William Bogard vs. William Gardley

High Court of Errors and Appeals of Mississippi1845-01

4 S. & M. 30212 Miss. 302

Summary · law.co

Holding. The judgment of the trial court was affirmed. Gardley, as trustee for Ferriday, retained superior rights to the slaves against Bogard's claim, because Wyse's attempted gift to his child could not defeat Ferriday's prior lien, and removal of the property to another county without the trustee's consent did not extinguish that lien.

James Wyse executed a deed of trust in 1840, conveying a slave and her child to William Gardley as trustee to secure a debt owed to Ferriday. Wyse later moved the slaves to Marshall County and sold them to William Bogard in 1841. Bogard brought a detinue action to recover the slaves. Wyse had previously purchased one slave and titled it to his minor son David as a gift, though Wyse paid the consideration. At the time of this purported gift, James Wyse was substantially indebted to Ferriday.

The court held that a voluntary transfer cannot override the rights of a prior creditor, regardless of whether the transfer is made to a child. The security interest held by Gardley as trustee for Ferriday was not defeated by Wyse's removal of the slaves to another county without the trustee's permission. The fact that Wyse retained possession of the property after the deed of trust was recorded did not constitute fraud per se, though the jury could have considered whether fraud occurred based on possession retained after the payment deadline.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a voluntary conveyance by a debtor to his child can defeat the rights of a prior creditor
Whether removal of collateral to another county without the creditor's consent extinguishes a previously recorded security interest
Whether retention of possession by a grantor after recording a deed of trust constitutes fraud

Procedural posture

Bogard instituted an action of detinue in the circuit court of Marshall County to recover a slave and child, and the trial court rendered judgment against him; Bogard appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Mr. Justice Thacher

delivered the opinion of the court.

This was an action of detinue, instituted in the circuit court of Marshall county, to recover a slave and her child, which had been conveyed by James Wyse to Gardley, as trustee for Ferriday, to secure a debt due by Wyse to Ferriday. The deed was executed May 10, 1840, and recorded in Leake county, where Wyse resided. Subsequently Wyse carried the slaves to the county of Marshall, and in the spring of 1841 sold them to Bogard. The deed has never been recorded in Marshall county. By the deed, Wyse was permitted to retain possession of the slaves until January 1, 1841. A bill of sale of one of the slaves, from one Blackwood to David S. Wyse, a child of James Wyse, was exhibited in evidence on the trial, dated in 1838 ; and it appears that Wyse had paid the consideration of the bill of sale, and had procured the bill of sale to be made in this child’s name, intending the same as a gift to him.

The ground assumed in this case, that the slaves in question are the property of David S. Wyse, cannot avail. It seems clear, front an examination of a copy of a record of judgment introduced as evidence on the trial, that James Wyse, the father, was indebted to Ferriday in an amount of at least three thousand dollars at and before the date of his purchase of the slave for his child. Such a gift, and under such circumstances, according to the best received authorities, cannot be sustained. A voluntary conveyance will never be upheld to defeat a prior creditor, whatever be the amount of his demand, and there is no exception in favor of dispositions made by parents in favor of children. Doe, dem. ODaniel v. Crawford, 4 Dev. 197. But even were Ferriday a subsequent creditor, it might then be a question whether the conveyance had not been procured to be made fraudulently as against him, which is a matter peculiarly within the province of a jury to decide, and one which, when once found, is not tobe disturbed on light grounds. Bennet v. Bedford, 11 Mass. 421; Damon v. Bryant, 2 Pick. R. 411; 2 Kent. 441.

The removal, by the grantor in the deed of trust, of the slaves from Leake to Marshall county, is not shown to have been done with the permission of the trustee, or cestui que trust, who claimed title under the deed. The statute H. & H. 344, s. 4, requiring a deed respecting personal property to be recorded in the county to which the property is removed, does not affect the lien previously attached by th§ deed, without such removal is shown to have been made with the consent, permission, or participation of the person claiming title under it.

The fact that the grantor in the deed of trust retained possession of the property conveyed, was no evidence of fraud, because, by our statute of frauds, H. &H. 371, s. 2, the deed having been recorded, his possession was lawful. His possession, after the period which, by the terms of the deed of trust, payment should have been made, or the consequences of the deed followed, although it might have been prima facie evidence of fraud, could not be regarded as fraud per se, and that inquiry was a matter for the jury.

The judgment of the court below is affirmed.

Mr. Justice Clayton, having been counsel below, gave no opinion.