US SUPREME COURT DECISIONS

A sale, under a fi. fa. duly issued, is legal as respects the purchaser, provided the writ be levied upon the property before the return day, although the sale be made after the return day and the writ be never actually returned.

A deed made upon a valuable and adequate consideration which is actually paid and the change of property is bona fide or such as it purports to be, cannot be considered as a conveyance to defraud creditors.

This was an action of ejectment brought in the court below by the defendant in error, Sexton, against the plaintiff in error, Wheaton, to recover the possession of a parcel of ground in the City of Washington, being lot number 17, in square 254, containing 8,254 3/4 square feet, with the buildings thereon.

At the trial the plaintiff produced and read in evidence to the jury a deed of bargain and sale of the premises from John P. Van Ness and wife, and C. Stephenson, to Sally Wheaton the wife of the defendant in ejectment, and a deed from one Watterson to the same of the same premises, a writ of fi. fa. against the goods, chattels, lands and tenements of the defendant, issued from the court below, upon a judgment obtained by Sexton against Wheaton with a return thereon by the marshal:

"December the 30, 1815, sold the real property

Page 17 U. S. 504

in square 254, to Francis F. Key, Esq., for three hundred dollars; sales of real property in square 253, countermanded by said Key; sold personal property,"

&c. The writ was never actually returned, but for the first time produced by the marshal in court at the trial of this cause. The sale took place after the return-day mentioned in the writ. The plaintiff also produced and read in evidence a deed from the marshal to the plaintiff in ejectment, dated 30 May, 1816, he having been the highest bidder, by Key, his attorney.

The defendant's counsel prayed the court to instruct the jury that the lessor of the plaintiff could not recover. The court refused to give such instruction, but instructed the jury that if they should be of opinion from the evidence that the writ of fi. fa. was levied by the marshal upon the property in question, before the return-day of the writ, it was lawful for him to sell the same under and by virtue of said writ, and that the facts respecting the said sale might be proved by parol. To which instruction the defendant excepted.

The defendant, to show the legal title of the premises to be in one E. B. Caldwell, and not in the lessor of the plaintiff, gave in evidence a deed from the defendant in ejectment to said E. B. Caldwell, made and executed on 23 December, 1811, conveying the premises to the said E. B. Caldwell, reciting the deeds from Van Ness, &c., and that it was understood, at the time of making those deeds, that the property should be absolutely for the sole use of said Sally Wheaton &c., but it had been apprehended and suggested, that the said Joseph Wheaton might chanrobles.com-red

Page 17 U. S. 505

have a life estate therein, to carry into effect the original intent of the conveyances, and for the consideration of five dollars, paid to him by E. B. Caldwell, the said Joseph Wheaton conveyed to him all his right, title and interest, in trust for the use of said Sally Wheaton. Whereupon the court instructed the jury that if the jury should be of opinion from the evidence that the said deed was made by the said Joseph Wheaton without a valuable consideration therefor, or was made by him with intent to defeat and delay or defraud his creditor, the said Sexton, of his debt aforesaid, then the said deed was void in law as to the said Sexton, to which the defendant excepted.

The jury found a verdict, and the court rendered a judgment for the lessor of the plaintiff. The cause was then brought to this Court by writ of error. The cause was submitted, without argument.