Raganv.Kennedy

Superior Court for Law and Equity, Washington DistrictMar 1, 1805
1 Tenn. 91 (Tenn. Ch. 1805)

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March 1805.

A bill of sale of personal property, by a person indebted, absolute and without condition on its face, is void, if not accompanied and followed by possession of the property, even if a consideration was paid. [Overruled by Cullen v. Thompson, 3 Y. 477, citing this case.]

If the vendor remain in possession after a bill of sale, a second bill of sale made by him may be given in evidence to show that the first was colorable.

Conversations between the parries to a conveyance, when it was not in the contemplation of the parties to convey, in relation to the indebtedness of the conveyor to the conveyee, are admissible to so the character of the transaction. [See Callaway v. Willie's Lessee, 2 Y. 3. where this case is cited and commented on.]

In order to render a verdict in one action evidence in another, it is not necessary that the parties should be the same. It is sufficient if the party against whom the verdict is offered was a party to the former suit, and that the subject-matter was directly put in issue by the pleading's: but not where a point comes before the Court collaterally.

A verdict cannot be given in evidence unless judgment has been rendered on it.

MILLER, for the plaintiff, objected to the reading of this as evidence, upon a principle adjudged in Haywood's Reports, and frequently recognized in this court, that no declaration of the party conveying after the conveyance should be received. If Harrison's confessions as to the transaction cannot be received as evidence, pari ratione his acts cannot: such as giving a bill of sale.

OVERTON and WHITE, JJ. —

WHITESIDE, for the defendant, offered to read the record of an action, which had been commenced in the County Court of Washington by the plaintiff against the sheriff for taking or seizing the negro in dispute, and in order to show to the Court the nature of the action, he read a copy of the writ and pleadings on both sides, from which it appeared that the present plaintiff had there declared against the sheriff for breaking his close and house, and for taking and carrying away the negro in question. To this declaration the sheriff filed two pleas. 1st. As to the breaking of the close and house not guilty; and as to the residue of the trespass, or the taking and carrying away the negro in question, he justified as sheriff under the aforesaid execution. On each plea issue was joined, and upon the trial the jury found the defendant in that action not guilty as to the first plea, and the justification true as to the second.

MILLER, for the plaintiff, objected to the record going to the jury, because it was not between the same parties, and cited Lofft's Gilbert, 31.

WHITESIDE, e contra, relied upon 3 Wils. 304; Gil. 34.

DUFFIELD, for the plaintiff, in his argument to the jury, insisted that there was a full and valuable consideration given for the property mentioned in the bill of sale, which was a wagon and team worth five hundred dollars, three horses and a debt which was paid by the plaintiff for Harrison in Virginia.

He considered it too clear to admit of argument that the settlement of the debt was as complete a consideration as if the money had been paid down. That if a man were indebted to several, he had a right to give a preference to any one of his creditors.

2 P. Wm. 29.

It was also contended that the delivery of possession was not necessary to constitute a valid conveyance of personal property, and that as to the sale of slaves, they stand in a different situation from other species of personal property; consequently the cases in, the books which require the delivery of possession as to the indicium of property do not apply to this case, because we have an Act of Assembly which requires that negroes should be transferred by bill of sale; and that such bill should be registered within nine months.

Cow. 412; Term Rep. 462; Stra. 165; 2 Eq. Ca. 449.

By the Act of 1807, c. 85, twelve months are allowed to register all deeds of trust mortgages or bills of sale, of personal property; two years for absolute deeds for lands and powers of attorney authorizing the transfer of lands within the county where the land shall lie or where the vendee shall live in case of personal property.

The act designed that this registration should operate as notice respecting, the ownership of the property. We registered our bill of sale in 1798, so that all persons were apprised that the plaintiff was the owner of this property, and thus the necessity for delivery of possession was superseded.

SCOTT and WILLIAMS, for the defendant, contended that the bill of sale from Harrison to the plaintiff was void as against the creditors of Harrison upon two grounds: first, because possession was not delivered upon the execution of it; secondly, there was sufficient evidence otherwise to show a fraudulent intent. Upon the first point, the case in 2 Term Rep. 587 was relied on. The counsel for the defendant took an extensive view of the evidence relative to the second ground, and cited Twine's case in Coke's Reports; Esp. N. P. 290; 1 Har. 21; 12 Bac. Ab. 605.


This was an action of detinue for a negro girl named Dilcy, plea non detinet. — The plaintiff's case, as it appeared in evidence, was, that Michael Harrison, who owned the negro, made a bill of sale to the plaintiff for her, together with several others and a house and lot in Jonesborough, dated the 12th of April, 1798. Harrison was married to the daughter of the plaintiff. The bill of sale was registered in October of the same year; a judgment was obtained in this court at March term, 1801, for $211.26, at the suit of Joseph Brown and Samuel Harbison, against Harrison and William P. Chester. Upon this judgment a fieri facias issued returnable to March term, 1802. The sheriff sold the negro in dispute under this execution as the property of Harrison, to John Kennedy, the defendant, for the sum of $139.51, on the 27th of February, 1802. In consequence of this sale the sheriff executed a bill of sale for the negro to the defendant, dated September 11, 1802.

The defendant's counsel stated, as the ground of their defence, that the bill of sale from Harrison to the plaintiff was fraudulent, having been made with an intent to defeat his creditors of their just demands and consequently void.

To substantiate this charge, it was shown in evidence by the production of records, that a judgment was recovered against Harrison and Thomas in this court, in the year 1793, for $333.33, upon which sundry executions issued, that Harrison gave his obligation to Price and Morgan, in June, 1796, upon which a judgment was recovered in the Federal Court of East Tennessee for $5,739.12, in October, 1802; that another obligation was due from Harrison to Searight in March, 1797, upon which judgment had been recovered in this court for $1,300 at September term, 1803; and that Harrison gave an obligation to Ball in January, 1797, upon which judgment was recovered in this court at September term, 1800, for $412, but this last judgment appears by the return of the execution to have been satisfied.

A copy of a bill of sale from Harrison to his mother for one of the negroes mentioned in the bill of sale to the plaintiff, dated, September 3, 1800, was offered in evidence.


thought the evidence admissible.


In the conveyance of personal property, the law supposes a transfer of possession. In subjects of this nature two views present themselves: one as between the parties themselves, and those claiming directly under them; the other, as it respects such individuals as may stand in a relation to be affected by the transaction. In the first, delivery or possession may not be necessary; in the latter it is usually otherwise.

A bill of sale appears to have been made for this negro, with others, by Harrison to the plaintiff, in April, 1798. We cannot suppose without evidence that the possession of the property did not follow the bill of sale. If it were proved that the possession remained with Harrison, after the execution of this instrument of writing, it might admit of a different consideration. If the property was completely vested by the delivery of the possession it would be improper to admit this evidence. Assuming it as a position that the property had been rightfully transferred to the plaintiff, any conveyance afterwards, by Harrison, the former owner, ought not to affect the plaintiff's right; res inter alias non nocet.

Vide 2 Hay. 154, 293, 330; 4 Mass. 702; 5 Johns. 412.

The defendant's counsel then introduced two witnesses, Sloan and Temple, who together proved that the negro had always been in the possession of Harrison, unless it were part of one year, when Harrison and his father-in-law, the plaintiff, cropped together on the plantation of the latter. Temple was a subscribing witness to the bill of sale from Harrison to his mother. The counsel then moved for permission to read that bill of sale, to show an instance of the exercise of ownership, which was allowed by the Court.


The rule laid down in Gilbert, 31 is too narrow, which plainly appears from the same book, p. 34.

In order to render a verdict in one action evidence in another, it is not necessary that the parties should be the same. It is sufficient if the party against whom the verdict is intended to be introduced was a party to the former suit, and that the same subject-matter was directly put in issue by the pleadings; but not where a point comes before the Court collaterally. Upon a cursory view of the declaration a difficulty had suggested itself in this, that it appears in one part of it to have been framed for the common action of trespass quare clausum fregit, with an asportavit. It is however to be remarked that there is a distinct count embracing the asportavit, alone; but admitting this not to have been the case, it appears the sheriff, by his pleading, has made them two distinct points; upon each of which an issue was taken and tried; under the plea of justification, the property of the negro must have come directly in question; for if the property was not Harrison's, but Eagan's, the jury could not have found for the sheriff upon the justification; but otherwise, if the claim of Ragan were only colorable. The ground upon which the admissibility of verdicts seems to be founded, is, that it appears in proof consistent with the pleadings in the former suit that the same point was directly and not incidentally brought in question; that the party in the latter being also a party or privy in the former suit, was apprised that the same point was in issue, so that he or the person under whom he claimed might have come prepared to contest it.

See 2 Wil. ed. Bac. 614 n.; 4 Dall. 120.

The counsel for the plaintiff desired further time to look into the books until the next day, which was granted.

The next day MILLER, for the plaintiff, took another objection to the introduction of the record, because it did not appear that judgment had been rendered by the Court upon the verdict, and cited Lofft's Gilbert, 38; 9 Com. Dig. 279. On examination of the record it appeared that after the jury had returned their verdict a rule for a new trial was granted, which was continued for several terms and at length discharged, and here the transcript ended. For the defendant, it was urged that this was as perfect a record as usually came up from the county courts; that the clerk had certified it to be a true transcript, and that the Court would presume the judgment to have been rendered, it being a matter of course.


The law is laid down correctly in Gilbert, 38, a verdict cannot be given in evidence unless judgment has been rendered on it, for otherwise, says the book, it does not appear but a new trial or an arrest of judgment might have taken place.

The judgment of the Court is necessary to the determination of every suit. It is the essential part of the record; the verdict is only the mean by which the Court are enabled to render judgment. After verdict in this case there was a rule for a new trial; there is no judgment on this record, and for aught that appears to the contrary it might have been arrested; the rule of law will not permit us to presume that judgment followed the verdict; though the rule for a new trial was discharged, yet the judgment might have been arrested, which is one of the presumptions of the law to rebut which this record affords no evidence. Upon this ground the record cannot be received.

Several witnesses were produced on both sides to show what had been proved by Daniel Ragan, a son of the plaintiff's, who had been sworn on the former trial in the County Court of Washington, and was now dead, he was a subscribing witness to the bill of sale from Harrison to the plaintiff. On that trial Daniel Ragan swore that Harrison owed his father for a wagon and team estimated at five hundred dollars, for three horses, and for a debt his father had paid for Harrison in Virginia, which he supposed was the consideration of the bill of sale he witnessed. That the property was not delivered, but remained in the possession of Harrison. Doctor William P. Chester, who had previously been released, proved that he purchased a lot of Harrison, and after paying the consideration he was referred to the plaintiff for a title, who made it, being the same lot mentioned in the deed dated the 6th of April, 1798, from Harrison to the plaintiff. Chester paid Harrison, and not Ragan, for the lot.

MILLER, for the plaintiff, desired to know if any conversation between Harrison and the plaintiff, respecting a debt due from Harrison to the plaintiff, would be admitted as testimony.


Conversations previously to the conveyance, and when it was not in the contemplation of the parties to convey, by which Harrison acknowledged himself indebted to the plaintiff, are admissible, but no conversation afterwards.


after stating the case as it appeared upon the pleadings. — The evidence, or symptoms of fraud, furnish such a variety of cases that I shall not attempt to delineate them to the jury; the counsel have shown many instances from the books which the jury will apply to the facts before them. Whether possession of the negro accompanied and followed the execution of the bill of sale or not, the jury are alone competent to determine from the evidence. Should it appear to them that it did, and that the plaintiff paid a valuable consideration, it will be strong evidence, though, not conclusive, that the transaction was fair, honest, and bonâ fide.

It may be necessary to consider what the law is, should they think otherwise; viz., that the possession still remained with Harrison. The case of Edwards v. The Executors de son tort of Mercer, in 2 Term Rep. 587, is in point; the authority of this case is great, for it is surely founded in reason; the case was this, Mercer was indebted to Edwards in the sum of £22 18s. 6 d., he was also indebted to the defendant in that action in the sum of £191. Under these circumstances, in order to secure the debt of the defendant, he made a bill of sale of the whole of his property. None of it was delivered to Edwards except a corkscrew; for it was privately agreed between Mercer and Edwards that Mercer should keep possession for fourteen days, after which Edwards was to take the property, unless Mercer should pay the money. Mercer died within fourteen days, and the defendant in that action took possession of the property, after which Edwards sued him for the amount of his debt, £22 18s. 6 d., and recovered.

The ground upon which the Court decided in that case was that Mercer did not deliver possession to Edwards agreeably to the bill of sale, which was an absolute conveyance. Applying this ease to the one before you, it is clear that the bill of sale from Harrison to the plaintiff was void as against creditors, if possession were not delivered by Harrison to the plaintiff, of which you must judge from the evidence. As between Harrison and Ragan themselves, or any person claiming directly under Ragan, it were otherwise. The principle laid down in 2 Term Rep. 587 equally applies, whether a valuable consideration were given or not. In that case there was the consideration of a previous debt of £191, which was as valid a consideration as if the cash had been paid down.

1 Cranch, 310; 3 Will. ed. Bac. 312; contra, 5 Johns. 258.

In order to discover if there does exist a difference between the conveyance of slaves and other personal property, induced by a salutary provision as has been contended, it will be necessary to consider, first, the reason of the principle which requires the delivery of possession in England; and, secondly, how far the act respecting the registration of bills of sale has affected that principle.

By the law of nature, each creditor of the same debtor has an equal right with any other to have his debt satisfied out of the property of the debtor. By the common law, the debtor may pay any one of his creditors before another, or, if he has not property sufficient to satisfy all, he may prefer one to another in payment, but this payment, as respects a creditor, or a person purchasing property, must not be in idea only, but in reality. If there is no money or property delivered it cannot be a payment or absolute conveyance, but may amount to an agreement to that effect, the execution of which the law would compel. Besides, the person having the possession and use of personal property after an absolute bill of sale, is, in fact, the owner of the property still, for the bill of sale is no more effective if the use of the property does not follow it, than if there was none at all. Neither a creditor or purchaser, without notice at least, should be affected by such a colorable proceeding as this. If the bill of sale would be good after permitting the use of the property in the vendor for a month, for instance, it would be equally so ad infinitum. If the bill of sale is not good against creditors for the want of a bonâ fide delivery at the time it was made, it cannot become so afterwards.

See 3 Wil. ed. Bac, Ab. 313, n.

In the preamble to the Act of Assembly, which directs the registration of bills of sale, it is stated that creditors and others had been injured by secret deeds of gift, or bills of sale for slaves, to remedy which it requires that they shall be registered or be void. This act must necessarily apply to persons who should become creditors after the execution of such bills. The act clearly designs that notice shall be afforded by registration. It would be absurd to suppose that it is designed to make this operate as notice of a fact before its existence, with respect to previous creditors. It is therefore clear that the case of creditors at the time of the execution of the bill must be the same that it was before the act; besides, it cannot be supposed that the legislature, in an act designed to protect creditors, would affect them with notice of a transaction, which it was impossible for them to know at the time of contracting their debts. What would be the situation of creditors becoming such after the execution of a bill of sale unaccompanied by delivery of possession, and previous to registration, it is not now necessary to determine, — the act seems to relate to subsequent creditors.

This act, therefore, cannot affect the case before the Court in any way whatever, but leaves the case of Edwards v. Mercer's Executors to operate with all its force upon it.

Vide Hamelton v. Kussell, 1 Cranch, 309; 3 Wil. ed. Bac. Ab. 312, in n. acc.


In the consideration of this case we must view the defendant as standing in the same situation with Brown and Harbison, the creditors at whose instance the negro was sold; for if it were lawful for them to make their debt out of this property it will follow, as a consequence, that it was lawful for the defendant to purchase at the sheriff's sale.

Whether there be fraud or not, the jury must determine from the evidence. The law considers various circumstances as evidence of fraud: as when a bill of sale is made secretly and not in the usual way; where a suit is pending against the person conveying; when made by one relation to another, or where the person making it uses the property afterwards as his own, exercising acts of ownership over it; and, lastly, where a bill of sale, which is absolute and without condition on the face of it, is not accompanied and followed by possession of the property, it is void even if a consideration was paid.

The jury will determine whether the bill of sale from Harrison to the plaintiff was fraudulent or not. Should they think that it was from the law which has been stated, as applicable to the facts in evidence, they will find for the defendant; but should they think that it was a fair and bonâ fide transaction, they will find for the plaintiff; that is, that the defendant does detain the negro, and in that case they will provide for the want of delivery of the negro, by the defendant, by giving such damages on failure as will fully compensate the plaintiff.

CAMPBELL, J., assented.

Verdict for the defendant.