DAVID BARROW, APPELLANT,

v.

WILLIAM BAILEY, ADMINISTRATOR DE BONIS NON OF JOHN BELLAMY, DECEASED, RESPONDENT

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 pay ing 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 com mencement 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, 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, sa 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 of fer 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 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,000, which was paid to Doggett upon the sale, to he, used, as it is said, for the payment of debts in North Carolina, hut of the application of which, or even of the existence of any debts in that State, on which a presumption of such application might he founded, there is no evN dence. - The aggregate of these two sums, added to the deficiency before mentioned, will make $27,700 ; and the effect of this translation, as thus shown, was to withdraw that sum from the just claims of creditors, out of an estate-of the value of $66,700, This conduct is wholly irreconcilable with that of one who is desirous to pay all his debts, and can only he accounted for upon' the hypothesis of a design to hinder and defraud creditors.

From the facts and circumstances before alluded to, the purchaser must be taken to be privy to tbe intent, and so •far as tbe payment of $5,000-, and the payment for the annuity for four years, mentioned in the answer, should be postponed, if necessary, in favor of the complaining creditor. In Hawkins vs. Moffatt, (10 B. Monr. R., 81,) where a man greatly embarrassed sold all Ms interest in an estate, worth $1,169-, for the consideration of $465, in discharge of debts, and ten years board, and clothing for five years, to be enjoyed after tbe sale, it was held-to be-manifestly fraudulent, and was declared void as against creditors. The transaction, in that respect, presented no. stronger marks or badges of fraud than are to b.e found iii this case.

The decree remains to he-considered. At law, upon th© question of the validity of a deed, or other conveyance, the-Court can hold no middle course; it must he decided on the-single point of validity, and held to he either wholly good or wholly bad. If it is found to be fraudulent, tbe credit-or comes in and avoids it all, without-repayment of tbe consideration money ; but in Equity such is not the rule, except where actual fraud and covin are found to exist; Boyd vs. Dunlap, 1 John. Ch. R., 478; Sands vs. Codwise) 4 John. Ch. R., 536, 598. In-Equity, where a security or conveyance is found to he constructively -fraudulent, ifc is upheld in favor of one not guilty of any actual fraud, to the extent of the actual consideration, and is vacated only as to the excess ; and so, when the property is of greater value than the consideration, the conveyance may be impeached as being voluntary, to a partial extent, and, if there be no actual fraud, will be sustained to the extent of the consideration, and vacated as to the residue, or the grantee be decreed, to be, as to such residue, a trustee for creditors. Wright & Cooke vs. Stanard, 2 Brock. R., 314; McMeekin vs Edmonds, 1 Hill Ch. R., 294; Boyd vs. Dunlap, 1 John. Ch. R., 478; Wickes vs. Clarke, 8 Paige R., 161, 172; Herne vs. Meeres, 1 Vern. R., 465; Grove vs. Watt, 2 Sch. & Lef. R., 492; How vs. Weldon, 2 Ves. Sr., 516; Sandford vs. Wheeler, 3 Conn. R., 165. Chancellor Kent, in Boyd vs. Dunlap, expresses his approbation of this prinple of limited interference, by allowing the deed to stand as a security for any sum really due, or paid by the grantee, and observes that, “ Nothing can he more equitable “than this mode of dealing with these conveyances, of “ such indecisive and dubious aspect that they cannot either “ be entirely suppressed or entirely supported, with satis- “ faction and safety,”

The decree pronounced in this cause, in the Circuit Court, seems to present an inconsistency in its several clauses. The first clause directs the arrears of the annuity secured to Doggett under the deed of the 3d of April, 1845, to be paid the creditor, William Bailey, to be applied towards the satisfaction of the debt due to the estate of his intestate, which would appear to he a proper direction, upon the assumption of the entire validity of the conveyance; while the second clause declares the same conveyance to be fraudulent and void as against the complaining creditor, and the property specified therein, and conveyed thereby, to be liable to his execution, and directs a sale of the whole or such part thereof, under the. writ, as shall be sufficient to satisfy it. It is clearly erroneous, on the principles hereinbefore laid down, and must be reversed and set aside, and the proper decree entered in in this Court.

The following judgment was entered in this cause :

The Court having maturely considered the transcript of the record of the proceedings of this cause, and the arguments of counsel, and now being fully advised of its judgment, to be given in the premises, it seems to the Court here that the decree of the Circuit Court of the Middle Circuit, sitting as a Court of Equity, in and for the County of Jefferson, rendered in this cause, is erroneous, and should be reversed.

Therefore, it is considered by the Court here that the said decree be reversed and set aside.

And the Court here, proceeding to render such decree as the Court below ought to have rendered, for the reasons, and upon the considerations set forth in the opinion delivered herein, doth think fit and proper, and so orders and decrees, that the said deed of conveyance from Henry Doggett to the appellant, mentioned and specified in the bill of complaint, and other proceedings in this cause, and exhibited therewith, bearing date of the 3d day of April, 1845, is in construction of law deemed, and is hereby declared, fraudulent as to the rights of the complaining creditor, William Bailey, administrator, cle bonis non oí John Bellamy, deceased. And that, as against his claim, the said deed of conveyance be set aside as an absolute conveyance but to be valid to the extent of all such sums of money as have been in good faith advanced and paid, by the said David Barrow, on account of said purchase, and to stand, remain and enure as a security, to the said David Barrow, for the same.

And the Court doth further order, that said David Barrow, as to the property, real and personal, conveyed in and by said deed to him, be, and he is hereby declared a trustee for the benefit of himself and the said William Bailey, administrator as aforesaid 5 first, to reserve and receive for himself reimbursements for the sums of money advanced and paid by him as aforesaid; and secondly, to pay, satisfy and discharge such sum as may be found due for principal and interest, and costs, upon the execution awarded by the said Circuit Court in Jefferson County, upon scire facias, on the 27th of November, 1848, in favor of said William Bailey, administrator as aforesaid, against Iienry Doggett, after applying the nett proceeds of the sale of the land, made under the interlocutory decree of the said Circuit Court, passed in this cause on the 16th October, 1849; and lastly, retaining any overplus which may then remain for his own use and benefit.

And the said Court doth think fit further to order and decree, that it shall be at the election of.the said David Barrow to pay, or cause to be paid, tó the said William Bailey, administrator as aforesaid, or to his solicitor in this cause, the amount of his said debt and claim, principal, interest, and costs, on or before the first day of the next term of the Circuit Court of the Middle Circuit, to be held in and for the County of Jefferson, orto account before the said Circuit Court for the said property j and the issues thereof, as a trustee thereof, for the uses and purposes, and for the trust hereinbefore specified.

And this Court doth further order and direct, that if the said Barrow shall not pay or cause to be paid, to the said William Bailey, administrator, or his solicitor, the said debt aforesaid, on or before the expiration of the time lim ited as aforesaid, then and in that case, he shall be held, deemed and taken, to have elected to account for said property, and the issues thereof, as trustee, before said Court. And thereupon the said Circuit Court shall take effectual order by decree, according to the usual course and practice of Equity proceedings, that said David Barrow account as such trustee, and that the said property, real and personal, specified in and conveyed by said deed, be applied to the purposes of said trust, as herein declared. And the said accounting, and said application of the trust fund, be made according to the following principles, to wit: First, that said David Barrow be charged with the value of the personal property other than the slaves, computing interest thereon from the 3d day of April, 1845 ; that he be charged with a fair annual rent for the lands, and fair annual hire for the slaves, with interest thereon from the expiration of each and every year. Secondly, that he be credited and allowed for all payments and advancements by him made, for and on account of said purchase, with interest on each item, from the time of advancement and payment thereof as aforesaid. Thirdly, that the said lands and slaves, specified and mentioned in, and conveyed by, said dped of the 3d of April, 1845, with the issue and increase of the female slaves, be sold by and under the direc-. tion of the proper officer of said Court, at such time and in such manner, and upon sucli terms,' as the said Court shall, by its decree, ascertain, direct, and appoint; and that the proceeds thereof be thus applied: First, to pay, satisfy and discharge the costs and charges of said sale, and of this cause, to be taxed and allowed according to the usual course of the Court. Secondly, to pay, satisfy, and discharge the balance, or residue, found due upon the account, to the said David Barrow for his advances and payments on account of said purchase, as aforesaid. And thirdly, to pay, satisfy and discharge,' the debt -which shall be found due to the said William Bailey, administrator as aforesaid, upon his execution aforesaid, against the said Henry Doggett. And lastly, to render and pay the surplus, if any, to the said David Barrow ; Provided, however., That if the proceeds of said sale be found insufficient to pay the said debt or claim of the said William Bailey, administrator as aforesaid, as well as all the balance found due to the said David Barrow, as aforesaid, then and in that case, the payment made by the said David Barrow to the §aid Henry Doggett, of $5000, on the Gth of April, 1845, apd all payments made by him to said Doggett on account of said annuity, secured in and by said deed, bo deferred, and postponed in favor of the debt, or claim of said William Bailey, administrator as aforesaid.

And this Court doth further order, that this cause be remanded to the said Circuit Court of the Middle Circuit, sifting in and for the County of Jefferson, and that this decree l^o certified to the said Court, and be entered on the record as the decree in this cause, and that such further directions, orders and decrees, be made by said Circuit .Court in this cause, as may be requisite and necessary to cany out and make effectual the decree rendered herein i and also such other and further proceedings be had in this cause, as may be consistent with the opinion and decree of this Court, and in conformity with the usual course of j>ro.ceedings in Equity.

And this Court doth further order and decree, that in .this Court, each party pay his own costs, to be taxed by the clerk.