Appeal from live Circuit Court of Jefferson County.

Trespass quare clausum fregit by James Yell against Thomas Smith, determined in the Jefferson Circuit Court, at the October term, 1847, before the Hon. Wm. H. Field, Judge.

The defendant pleaded, first, not guilty, and second, title to the land in himself. To the first plea plaintiff took issue, and to the second filed two replications: First, that the title to the land was in plaintiff and not in defendant: Second, “that long before the committing of the trespasses in the declaration mentioned, one Eliza Willis was in peaceable and uninterrupted adverse possession of the land for the space of five years, under claim and color of title to the same, in fee simple, adverse to the claim of defendant; and before the committing of said several trespasses, said plaintiff became the owner of the claim and title of said Eliza and was by her placed in peaceable adverse possession thereof, and plaintiff was so possessed when the trespasses were committed,” &c. To these replications issues were made up, the cause submitted to a jury, and verdict for plaintiff for $70 damages. Defendant moved for a new trial, upon the grounds that the verdict was contrary to law and evidence, the damages were excessive, and the court erred in instructing the jury. The court overruled the motion, and he excepted, setting out the evidence and instructions. The evidence is substantially stated in the opinion of this court, and the instructions to the jury are as follows:

The court charged the jury “that if they believed from the evidence that the deed made by Holland (under whom both plaintiff and defendant claimed title) to his daughter, Mrs Willis, (afterwards Higgins), was made without intending to hinder, delay or defraud his creditors,.tire title to her would be good in law.”

“That if at the time he made the deed he was indebted, and conveyed all his property in trust for himself, it would be a fraud per se and void as to creditors; but if the deed was absolute, and he divested himself of all title to the land claimed in the deed, and parted with the possession also to the donee, and retained property sufficient to pay his debts, he had a right to do so, and the title acquired by Mrs. Willis would be good to herself and those claiming under her.”

“That if the donor was in debt at the time [he made the gift] and was sued, it was a circumstance from which the jury might infer a fraud: that fraud must be proved and not presumed, so as to destroy a deed.”

“That plaintiff held under Mrs. Willis or Higgins, and if the jury believed that Holland’s deed to his daughter (Mrs. Willis) was not to defraud his creditors, as before charged, the plaintiff had the right of action against a wrong doer. ”

The defendant asked the following instructions, which the court refused:

…

Citation profile

How this case has been treated — in progress