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Simonton vs. Gandolfo.-Opinion of Court.

lots, tracts and parcels of land, which said conveyance from John Barcroft to Fielding A. Browne, and said notes and mortgage from Fielding A. Browne to said John Barcroft, and recorded in the office of the county records of Monroe county, Florida, and are herein referred to; and, whereas, the payments stipulated for in the said mortgage have not been made, and there still remains due and payable from said Fielding A. Browne to said John Barcroft upon the same, eleven thousand two hundred and thirty-four dollars and eleven cents; and, whereas, the said Fielding A. Browne has, by an instrument of writing, bearing even date herewith, forever remised, released, conveyed, aliened, confirmed and quit-claimed unto the said John Barcroft, all his right, title, interest, claim, property and demand of every nature whatsoever, either in law or equity, in and to the said lands, which are particularly described and set forth in the said instrument of writing, bearing even date herewith; Now, therefore, this is to declare that I, John W. Simonton, of Key West, Florida, cestui que trust of said John Barcroft, in consideration of the execution and delivery of the said instrument of writing and quit-claim, do covenant, stipulate and agree to and with the said Fielding A. Browne, his heirs, executors and administrators, that I, my heirs, executors and administrators, shall and will, within four years from the date hereof, I or they will sell, convey and finally dispose of all the said lots, tracts and parcels of land which are specified in said instrument of writing, and quit-claim, to the best advantage and in such manner, that the proceeds arising or to arise, accruing or to accrue from the same, shall be realized by me within the said four years, and that out of the said proceeds is first to be paid the aforesaid eleven thousand two hundred and thirty-four dollars and eleven cents, which is due and payable from said Fielding A. Browne upon the aforesaid mortgage, whatever that sum justly be, to be computed; and that the balance or surplus which may remain after I shall have paid the said sum

Simonton vs. Gandolfo.-Opinion of Court.

due, shall be, within the said four years, paid over to said Fielding A. Browne, his heirs, executors, or administrators; and I do further hereby and forever release the said Fielding A. Browne, his heirs and assigns, from all claims or demands of every nature whatsoever, which the said Barcroft, trustee as aforesaid, had or may have had against or upon him, for and on account of his said mortgage.

"In testimony whereof, I have hereunto set my hand and stal at Key West, Florida, on this sixteenth day of April A. D., one thousand eight hundred and forty-seven.

"(Signed.) J. W. SIMONTON, [Seal.] "Signed, sealed and delivered in the presence of—

"JAMES JOHNSON,

"W. R. HACKLEY."

Supposing that the jury upon the issue presented by the plea of the general issue,, found that the contract as alleged in the declaration was made, the deed of release, as set forth in this exception, is the evidence by which the plaintiff offered to show that he had complied with his part of the contract, and thereby entitles himself to recover of the defendant.

The second plea of the defendant was doubtless designed to present an issue as to this fact; that is whether the plaintiff had performed his part of the contract; and if it were a good plea, the court would have no difficulty in arriving at their judgment. The plea, though pronounced by the court below upon demurrer to be good, is very equivocal in its terms, and we have hesitated long before consenting to consider it as sufficient to present a proper issue. We stretch the authority of this court to its utmost limit, when we determine to do so, under a conviction that the jury really passed upon the true merits of the controversy, and that the setting aside this verdict for mistakes in pleading would be of no advantage to the plaintiff, while it might involve both him and the defendant in unavailing expense and trouble.

Simonton vs. Gandolfo.- Opinion of Court.

It is very evident that the jury in finding for the defendant, found either that there was no contract between the parties, or that the plaintiff had not complied with his part of the contract. If they found the first, we have no right to interfere with their verdict, for it was a pure question of fact properly presented to them by the plea of the general issue if they found the other alternative, then the legal sufficiency of the evidence upon which they passed is presented to our notice and decision by the fifth instruction asked for by defendant and given by the court, and which we have recited. In other words, we are to inquire and to say, whether the deed of release executed by the plaintiff to Browne, was a compliance with the plaintiff's contract, as set forth by himself in his declaration, to wit, "that said plaintiff agreed and promised the said defendant that he, said plaintiff, would make a release to said Browne, mortgagor as aforesaid, and his assigns, of all claims or demands which said Barcroft, trustee as aforesaid, had against said Browne, mortgagor as aforesaid, for and on account of said mortgage."

It appears from the recital in the deed that Barcroft was trustee of John W. Simonton and Ann Simonton. The deed purports to be executed by John W. Simonton, not as attorney for Barcroft, but in his own person; and describing himself as cestui que trust, no reference being made to Ann Simonton; and the consideration mentioned is a certain instrument of writing executed by Browne.

The deed concludes as follows: "I do further hereby and forever release the said F. A. Browne, his heirs and assigns, from all claims or demands of every nature whatsoever, which the said John Barcroft, trustee as aforesaid, had or may have had, against or upon him, for and on account of his said mortgage," and is signed thus: John W. Simonton, [L. S.]

Was Simonton competent to convey the title of Barcroft? Let us see. Barcroft had the legal estate probably in fee

Simonton vs. Gandolfo.-Opinion of Court.

simple; if so, it could only be conveyed by deed under seal, (2 Blackstone's Commentaries, 297,) and "a deed is a writing containing a contract, and signed, sealed and delivered by the party." 4 Comyn's Digest, 270. If it were only an estate for years, the statute 29th Charles II. requires the assignment to be at least in writing to be signed by the party. No estate, then, that Barcroft might have had could be conveyed, unless in the case of a freehold the conveyance was sealed, and, in the case of a chattel, interest was signed by Barcroft. In the case before us he does neither, and it does not appear that Simonton had any authority to convey for him, to seal for him or to sign for him. Whatever Simonton conveyed he surely did not convey the interest of Barcroft, and failing or omitting to do so, he did not perform his part of the contract with defendant.

It is alleged by plaintiff's counsel that a cestui que trust may sell his interest, and that Simonton, therefore, though not technically conveying Barcroft's interest, conveyed an estate of more value. We do not deny that Simonton might have released his interest, but the proper questions aredid he do it? and, if he did, was it the release Gandolfo bargained for? His own deed and his own declaration furnish replies to both enqueries. In his deed he says, "I release all claims or demands which John Barcroft had or may have had”-there is no release of his own interest.— In his declaration he says that he "agreed that he would make a release of all claims and demands which Barcroft had," but makes no agreement to release his own.

These considerations afford also a response to the positions assumed by counsel, to the effect that a part performance of his contract will entitle him to recover. The deed seems to us a mere nullity—it conveys nothing; and what is supposed by counsel to be conveyed, to wit-the equitable interest of Simonton, forms no part of the agreement.

We think, therefore, the court was right substantially in instructing the jury as asked in the fifth instruction of de

Gibson vs. Love.-Points decided.

fendant.

We say substantially, because the part that relates to perfecting Gandolfo's title is, at best, unnecessary. But we overlook this and other defects, because we are satisfied that none of these errors misled the jury, and that they arrived at the proper adjustments of the respective rights of the parties.

Let the judgment be affirmed.

JAMES GIBSON, APPELLANT, V. DANIEL LOVE, APPELLEE.

By the ancient common law the question of fraud was purely a question of fact.

The statute 13th of Elizabeth,protecting creditors and others from fraudulent conveyances, is to be construed liberally in favor of the class of persons designed to be protected from fraud.

A surety is the creditor of a co-obligor and, as such, entitled to all the protection which the statute 13th Elizabeth extends to creditors and others. The statute 27th Elizabeth, though in its terms it applies only to land, yet being declaratory only of the common law, may be interpreted as defining the nature and effect of fraudulent conveyances generally.

What is termed fraud in law is distinct from fraud in fact, and it is the duty of a judge to instruct the jury that their conclusions from facts must be regulated by the character and imports given to those facts by necessary legal implication. Some acts are proofs of fraudulent intent, and it is the duty of the court so to instruct the jury.

Where a legal effect of a conveyance is to delay, hinder and defraud creditors, no matter what the actual intention may have been, it is a fraud in law, and the courts are bound so to declare it.

Where the seller of a slave retains possession after the sale, fraud is to be inferred, unless there is evidence not of a general character negativing a fraudulent intent, but of a character to explain possession. The presumption of fraud in a case where the vendor remains in possession, is so strong as to outweigh positive testimony of an entire absence of all fraudulent intent, or even to establish a fraud, where the jury are satisfied that there was none actually intended.

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