KING vs. KENAN

KING vs. KENAN. [DETINUE FOR SLAVES, AGAINST SHERRIFF.] l.'Zien-of execution.-^Aw execution, regularly continued from term tu term, is a lien on the personal property of the defendant within the county, (Code, § 2456,).from the time it is first placed in tho hands of tho sheriff. 9— Validity of deed of trust for benefit of ioivdilors. — A deed of trust, ex-r ecuted by an insolvent debtor, to his- mercantile partner as trustee, who is cognizant of his pecuniary circumstances, for tho purpose of securing a debt due to the trustee’s wife, arising from the investment of moneys belonging to. her separate estate in the partnership business, and the use of the partnership assets by tho grantor in payment ef his individual-debts; which conveys the grantor’s-residence and household servants, together with his interest in the partnership assets, after paying the -p.artjiershi.px debts, then due, or afterwards created; postx>onos the law-day for more than three years; authorizes the retention of possession by the grantor, .and the continuation of the partnershix» business, until the .-trust is-, closed according to its terms; and directs the trustee to settle uxt tho x>artnership business, if any of the grantor’s creditors should attompt to subject his interest therein to the x>ayment of Ms debts, and to close tho trust if dej fault"was made by the grantor in the annual piayment of interest on* the secured debt, — is fraudulent and. void as against creditors. — Code, § -1550. Appeal from the Circuit Court of Dallas. . Tried before the Hon. Nat. Cook. This- action was brought by, William. J.. King, against; 'M. J. Kenan, the sheriff of said comity, to recover a slave ■named John, with damages for his detention; and was ■•commenced on the 7th November, 1859. The defendant pleaded non detinet, with leave to give any special matter in evidence^ and issue was joined on that plea. The plaintiff claimed the slave, under a purchase from W. B. Milton and M. A. Milton, his wife, on the 1st June, 18-59 ; and the defendant, as sheriff, had levied an execution on him, on the 2d September, 1859, as the property of' one 3?. L. Sink, from whom said Milton and wife derived title, as hereinafter more particularly stated. On the trial, as appears from the bill of exceptions, the plaintiff introduced said P. L. Sint as a witness, who testified, that the slave sued for belonged to Mm on the 7th ■July, 1857, and was one of the slaves conveyed by him ■on that day, by deed of trust, to said W. B. Milton as trustee., to secure the payment of a debt due from him to Mrs. M. A. Milton ; and that on the 21st March, 1859, the debt secured by the deed being unpaid, he sold said slave, with the others conveyed by the deed-, to Mrs. Milton, in part payment of the -debt, and executed to her a bill of sale. The execution of the said bill of sale and deed was proved by this witness, and both of said instruments were read to the jury. The deed was in the following words : “ State of Alabama, > This indenture, made and exeDallas County. • > cuted this 7th day of July, 1857, by and between Phillip L. Sink, of the first part, William B. Milton (trustee), party of the second part, and Maria A. Milton, wife of the party of the second part, as party of the third part, all of the State and county aforesaid, ivitnesseth, that, whereas the party of the first part borrowed of the party of the third part the sum of $9,624 08, including interest to the 1st day of January, 1858, and, to ■secure the payment thereof, the party of the first part has this day executed his promissory note for that sum, payable to the party of the third part on the 1st January next, and has also agreed, in consideration of said loan, to execute this deed of trust, as a further security for the payment of said sum of money, which is the separate estate of the said party of the third part: Now, in consideration, of the premises, and for and in consideration of the sum of ten dollars, to the party of the first part in hand paid by the party of the third part, the receipt whereof is hereby acknowledged, before the sealing and delivery of these presents, the party of the first part (the*said Philip L. Sink) has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, transfer, and convey, unto the party of the second part and his personal •representatives, the following described real and personal property, and choses in aetion, -to-wit: the undivided half of tire lot of land in the city of Selma on which the party of the first part now .resides, -fronting on Dallas street on the south, and on Washington street on the west, containing one acre, more or less, and owned jointly by the party of the first part and one A. EL Lloyd, with the appurtenances thereunto belonging ; also, a negro man named John, ■about twenty-one years old, a'negro woman named Jane, aged about thirty years, a -negro woman named Polly, about fifty years, and the natural increase of said slaves1 j also, all the accounts, notes and debts of every description, due, or hereafter falling due, or contracted to or with, and belonging to the firm of Sink & Milton, which firm is composed of the parties of the first and second part, and is now doing a mercantile business in the city of Selma 3 also, the stock of goods now on hand, or hereafter to he purchased by the said firm for the purpose of carrying on the business in which they are now engaged 3 but it is expressly agreed and understood, that the interest in said accounts, notes, claims, debts, [and] stock of goods of said firm, now on hand - and to be purchased as aforesaid, and herein transferred and conveyed, is the interest which the party of the first part shall have in them after the payment of all the partnership debts of said firm, now contracted, or hereafter contracted for the purpose of carrying on said partnership business as aforesaid; to have and to hold the above described real and personal property and. choses in action, unto the party of the second part and hi®personal representatives •, and tbe party of the first part further covenants with the party of the second part, that he is seized as iii-fee of the undivided half of said lot of-land, and that the said real and personal property is free of incumbrances j that" he has the title to the same, and the right to incumber and’"- eonrey the same and he doe® hereby warrant the title to the same, unto the said party of the second part, free from the claim or claims of any and all persons whatsoever. .. Hfevertheless, these presents are upon the trusts, uses, and conditions folloioing, to-wit z that is to say,-the party of the first part, upon paying the annual interest accruing on the' sum of money specified in said promissory note, on the 1st day of January, A. D. 1859 and I860, shall retain the possession of said real and' personal property herein conveyed,- until the 1st day of January, A. D. 1861.j hut it is further agreed, that should any creditor of the party of the first part levy on the stocks’ of goods herein conveyed, or the interest of- said Sink in. and to the same, or upon -the accounts, notes, claims and. debts herein conveyed, by garnishment process or otherwise, or should said firm of- Sink ¿b Hilton be dissolved at any time before the 1st day of. January, 1861, upon the happening of any or either of .the-, events above specified, then the party of the second part is hereby authorized tercióse up the partnership affairs;of said firm, and, after paying all the debts of said partnership from-.the partnership effects, shall apply the share of the party of the first part' in the net proceeds, of-the firm-..to the payment of said-promissory note, should any part thereof he then due ; and"it is further agreed and understood, that- should said promissory note and interest not be paid .by the 1st'day of January, 1861, then the party of ,the second part is hereby authorized to- take possession of said-'real and personal-property herein conveyed, and may, upon thirty days’ previous notice of the time and place of sale given in some newspaper printed in the city of Selma, proceed to sell the - same at public.yej.rdHa to the highest bidder, on cash.terms, or so much of said property as may be necessary to pay ' said promissory nqte and interest thereon, or so muck thereof as may be due, after-first paying the expenses of sale' and of this trust j- and should the affairs of the partnership-not be closed and settled before the 1st day of January,-£861, and the said promissory note, or any part-thereof, be'then due, the party of-the second part-shall then;-with all-convenient speed, pro'eeed to close up the affairs of said-partnership, and, after paying--the debts thereof - as aforesaid, apply the share of said Bilik in the net profits to the payment of any amount due on said promissory note, as-above provided ; but;* should the party-'of the first part-fail to pay the annual interest accruing on said promissory note, on the 1st day of January, 1859; or 1860,-then the - party of the second part is hereby authorized to take possession of- the said real and personal-'property, and proceed-to sell said property, and to close up tire affairs of said partnership, as hereinbefore provided to-be don-8- -on* the happening of the events before specified,- and apply the proceeds to the payment of the expenses and said'-prom-issory note and interest, as hereinbefore provided; and when-- • ever said promissory note, and interests that may be due thereon, are- paid, froim-thenceforth the' property hereby conveyed;■ and undisposed of at that time, shall reverfrand reinvest in the party of- the first part, free from the trusts-'-- and uses of this conveyance. In testimony whereof,” &c„ - (Signed by the .parties of the-first and second-part,and- ■ attested by two' .witnesses.) The only witness introduced by the plaintiff-was said Í?' I¡. Sink, the substance-of whose testimony-was as follows;-; The partnership offSink & Mil ton-wras5 formed on the 6th October, 1856, and did a general mercantile business, besides buying and selling cotton.-- By the- terms of the ar, - tides of partnership, each partner ’Was- to put $10,000 capital in the firing -and íheyi-i-veró" to be-equally interested in the business.-- Sink put' into the business a stock of goods Which he then-had on hand, valued ht $18,000 ; and Mil- - ton piit i-npat different-times, about-$l 8,000 in-cash,-whiew. belonged to bis wife’s statutory separate estate, and which he so represented at the time to Sink. At the time this •partnership was formed, Sink was actually insolvent, but he was not aware of his pecuniary condition until about .the 1st April, 1857. In'February and March, 1857, du¡ring the temporary absence of Sink in New York, and without his knowledge or consent, the commission-merchants in Mobile to whom Sink & Milton shipped their ■cotton, and with whom Sink had business transactions prior to the formation of said partnership, applied the proceeds ■of the sale of cotton belonging to the firm, amounting to over $20,000, to the payment of Sink’s individual debts created before said partnership was formed ; and in March, •1857, forwarded to Sink & Milton an account-current showing the application of said funds. Sink thereupon made a strict examination into his pecuniary condition, and discovered that he owed about $10,000 more than his property •was worth ; and he immediately communicated the fact to his co-partner. On balancing the books of the firm, about the 1st July, 1857, it was ascertained that Sink individually owed the firm $9,624 OS more than Milton owed it. Supposing that this sum was due from him to Milton, and being desirous to secure to Mrs. Milton the repayment of the funds belonging to her separate estate which had been invested in the partnership business, Sink executed to her, on the 7th July, 1857, his promissory note for $9,624 OS, as for so much money that day borrowed from her by him, payable on the 1st January, 1858 ; and at the same time, to secure its payment, executed the deed of trust above set forth. Said deed was not executed with any intention on his part to defraud or delay his creditors, but from an honest conviction that it was a debt of honor of high obligation, which if w.as his duty to secure so far as he could. At the time said deed was executed, no suits were pending ,against Sink, nor was he threatened with suits by any of his creditors, although many of his debts were then past flue and unpaid ; and he believed that it was the best possible arrangement that could be made, both for himself and for his creditors, as it would enable him to acquire means to pay off all his debts from his partnership business. Said deed conveyed all the grantor’s property of every description, except about $300 worth of household furniture, and outstanding notes and accounts amounting to about $1,000. After the execution of said deed, Sink continued in possession of the real and personal property conveyed by it, without paying rent or Ipre, until the 21-st March, 1859, when he sold the said slaves to Mrs. Milton, with the assent of her husband, in part payment of the. debt- secured by the deed, executed to her a bill of sale, and delivered possession to her. The partnership business of Sink & Milton was continued after the execution of said deed as before— goods were bought and sold, and the partners drew' from the firm the means necessary to support their families — until the fall of 1858, when the firmwas dissolved by mutual consent, Milton taking the stock of goods on hand, valued at $6,000, and agreeing, to pay that amount of the partnership debts out of his individual funds. The defendant .read in evidence the record of- a judgment recovered by Frothmgham, Newell & Co. against said P. L. Sink, in the circuit court of Dallas, on-the 18th November, 1858; which judgment was founded on a debt contracted in the spring of the year,1856.v An execution on tbis judgment was issued on the 1st January, 1859, and was placed iu the hands of the defendant, as sheriff of the county, by whom it was returned “no property found”; and an alias was . afterwards- regularly issued, which was levied on the slave in, controversy on the 2d September, 1859. It further appeared, from the testimony of said-Sink, that said slave was in Dallas county while in his possession, and, after .the, sale by Milton and wife to the plaintiff, was hired as.-a deck band on a steamboat running on. the Alabama river, and .was in said county regularly oncee or twice every week. The-above being all the evidence, the court charged the. jury, that they must find for the defendant, if they believed the evidence; to which charge the plaintiff excepted, and he now assigns it as error- Byrd & Morgan, for appellant. Pettus, Pegues & Dawson, contra. [MAJORITY — STONE, J.] STONE, J. The folllowing are among the uncontre- ■■ verted facts in this case: That Mr. Sink was the owner of „ John, the slave in controversy, up to July'7th,. 1857 ; that v on that day he executed a deed of trust to Win. B. Milton, ■■ trustee, conveying--the slave vto him,fin trust to secure .a large debt to Mrs. Maria A. Milton; that the slave remained in the possession of Mr. Sink, in Dallas county, until March ,. 21st, 1859, when, in .part payment of the debt to Mrs. "Milton, Mr. Sink conveyed the slave to her by bill of sale, and the possession,-then went to Mrs. Milton, who still regained him in Dallas-countys -until she sold and delivered him to Mr. Kiug^also of the.oame county; that before the said 21st March,,1859, Frothiegham, Newell & Co. recov- . ered a ) udgment, in said Dallas'county,-against Mr. Sink, .- ■.and sued out an execution upon it, and placed it in .the ,• hands of the- sheriff for collection; that from that time, t. until the slave JJohn was seized by the sheriff of Dallas, ; said execution was regularly renewed from term to term, .and kept in the hands .of said sheriff; and that, up to that ¡«time, the slave.was owned in said county, and was regu- . larly in it at least once a week. On these plain facts,, the • execution in favor of Frotliingham, Newell & Co. operated ; a lien on said slave John, from the time it first went into ,. the sheriff’s hands, unless Mrs. Milton’s title can relate i-back, and rest cm the deed of trust of July, 1857. Having premised the foregoing facts, about which t. there seems to have been no contest in the court below, ’We feel bound to declare, that the testimony in this cause, if believed, made the case of a conveyance with intent to -delay, hinder and defraud the creditors of Mr. Sink. The , facts connected with the making of the deed, and its purpose, are shown by the deed itself, and by the testimony .■ of Mr. Sink. The -chief features of the transaction are the Hollowing : Mr. Sink and Mr. Milton formed a mercantile «•copartnership, — Mr. Milton employing, the trust funds, of Mrs. Milton’s separate estate in his bands, .in supplying his share of the capital stock. The funds of the firm were used in paying the individual antecedent' debts of Mr. Sink, by which he-became indebted to the-firm in some nine thousand dollars. To secure this indebtedness, Mr. '■•Sink executed to Mr. Milton, as trustee,"the'deed of trust, ' the chief contents of which will be hereafter stated, for the -■ express purpose of securing ■ said debt of nine thousand dollars to Mrs. Milton, the wife of" ihp''trustee. At the ■ time this deed was executed, Mr. Sink was insolvent, arid Mr. Milton knew it. The debt of nine thousand dollars, secured by the deed, was made payable the first day of January, 1858. The deed of trtísí conveyed the'family residence and house servants, three in number, belonging- to- the said Sink; also, all the notes and accounts due the firm of Sink & Milton; “and also the'stock of goods now on hand, ■or hereafter to be purchased by the said firm of Sink '& Milton, for the purpose of carrying oh the business in which said-firm is now engaged'; but it is expressly-■ understood and agreed, that the interest in said accounts,’-notes, claims, debts, stock of goods of said firm now on band,' and to be purchased as-aforesaid, and herein transferred and conveyed, is the interest which the pá-rty -of the first part shall have in them, after the payment of all .the partnership debts of said Sink & Milton now contracted,'or hereafter to be contracted for the purpose of carrying om-said, partnership business as aforesaid.” The •'deed-.then: provides, that Mr. Sink was to- retain possession of said real and personal property until'January 1st, 1S61; — he ..paying interest on the first of January, T85’9 and 1860. ".-The law-day of the deed is fixed at January 1 st, 1861, — near three and a half years after its date, and three years after the maturity of the debt secured. There is a provision in the deed, that'if any creditor attempted to subject Mr. Sink’s interest in the mercantile establishment to the payment of bis debts, then Mr. Milton was directed to wind up the mercantile establislunent; and further, if Mr.- Sink failed to pay the inter-est in January, 1859, or January, 18GQ„then the property; was to be sold, and the trust closed., These are all the stipulations of the deed, necessary to- be noted here. This deed, then, provides for the continued enjoyment, by Mr. Sink of his property for three and a half years, and the continuance of his mercantile business by selling, buying, selling again, and again reinvesting for a like period,, without any noticeable change in his business, or tho manner of conducting it; this, too, .by,an insolvent debtor* dealing with one who had -notice, of his insolvency. We, hold, that the case made by this record is not distinguishable in principle from Ticknor v. Wiswall, 9 Ala. 305 ; Constantine v. Twelves, 29 Ala. 607 ; and Price v. Mazange, 31 Ala. 701. In each of those cases, the deeds were pronounced fraudulent as against creditors and the present transaction must receive the like condemnation. The charge of the circuit ..court is strictly in accordance ■ with our .views, and the judgment, must be affirmed.