23 258 55 583 23 258 56 418 23 258 f69 544 Christian vs. Greenwood et al. [JANUARY stricted assignment of the notes in this case does not transter any lien upon the lands mentioned in the bill to the plaintiffs, or to the firm of which they are the successors. The acceptance of notes so assigned seems to us to imply a reliance upon the personal responsibility of the maker of the notes. This has been held in Maryland and Alabama-Schnebly vs. Ragan, 7 Gill & Johns. 125; Hall vs. Cleck, 5 Ala. N. S. 366. The Alabama case is more to be considered as, with Kentucky, the courts of that state maintain the transfer of a vendor's lien by assignment of purchase money notes, when the lands purchased are conveyed by deed. The decree dismissing the bill is affirmed. CHRISTIAN VS. GREENWOOD ET AL. Though a sale of property be fraudulent on the part of the vendor, being made to defraud his creditors, the purchaser cannot be affected by the fraud unless he participated in it, with a knowledge of the fraudulent design, and with intent to further the accomplishment of such design. One creditor has the same right to purchase, with his debt, the property of his debtor, that another creditor has to sell it under execution; and this, though he knows that the debtor's object in selling to him, is to deprive the other creditor of the means of making his debt-the effect is but preferring one creditor to another. But, in such case, the creditor must allow a fair price for the property and not buy more than is necessary for his own protection-at least it would be a suspicious fact, if, unless there be shown good reasons for the property not to be sold separately, he includes several parcels of property when one would pay the debt, and pay the overplus in money. A purchaser from a fraudulent vendor will be held to be a participator in the fraud; if he have notice of it, and still deal with him, and thereby afford him the means to make his fraudulent efforts against his creditors successful; and this, though he may have paid a full price for the property. And so, where a purchaser of negroes knew that his vendor had run them offhad been told that the vendor had acknowledged that he had run them off to avoid the debts sought to be enforced against them-bought them after he knew they had been run off, and while they were absent, paying mostly in cash, he does not present such a case as entitles him to the protection of a court of equity but will be held responsible for the fraud of his vendor to the extent of his dealing with him, on the presumption of a fradulent intent on his part, as well as on the part of the vendor. Appeal from Ashley Circuit Court in Chancery. Hon. JOSIAH GOULD, Special Judge. JOHNSTON, for appellant. The complainant insists that he has established every material allegation in his bill, and has made manifest his legal and equitable right to the negroes, Ned and Fanny, from the facts proven that he bought them from C. J. Hundley, in Louisiana, about the 4th of February, 1856, for $1500, a fair price, which he paid Hundley; that he took them into possession and removed them to Arkansas, and held them in possession peaceably until the 6th of September, 1856; that the negroes were free from liens when he bought them, and that Hundley had an untrammeled right to sell them. But the defendants object that complainant did not purchase the negroes in good faith, but that he bought them with the intent to hinder and delay them in the collection of their debts. Upon what hypothesis this charge of fraud is predicated, it is difficult to discover from the facts disclosed in the bill, answers, and proof. It is certainly clearly manifest from all the facts disclosed in the testimony, that complainant, in the purchase of the negroes, committed no act which necessarily imports fraud; and it is insisted that a fair and reasonable conclusion from the whole case as disclosed by the pleadings and testimony acquits him from the slightest suspicion of fraud, as contemplated by the statute. It is submitted that the true construction of the 4th section of the statute of frauds is, "that the facts must show such an intent to commit a fraud that there can be no reasonable conclusion to the contrary." This construction, it is submitted, is recognized and sustained by the ruling of the court in the case of Dardenne vs. Hardwick, 9 Ark., 485, and 8 Peters 253. And the construction implies that both parties to the transaction must participate in the fraudulent intent. 9 Ark., 485, 486, Dardenne vs. Hardwick; also 17 Ark., Splawn vs. Martin, 152, and authorities cited. The testimony of Barnes and Hundley shows that Hundley was indebted to complainant at the time he purchased the negroes, and that complainant released to Hundley his indebtedness, in part payment of the negroes. It will not be contended that there is any fraud in that act. In the absence of any lien on his property, Hundley certainly had the right to sell it to Christian, especially so when he sold it to pay him a him a just debt, without being liable to the charge of fraud. But defendants say that Hundley run his property from Arkansas to Louisiana to avoid the payment of debts he owed them, and complainant knowing that he had run them for that purpose, a short time afterwards, went to Louisiana and bought them. It cannot be contended that complainant is chargeable with fraud in this act of Hundley, because it is not charged, nor proved, nor attempted to be proved that complainant in any manner aided or assisted, or influenced Hundley to run his negroes. Complainant submits that the defendants have failed to make out a case of fraudulent intent, as to the purchase of the negroes by him. Complainant also submits that his purchase was made in good faith in the eyes of the law. For the reason that complainant and defendants, both being creditors of Hundley, TERM, 1861.] Christian vs. Greenwood et al. Hundley had the right in law to pay complainant his debt, in preference to the defendants. And for the further reason that there being no levies on Hundley's property the same was, in his hands, the legitimate subject of bargain and sale, and he had a free and untrammeled right to sell it to any purchaser who would pay his price, and no creditor of his had any color of right in the law or equity to prevent his selling it upon the simple ground of his indebted ness. WADDELL, for appellees. The question is, whether the conveyance by Hundley to Christian was fraudulent as against Christian, the vendee. Splawn vs. Martin, 17 Ark., 152, is the best case for Christian, and will be cited on his behalf to show what is not denied by defendants, to-wit: That, to affect Christian with the fraud, it must be shown that he participated in the fradulent intent. I then turn to the depositions to see what fraud is proved, and what Christian had to do with it. I find that Hundley ran the negroes off for the avowed purpose of evading these very debts; that Christian was informed of the fact, and of Hundley's avowed object; and that with this perfect knowledge of Hundley's fraudulent aim, and while so hiding the negroes out, Christian bought them from him. As to Hundley, As to Hundley, the conveyance was fraudulent. As to Christian, he received the conveyance with perfect knowledge of Hundley's intent. Was this a participation in the fraudulent intent? Splawn vs. Martin does not say what would amount to a participation in the fraudulent intent. Neither does Dardenne vs. Hardwick, 4 Eng. 486; nor Hempstead vs. Johnston, 18 Ark., 141 (c.); nor any other case in Arkansas. I look into the cases on authority of which Splawn vs. Martin was decided. The first case is Peek vs. Carmichael, 9 Yerger, 327. It expressly decides that if the vendee know of the fraud intended by the vendor, he participates in the intent by taking the conveyance. The next case, Trotter vs. Watson 6 Humph. 509, on page 514, speaks of knowledge of the fraud as Christian vs. Greenwood et al. JANUARY a participation in it, and moreover lays down the law to be as stated in 2d Kent, 513: That the conveyance may well be fraudulent, though a full consideration was paid. Also, in a note to 4th Kent, 8th edition, page 464, it is said that "if the grantee knows, when he take the deed, that the object of the grantor is to defraud others, the deed is void though he may give a full consideration, and cites Edgall vs. Lowell, 4 Vermont Rep. 405, and the above case of Trotter vs. Watson, and English's decis ions. And in Magniac vs. Thompson, 7th Peters S. C. Rep., 389, which was decided by Judge STORY upon full argument by able lawyers, the above doctrine both as to payment of consideration not preventing the transaction from being fraudulent, and as to notice of vendor's fraudulent aim implicating the vendee in the same intent, was admitted on all hands to be incontrovertible. The error assigned in that case was that the court below had held that to implicate the vendee in the fraudulent intent, he must have participated in some manner more active and decided in such intent than by merely receiving the conveyance with knowledge of vendor's intent; and it was conceded that such a holding of the law by the court below would have been erroneous; but Judge STORY showed that the court below had not ruled the law that way, but had ruled it the way plaintiff's counsel said it ought to be ruled, to-wit: that taking the conveyance, with knowledge of vendor's fraudulent purpose was a participation by vendee in the fraudulent intent, and no more need be proven against him to invalidate his title. Apply the law, as thus well settled, to Christian's case, and he is a participator in the fraudulent intent, and his title void. Mr. Justice FAIRCHILD delivered the opinion of the Court. On the 4th of February, 1856, Christian purchased of Cecilius J. Hundley, two negroes-Ned and Fanny. At the time of the purchase, the negroes were not in Ashley county, the place of Hundley's residence, but were in Louisiana, where they and the other negroes of Hundley had been taken to avoid their sub jection to the payment of the debts of Hundley to the appel |