Conkling & Shepherd v. Coonrod and Crum.

proper action for that purpose, the court can control and modify the trust or the action of the trustee, purge the assignment of any objectionable feature, and leave the body of the trust to stand, and order the same, thus vastated, to be executed.

It is only when the illegal provisions in a trust are indivisible from, and constitute the main object or body of the trust, that the whole will be declared void. Tritt v. Crotzer, 13 Penn. St. 451; Greenfield's Estate, 14 Penn. St. 480; Dupre v. Thompson, 4 Barb. S. C. 279; Humberston v. Humberston, 2 Vern. 737; 1 P. Wms. 332; Prec. Ch. 455; Hill on Trustees, 333, 334; Sheppard's Touchstone, 87, rule 5; Darling v. Rogers, 22 Wend. 486.

*This question, raised by the counsel for the plaintiffs, of [620 the power to sell upon credit, under assignments for the benefit of creditors, has been much discussed in New York; but in that state they have no such statute as our "act declaring the effect of assignments to trustees in contemplation of insolvency." It will be seen, on examination, that the decisions referred to, maintaining that such a power given to the trustee vitiates and avoids the whole transaction, were made expressly under the statute of frauds, which is a transcript of the 13 Eliz. C. 5, and in which the words with intent to hinder or delay creditors, are its emphatic words.

But there is still a conflict of opinion on this question in the courts of that state. Vide, 2 Comst. 365; 4 Sandf. 252; 11 Barb. 138; 22 Wend. 486; 2 Seld. 510; 1 Sandf. Ch. 4; 7 Paige, 272.

The fact that the assignment gives to the trustee power to sell on credit, does not of itself indicate fraud. O'Connell v. Cruise, 1 Sup. Ct. Rep. (Cincinnati), 163, 167, 168.

It is now too late to raise this question; the sale had been made before this action was brought, and the purchaser is not a party to this action.

The second assignment is not void, but operative as to its subjectmatter-the notes and accounts. Burrill on Assignments, 277, 278, 292, 419, 420; Conkling v. Carson, 11 Ill. 503; 20 Conn. 98, 102; Small v. Sproat, 3 Met. 303; Hone v. Woolsey, 2. Edw. Ch. 289.

J. R. SWAN, J. A sale by a trustee, upon reasonable time of credit, taking the usual security, is an act of good faith, and is recognized by our laws relating to the settlement of the estates of deceased persons, and is frequently directed by the court. An absolute and inflexible rule, that a trustee for the payment of debts,

Conkling & Shepherd v. Coonrod and Crum.

621] must at all times, and under all *circumstances, sell for cash, would not be for the interest of creditors. And if this be so, a provision in the trust deed in regard to credit, not specifically requiring a credit beyond what a court would sanction in the absence of such provision, can not, in our opinion, be deemed per se fraudulent. The courts of New York, however, hold that an assignment by an insolvent debtor, authorizing the trustee to sell "for cash, or upon credit, or partly for cash and partly for credit, as the trustee shall think reasonable and proper," is fraudulent and void. Nicholson et al. v. Leavitt et al., 2 Seld. 510; Burdick v. Post et al., 12 Barb. 168. But this seems to be law peculiar to New York; and the dissenting opinion of Brown, J., in the case of Burdick v. Post et al., above referred to, shows very conclusively to our minds that the decision of the majority can not be sustained upon principle or authority, and we must refer to that dissenting opinion for the reasons upon which our own opinion is based.

An assignment requiring a credit to be given beyond that authorized by law on sales by executors and administrators would, in general, be deemed conclusive evidence of an intent to hinder and delay creditors, and therefore void. And when the assignment, as in the case before us, gives the assignee a discretion as to credit, we are of the opinion that a sale giving a credit beyond that authorized by law on sales by executors and administrators, would be an abuse of discretion; and in many cases the nature of the property and the state of the market, and other circumstances, would require the trustees to sell for cash, or on a shorter credit than executors or administrators are permitted to do.

Where, as in this case, the trustee has abused the discretion given 622] him, the creditors may require the notes taken *for the property to be sold, and may have such remedy against the trustee as the circumstances may require.

The other provisions of the assignment we do not think, per se, fraudulent.

BARTLEY, C. J., and BRINKERHOFF, BOWEN, and SCOTT, JJ., concurred.

474

Anderson v. Poindexter et al.

JOHN ANDERSON v. HENRY POINDEXTER AND OTHERS.

Neither Ohio nor Kentucky can demand an abrogation of the constitution and municipal laws of the other, as a matter of comity; and if a person claimed as a slave in Kentucky comes into Ohio by the direction or consent of his owner, to perform for him menial services here, even temporarily, the constitution and laws of Ohio operate on the condition of such person, and effect his immediate emancipation.

There is no law, either in Kentucky or Ohio, by which a man, once free, can afterward be enslaved, except for the violation of some municipal law.

By the laws of Kentucky, a person who is held and treated as a slave, has no capacity to make any contract whatever; and promissory notes given to his master by himself and sureties for him, in the purchase of his freedom, are illegal and void, as to both principal and sureties.

IN error to the district court of Clermont county.

The action below was assumpsit, brought to recover the amount of two promissory notes given to the plaintiff, dated August 22, 1848, each for $100, one payable in two, and the other in three years after date. Poindexter was the principal in the notes, and Thomas C. Gowdy, Jackson White, and Francis Donaldson were sureties. Poindexter was not served with process, and the suit has been prosecuted against and defended by the sureties.

The general issue and two special pleas were filed by the defendants.

*The first special plea alleges that the plaintiff claimed Poin- [623 dexter as his slave, and promised the defendants if they would execute said notes, that he would, by deed, manumit the said Poindexter; that there was no other consideration for the notes. Yet the plaintiff hath not made such deed for that purpose.

The second special plea avers that the sole consideration of the notes was to obtain the freedom of Poindexter from the plaintiff's claim to hold him as a slave, which he pretended it was lawful for him to do; whereas, in fact, at divers times before the execution of the notes, the plaintiff had permitted Poindexter to come from the State of Kentucky into the State of Ohio, and pursuant to the permission thus given, the said Poindexter did, several times, come into the State of Ohio, and each time did remain within the state for a long space of time, to wit, for the time of one day, by which act of the plaintiff, and the coming into this state by Poindexter, the lat

Anderson v. Poindexter et al.

ter was, in fact, set free by the laws of this state, and before the delivery of the notes to plaintiff was a free man; wherefore said notes are without consideration and not binding on defendants.

The plaintiff replied to these pleas, taking issue thereon, and concluding to the country.

At the May term, 1855, of the district court, the parties submitted the cause to the court, and, after hearing the evidence, that tribunal gave judgment for the defendants.

A bill of exceptions accompanies the record in which all of the evidence, given on the trial, is contained. From this it is shown that plaintiff, at and before the date of the notes, lived in Campbell county, Kentucky, about one mile from the Ohio river, and opposite New Richmond, Clermont county; that Poindexter had lived with him as a slave seven or eight years, was about twenty-six years of 624] age, *and worth one thousand dollars. Poindexter procured the execution of four notes of $100 each, payable to his master, two of which are the subjects of this action, and presented them to plaintiff at his house in Kentucky, but without the presence of the sureties, and asked him if the security was sufficient. The latter said it was. Poindexter then asked him if he could go free on those notes. Plaintiff replied that he would let him go free on the security of the notes, and as soon as they were paid he would give him free papers. Plaintiff accepted the notes and gave up any further control over Poindexter, and permitted him to go free, after which he worked sometimes in Ohio, and sometimes for plaintiff, as a hired man, until after the notes became due, when plaintiff called on Gowdy, one of the defendants, living in Clermont county, who said the debt was a just one, and requested plaintiff not to sue, as he would pay his proportion without suit, and wrote to Poindexter to forward what money he could, immediately, or the sureties would have to pay it. Neither Poindexter nor the defendants received from the plaintiff any other consideration for the notes than the freedom from a state of supposed slavery, conferred on the former in the manner and to the extent before stated.

Another witness, called by the defendants, testified that the plaintiff had told him that before the making of the notes he had permitted Poindexter to go across the river into the State of Ohio, on errands, and once he sent him over to New Richmond for a doctor, while he owned him, but that Henry always returned to him, in Kentucky, voluntarily.

Anderson v. Poindexter et al.

The two notes and the foregoing evidence constituted all the proof given in the case.

It is claimed by the plaintiff that the finding of the district court was contrary to the law of the case, and for that reason he seeks to reverse its judgment.

*John W. Lowe (with whom was P. J. Donham), for the [625 plaintiff, made the following points:

1. The law of Kentucky governs the consideration of these notes. Lodge v. Phelps, 1 Johns. Ch. 140; Story's Conflict of Laws, sec. 76.

2. The owner of a slave who resides in Kentucky, and permits his slave to cross over into the State of Ohio for a mere temporary purpose, and such slave returns voluntarily to him in Kentucky, does not thereby forfeit his right of property in such slave. Ferry v. Street, 14 B. Mon. 358; Maria v. Kirby, 12 Ib. 542; Collins v. America, 9 Ib. 565; Tom Davis v. Fingle, 8 Ib. 546, 547; Graham v. Strader, 5 Ib. 149; 10 How. U. S. 92; Buck's Rep's v. White, 3 Mon. 104; Rankin v. Lydia, 2 Marsh. 476; U. S. v. Jarome, 11 Pet. 73; Lewis v. Fullerton, 1 Randolph (Va.), 15.

3. The State of Kentucky has the exclusive right of determining the condition or status of every person domiciled in her territory, subject to the restrictions of the constitution of the United States.

4. By the laws of Kentucky, the plaintiff had a valuable interest in the services of Henry Poindexter, and the consideration of said notes being the release of such claim, such notes are not without consideration.

5. If the question of the status of Henry, on his return to his master, voluntarily, in Kentucky, had never been decided by the courts of Kentucky or Ohio, yet if he was held by his master on his original claim, who released all his claim to him in consideration of these notes, the notes would not be without consideration. or void.

The compromise of a doubtful claim is a sufficient consideration to support a promissory note without reference to the manner in which the right would turn. 3 Hill, 504; *Chitty on Con- [626 tracts, 43, 44; 1 Bibb, 163; 2 Bibb, 448; 2 Penn. 531.

John Jolliffe, for the defendants.