ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Poteet v. Bryson

The plaintiff, as a constable of Cherokee County, levied an execution, which he had in his hands against William Cunningham, upon certain articles, the property of the defendant in the execution, all of which he left in his possession, by virtue of the Act of the General Assembly, passed in the year 1827, Rev. St. ch. 45, sec. 17, taking from him at the same time a bond for the forthcoming thereof, to answer the execution. The present defendant was an obligor in this bond. The articles mentioned in it were four head of horses, two oxen, a set of harness, and two waggons. The delivery was to be at Murphy on the 5th day of August. Cunningham lived at Murphy. On the day appointed, two of the horses, levied on and included in the bond, were delivered, and sold at public auction, at the Court-house in Murphy, one bringing $27 and the other $10, prices much below their value. Cunningham then declared, that no more of his property should be sold at that rate, and immediately started for his house, Poteet following him. The other two horses were in the stable of Cunningham, and, when he got there, he found Cunningham at the door, armed with a deadly weapon, and who opposed his efforts to enter. While the quarrel was going on between the parties, the defendant said to the plaintiff, "If you will say the word I will bring out the property," and during the altercation he repeated the same words. Poteet made no reply to him at either time. The defendant then observed to him, "there lie the waggons, take notice I deliver them to you," and turned and walked off. The plaintiff immedi· ately after observed to him, "I will hold you bound on your bond." The waggons were in the street, opposite to the stable door of Cunningham, and in the rear of him and the plaintiff; one of them was old and of no value, the other worth $80; of the latter the body was lying on the ground. It was not pretended that either the oxen or the harness were delivered. But it was, on behalf of the defendant, urged, that the waggons were delivered

Poteet v. Bryson.

and the horses in the stable, in consequence of the plaintiff's not saying any thing to the defendant's offer to bring them out; and he further contended, that he was not bound to deliver all the property, as that which was delivered, to-wit, the waggons, was worth $80, a sum more than sufficient to discharge the balance remaining due, after deducting the sum of $37 raised by the sale of the two horses. His Honor instructed the jury, that there was no delivery of the horses in the stable; nor of the waggons, if they inferred that Cunningham was determined to resist the officer, if he attempted to take them, in the same manner he had resisted the taking of the two horses; but that there was a clear breach of the bond in the non-delivery of the oxen and the harness. The jury having found a verdict for the plaintiff, the defendant appealed from the judgment thereon.

Edney and J. W. Woodfin, for the plaintiff.
Francis, for the defendant.

NASH, J. We concur in the opinion of his Honor in the Court below. If there was an error it was one, of which the defendant has no right to complain. It appears to us too plain to admit of a doubt, that neither the horses in the stable nor the waggons were delivered. Cunningham, the defendant in the execution, stood at the door of the stable, armed with a deadly weapon and opposed the entrance of the plaintiff. The latter was going beyond the calls of his duty, in attempting to go into the stable -he had the bond of the defendant to deliver them to him. Nor was it necessary to tell the defendant to go in and bring them out-it was his duty to do so, if he wished to save his bond. The silence of the plaintiff, under the circumstances of the case, when addressed by the defendant, was no discharge of his obligation. Nothing but a positive declaration, on the part of the plaintiff, in answer to the enquiry of the defendant, that he would not re

Poteet v. Bryson.

ceive them, if brought and tendered, could have that effect. With respect to the waggons, the same remarks apply. When the two horses were sold, Cunningham declared, not that no more of his horses should be sold, but that no more of his property should. This declaration necessarily included the waggons, for they had been levied on and are specified in the bond. His arming himself was, according to his declaration, to protect all the property, subject to the execution, and the waggons were protected by the same force that protected the horses. The question is not, whether the plaintiff would not have been justified in taking them into his possession; but whether the declaration of the defendant, under the circumstances, did amount to a delivery, so as to redeem his bond. To us it appears, as it did to his Honor, who tried the cause, to be a mere mockery so to hold. The delivery, which would save the condition of the defendant's bond, was such an one as would place the property in the quict and peaceable possession of the plaintiff-not one, which called upon him to fight to get the possession.

But a full answer to the defendant's objection is, that the oxen and harness were not delivered. When a covenant is entered into for the delivery of a variety of articles, the covenant is broken, if all are not delivered. Thompson v. Gaylord, 2 Hay. 150. The defendant's argument is founded upon the assumption, that the defendant has a right to select what part of the property levied on shall be sold. This is a mistake-it is the privilege of the officer to make the selection. For the time being and for the satisfaction of the execution, he is the owner of the property. A Court of Equity might, under peculiar circumstances, control his discretion in the sale, and, after selling as much as satisfies the process in his hands, he has no right nor authority to sell more, but still he has a right to have the whole delivered. It is unnecessary to pursue these views any farther. We are of opinion

Smith v. Reavis.

that neither the waggons nor the horses in the stable were delivered, and that there is no error in the judgment of the Court below.

PER CURIAM,

Judgment affirmed.

DOE ON DEMISE OF SAMUEL SMITH vs. ROBERT REAVIS.

Under the Statutes of Elizabeth, voluntary conveyances to children, as such, are not absolutely void as to creditors. To make them void, it must be shewn that the maker of the deed was indebted at the time, or so soon afterwards, as to connect the purpose of making the deed with that of contracting the debt and defeating it.

By indebtedness in such a case is not meant a debt of a trifling amount, in

comparison to the donor's estate, but he must be "greatly indebted," or at least he must owe some debt, that remains unpaid and will be unpaid, if the conveyance be sustained.

If a father, who conveys land to a son, be indebted at the time, that does not avoid the deed, provided the father pay that debt, or if he retain property sufficient to pay the debt and out of which the creditor can raise the money, when he seizes the land conveyed to the child.

This deed was made before the Act of 1840-1, ch. 28.

The case of O'Daniel v. Crawford, 4 Dev. 197, cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at the Spring Term 1846, his Honor Judge PEARSON presiding.

The premises in dispute belonged to Thomas Reavis in June 1838, and he then conveyed them to his son, Robert Reavis, the defendant, by a deed expressed to be made in consideration of one dollar and of natural love and affection. At the same time, Thomas Reavis made similar deeds for other land, to each of his sixteen other children,

Smith v. Reavis.

but he retained a tract of land, on which he still lives, and a considerable amount of personal property. In October 1838, Thomas Reavis contracted a debt of $100 to the State, and confessed a judgment therefor, and a fieri facias was issued thereon, under which the premises were sold by the Sheriff to the lessor of the plaintiff in April 1839. On the trial the plaintiff proved, that in April 1838 an indictment was found against Thomas Reavis, which was pending when he made the deeds to his children, and on which he was convicted in April 1839, and fined $150; but it was admitted that he paid the fine and the costs forthwith. The counsel for the plaintiff moved the Court to instruct the jury, that the pendency of the indictment against Thomas Reavis, at the time he conveyed the land to the defendant and his other children, created such an existing demand against him, as made those deeds fraudulent and void in law. But the Court refused the motion, and directed the jury, that the deed to the defendant was to be regarded as voluntary, and that the indictment, though it did not create a debt, which existed when the defendant's deed was made, was sufficient evidence of a debt in contemplation; and that it was for the jury to consider, whether the deed, under the circumstances, was made with the intent to hinder or delay that contingent or contemplated debt.— A verdict was found for the defendant, and from the judgment the plaintiff appealed.

Edney and Francis, for the plaintiff.
N. W. Woodfin, for the defendant.

RUFFIN, C.J. The refusal to give the instructions, asked on the part of the plaintiff, was, we think, correct. The Act of 1840, ch. 28, makes the question of fraud in such a case, one for the jury, under proper advice from the Court. Therefore it was right to decline pronouncing the deed fraudulent, as a matter of law. But, indepen

« ÀÌÀü°è¼Ó »