dissented, and delivered the following dissenting opinion:
I dissent from the opinion pronounced by my brother Mason, in this: I am of opinion the parol agreement of 1817 is sufficiently proven, and that it was executed far enough to entitle Samuel Worthington to invoke a decree for its specific performance, by the execution of a deed from Walter Worthington on the payment of the consideration stipulated.
There is nothing in the record to show Walter was indebted at the time of the inception, nor at the time of the partial execution of the contract, by putting Samuel in possession of the land; and I cannot therefore understand how creditors — . becoming such years after the date of the contract — can claim to have it set aside without proof of actual fraud.
The'circumstance that Samuel derived from the product of the land the means to make the payment for it, ought not to weigh'against his pretensions when unaccompanied by circumstances showing an intention to defraud those who should thereafter become the creditors of Walter. In my judgment, the evidence is wholly inadequate to show any such fraudulent intention. It is no unusual occurrence for persons to purchase land' on credit, and to pay for it out of its yield; a yield owing, in some cases, to an increase in the value of property, but more frequently ascribable to the judicious management of it. Transactions of this kind are very common in large cities and their neighborhoods. Indeed, it is matter of notoriety, that very large fortunes have been thus acquired, and, yet, it never has been supposed by any one that such transactions are colored with fraud: so far from- it, they are regarded as evidence either of the good' fortune, or of the diligence and sound judgment- of the purchaser, or of both. The only questions, as it occurs to me, are: — 1st. Was there a contract for the sale and purchase of the farm? 2nd. If so,, was it sufficiently executed to take it out of the statute of frauds? And 3rd. Is there a deficiency of proof to establish fraud on the part of either Samuel or Walter Worthington-, or both, at the time the contract was made and partly executed.? Looking.to-the *201record, and avoiding conjectures and surmises, I think all these questions should be answered in the affirmative, and am, therefore, of opinion the chancellor’s decree, in so far as it relates to the farm, ought to be reversed.
Mason, J.,delivered the opinion of the court upon the appeal of Bullitt and others.
This is a cross-appeal, and a branch of the case of Worthington vs. Bullitt and others, already determined, both cases having been considered by the chancellor in one opinion, and embraced in the same record. This branch of the case involves merely the validity of the bill of sale from Walter Worthington to his son- Samuel, dated September the 8th, 1826, of certain negro slaves for the consideration of f>4000. This conveyance is assailed upon the ground that it was made to hinder and defraud the creditors of Walter Worthington, the grantor, or in contemplation of insolvency. This whole case must depend upon the evidence, which we have examined attentively. . We can discover no proof in the record to support the allegations of the bill, or to contradict the defendants’ denial of the fraud imputed to them. On the contrary we think the whole evidence, taken together, tends affirmatively to show that the transaction betwmen these parlies was bona fide and honest.
We think the chancellor was right in sustaining this conveyance, and we therefore also affirm his decree upon- this branch of the case.
.Decree affirmed, with costs in this court.