Neal v. Gregory et al.-Statement of Case. 1868, to appellant, William M. C. Neal, (the plaintiff in the original bill) is not made the subject of objection on account of any want of compliance with the law in the matter of its execution and delivery. Plaintiff alleged that he was induced to make the purchase of A., D. & Co. by the representations of Nixon, who at the time was acting as agent of A., D. & Co.; that Nixon accompanied him to Apalachicola, and was present and cognizant of the purchase by plaintiff of A., D. & Co.; that shortly after this purchase Nixon left the United States, and has since died insolvent; that the plaintiff went into possession of the land under the deeds upon Nixon's departure from the place, and that the suits which resulted in the judgment under which the sales are sought to be had were pending against Nixon at that time. Plaintiff prayed for reformation of the deed and for order enjoining the sales under execution. The defence is no mistake in the deed to A., D. & Co.; that it was a fraudulent conveyance without consideration; that Nixon was at the date of this conveyance, and before that time, indebted to the plaintiff in execution and others in large sums of money, "and was in embarrassed and failing circumstances;" that after the pretended sale Nixon remained in absolute and undisturbed possession of the property, appropriating its proceeds. Defendants allege that Nixon sold and appropriated to his own use all of the personal property embraced in the conveyance to A., D. & Co. without any objection by A., D. & Co.; they deny that N. was the agent of A., D. & Co., and affirm that the consideration for the deed from A., D. & Co. to Neal was the amount of money which was due and owing by Nixon to Atkins, Dunham & Co. for credits extended to Nixon after his deed to them, The testimony was substantially as follows: The plaintiff for himself in his direct examination testi Neal v. Gregory et al.-Statement of Case. fies: That he purchased the land of Atkins, Dunham & Co.. but as the wives of the parties were not present to relinguish dower, the deed was not immediately executed; that the circumstances attending the sale were that he received a letter from Atkins, of the firm of A., D. & Co., telling him that they owned the land; that he and T. O. Nixon went to Apalachicola where he had an interview (Nixon being present) with Atkins and Beale, Dunham being absent. Here the contract of purchase was made. In accordance with this contract of purchase the deed was subsequently executed and delivered. Nixon with his family left the State the day after the interview; that he (witness) gave his notes for the purchase-money at the time the contract was made to Atkins, who was to attend to the execution and delivery of the deed to him, trusting to the honor of Atkins to have the deed executed and delivered, which was subsequently done as stated in the deed; the notes have since been paid. There were thirteen or fifteen bearing orange trees on said land at the time of said purchase, and thirty or forty young trees from a foot to three teet in height. Over 300 trees have been added since, about one-half of which are now bearing. He went into possession two or three days after his return from Apalachicola after making the contract of purchase. Nixon made no objection then or since. Cross-examination: He received the latter from Atkins three or four days before he went to Apalachicola with Nixon in the year 1868. This letter was the first intimation he had of any claim upon the land by A., D. & Co. Beale said he would not take less than $2,300 for the land, but upon consultation between Atkins and Beale they agreed to take his notes. for seventeen hundred and odd dollars. He does not know whether Nixon received any benefit of the purchase Neal v. Gregory et al.-Statement of Case. money; that upon his arrival at Apalachicola, when he went to the office of A., D. & Co., he found only Beale present; that he returned to the boat; that afterwards, on being sent for, he returned to the office, he thinks, accompanied by the engineer of the boat. On reaching the office Beale said they owned the land, but would not take less than $2,300 for it. This witness refused to give. Beale and Atkins had a private conversation. They informed him they would take his notes for seventeen hundred and odd dollars for said lands, the notes to be placed in the hands of Atkins, and a deed to be subsequently executed and delivered to him through Atkins; that Nixon, next previous to his departure, had been residing on said land for five years or more, but not continuously, and that witness went into possession a day or two after his departure; that witness went into possession before he received said deed, and that he is now the owner of it. This witness introduced by the defendant testifies: That he does not recollect being at spring term, 1867, of the Circuit Court of Liberty county, nor does he recollect requesting or employing Colonel S. B. Love to enter an appearance in the suits against Nixon, and has no recollection of said suits; that about a week before Nixon's departure he purchased of him two cows, two calves, one mule, a yoke of steers and one sow; that Nixon sold the balance of his personal property to other persons around there. This purchase by him was made before he went to Apalachicola. Ivey H. Gregory, direct for the defendants, testified: That Nixon, before his departure for South America, resided upon the place now occupied by W. H. Neal, and that he, Nixon, occupied it for ten or more years just previous to his departure; that Nixon left about the 15th of January, 1868; that he owned cattle, horses, mules and farming implements within two years before his departure Neal v. Gregory et al.-Statement of Case. from Florida; that he was in possession of such property within six months before his departure; that he saw in the possession of several parties (naming them) cattle in the mark of Nixon which had been in Nixon's possession six months previous to his departure; that Nixon owed witness about $5,000 when he left Florida; that he visited Nixon during the years 1866 and 1867; that the property he was in possession of he was trading with and controlling as his own; that he had conversations with Nixon in regard to the settlement of the debt due him by Nixon now. Defendant's solicitors here asked the following questions: State what Nixon said to you in regard to his pecuniary condition and the status of his property in the conversation which you had with him about twelve months prior to his departure from Florida in relation to the settlement of the demands which you held against him? This question was excepted to as being in contravention of the statute. The witness answered as followed: I went down to see Nixon. When I met him he told me that he owned nothing but his clothing, had sold out lock, stock and barrel; that witness asked to whom; Nixon said to Atkins, Dunham & Co., of Apalachicola, Florida. Witness asked him, have you got the money? Nixon said yes. Witness then said, you can pay me, and pulled out his notes. No, I can't pay you, said Nixon; that this portion of the conversation was in the presence of Nixon's family; that Nixon then called the witness out privately and told him that he could not pay him, that he got no money from the sale of his property; that witness asked him why? He said, because it was a sham sale, but it appeared on record as a bona fide sale; that witness then told him that he would not have done anything of the kind. Nixon asked him why? that he replied, that these men had no lease upon their Neal v. Gregory et al.-Statement of Case. lives, and what would become of him at their deaths. Nixon then told witness that he had a private instrument of writing at the bottom of his trunk where no one went but himself, and if A., D. & Co., or their administrators, attempted to do anything of the kind he would produce that paper. Nixon then told witness to keep this to himself, that he said Nixon told witness that instead of acting as a brother-in-law he had acted as a brother and would keep it. Witness told him, no, if you don't pay me and my brother's estate I will expose the whole thing. Nixon said, for heaven's sake don't do it, for I intend to pay you and your brother's estate, and I did not do what I have done to defraud you or your brother's estate, if there is any honor in me. When witness left him next morning he said he would certainly comply with the promise he had made. This conversation took place about a year before Nixon left. W. M. C. Neal told the witness the winter that Nixon left Florida that he had purchased the property in controversy from Nixon. He said that he gave oranges for it, and witness was present when part of the oranges were delivered by Neal's team. Witness does not recollect the quantity of oranges to be given. This was in December, 1867. Witness was at Rico's the day after Nixon left, and Moore, Nixon's son-in-law, was in charge of the furniture which Nixon left to be delivered to different parties. Moore soon after left for Bristol, and W. M. C. Neal took possession of the land. Witness saw Neal about a month after Nixon left Florida, and Neal told him that Nixon had treated him very badly; that instead of having satisfied Atkins, Dunham & Co., as he told him he had done, he left without doing it, and that he, Neal, would have it to pay. As near as witness can recollect Neal stated that the amount due Atkins, Dunham & Co. from Nixon was from fifteen hundred to eighteen hun |