Barrow vs. Bailey-Opinion of Court.

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 principle 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 be 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 be 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

Barrow vs. Bailey-Decree.

writ, as shall be sufficient to satisfy it. It is clearly erroneous, on the principle heretofore laid down, and must be reversed and set aside, and the proper decree entered in this court.

The following judgment was entered in this cause:

The court having maturely considered the transcript of the records of the proceedings of this cause, and the arguments of counsel, and now being fully advised of his 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 de bonis non of 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 as 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,

Barrow vs. Bailey Decree.

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 trus tee for the benefit of himself and the said William Bailey, administrator as aforesaid; 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 Henry 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 it further fit to order and decree, that it shall be at the election of the said David Barrow to pay, or cause to be paid, to 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, or to account before the said Circuit Court for the said property, 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

Barrow vs. Bailey--Decree.

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

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 on 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 deed of the 3d of April, 1845, with the issue and increase of the female slaves, be sold by and under the direction of the proper officer of said court, at such time and in such manner, and upon such 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

Barrow vs. Bailey Decree.

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 said Henry Doggett, of $5,000, on the 6th of April, 1845, and all payments made by him to said Doggett on account of said annuity, secured in and by said deed, be 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, sitting in and for the County of Jefferson, and that this decree be 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 carry out and make effectual the decree rendered herein : 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 proceedings 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.