Barrow v. Bailey (5 Fla. 9, 1853)

THOMPSON, Justice,•

delivered the opinion of the Court.

William Bailey, as administrator cie bonis non of the estate of John Bellamy, deceased, brought his bill of complaint on the equity side of the Circuit Court against the appellant, David Barrow, and one Henry Doggett, for the purpose of setting aside an alleged sale and conveyance by the latter to the former, of all the grantor’s real and personal property in Florida, Us fraudulent and void as against creditors. The Court below made a decree in favor of the ■complainant, which will be hereafter noticed, from which the defendant, Barrow, has appealed to this Court. To a ■correct understanding of the merits of the present controversy, it seems important to advert to the history of the ■debt claimed by the respondent here to be due to the estate of his intestate; and also to the facts and circumstances which preceded and attended the sale and conveyance of the property, which is complained of. It appears that in January, 1839, Doggett purchased from respondent’s intestate a tract of land in Jefferson County containing 1203 acres, for the price of $20,000, payable in January, 1848, the interest on which sum, reserved at the rate of ten per centum per annum, was payable annually, commencing with the 1st of January, 1840, when the first payment of interest fell ■due. Doggett, however, was to have the privilege of paying said principal sum within the term of credit, provided the sum was so paid in sums not less than $5000 at any payment. A bond in the penalty of $40,000 was executed and delivéred by Dbggett to Bellamy, with condition to perform the said agreement; and a bond with like penalty of $40,000 was executed by said Bellamy to Doggett, with condition to convey the lands so contracted for on payment of the purchase nioiiey and interest, as stipiilated. It further appears that) in the summer of 1843) no part of the principal or interest of said debt having been, paid, and while Doggett was absent from the State, Bellamy, in consequence of some apprehension as to the safety of his debt, (arising, it is supposed by one of the witnesses, from some thoughtless language of a nephew of Doggett,) sued out an attachment for thé amount then due, which was levied on all Doggett’s slaves; and at the fall term of that year, of Jefferson Süpérier Court, Doggett confessed judgment for the penalty of the bond, and agreed that execution should issue thereon for $ii>,234.94, which sum included $5000' of the principal debt, and the annüáí interest on the whole sum up to 1st January, 1843.

The affairs of Doggett, some tihie in this year, of perhaps prior thereto, became much embarrassed; It seem's he had become involved, as security and endorser for other persons, to a considerable fextent, and that some sixty or seventy thousand dollars Bad been coerced from him by this class of creditors, which had consumed all his available cash resources, while his individual cfédit'ors had been indulgent, and their claims had now become, by the increase of interest, very formidable and onerous in his view,- as they were in point of fact. The service of the attachment, it is said, added greatly to his mental distress. His embarrassments were enhanced by his infirmities, arising from his advanced age and disease, which tended to incapacitate him from giving that attention to his property, from the issues of which only could he expect to extricate himself, if his creditors continued indulgent • and if they could not in j ustice to themselves, or would not, from any other cause, then only by a sale of the whole or a part of his property, according to the exigency of the case»

Early in the year 1845 -John Bellamy died, and administration upon his estate was 'committed to his son, William Bellamy, who catised the execution awarded on the 8th of November, Í843, in favor of his intestate against Doggett, to be levied on the slaves of the defendant in the County of Leon. Three other executions were also levied on the same property, and the sale thereof was advertised for Monday, the 7th of April, 1845; Doggett, prior to that day, viz : on the 29th day’ of March, after, as it is said, he had made, for a year previously, various efforts to sell his property, some of which will be noticed more particularly hereafter, concluded an agreement for a sale with the appellant, his brother-in-law, and a resideilt of the State 'of Louisiana, and who had been invited by Doggett to Elorida, for the purpose of extending relief to him, or of [purchasing the property. The conveyance bears date on the 3d of April, and was proved and recorded in the office of record for Leon County on the 5th, and in that of Jefferson County, on the 7th of April; By this instrument, Doggett, for a pecuniary consideration specified therein, bargains and sells, and conveys to the appellant, Barrow, his heirs and assigns, •&c., “ the whole of the property of the said Doggett of ev- “ ery kind and description whatsoever, lying, situate and “ being.within the State of Elorida,” and then proceeds to particularize, under a videlicit, the plantation in Leon County, containing 2000 acres of land, known as the Home Place; sundry detached parcels of land in the same County, containing in the aggregate 480 acres ; the plantation in Jefferson County, known as the Partridge Lands, and one additional eighth of land, containing in the aggregate about 712 ¿Seres | all the lands of said Doggett situate lying and being in Madison County,- and not otherwise or more particularly described, or the quantity in acres specified : together with all the crops of every kind and description whatever, corn, fodder, peas, oats, sugar, cane, potatoes, furniture, &c*, both in the Counties of Leon and Jefferson, together with all the farming implements, blacksmith and carpenter’s tools ; also, all the stock, consisting ©f horses-, tallies, hogs and cattle ; also, one hundred and seventy-eight slaves, specified by name.

Upon the execution of this conveyance, Barrow wentiisto possession of all the property specified therein except one servant, I-Iillyer, who was retained by Doggett, and, With the consent of Barrow, carried to North Carolina, Where be remains in the possession of the vendor. It is. this sale and conveyance which has given rise to the present bontroversy; but before the Court proceeds to the consideration of the question arising thereon, it is deemed proper first to dispose of the last point made in the argument of the appellant’s counsel*

It is contended on behalf of. appellant that the respondent, Bailey, is not in a position to claim the aid of a Court ©f equity* The general rule of equity undoubtedly is, that if a creditor seeks the aid of the Court against the real estate 'of his debtor, he must show a judgment at law creating a lien upon such estate; and if he seeks aid in regard to personal property, he must show an execution sued out and pursued to every available extent. Brinkerhof vs. Brown, 4 John’s Ch. R., 676; Shirley vs. Watts, 3 Atk. R., 200. And if respondent, Bailey, does not occupy the position of a judgment and execution creditor, he cannot have the relief he asks for, even if otherwise well entitled thereto. It will be recollected that, in 1843, judgment was rendered against Henry Doggett in favor of the respondent’s intestate, for §40,000, the penalty .of the bond he had executed to secure the price of the land purchased, on which, by consent of parties, execution was then awarded for part of the principal debt, and the arrears of interest due up to the first of January, 1843, which was paid, as will be hereafter noticed; the judgment standing, according to the provisions of the statute 8 and 9 Will. 3, c. 11, § 8, as a security for future breaches of the condition of the obligation.

In 1848, the residue of the principal sum falling due, ¡($15,000,) and the instalments of interest stipulated to be annually paid, remaining due and unpaid since the 1st of January, 1843, the respondent, Bailey., to whom administration de bonis non of John Bellamy had been committed, sued out a scire facias .to revive the judgment of 1843, sug* gesting a further breach in the non-payment of the aforesaid sums, and praying an award of execution therefor, according to the directions of the statute before mentioned; which writ was returned nihil; a second or alias writ, sued -out upon the return of the first, was also returned niMl, and thereupon, the two returns of nihil being considered equivalent to a return of scire feci, judgment of execution was .awarded for the sum of $23,859, on which the Sheriff has returned, u no property found.” It is now argued that the respondent has not shown a proper judgment and excution at law — that the jte on th q scire facias was rendered without any actual notice to Doggett., and is therefore simply void,

A scire facias is a writ necessarily founded upon some matter of record, and must issue out of the Court where that record remains. Tidd Pr. (8thEd.,) 1139, Foster Sci. fa., In some .cases, the issuing of the writ is the commencement of an original action, and in which it is in the nature of an original action. Co. Lit., 296,a. Burr. vs. Atwood. 1 Salk. R., 89; as where it is brought on a recognizance, or by the Government to repeal letters patent, or to resume the grant of a franchise. Foster, 12. But mother cases, where the writ is founded upon the judgment of a Court of record, and it is intended to bring in anew party, or to have execution upon the judgment, it is a judicial writ, to warn the defendant to plead any matter in bar of the execution. In these cases, it is only a quasi continua-, tion of the former suit, brought merely to revive the fois mer judgment, and may he properly called a writ of execution. 2 Tidd Pr. (8th Ed.,) 1140, Philips vs. Brown, 6 Term R., 284, It is, however, in all cases considered in the nature of an action, because the defendant may plead to it any matter in bar of the execution upon the original judgment. O’Brien vs. Ram. 3 Mod. R., 189. The scire facias in the present case, was, therefore, a judicial writ to continue the effect of, and have execution of thejbrmer judgment, and this is fully illustrated by the form of the judgment rendered thereon. The statute 8 and 9, Will. 8, says Sergt. Williams, does not direct any judgment to he entered for the damages assessed for the further breach, <&c.; therefore, it should seem there can only b.e one judgr ment, namely, the old judgment for the debt, and, 5, s., damages for the detention, and, 40, s., costs, together with the costs of increase. And in Hankins vs. Broomhead, (3 Bos. & Pul. R., 607,) it was so held in the Exchequer Chamber, and a second judgment for the damages assessed upon an inquisition, was reversed as erroneous. I Wm. Saund. R. 580. The form of the judgment upon scire facias in such a case, on a return of scire feci, where the defendant pleaded thereto in bar of execution, is thus given in Tidd App., 515;

“Therefore it is considered, that the said plaintiff “ have his execution against the said defendant of the darn- “ ages aforesaid, according to the force, form, &c. And “ it is also considered by the Court here, that the sa:d “ plaintiff do recover against the said defendant for his “ costs and charges by him laid out about his suit in this “ behalf, on occasion of the said defendant having'pleaded “ to the said writ of scire facias, by the Court here adjudged,”^.

If it is upon two returns of nihil, then .that fact is stated and the default recorded, and execution being awarded, there is no judgment for the costs of the suit and proceedings therein.

Our statute, to which allusion was made upon the argument, provides for the mode and manner of serving original process, that which commences or institutes a suit for the first time; and is silent as to the service of mesne process, such as a seire jacias, which is the continuation of a suit already instituted. Resort must, therefore, be had to the common law for the rules to govern the subject; and on examination, all the books of practice inform us that two writs of scire facias, with returns of nihil to each, are deemed equivalent to one writ returned scire feci. See Tidd Prac., 1124, 2 Sellon Pr., 196, citing 2 Inst., 472, and Andrews vs. Harper, 8 Mod. R., 227; 2 Arch. Pr., 83, citing Yelv. R., 88-122. And this principle is recognized by the Courts of several of the States of the Union. In New York, in Cumming vs. Eden, 1 Cowen R., 70; in Pennsylvania, in Chambers vs. Carson, 2 Whart. R., 9; in Indiana, in Kearns vs. The State, 3 Blackf. R., 334; and in North Carolina, in Woodfork vs. Broomfield, 1 Murph. Rep., 187. In some of the States if is recognized by statute, wdth some modifications, as Virginia, Ohio and South Carolina. See Lee vs. Chilton, 5 Munf. R., 407, Dunlevy vs. Ross, Wright R., 287, Grimke, Ex., vs. Magrant, 2 Brev. R., 202. Upon this point, the service of the writ of scire facias, Mr. Sellon observes, that although the intent of the sei. fa. is to give the party against whom execution is about to issue, notice or warning thereof, yet by the general practice it is wholly defeated, for the defendant may be summoned or not as the party thinks fit; and indeed the usual way is to revive the judgment without giving the party any notice.” 2 Sellon Pr., 199. The allowance of such a course of practice unexplained, would seem to speak a reproach upon that system of law which claims to be founded on reason and natural justice; and the explanation seems to consist in the distinctive difference between the force and effect of an award of an execution upon a return of scire feci, andan award upon two returns of nihil, in other words, without notice to the defendant. In the first case, if the defendant does not appeal’, but suffers judgment to go by default, he is forever concluded from any plea or defence which he might have urged. Day vs. Guilford, (1 Lev. R., 41.) But if the Sheriff returns nihil, on which an execution is awarded, the defendant shall have an audita querela, in which he may present his defence, for, not being warned, he was not bound to appear. See Fitz. Nat. Brev., 104. According to modern practice, where there has been no scire feci, but only two nihils, the Court will often relieve the party upon motion, and not put him to an audita querela. Anon, 1 Salk Rep., 93, Wicker vs. Creamer, 1 Salk. R, 264, Wheaton vs. Bichardson, 2 Stra. R., 1075. If any reason exists for thus allowing an award of execution upon two returns of nihil, it is not stated in any case or book to which the Court has had access; but it is quite probable that it may have arisen, from the restrictive principie before stated, that the scire facias can only issue out of the Court in which the judgment was rendered, and in which the record remains; the application of which might oftentimes defeat a party of his remedy, if personal service was required in cases where the defendant had withdrawn himself and his property from the jurisdiction in which the judgment was rendered, or had secreted himself and his property within the same. At all events, the law has made such provision for permitting the defendant in such case to open the judgment and present his defence by audita querela, or upon motion, that the practice cannot work any injustice.-

It might be questioned whether, as the judgment of November, 1843, for $40,000, the penalty of the bond, was a subsisting judgment, standing by foree of the statute as a security for further breaches, if the proceeding on scire facias had been irregular, or if the plaintiff had sued out an execution on the judgment endorsed to levy the sum due thereon, without an effort to revive by sci.fa., itwould be an irregularity which the appellant here could take advantage of. In Moseley vs. Doe, ex dem. Edwards, (2 Fla. Rep. 429,) where an execution had been issued on a judgment, after the lapse of more than a year and a day, without revival by sci. fa., it was ruled by this Court, that it was an irregularity only, of which the defendant in execution alone could take advantage. But here it is wholly unnecessary to pass upon the question, as the proceeding on scire facias was strictly regular, according to the rules of law, and consequently the writ of fieri facias awarded thereon is a legal and valid process, which being returned nulla Iona by the proper officer, the respondent in the Court below was well entitled to seek the .aid of a Court of Equity.

The main question in this case is upon the sale and conveyance before mentioned, which is impeached as fraudulent and void as to creditors,

The existence of any actual fraud, of any meditated or .intentional design on the part of the debtor and grantor, Henry Duggett, known to, or participated in by, the appellant, to hinder, delay or defraud creditors, is denied by the answer. Yet, without imputing any moral turpitude to either of the parties to this sale and conveyance, if those facts and circumstances are found to exist, and to have attended the transaction, which virtually and indirectly operate the same mischief, and which would, in contemplation of law, be deemed badges of fraud, or presumptions of iil faith, the result is the same; the inference of fraud arises, and the law pronounces the transaction, upon' principles of public policy, fraudulent and void as to creditors. This is termed legal or constructive fraud. Gibson vs. Love, (4 Fla. R., 264, et seq.,) 1 Story Eq., § 258, 259, 349, 353, et seq. In Hadden vs. Spader, 20 Johns’ Rep., 554, Platt, J., says : — “ The defendant denies that there is u any fraudulent combination to delay or defraud creditors, “ but in the same answer he admits a series of facts from ‘4 which both law and equity impute fraud.” And so in Hendrick vs. Robinson, 2 John. Chancery R., 301, the Chancellor observes : — “ The purchasers and vendors say “ that this was an honest and bona fide sale, but do not the “ facts which they &U admit outweigh the declaration 2 “ And can a mere assertion be compared to the unequivo “ cal language of the facts and the necessary inference of “ law 2”

Our statute of January 28th, 1823, against conveyances “ to delay, hinder or defraud creditors,” (Thomp. Dig., 215,) is a transcript from the British statute of 13th Elizabeth, c., 5, which latter act has always received a favorable and liberal interpretation in all the Courts both of law and of equity, in suppression of the fraud. It declares all fraudulent conveyances to be void; and whether a conveyance be fraudulent or not, is by the statute declared to depend upon its being made “ upon good consideration and Iona fideP Both requisites must concur, for although the conveyance be upon even a .valuable consideration, it is not valid in point of law from that circumstance alone, for if it be made with intent to defraud or defeat creditors, it will be void. Cadogan vs. Kennett, Cowp. R. 432, 1 Story Eq., Jur. § 353, 369. The terms “ good consideration,” mentioned in the statute, have been held to inclnde those fouuded upon motives of generosity, affection, or natural duty, as well as those founded upon money, marriage, or the like. Hence, family settlements and advancements to childi’en are, under certain circumstances, good considerations as against creditors, where .the settlor or parent is not indebted at the time \ but as against existing creditors, it is very doubtful if, in any case, any consideration which ia not in law deemed valuable* will be allowed to prevail That eminent jurist, Judge Story, after a full review of the cases upon this point, declines to express his view as to the comparative weight of the judicial opinions in relation thereto. 1 Story Eq. Jur. § 354, 365.

Proceeding to the consideration of this case, the deed of conveyance of the 3d of April, 1845, from Henry Doggett to the defendant, David Barrow* on its face is liable to no, impeachment; it conveys the property specified therein absolutely to the bargainee and his lieirs, and is sustained by a legal consideration expressed of $45,000, paid to the bar|-ainor, and of an annuity of $500 for his life. If it is. justly obnoxious to the charge of fraud, it must be so from those facts and circumstances which preceded and attended the transaction, as disclosed in the answer of the appellant, and established by the proofs in the cause. Let us-* then, briefly advert again to those circumstances. Doggett was at the time considerably embarrassed, in his, affairs, and had been in this condition several years. Although not in fact insolvent, as will be hereafter seen, yet he believed such to be his condition — at least, such is the fair conclusion from his acts and declarations. Mr. Branch states that he (Doggett) never recovered from the levy of the attachment by Bellamy in the Summer of 1813, hut ever afterwards regarded his affairs as irretrievable, and made various open efforts to dispose of his property to relieve himself. The expression of his fears, often repeated, that the payment of his debts would consume all his propty, and leave him nothing for his future support, is well established. Executions to the amount of $16,000 had been levied on his slaves in Leon County, and the time appointed for the sale was rapidly approaching. Destitute oí cash resources to meet this urgent demand, he summoned the appellant, who is his brother-in-law, and who is represented as a man of wealth residing in Louisiana, to come to his assistance. The first call was ineffectual, for the want of sufficiently precise information as to the extent and character of the relief required. A second letter puts the appellant, according to the admission of the answer, in possession of the extent of the pressing money demand, and of Doggett’s desire to sell the whole property to him. These letters are not produced by the appellant, and, in their absence, it must be presumed that they contained a full and detailed exposition of the pecuniary difficulties of of the writer, the amount of his liabilities, and tbe extent of his means, and of his hopes and fears as to his fuftire maintenance and support. It is most natural to suppose, from the affinity between the parties, that Doggett was as full and unreserved in his communications with Barrow as he was with Mr. Branch, and the other witnesses. If it were otherwise, this would have been established by tbe production of the letters. Such was Doggett’s condition, and such the posture of affairs on Barrow’s arrival in Florida to negotiate for the purchase of the property.

It is charged in the bill of complaint that the appellant well knew it would be impossible for Doggett to pay his debt to the estate of Bellamy, then due and to become due, after the transfer to him (Barrow) of all the property which Doggett owned in Florida. To this allegation, the answer is as follows: — “ It is not true that respondent knew, “ at the time of said sale, that said Doggett would be una- “ ble to pay all his debts, because said Doggett declared “ that he hoped and expected that he would be able to do “ so, as he owned a large estate in North Carolina, consist- “ ing of lands and slaves, &c., which he declared it was “ his purpose to sell to the best advantage, so soon as prac- “ ticable after he should arrive in said State.” It is claimed on behalf of appellant that the answer, in this particular, is not only strictly responsive to the bill, but is an unequivocal denial of the allegation. We cannot think so; we cannot regard it but as a qualified denial, and at best but imperfect as such. The rule with regard to the sufficiency of an answer to the allegations of a bill in equity, as stated by Ch. Kent, in Woods vs. Merrill, 1 Johns. Ch. R., 107, and recognized by this Court in Hunter vs. Bradford, 3 Fla. R., 285, is as4follows: — '“The general rule is, that to so “much of the bill as is 'material and necessary for the de- “ fendant to answer, he must sj>eak directly, without eva- “ sion, (and not by way of negative pregnant. He must not “ answer'the charge merely literally, but he must confess, “ or traverse the substance of each charge positively and “ with certainty; and particular precise charges must be “ answered particularly and precisely, and not in a gencr- “ al manner, even though a general answer may amount to “ a full denial of the charges.” See also Cowp. Eq. Pl., 313, 314, Mitf. Eq. Pl., 309, 316, Story Eq. Pl. § 852. Now, it is very evident here, that the appellant’s denial is qualified and explained by the alleged declarations of Doggett as to “ his large estate, consisting of land and slaves, in North Carolina,” from the sale of whichhehoped and expected to be able to pay all his debts. Conceding the fact that Doggett did make the declaration to appellant which is imputed to him, as to this ownership of property in North Carolina, (and that he did so is most likely, as it is proved that he made asimilar statement to Gov. Ivloseley,) was it known to the appellant to be true? or, if he had no personal knowledge on the subject, did he believe it to be true? And, if so, what were the grounds of his belief? — and did he act upon it, believing it to be true? The answer is silent On these points. If he had such knowledge, or entertained such belief, and acted upon it, he should have stated it, so. as1 to avoid the inference, which seems irresistible, that he must have seen such a result was the necessary consequence of his purchase. The purchase was of all Doggett’s known property; the price agreed to lie paid therefor was less than the sum of all his debts, by the amount of this debt due Bellamy’s estate; from Doggett’s advanced age, and infirmities from disease, there was no prospect of his beco ming able, from future exertion ; then how was the debt to be provided for and paid ? It would seem as if the appellant felt the full force of these facts and circumstances, when be prepared his answer, and sought to escape from the conclusion by relying on the simple declaration of Doggett. Should not Barrow, as a man of ordinary prudence, have reasoned thus : — If Doggett’s assertion as to other property is true, and if his hopes and expectations thoreon are well-founded, why should he manifest so much anxiety to secure the settlement of the small annuity of $500 for his future support? Why should the extraordinary provision be inserted, that this annuity was to be payable to him or his order, and to no other-person whatsoever? "Whence the necessity of withdrawing $5000 from the sale of the Florida property, for the purpose of paying debts in North Carolina? And why should Doggett require to retain possession of the slave, Hillyard, after the sale ? And if his services were necessary, in consequence of Doggett’s infirmities, why not except him from the sale ? The inconsistency of these' things, compared with the truth of the fact asserted, must have been apparent. Was it true ? If so, it was susceptible of proof; and yet, up to the time of the publication of ■the evidence in this cause, it rests on no stronger foundation than the unsupported declarations of Doggett. That the appellant knew of the existence of this debt due to Bellamy’s estate, and that its payment-ivas not fully provided for, is clearly admitted. He admits that it was not at all provided for in the appropriation ©f the proceeds of the sale ; and he further admits that the land, of which the Bellamy estate still held the legal title, was an insufficient security, for he alleges, in his answer, offers to purchase ■it from the administrator of Bellamy’s estate for a less price than the sum due ;*and says that it was not-worth that ■price, but he was willing to give it because of its contiguity to the lands purchased of Doggett. The answer is insufficient to repel the inference of knowledge, from the surrounding facts and circumstances, and it must be taken that the allegation of the bill is sustained in this particular, and Barrow’s purchase viewed as if he had full knowledge of the fact. But whether the appellant knew the fact or not, or whether he should have suspected and believed it to be so, is not, standing alone, of any importance-; its materiality depends on other considerations; for one in failing circumstances, or even insolvent, has a right to sell or assign his property, except as against exist-j.ng liens, for the purpose-of paying his debts ; and if he has the right to sell, of course, any one has the corresponding right to-purchase. The only limitation upon the exercise of these rights is, that the sale and purchase be in good faith, and for a valuable and adequate consideration. If the appellant’s purchase falls within this rule — if he purchased from Doggett in good faith and for a fair price, it is perfectly immaterial whether the vendor was embarrassed, or insolvent, or otherwise; or whether this condition of his affairs was or was not known to him ; and so it is, also, wholly immaterial whether, by reason of preferences given by the debtor to some creditors over others, the sale and conveyance shall operate to the prejudice of a particular-creditor, for, as was ruled by this Court in Gassett vs. Brown, (3 Fla. Rep., 260,) a debtor is entitled to distinguish between the claims of his creditors, and to prefer some to the entire exclusion of others. And this brings us to the question of inadequacy of price or consideration, raised by the pleadings in this case.

It is contended, on behalf of the appellant, that inadequacy of price is only objectionable, when so gross as to lead the mind to the conclusion that su’ch a sale was not intended to be bona fide, but only fictitious and colorable. Such is the principle when the inequality is relied upon as the sole ground of objection; and when it is ascertained to be of this gross and manifest character, relief is given upon the ground of actual fraud, the fact being regarded as demonstrative of some gross imposition, or some undue influence. Judge Story states the principle thus: — “Merein- “ adequacy of price, or other inequality in the bargain, is “ not understood as constituting, per se, a ground to avoid a “ bargain, in equity ; for Courts of equity, as well as Courts ct of law, act upon the ground that every person who is .“ not, from his peculiar condition or circumstances, under “ disability, is entitled to dispose of his property in such “ manner and upon such terms as he chooses ; and wheth- “ or his bargains are wise or discreet, or profitable or'un- “ profitable, or otherwise, are considerations not for Courts “ of Justice, but for the party himself to deliberate upon. “ Still, there may be such unconscionableness or inadequacy “ in a bargain, as to demonstrate some gross imposition, or “ some undue influence; and in such cases, Courts of “ Equity ought to interfere, on the satisfactory ground of “ fraud. But then, such unconscionableness, or such inade- “ quacy, should be made out as would, (to use an expres- “ sive phrase,) shock the conscience, and amount in itself “to conclusive and decisive evidence of fraud. And “ when there are other ingredients in the case, of a suspi- “ cious nature, or peculiar relations between the parties, “ gross inadequacy of price must necessarily furnish the “ most vehement presumption of fraud.” 1 Story Eq. Jur., § 244, 246. And this, we understand, would be the rule of decision if Dogg’ett was before the Court, seeking a rescission of the sale'; but here the ease is different. It is the case of a creditor, who is seeking satisfaction of his 'debt, and who complains of the joint act of Doggett and Barrow on the ground - that, by the sale and conveyance, the property of the debtor has been improperly and inequitably put beyond the reach of his legal remedies; and the inadequacy of the price paid by the vendee, is presented as one of the marks or badges of fraud» In How vs. Weldon, it was said by the M. R.: — “ By the civil law, if “ half the value only of the thing had been paid, the sale “ would have been a mere nullity. Our law differs from that; but though the inadequateness of the value will not “ of itself be sufficient to set aside the contract, yet it is a “ very material ingredient, and, with other things, will go very great way towards it.” 2 Vesey, Sr., R., 518» and to the same effect are the following cases : Stilwell vs. Wilkins, Jacob Ch. R. 280; Pope vs. Roots, 6 Bro. P. C., 184; Macormick vs. Malin, 5 Blackf. R., 509; Moore vs. Royal, 12 Vesey, Jr., 373; Boyd vs. Dunlap, 1 John’s Ch. R., 478. Most of the cases usually cited on this subject^ are those of suits between the parties to the conveyance,^ which always present stronger considerations to the Court to support the transaction for; conveyances purely volunta* ry are good, between-the parties. But as the intent or purpose with which every conveyance is made, which operates prejudicially to creditors, is concealed within the bosoms of the actors, and the Court can only infer the motives and intents, from the outward acts of the parties-thereto, when creditors complain of the invasion of their rights as such, and the disappointment of their just expectations, the Courts have scrutinized the transaction more closely, and have never required proof of the same extraordinary, gross and manifest disparity between the value of the property claimed to be sold, and the price paid as the. consideration of the sale, as they have in the former case,; In the case of Prosser vs. Henderson, (11 Ala., R., 484,)'it is laid clown by the Court, that, to justify an inference of fraud, from the price given for a slave purchased from an insolvent man, it should be clearly inadequate, evidently below the market price. And in the case of Borland vs. Mayo, (8 Ala. R., 104, 117,) which has been sited by both parties, the Court says: — “ Inadequacy of “ consideration, where the vendor is greatly indebted, is “ recognized as a mark of fraudj True, it might not be “ sufficient, s a low estimate for a plantation on which was kept a gang •of 62 slaves, and a team force of twenty horses and mules for its cultivation; this will amount to the further sum of - - - , - - - $5,000

Adding also the several detached tracts of land in the vicinity of J;he Home place, described in. the deed, and containing, from description, 480 acres, the specific value of which, although- not proved, is now estimated at the same price, $2.50 per acre, making - - - r ? ■ $1,200

and the aggregate of these sums, . - - $6,200 added to the former aggregate, will make the value of the whole property, so far as proved and estimated, the sum of $65,756. The Court cannot but think that the value of the Home place is greatly under-rated in the estimate put upon it; and that, if proper care had beep exercised in the preparation of the cause for the hearing, the fact would have been demonstrated, and the aggregate of values com siderably increased. The deed conveys other lands, by the general description pf “ all the lands of spid Doggett lying and being in the County of Madisonand the same reipissness is found with regard to this property. There is no proof of quantity, quality, or value-, And so also the answer of the appellant admits that, although he declined to accept from Doggett a transfer of his contract for the purchase of the 1203 peres of land, and states that the same was .designedly omitted to be inserted in the pppvpy-r pnce,' yet he wept into possession of it, under Doggett, and occupied and cultivated 500 acres from the time of the purchase, and at the time of his answer, was still in possession. This use and occupation of 500 acres of land, so acquired in right of Doggett, was of some value, and may be fairly considered, as it is very plain, from the answer, the appellant considered it, an acquisition consequent upon the purchase of the estate, to a part of which it was contiguous.

Having thus ascertained tlie value of the property sold, it now remains to look to the price or consideration paid therefor. "Upon tlie argument, much stress was laid upon the allegation in the answer of the appellant, that he “gave more than any of the creditors would offer and upon the fact that the property had been offered for sale to sundry persons, without success. As to the allegation of the answer, it cannot, on any just principle, form the criterion of value. The proofs show that Doggett offered all Ms property for the consideration of the payment of all his debts, and the settlement upon himself of an annuity of five or six hundred dollars per year, during the term of his natural life. The offer was made to Messrs. Branch and Noah L. Thompson, and to John W. Cotton. Did any of them refuse to accept the offer because the property was not worth that price ? No such ground of refusal was assigned by either. Mr. Branch states that his brother declined accepting the offer because “ they had no money to “ pay for it, and wore unwilling to incur so large a debt “ for an uncertain chance of even a good speculation.” Mr. Thompson assigns no reason for the refusal of the offer by himself and by John W. Gotten ; and if resort is to be had to conjecture, as to what the cause probably was, it may with as much propriety, be supposed that they were deterred by the saíne prudential consideration, as to sup» pose they declined because the price demanded exceeded the true value. These offers and refusals are not sufficient to furnish any indication as to the. fair market price. And so with the offer said to have been subsequently made by the appellant to Dr. Mitchell, to take the bargain off his hands. There is no doubt but that the offer spoken of by Mr. Branch, is the same which is mentioned in the answer of appellant, and reference will bo had to the latter, as being the most precise statement of the occurrence. Tlie offer is there stated to he, that he would transfer the purchase to any one who would refund to him his expenses, and pay a reasonable r.emuneratian for his labor, time and trouble, in visiting Florida, and making all the arrangements and examinations which were previously recited in the answer. It does not ajDpear what was the amount alluded to as expenses, and reasonable remuneration for labor, time, and trouble ; and whether, if stated, any one would concur with the appellant, on the subject of the reasonableness of the amount; nor why Dr. Mitchell rejected the offer. In fine, it proves nothing ; not even Dr. Mitchell’s opinion as to the value, for it is impossible to say what was the motive of his refusal. It may have been that he foresaw a troublesome litigation in the' future, and was not willing to .pay a premium for the right to participate in it.

The consideration of the purchase stated on the face of the deed, is the sumbf forty-five thousand dollars, paid at or before the execution of the instrument, and an annuity of $500 during the life of the vendor. The original answer, filed on the 20th April, 1819, responding to the discovery prayed for in the bill, states that “ the manner and times <£ of paying the said sum of $!5,000, was not set down spe- ££ eifically in writing, but was verbally agreed upon,” as follows, viz: $15,231.9! to be paid to Bellamy’s estate, and the sum of $2,395.98 to be paid to Noab Teat, which sums were to be paid in satisfaction of executions then levied, and were so paid ; the further sum of $5,000 was to be paid to Doggett, to be applied to the discharge of debts alleged to be due in North Carolina, and was so paid. to him; and the residue, amounting to $22,319/18, was to remain in the jDurchaser’s hands, without interest, until the same conid be applied, under the direction of Doggett, to the discharge of certain other debts, the am’onnt of which. bould not then be ascertained, and one of which was in litigation;

These debts are stated as follows : To Holbrook, Nelfcon & Co., of New York, about $2,550 ; to J. &. L; Branch, $1,250 ; To Long & Walker, $1000 : to John B. Doggett, about $250; to William D. Moseley, $1,261.24; to the Union Bank, stock bond and mortgages amounting to $16,* 800; and sundry other debts, amounting to $12,263.87 j find to indemnify John W. Ootten, in whole of in paft, a* gainst it note for about $15,000, .due to Dr; Mitchell, and on which Ootten was security fof said Doggett; But in no event were the payments made, and to be made, to exceed the sum of $45,000, specified in the deed ; and if the obli* gation could be discharged, with a less sum, the appellant was to be entitled to the residue, as a compensation for his trouble and personal expense in superintending the adjustment thereof; But by a supplemental answer, filed on of about the 20th of October, 1850, it is alleged by the appellant that there was a written agreement, exhibiting the terms of the said sale and purchase, and the manner and times of paying the said purchase money, which agreement had been, at the time, left in. the custody of Mr¡ Branch, one of his solicitors, who was absent when the Original answer was prepared, and the existence of the paper was utterly forgotton by the appellant, until found by Mr. Branch, and returned to his possession-. By this agreement, the sum of $45,000 was to be thus paid: In cash, $20,500; to Dr. J. W. Mitchell, a note on which Gotten is feecfirity, for between $15,000 and $16,000 ; and lastly, to pay a sum not exceeding $10,000-, in discharge of the debts due the Union Bank.

The answer also corrected Various fefrOfs in the payments alleged by the original answer to have been tnade to creditors. It is certainly extraordinary that the fact of the existence of this paper* which was the only evidence of1 the appellant’s obligation to pay a large sum of money, as well as the' mode and manner of payment which it prescribed, should have passed so completely from his memory ; for it will be observed, on comparison of the two statements, that there is a material difference between them. But the explanation given in the supplemental answer, accounting for the excess of the cash payment beyond that stipulated for* ($26,871 having been paid* instead of $20,-500,) presents a still more strange state of the case. It is stated, that 44 this excess of payment arose from various 44 causes ; in the first place, respondent acted upon the hy44 pothesis that the agreement was as is stated in the oi-ig44 inal answer* the written agreement aforesaid, owing, 44 probably, to subsequent verbal conversations and agree-44 ments, having been entirely lost sight of.” This allegation raises a well founded doubt whether the Court is yet in possession of the actualagreement, or that on which the minds of the contracting parties finally settled; a circumstance in itself which tends to negative the good faith of the transaction. It does not appear from the evidence, or any admission in the pleadings, that any one was present during the negotiation between the parties, which resulted in this sale; although the fact that such negotiation Was pending, seems to have been known to several of the Witnesses who have been examined» Nothing, therefore* Can be known of what transpired during their interviews, save what they may think proper, to disclose and make public. Nor does there appear to have been any reference to mutual friends or neighbors on the question of value» The advice given by Ld. Coke, grounded on the resolution of the Judges in Twyne’s Case, (3 Co. B., 80,) to creditors who are about to accept satisfaction of their demands by a transfer of property from their debtor-, to _44let it be made in a public manner, and before the neighbors, and not "in private,” &c.; and “to let the goods and chattels he appraised by good people to the very value, &c.,” would seem to be peculiarly appropriate to a case like the present, where the sale of the whole estate of a debtor greatly embarrassed, for the price contemplated, would.be likely to produce insolvency. Por, besides tbe ready reference to the witnesses to prove the good faith of the transaction, if im2>eached, such a course would he well calculated to disarm suspicion, even in the minds of creditors whose claims are prejudiced thereby. We do not wish to be understood as holding that such a course of conduct is necessary, b ut merely that the'adoption or omission of such cautionary measure would not be without influence on the question of fraud or no fraud, in connection with other circumstances.

Proceeding in the examination as to the manner in which ■this consideration or price was actually paid ; it appears that the following sums were in discharge of the executions levied upon the-slaves, and which constituted a lien thereon : . .

To Bellamy’s administrator, for principal, in- , terest and costs, . - - $13,690.84

To Teat, for same, - . - - - 195.98

To Willis, for same, - - - - . 1,203.58

To Murphy, for same, - 463.51

Making - $15,559.91

And there was paid to Henry Boggett, to be applied to tbe payment o-f alleged debts [due in North Carolina, - - . - - $5,000

Certain other payments are claimed in the original answer to have been made, but 'at what time is not stated; neither are they stated' otherwise than from memory, the vouchers being in the possession of absent agents, ancl which were to be subsequently produced; but which are not found in. the record, nor any evidence in relation thereto, save that found in the testimony of Mr. Branch, who proves the payment to himself and brother of $1,250, and Long and Walker of $750. But as the fact of these payments has not been controverted in the argument, they will be assumed to have been made at or about the same time, viz':

To Messrs. Holbrook, Nelson & Co., - $2,550.00

To Messrs. J. & L. Branch, - - 1,250.00.

To Messrs. Long & Walker, - - 1,000.00

To the Sheriff, for John B. Doggett, about - 250.00>

To William D. Moseley, - - - 1,261.24

$6,311.24

And showing the entire cash payment to 'amount to $26,-. 871.15.

It is contended, on behalf of the respondent, Chat this, sum was all that Barrow really paid for the property ; that the estate, being large, must have yielded' a large annual income ; and having had possession of the jn’operty for five years before any other payment was made, the subsequent payments were made out of tbe issues and profits made lay him. The position is certainly plausible ; but the payment of the Mitchell debt, as well as tbe sum to tbe Union Bank, being secured by tbe written contract, it is sufficient to give Mm tbe character of a purchaser for value to that extent. (Seward vs. Jackson, 8 Cow. R., 454.) In addition to this, the Uffion Bank debt was due, by mortgage, on a portion of tbe property conveyed. But tbe payments so made are not to be computed as of their full amount, in ascertaining the value or amount of the consideration paid. The payment to Mitchell of the sum of $15,955 having been deferred for the period of four years, 11 months and 10 days, for the purpose of this investigation, the Court must ascertain the value of that sum, so deferred, at the time of the transaction, viz: the 3d of April, 1845. Assuming the value of money,to be worth an interest of 8 per cent, per annum, the value of the sum of $15,955, deferred for the time specified, at compound interest, is $10,903.58, and at simple interest, is $11,432.71. Taking the latter sum as the most favorable to the appellant, the ¡aggregate of consideration, as of the 3d of April, 1845, is increased thereby to the sum of $38,303.77,

It was also stated on the argument, by appellant’s counsel, that at some period of time, intermediate the filing of the supplemental answer and the hearing of the cause in the Circuit Court, Mr. Barrow had discharged the debt due the Union Bank, by the payment of the sum of $8,500. Assuming this payment to have been made six years after the sale, and computing the value of that smp, so deferred, in the same manner, interest being calculated at 8 per cent, per annum, it will be found to be, at compound interest, $5,356.44, and at simple interest, $5,743.24, Taking the latter sum, and adding it to the former aggregate, it will make the sum of $44,047.01, which is the consideration price paid by Barrow to Doggett for the property conveyed, excluding the annuity, computed as cash, on the 3d of April, 1845.

To ascertain the entire consideration, the annuity is to be added ; and here, again, the Court must complain of the want of sufficient data on which to form an accurate judgment as to the value.

The only information is that furnished by the answer of the appellant, in which Doggett is described as “ diseas-, ed, old, infirm, and unable to superintend” his business; and, again, in another paragraph, e< as an aged and infirm man.” The market value of an annuity, it is true, as argued by one of the appellant’s counsel, is a matter capable of ascertainment by calculation, and, in older settled, communities than this, annuities are a frequent subject of sale and purchase. The calculations of value, however, are all based on the probable duration of life at the various ages of man ; to ascertain which, tables have been constructed, founded upon observations made in various parts of the civilized world, as to the decrement of human life. The evidence is deficient here in failing to furnish the Court with the age of the annuitant, and also of the nature or character of the disease, so that it might be ascertained if it be one which is considered as tending to shorten or render precarious the probable average duration of his life. The Court must make a guess, however, and give the appellant the benefit of it. Assuming that Doggett was sixty-five years of age, an annuity for five hundred dollars for his life, might have been purchased for about the sum of $3,700. This is a liberal calculation; for an annuity for a man of that age, in good health, is not worth more than .seven or eight years purchase, and Doggett is represented as being exceedingly infirm, from disease. This sum added to the former aggregate, will make the whole price, money and annuity, amount to the sum of $47,747, a sum less than the value of the property, as proved and estimated, by the sum of $19,0091

Upon the argument on this point, it was urged that, by the terms of the agreement between Doggett and Barrow, the latter was to pay, if necessary, to the Union Bank, a sum exceeding that actually paid of $1,500 ; and also that Mitchell claimed from Doggett a much larger sum than he recovered, and which Barrow had good reason to believe might have been recovered, and which he would, in such case, have been bound to pay; and therefore, this contiugency should be taken into the account, and these sums .being added to those actually paid, the aggregate thereof ■should be regarded as the true sum agreed to be paid. Concede this, together with the accuracy of the calcul ation made by the counsel for the appellant, and while it affords no aid to the appellant’s case, (Ardglasse vs. Muschamp, 1 Vern. R., 237,) it furnishes proof that the property was in fact worth more than the estimate now put upon it; for no one can suppose, from the evidence in this record, that Barrow ever contemplated paying more for the property than he considered it worth ; and yet the argument is, that he did agree to pay more than he actually paid, if certain contingencies happened. But as the contingencies did not happen, and no more was paid than has been before stated, what is to become of the excess, or overplus ? It is claimed, in the original answer, that it is to enure to the benefit of Barrow, as a compensation for his “trouble and person- ■“ al expense in managing the affairs of the said Doggett, “ and superintending the defence of the litigation with “ Mitchell, and other suits.” There is no proof of any such agreement between Doggett and himself; and if there was, if it did not amount to' the offence of champerty, it would savor so strongly of it, that the appellant would not be permitted to set up the agreement in any Court.

There is no rule in our law as to what disparity between the real value of the property and the consideration paid, will, in any case, constitute inadequacy of price; but the Court must ascertain this from the facts and circumstances of each particular case. We fully appreciate the difficulty of passing upon this qu