533]

34]

It is true that the 9th section of the Act pro- | the Treaty of November 17, 1880, and who de
vides that, before any Chinese passengers are parted by sea before the passage of the Act of
landed from a vessel arriving in the United 1882 and remained out of the United States un-
States from a foreign port, the collector of cus- til after the passage of the Act of 1884, was
toms of the district in which the vessel arrives not required to produce any certificate to the
shall proceed to examine such passengers, com- collector, because otherwise his previously vest-
paring with the list and with the passengers the ed right to return would be injuriously affected.
certificates issued under the Act, and that no The same principle applies to the present case,
passenger shall be allowed to land in the United in respect to the right of Jung Ah Lung to re-
States from such vessel in violation of law. turn without having received a certificate con-
But we regard this as only a provision for taining the additional particulars required by
specifying the executive officer who is to per- the amendatory Act of 1884.
form the duties prescribed, and that no infer-
ence can be drawn from that or any other lan-
guage in the Acts that any judicial cognizance
which would otherwise exist is intended to be
interfered with.

In regard to the main question involved, sec-
|tion 4 of the Act of 1882 provides that, for the
purpose of properly identifying Chinese labor-
ers who were in the United States on the 17th
of November, 1880, and in order to furnish
them with the proper evidence of their right to
go from and come to the United States of their
free will and accord, as provided by the Treaty.
the collector shall, on board of the departing
vessel, make a list of the Chinese laborers who
are about to sail, which shall be entered in reg.
istry books to be kept for the purpose, in which
shall be stated the particulars specified by the
section, and all facts necessary for the identifi
cation of each Chinese laborer, which books
shall be safely kept in the custom house; and
that each Chinese laborer shall receive from

It is also urged that the Treaty itself contem-
plates only executive action, for the reason that
the fourth article of the Treaty (22 Stat. at L.
827) provides that, if the legislation adopted
by the United States to carry out the Treaty
shall be "found to work hardship upon the
subjects of China, the Chinese minister at Wash-
ington may bring the matter to the notice of
the Secretary of State of the United States, who
will consider the subject with him." But there
is nothing in this provision which excludes ju-
dicial cognizance, or which confines the remedy
of a subject of China, in a given case of hard-the collector, at the time such list is taken, a
ship, to diplomatic action.

certificate signed by the collector and attested
by his seal of office, which shall contain a state-
ment of the particulars before mentioned, and
facts of identification of himself, correspond-
ing with the said list and registry in all par-
ticulars. The section then says: "The certif

The remaining question is as to the effect of
the nonproduction of the certificate. It is con-
tended for the United States that the actual
production by Jung Ah Lung of the certificate
issued to him was essential to enable him to
land; that the statute does not provide for sec-icate herein provided for shall entitle the Chi-
ondary evidence of its contents; and that it is
of no consequence that he corresponds in all
respects to the description, contained in the
registration books at the custom house, of the
person to whom the certificate was issued, for
the reason that the statute does not say that,
such species of evidence can be resorted to.

|

Jung Ah Lung having departed from the United States on the 24th of October, 1883, and having then received the certificate of identification under the Act of 1882, his case is to be governed by the provisions of that Act, and not by the provisions of the Act of 1884. The certificate he received contained the matters provided for by the Act of 1882; and not those | provided for by the Act of 1884. The registry books of the custom house contained, in regard to him, the particulars specified in the Act of 1882, and not those specified in the Act of 1884. The provisions of the Act of 1884, in the respects in which they differ from those of the Act of 1882, do not apply to him or to his certificate; and, if he had his certificate to present to the collector, he could not be required to present a certificate containing the additional particulars required by the amendments made by the Act of 1884 to the 4th section of the Act of 1882. The provisions of the Act of 1884, so far as they relate to the contents of the certificate to be issued, and of the certificate to be presented to the collector by the returning Chinese laborer arriving by a vessel, are not retrospective. This principle was determined in the case of Chew Heong v. United States, 112 U. S. 536 [ 28: 770] where it was held that a Chinese laborer, who was residing in the United States at the date of

nese laborer to whom the same is issued to return
to and re-enter the United States, upon pro-
ducing and delivering the same to the collector
of customs of the district at which such Chi-
nese laborer shall seek to re-enter." It does not
say that such certificate shall be the only evi-
dence permissible to establish the right of re-
entry. It merely says that it shall be given
for the purpose of properly identifying the la-
borer, and shall be proper evidence of his right
to go from and come to the United States, and
shall entitle him to return to and re-enter the
United States, upon producing and delivering [635]
it to the collector of the district at which he
shall seek to re-enter. It does not say that the
Chinese laborer returning by a vessel shall not
be permitted to enter the United States without
producing the certificate. In this respect there
is a marked difference between section 4 and
section 12 of the same Act, in regard to a Chi-
nese person entering the United States by land.
Section 12 provides that no Chinese person
shall be permitted to enter the United States by
land without producing the certificate men-
tioned in section 4 of the Act. This distinc-
tion of language is very marked, and we think
that, in the absence of like language in section
4, in regard to a Chinese laborer arriving by
a vessel, it was competent for the district court
to receive the evidence which it did, in the
case of a certificate claimed to have been act-
ually lost or stolen, and that its conclusion of
law was justified by the facts which it found.

In regard to a suggestion made that a Chi-
nese laborer who has lost his certificate, or from
whom it has been stolen, may seek to re-enter

The judgment of the Circuit Court is affirmed.
Mr. Justice Harlan dissenting:

the United States, by a vessel, at some port other | after the passage of the Act of 1882, was en-
than that at which he received the certificate, titled to receive, free of charge, upon applica-
and that there would be a practical difficulty tion therefor, at the time such list is taken, a
in identifying him at such port, in the absence certificate, showing the above facts, signed by
of the certificate, it is sufficient to say that this the collector or his deputy, and attested by his
is not such a case; and that there would be no seal of office, in such form as the Secretary of
difficulty in producing in evidence the record the Treasury shall prescribe. It is important
of the custom house of the port of departure, to observe that this statute expressly declares
or a copy of it, at any port of entry, so as to that all this was to be done "for the purpose of
compare the particulars stated in it with the properly identifying Chinese laborers who were
Chinese laborer, and thus establish his identity in the United States on the 17th of November,
or want of identity.
1880, or who shall have come into the same be-
fore the expiration of ninety days next after the
passage of this Act, and in order to furnish
them with the proper evidence of their right to go
from and come to the United States of their free
will and accord, as provided by the Treaty be-
tween the United States and China, dated No-
vember 17, 1880." Further: "The certificate
herein provided for shall entitle the Chinese
laborer, to whom the same is issued, to return
to and re-enter the United States upon produc-
ing and delivering the same to the collector of
customs of the district at which such Chinese
laborer shall seek to re-enter, and upon delivery
of such certificate by such Chinese laborer to
the collector of customs at the time of re-entry
into the United States, said collector shall cause
the same to be filed in the custom-house and
duly canceled."

Mr. Justice Field, Mr. Justice Lamar, and myself are unable to concur in the interpretation placed by the court upon the Act of May 6, 1882, passed by Congress in execution of the supplemental Treaty with China, concluded on the 17th of November, 1880.

By that Treaty the United States were at liberty, notwithstanding the stipulations of the [636] original Treaty, to enact laws regulating, limiting, or suspending the coming of Chinese laborers to, or their residence in, the United States; such limitation or suspension to be reasonable in its character. It further provided that "Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now [November 17, 1880 ] in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored Nation." The first section of the Act of May 6, 1882, suspends the coming of Chinese laborers to the United States from and after the expiration of ninety days next after that date, and until the expiration of ten years next after the passage of the Act; and makes it unlawful for any Chinese laborer to come, or, having so come after the expiration of said ninety days, to remain in this country. The second section makes it an offense, punishable by fine and imprisonment, for any master of a vessel to knowingly bring any Chinese laborer within the United States on such vessel from any foreign port or place.

The third section exempts from the operation of the preceding sections only such Chinese laborers as were in this country on the 17th of November, 1880, or who shall have come into the same before the expiration of ninety days next after May 6, 1882,“ and who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States, at which such vessel shall arrive, the evidence hereinafter ir this Act required of his being one of the laborers in this

section mentioned.

The fourth section provides for registry books, to be kept by the collector of customs, in which shall be entered a list of all Chinese laborers departing on any vessel from his district, in which shall be stated the name, age, occupation, last place of residence, physical marks or peculiarities, and all facts necessary for the identification of such laborers. Each Chinese laborer, so departing from the country,

The fifth section made provision for a similar certificate to a Chinese laborer of the class mentioned in the fourth section, and who desired to depart from this country "by land," to be given by the collector of customs of the district next adjoining the foreign country to which such laborer desires to go.

Thetwelfth section provides that "No Chinese person shall be permitted to enter the United States by land, without producing to the proper officer of customs the certificate in this Act required of Chinese persons seeking to land from à vessel," etc.

In view of these provisions we have been unable to reach any other conclusion than that Congress intended, by the Act of 1882, to prohibit the return to this country of any Chinese laborer who was here on the 17th of November, 1880, and who thereafter left the United States, taking with him the certificate prescribed by that Act, unless he produced such certificate at the time he sought to re-enter. It is not disputed that such was the intention of Congress with respect to Chinese persons seeking to enter the United States "by land." Indeed, dispute upon that point is precluded by the express prohibition, in the twelfth section, upon all Chinese persons being permitted to enter this country by land "without producing to the proper officer of customs the certificate in this Act required." But is there any ground to suppose that Congress intended to prescribe a different or a more stringent rule in relation to Chinese laborers entering by land than that prescribed in relation to Chinese laborers entering at one of the ports of the country? If it be said that the registry books kept at the port of departure furnish ample evidence for the identification of Chinese laborers, seeking to enter the country at that port, we answer: (1) that Congress saw fit to exclude from the country all Chinese laborers of the class to which appellee belongs, unless they produced to the

[637]

[631

639]

collector the certificate issued as evidence of
their right to re-enter the United States; (2)
that the rule prescribed is, by the very terms
of the statute, uniform in its application to all
Chinese laborers and to every port of the
United States. The Chinese laborer, who re-
ceived a certificate under the Act of 1882, was
not bound to re-enter the United States at the
port from which he sailed and at which he re-
ceived that certificate. He could, as we have
seen, re-enter by land or at any port of the

United States, "* upon producing and deliver

ing" his certificate "to the collector of customs
of the district at which such Chinese laborer
shall seek to re-enter." Now, suppose the pe-
titioner, Jung Ah Lung, had sought to re-enter
the United States at the Port of New York.
How could he have been identified at that port
as a Chinese laborer, to whom a certificate had
been issued by the collector of customs at San
Francisco? The collector of customs at New
York would have been without authority to ac-
cept affidavits in support of his claim of a right
to re-enter. It is to be further observed that
the Act of July 5, 1884, 23 Stat. at L. 115,
provides that section four of the Act of 1882
shall be so amended as to read that "said cer-
tificate shall be the only evidence permissible
to establish his right of re-entry." This did
not declare a new rule, but indicates, in lan-
guage clearer than that previously used, the in-
tention of Congress in passing the Act of 1882.
If appellee's certificate was forcibly taken
from him by a band of pirates, while he was ab-
sent, that is his misfortune. That fact ought
not to defeat what was manifestly the intention
of the legislative branch of the Government.
Congress, in the Act of 1882, said, in respect
to a Chinese laborer who was here when the
Treaty of 1880 was made, and who afterwards
left the country, that "the proper evidence'
of his right to go and come from the United
States was the certificate be received from the
collector of customs, at the time of his depart-
ure, and that he should be entitled to re-enter
"upon producing and delivering such certifi.
cate" to the collector of customs of the district
at which he seeks to re-enter; while this court
decides that he may re-enter the United States,
without producing such certificate, and upon
satisfactory evidence that he once had it, but
was unable to produce it. As by the very terms
of the Act, a Chinese laborer, who was here on
November 17, 1880, is not excepted from the
provision absolutely suspending the coming of
all that class to this country for a given num-
ber of years, unless he produces to the collector
the certificate issued to him, we cannot assent
to the judgment of the court.

OCTOBER TERM, 1879.

"

1. An execution sale of a father's roal estate to his son on a judgment by confession upon a note made by the father to the son, held fraudulent and void as against bona fide creditors of the father, it appearing from the facts that consideration for such note was fictitious.

2. Held also, that a subsequent purchase of the same property by the son at a delinquent tax sale amounted, in legal effect, to nothing more than payment of the taxes, and was void as being a part of the scheme to delay creditors. [No. 943, October Term, 1879.] Submitted Jan. 21,1880. Decided March 2,1880.

APPEAL from the Circuit Court of the United

States for the Eastern District of Arkansas.

Affirmed.

In 1860, William W. Woodfolk, a citizen of and residing in the State of Tennessee, executed certain promissory notes to James A. Seddon, a citizen of Virginia, for an existing indebtedness. Seddon brought suit on these notes in Tennessee in 1868, and recovered judgment thereon against William W. Woodfolk on March 11, 1873; and in May, 1876, sued on this judgment, in Arkansas, by attach. ment, and levied on the lands mentioned in the present suit as the property of said William W. Woodfolk, and recovered judgment for $99,628 96 on October 25, 1876, which judgment was declared a lien on the hands attached.

In the mean time, in April, 1866, William W Woodfolk confessed judgment in Arkansas on his note in favor of his son, William Woodfolk, for $39,425.06, dated Jan. 1, 1886, and due one day after date; and the lands in suit were levied on and sold under execution on such judgment in October, 1866, and bought by William Woodfolk, who received the sheriff's deed therefor In June, 1866, these lands were sold by the tax collector for the tax of 1865, and bought by William Woodfolk, who received a tax deed in December, 1867. These deeds were recorded.

In November, 1876, Seddon brought this suit against William Woodfolk and William W. Woodfolk, and James Brown, tenant of the premises, setting up his judgment as a lien on the lands, and that the confession of judgment to William Woodfolk and the sale thereunder, and the tax sale, were fraudulent devices, contrived to hinder, delay and defraud the creditors of William W. Woodfolk, and praying that such judgment and deeds might be declared fraudulent and void, and that the lands might be subjected to bis (Seddon's) judgment.

The defendants Woodfolk denied any intent to defraud creditors of William W. Woodfolk, and asserted that the note from him to William Woodfolk was given in good faith, and that the consideration for it was an actual indebtedness due from the father to the son, being made up of the following items: 1, gift of $5,500 from the grandfather of the son, to the latter, in 1855, which had been placed in the father's care; 2, wages at the rate of $1,500 per year from January 1, 1859, to May 12, 1863, for services rendered by the son to the

*WILLIAM WOODFOLK ET AL., Appts., father in performance of the following agree

v.

JAMES A. SEDDON.

154 US 658

Attempt to delay creditors-execution sale on
confessed judgment-tax sale.
*Reported here out of the regular order of date
of decision,-not elsewhere reported.

ment, executed by them on May 12, 1863: "Whereas, William Woodfolk is ordered south of the federal lines by military authority, and whereas I, William W. Woodfolk, have on my farm in Jackson County about sixty negroes and a large stock of every description, together with some blooded stock in Kentucky, at

Mr. A. H. Garland, for appellee:

In the absence of express contract, the law will not imply a promise to pay for services rendered by a son living with his father. Bump, Fraud. Conv. 229.

Under the well settled rule no evidence was needed on the part of complainant, but upon bill and answer he was entitled to a decree. Marshall v. Green, 24 Ark. 410.

The intention of the parties to defraud creditors must be determined from their acts.

Alexander, and whereas, there is great danger of the negroes running away and all the stock being stolen, I have agreed to give to my son, William Woodfolk, all of my stock of every description in Jackson County, and at Alexander, and all the surplus produce on the farm, if he can get to Jackson County and will take care of my negroes, and keep them on the place and, if possible, from running away or being taken away. And whereas I, W. W. Woodfolk, employed my son, William Woodfolk, at a salary of fifteen hundred dollars a year, to Dick v. Grissom, 1 Freem. Ch. 437; Hend assist me in my business, and he has been in ricks v. Robinson, 2 Johns Ch. 300; Robinson my employ since the first day of January, 1859, v. Stewart, 10 N. Y. 189; Clinton v. Estes, 20 up to the 12th day of May, 1863, it is now Ark. 245; Hempstead v. Johnston, 18 Ark. 141; agreed between us that he is not to have any Galbreath v. Cook, 30 Ark. 421; Blair v. Alston, salary so long as he remains south of the fed- 26 Ark. 41; Humes v. Scruggs, 94 U. S. 28 (24: eral lines." 3. The value of the property to 53); Bump, Fraud. Conv. 560-562, 565, 574, which the son became entitled under said agree-581-587; Rea v. Missouri, 84 U. S. 17 Wall. ment, but which had been disposed of by his father and not accounted for; 4, money loaned and advanced by the son to the father. These various items were claimed to more than equal the amount of the note given by the father to the son.

The court below rendered a decree declaring the judgment confessed by defendant William W. Woodfolk, in favor of defendant William Woodfolk, and the execution sale thereon, and the subsequent tax sale, and subjecting the land covered thereby to the satisfaction of complainant's judgment, fraudulent and void as against the complainant creditor. Thereupon defendants appealed to this court.

543 (21:709).

The relationship of the parties is to be considered.

Bump, Fraud. Conv. 31-59; Freem. Executions, 136.

If the transaction assume the form of a public sale, it is merely apparent, not real. There is in such case no distinction between a conveyance directly from the debtor and one from the sheriff or other public officer. In reality the conveyance is from the debtor through the sheriff or other public officer.

Bump, Fraud. Conv. 254-256; Booth v. Bunce, 33 N. Y. 156; Freem. Executions, 136, 140; Gantt's Dig. § 2954.

While in law such transfers are, as to creditors, mere nullities, yet, as between the parties to them, they are good, and will only be set aside at the suit of creditors.

Payne v. Bruton, 10 Ark. 58-60; Bump, Fraud. Conv. 436, 437, 451-453, 465-469, 482, 534.

Mr. T. D. W. Yonley, for appellants: Complainant insists that this is not a real action, or in any sense an action for the recovery of real estate, but an action to subject it to the payment of a debt; and that the entry upon and possession of the land in controversy by William Woodfolk had nothing to do with As to creditors, the title is still in the grantor starting the statute to running against the com- for the purpose of paying his debts, and the plainant's right to subject the land to the pay-grantee holds the property as trustee for the ment of his debt, and that no Statute of Limit- benefit of the creditors. ations could begin to run against the complainant's right to do this, until he had recovered a judgment at law against William W. Woodfolk. That there are authorities to this effect is not denied, but there are others, of equal weight, which support an opposite view. The Statute of Limitations will run in favor of a trustee in possession of real estate under a constructive or resulting trust, from the time he claims the trust property as his own.

Gebhard v. Sattler, 40 Iowa, 152; Governor v. Woodworth, 63 Ill. 254; Haynes v. Swann, 6 Heisk. 560.

In an action by a purchaser, under a judgment, execution and sheriff's sale, against a defendant in possession, under a deed from the judgment debtor, alleged to be fraudulent as against creditors, the Statute of Limitations begins to run from the date of the possession under the fraudulent deed.

Walker v. Bacon, 32 Mo. 144; Prewett v. Buckingham, 28 Miss. 92; McLure v. Ashby, 7 Rich. Eq. 430; Cox v. Cox, 6 Rich. Eq. 275; Lott v. DeGraffenreid, 10 Rich. Eq. 348; Shannon v. White, 6 Rich. Eq. 102; Bank v. Ballard, 12 Rich. L. 259; Eigleberger v. Kibler, 1 Hill, Ch. 120: Brewer v. Kelly, 24 La. Ann. 246; Powell v. O'Neil, Id. 522.

Miller v. Fraley, 21 Ark. 84; Thomason v. Neeley, 50 Miss. 310; Shaw v. Millsaps, Id. 380 Metropolitan Bank v. Durant, 22 N. J. Eq. 35.

And creditors obtaining judgments against the grantor acquire liens on the lands fraudulently transferred.

Ringgold v. Waggoner, 14 Ark. 73; Bump, Fraud. Conv. 465, 466.

A creditor must establish his demand at law and obtain a lien upon the property before the fraudulent transfer interferes with his rights,or he has any title or right to claim relief in equity.

Clark v. Anthony, 31 Ark. 546; Meux v. Anthony, 11 Ark. 418-421; Sale v. McLean, 29 Ark. 621; Terry v. Tubman, 92 U. S. 161 (23: 539); Terry v. Anderson, 95 U. S. 636 (24:367); Dodge v. Griswold,8 N. H. 425; Bump, Fraud. Conv. 515-517, 521-525; Payne v. Sheldon, 63 Barb. 169.

A court of equity has jurisdiction before or after sale under a judgment to set aside a transfer in fraud of creditors; before sale, to present an unincumbered title for sale, and after sale to remove clouds from title. But the better practice is to remove incumbrances before sale.

Sale v. McLean, 29 Ark. 621; Gallman v. Perrie, 47 Miss. 131; Pulliam v. Taylor, 50 Miss. 551.

END OF VOL. 124.