Middleton's Lessee v. Sinclair

But the Coukt

absent,) overruled the objection ; because the defendant does not claim in the character of a subsequent purchaser; but claims under a judgment and execution in favor of a creditor who had furnished materials for a building erected upon the land in dispute before the date of the deed ; and if the deed was void as to that creditor the sale under the execution was valid, and the defendant, who claims under that sale has a good title.

The defendant, in order to show his right as a creditor, or as claiming under a creditor, offered in evidence a judgment, fieri facias, an$ sale in 1827, in an action by King and Langley against the grantor, Smallwood C. Middleton, and that the cause of action originated before the date of the deed. That the land was sold under the fieri facias to one C. King, who conveyed to a Mrs. Bryan, under whom the defendant claims title.

The description of the land in the deed from the marshal differs, in some respects, from that in the deed from S. C. Middleton to his son in 1823; the beginning, however, is the same.

Mr. Bradley objected to that evidence on account of this difference in the description of the land.

But the Court (nem. con.) permitted the evidence to go to the jury.

Mr. Key, for the defendant, then prayed the Court to instruct the jury, that if they should believe from the evidence that the said S. C. Middleton at the date of the said deed to his son was indebted to the said King and Langley, and that after the said deed he continued in possession of all the property mentioned in the said deed until the said sale under the said execution of King and Langley, and the said purchase by Mrs. Bryan as aforesaid, and that he had no other property; then such indebtedness, and such continuing in possession, is evidence of the said deed’s being made by the said S. C. Middleton to his son, with intent.to hinder, delay, and defraud, his creditors; and that upon the said evidence of such intent, if believed by the jury, the plaintiff is not entitled to recover in this action.

And the Court (nem. con.) so instructed them; and also at the *412prayer of Mr. Bradley, for the plaintiff, further instructed them, that if from the evidence they should be of opinion that the said deed was made dona fide, and without any intent to defeat or defraud the creditors of the said S. C. Middleton, and for a valuable consideration ; and the said Samuel Middleton, (the son) was jointly in possession of the said land, with the said Smallwood C. Middleton after the making of the said deed, then' the plaintiffs are entitled to recover.

Verdict for the defendant.