of his charge, as he supposed the case would be taken up, and if he erred, he could be corrected, and if the Jury found contrary to evidence, they could be corrected”-that “the pendency of the suits did not operate as notice, either positive or constructive, for the notes did not express the consideration for which they were given, and though the plea set forth that fact, the plea was not verified, and Colquitt vs. Thomas et al. if taken as evidence at all, would have to be taken together, and it set forth a partial failure of consideration.” Further charged, “if the purchaser bought, bona fide, and had paid the parehase money, or any considerable part thereof, before he received notice of the incumbrance, he could go on after notice and pay the residue, and his title would be protected in this case, but that, perhaps, it would not in Equity-the plaintiff not now relying on his lien for the purchase money." Further, “that to hear reports about an incumbrance, did not amount to sufficient notice in Law;" and, by request of claimant, "the burden of proof was on plaintiff to show fraud, and that fraud was never to be presumed, though it might be proven by circumstances." The plaintiff's counsel then, verbally, it seems, asked the Court to charge the Jury as to a certain legal position, to which request, the Judge replied, "well, I charge it." The plaintiff's counsel then, in writing, requested the Court to charge, that if they believed the deed to Harrison & Williams to defendant in fi. fa. was fraudulent, as to creditors, and that the claimant knew of the indebted. ness of defendant in fi. fa. for the purchase money, or his insolvency, and the pendency of the suits, before he paid the purchase money and received title, that such title did not defeat the incumbrance, and was fraudulent.”. This the Court refused, and repeated the above charge, as to where notice was received after the trade and before payment, &c. as being the law in this case. Claimant then asked him to charge that the sayings of C. Williams were not evidence to establish his agency.” - This the Court charged, adding that "testimony could be legally received for one purpose, and when so admitted, could not be made evidence for a different purpose; and that in this case, Williams' sayings, made after his agency, were not evidence to prove his agency." To the manner of said last charge, and to the refusal to charge, as herein set forth, the plaintiff in fi. fa. excepted.

The Jury found the property "not subject."
Plaintiff in fi. fa. then excepted

1st. To the testimony of the witness, as to what he wunderstood from claimant and A. Harrison & Williams," and "in admitting parol evidence, (a part of said sayings,) to prove a contract for land."

2d. That the Court erred in saying to claimant's counsel, in the hearing of the Jury, that he was by no means certain that

Colquitt vs. Thomas et al. he was correct in rejecting the testimony of I B. Watts, and as it did not amount to much, they had, perhaps, better suffer it to go before the Jury."

3d. As to that part of the charge already recited, as to the case being carried up, if he or the Jury erred, &c.

4th. That he erred in saying what he did-already recited-as to pendency of suits being notice, &c.

5th. That he erred in charging what he did-already recitedas to the right of the purchaser to go on and pay and take title after notice, &c.

6th. Also erred in refusing to charge what is already recited he was asked to do, as to claimant having notice of any fraud in the sale from Thomas to claimant's grantors, &c.

7th. That he erred in his charge, as to “ reports as to an incumbrance," -as recited-unless he had explained what he meant by reports, and that this charge was not applicable to the case,

8th. That he erred in saying—as recited the burden of proof of fraud was on plaintiff, and was never to be presumed, &e.

9th. That he erred in not pronouncing (repeating ?) the specific thing which he was requested by plaintiff to charge; instead of saying “well, I charge it."

10th. That he erred in saying that the sayings of Clayton Wil. liams were not admissible in this case, to prove his

agency.

S. T. BAILEY and C. B. COLE, for plaintiff in error, cited tho following authorities :

Roberts on Fraud, 2, 3, 5, 122, 231, 422, 520, 1, and note, 595, 600, 1, 2, 7: Lowry vs. Pinson, 2 Bailey's R. 328. 18 John. R. - 427. -1 Conn. R. 295. Mitf. Pl. 275. 2 Danl. Pr. 777. Story's Eq. Pl. 5806. - Sugden on Vendors, 760. 2. Fonbl. 414, n. 2 Mad. Ch. 322. 3 P. Williams, 307. 4 Kent, 180. 1 Atk. 384. 3 Leigh, 365. 1 Story's Eq. Jur. $395. 1 Munf. 38. 2 1b. 38, 129. 2 Hen. & Munf. 316. 2 Atk. 630. 2 J. C. R. 158. 5. Ib. 229. Harden's Rep. 37. 1 Hare, 43. 6 B. Monr. 67. 7 IO. 312.

1 Watts & Sergt. 142. 3 Day, 503. Co. Litt. 344. Powell on Mort. 548, 547, note r. 3 Atky. 392. 13 Ves. 120.

1 Oh. Cas. 291. i Cond. Ch. R. 550. 5 Price, 306. 16 Ves. 419. . 1 John. C. R. 301. 10 John. 462. 1 Bur. 149. Cross on L. 79. 2 Atky. 411. 1 Vermont R. 465. 3 Har. of John. 426. 4 John.

Colquiut us. Thomas et al.

234. 14 Mass. R. 245, 250. 3 Kelly's Rep. 513. 1 Stewart's R. 394. 1. Brerard, 166, 266. 4 Mass. 702, 8. 4 John. 234, note. Riley's Cases, 270, 2. i Gallison, 106.

Ezzard and LATHAM, for defendants in error, cited

Greenl. Ev. 119, 20, 25. 1 Story's Eq. $372, 190. 1 Fonbl. 444, 347. 2 Powell on Niort. 564. 7 Viner's Abr. 123. 3 John. Ch. R. 516. 12 Wend. 41. 4 Bac. Abr. 402. 3 Sugd. on Vend. 117, 315. 8 Cowen, 260. 10 John. 457. 3 Serg. $ Raule, 429. 18 John. 555. 1 Wash. 4. 3 Kelly, 446. 4 Georgia Rep. 104. 1 Kelly, 157. 2 16.1. I Smith's Lead. Cas. 29 to 60. 5 Ga. Rep. 293. 13 Ves, 121., 1 Ves. Jr. 226. 6 Ga. Rep. 344, 525.

By the Court.-NISBET, J. delivering the opinion.

The plaintiff in execution, Judge Colquitt, sold a body of land to the defendant in execution, Dr. Thomas—taking his notes for the purchase money. He sold to Harrison & Williams, and they to the claimant, Mr. N. Harrison. Colquitt sued and obtained judgment against Thomas, on his notes, for the purchase money, but not until after the sale of the lands to the claimant. A levy was made on the lands, and a claim interposed by N. Harrison, the last purchaser, and all the questions brought up, were made on the trial of the claim.

[1.] This summary statement is made, for the purpose of introducing a preliminary question, discussed at this bar-one of great practical importance, and affecting, very seriously, the rights of the parties. It is due, therefore, to the merits of the cause, as well as to the distinguished counsel moving it, that it be considered and determined. The proposition of the plaintiff in error is this : Upon the trial of a claim, between the vendor of lands, and a purchaser, claiming under his vendee, it is competent for the plaintiff in execution to set up, by proof, his lien as vendor, and for the Jury to find the land subject, upon that ground, and for the Court to order the land to be sold to satisfy that lien. The vendor's lien is founded in a fundamental principle of Equity—that one who has gotten the estate of another, without paying for it, cannot in conscience keep it. The principle applies not only to the vendee, but to his heirs, and other privies in estate,

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