Warner v. Carlton. the same was taken by the defendant, the jury should find for the plaintiff, unless it is shown by the proof that the plaintiff did not own the property, or that the sale thereof from R. H. Carlton to the plaintiff was made with the view, on the part of both R. H. Carlton and the plaintiff, of hindering, delaying or defrauding the creditors of R. H. Carlton. 2nd. Fraud cannot be presumed, but must be proven; and the jury are not at liberty to infer that the sale from R. H. Carlton to plaintiff (if such sale was made) was fraudulent, but the same must be proved to the satisfaction of the jury before they can find the property to be the property of R. H. Carlton. 3rd. A sale of property for a valuable consideration, when there is a delivery of the property sold, passes the title to the purchaser, and the fact that the seller was in debt will not, of itself, invalidate the sale, although the purchaser may have known that fact at the time of the purchase. 4th. If R. H. Carlton was indebted to the plaintiff, and the plaintiff assumed and agreed to pay debts due from R. H. Carlton to third persons, these constitute a good consideration for the sale (if proven) from R. H. Carlton to plaintiff. 5th. If there was a delivery of the property sold to the plaintiff by R. H. Carlton, that was all that was necessary to vest the title in the plaintiff, (if there was a sale on a good consideration,) and the fact that the plaintiff afterwards employed R. H. Carlton to assist in carrying on the business, and left him in connection with others in charge of the property, as plaintiff's agent, would not invalidate the sale. 6th. Although a delivery of property sold, is necessary to pass the title thereto, yet such delivery need not be an actual manual delivery; but anything which clearly shows a surrender of ownership by the seller, aud an assumption of ownership by the purchaser, accompanied by such circumstances as would reasonably advise the world of such change of ownership, is all that is necessary on that point. 7th. Even if the jury should believe, from the evidence, that the object and purpose of R. H. Carlton in making the sale, was to hinder, delay or defraud his creditors, yet unless the jury are satisfied, by the proof, that R. Carlton, the plaintiff, knew that fact, and bought the goods with such knowledge, the jury cannot find that the sale was fraudulent for that reason. 8th. A party may be in possession of property by his agent as well as by himself, and if the goods were sold for a valuable consideration, and the possession delivered to the purchaser, it is not necessary that he should remain in the actual possession of the property sold, to guard his title; but such possession may be by an agent or agents, and such agent may be the seller of Warner v. Carlton. the property, if such possession is such as to advise creditors of the change in the title of the property. The defendant then and there asked the court to instruct the jury in his behalf as follows: If the jury believe, from the evidence, that the sale alleged to have taken place on or about the 8th day of October, A. D. 1858, was made by Rowland H. Carlton with the intention of preventing his creditors from collecting their demands against him, and if they further believe that plaintiff had notice of such intention on the part of the said Rowland H. Carlton, or was so situated that he might have known it, then the sale was void as to Rowland H. Carlton's creditors, although a valuable and adequate consideration, may have been paid by the plaintiff for the goods in question, and the jury should find for the defendant. If the jury believe, from the evidence, that the sale in question was made by Rowland H. Carlton with the intent to hinder, delay or defraud his creditors, and that such intent was at the time of said alleged sale known to the plaintiff in the suit, then the sale would not be legal, as against the creditors of the said Rowland H. Carlton, and the jury should find for the defendant. And for the purpose of deciding upon this question, the jury may consider the means of knowledge possessed by the plaintiff, at the time of the alleged sale, of R. H. Carlton's business affairs, and the relationship existing between the parties. The court qualified the said defendant's 1st and 2nd instructions, as follows: The first by the insertion of the words following, to wit: "Yet if the jury believe, from the evidence, that Rowland H. Carlton was indebted to the plaintiff, and that the sale, if any was made, by R. H. Carlton to plaintiff, was with the bona fide intention to pay such indebtedness, it is valid, even against other creditors of R. H. Carlton." And to the 2nd instruction, by the insertion of the following words, to wit: "Yet if said sale was made to pay a bona fide indebtedness to plaintiff, it is a valid sale, if not made to defraud, hinder or delay other creditors." D. P. JENKINS, for Plaintiff in Error. W. H. L. WALLACE, and D. L. HOUGH, for Defendant in Error. WALKER, J. The first question presented by this record, for our consideration, and which was urged with most earnestness, is whether R. H. Carlton was a competent witness on the trial Warner v. Carlton. below. It is a rule of uniform application that a person not a party to the record, and whose interest is equally balanced, is competent. Stokes v. Kane, 4 Scam. R. 167. This witness was the vendor of the goods in controversy, and it is urged that his interest is not balanced between his execution creditor and his vendee. In numerous cases of this character it has been held that his interest is balanced, and that he is competent. Bailey v. Foster, 9 Pick. 139; Prince v. Shepherd, ib. 176; Ragland v. Wickware, 4 J. J. Marsh. 530; Lumpton v. Lumpton's Ex'rs, 6 Mon. 116; Rice v. Austin, 17 Mass. 197; Martin v. Jackson, 1 Carr. and Paine, 17. There are, however, cases which seem to militate against this doctrine, but the weight is, we think, most clearly in its favor. This rule has been recognized by former adjudications of this court. In the case of Clifton v. Bogardus, 1 Scam. R. 32, where an execution in favor of Bogardus and against Moses Clifton was levied on property claimed by Mary Clifton, it was held that Moses Clifton was a competent witness on a trial of the right of property, and his competency is placed upon the ground that his interest was against the party calling him. The judgment debtor in that case, as in this, was called as a witness, by his vendee. And we are unable to perceive any distinction in the two cases. If the interest of the witness was against the party producing him in the one case, it most undoubtedly is, in the other. Again in the case of Miller v. Dobson, 1 Gilm. R. 572, which was an action of replevin, it was conceded by counsel, and acted upon by the court, as the settled common law rule, that in replevin by the claimant of property levied upon under execution, the judgment debtor is a competent witness. It is true, counsel conceded the rule in that case, but the court say they would not hesitate to exclude the witness under the statute if they could have done so, and they must have regarded the rule as inflexible, or they would have done so on common law grounds. We have no hesitation in saying, that whether considered on principle or upon authority the witness was competent. If he has sold with a warranty, and a warranty of title is always implied in sales of chattels, and a trial results in favor of its liability to the execution, he thereby becomes liable to his vendee for a breach of warranty, for the price, whilst if the vendee recovers the property his liability to pay the execution, remains unimpaired. In either event his liability is the same, and his interest is balanced. We therefore see no error in permitting the witness to testify. The bill of exceptions fails to state that it contains all of the evidence introduced on the trial in the court below, and we cannot inquire whether the verdict is supported by the evidence, Warner v. Carlton. but it must be presumed that it is. The evidence that is contained in the bill of exceptions, tends to prove a delivery of possession by witness to plaintiff at the time of sale. Such being the case it was for the jury to determine whether the title and possession went together or not. It would have been error in the court when there was such evidence before the jury, to have instructed them, that the sale was fraudulent per se. Had there been an entire absence of all evidence of a change of possession accompanying the sale, then such an instruction would have been proper, but so long as there was evidence of that fact, however slight it might be, and however clearly it might have been rebutted, it was still a question for the jury and not for the court. The defendant's 13th instruction was, therefore, properly refused. His 12th instruction is based upon the hypothesis that the vendee had no right to employ the vendor as a clerk to sell the goods, in connection with others. There is no doubt that it is a circumstance to be considered on the question of fraud, but undoubtedly may be explained, but it is not per se a fraud that admits of no explanation. If the vendor after the sale without a delivery of the goods, were to remain in the sole and exclusive possession, it would amount to a fraud in law, but such is not the evidence in this case. No evidence showed that R. H. Carlton was in the sole and exclusive possession, but it tended to show that he was only acting as a clerk, and that Telfer was the person having charge of the concern, and was the principal in its management. And for aught that appears the evidence may have been conclusive of that fact. This instruction without modification, so as to have left it to the jury to determine from the evidence whether he had remained in the exclusive possession and control of the goods, without ever having delivered them to the purchaser, was erroneous, and therefore properly refused. There is no objection perceived to the modification made to defendant's first and second instructions. The various other instructions as asked and given presented the law fairly, as it arose on the facts of the case so far as we can determine from that contained in the bill of exceptions. We see no error in the record, and the judgment of the court below is affirmed. Judgment affirmed. Foote v. Foote. ANNA B. FOOTE, Appellant, v. WILLIAM E. FOOTE, Appellee. APPEAL FROM MCLEAN. Alimony will be granted in proportion to the wants of the party asking it, and the BILL in chancery, filed by appellant against appellee, for divorce. The bill was taken as confessed by defendant. 22 425 180 522 22 425 A decree was entered dissolving the bonds of matrimony theretofore subsisting between the complainant, Anna B. Foote, 195 338 and the defendant, William E. Foote; and that the custody of 22 425 the infant children of said parties be given to the appellant, 105a 185 Anna B. Foote. It was further decreed, that said William E. 22 425 Foote pay as alimony to the said Anna B. Foote, for the support e112a 328 of herself and her two children, the sum of $500 per annum, in equal quarterly installments. The complainant excepted to the allowance for alimony, as being inadequate. It appeared by the evidence of Thomas Lonergan, that when complainant married defendant, she had a piano worth from $200 to $300; that on the day of her marriage, witness gave her $100; that since their marriage witness had let her have money and furnished her house, amounting in the aggregate, to between $700 and $800. That the two children are both boys. That in his opinion $1,200 per year would be the ordinary and necessary expenses for the support of complainant and her two children. It appeared in evidence, by the testimony of John S. Auby, that $1,200 would be a fair estimate for the support of complainant and children per year. It was also proved, by the testimony of Robert Hill, that $1,400 would be the annual necessary expenses for their support. It was further proved that the defendant, about eighteen months before the decree was made, told Thomas F. Warrell that he was worth $10,000, and was clear of debt. That the proceeds of the job part of his office (he was a printer,) was worth $1,500 or $2,500 per month. That the children are aged, one seven years, the other two years. It also appeared, from the testimony of William Thomas, that witness was an insurance agent; that on the 15th of January, 1858, defendant applied to him to insure his printing establish |