
    *Crouch & als. v. Dabney.
    January Term, 1846,
    Richmond.
    i. Deed of Trust on Slaves — Removal of Slaves from County Where Deed Recorded — Presumption.—A deed of trust, conveying- slaves, is duly recorded in the county in which the slaves are at the time. After-wards, a third person takes one of the slaves to another county, and sells him; and he remains with the purchaser for more than twelve months, without the deed being recorded in the county where he is. In an action by the trustee in the deed against the purchaser, to recover the slave, it is not to be presumed that the slave was removed with the assent of the trastee, hut that fact must he proved hy the purchaser.
    2. Same — Same—Same—Effect.—In such a case, the slave being removed without the assent of the trustee, the deed is not void as to purchasers, though not recorded within twelve months, in the county to which.the slave is removed.
    
    This was an actio.n of detinue, brought in the Superior Court for the County of Henrico, by Benjamin F. Dabney against Crouches & Snead, to,recover a slave. The plaintiff claimed the slave under a deed of trust executed by William F. Tompkins deceased, late of the county of King William, in 1826, to Benjamin F. Dabney and John C. Taliáferro, now deceased, in *trust, first, for the payment of his debts, and then for his wife for life, and at her death the property thereby conveyed remaining after the payment of debts, to be equally divided among his children. This deed was duly recorded in the county of King William, where the slaves and other property thereby conveyed then remained.
    The ground of defence was, that before the execution of the deed of trust, William F. Tompkins gaye the slave to his son John G., who was at the time of the gift a minor living in his father’s family, by a parol gift; that John G. had sent the slave to the City of Richmond, and sold him to the defendants, who purchased him at a full price, without notice of the deed of trust, which was not recorded in the county of Henrico or City of Richmond, within twelve months after he came to the county.
    On the trial of the cause, the defendants objected to the introduction of the deed as evidence, because it had not been recorded in the county of Henrico; but the Court overruled the objection, and the defendants excepted. After all the testimony had been introduced, the defendants moved the Court to instruct the jury: That if from the evidence, the jury shall be satisfied that the slave in controversy was sent to Richmond in the month of March 1836, by John G. Tompkins, as his property;, and without being removed afterwards from the county of Henrico as his place of abode, was, in the year 1836, sold by the said John G. Tompkins to the defendants, in the county of Henrico; and has since continued in the said countj'; and that the deed of trust, under which the plaintiff claims, was not recorded in the county of Henrico, within twelve months after the removal of the said slave to the said county of Henrico; and that the plaintiff then resided, and still resides in the county of King William; then the plaintiff is not entitled to recover in this cause, unless the *jury shall believe that the defendants purchased the said slave with actual knowledge of the said deed, although it has not been recorded. Which instruction the Court refused to give.
    The defendants then moved the Court to instruct the jury: That if the jury believed from the evidence, the facts stated in the foregoing instruction to be true, such facts constituted proof in law that the slave was removed by the permission of the plaintiff, from the count}' of King William; unless there was express proof to the contrary; and in such a state of the case, the plaintiff is not entitled to recover, unless the jury shall believe that the defendants purchased the said slave with the actual knowledge of the said deed of trust, although it was not recorded. Which instruction the Court refused to give.
    The defendants then moved the Court to instruct the jury: That if the jury believed the facts stated in the first instruction asked for to be true, the jury may from these facts, infer that the said slave was removed from the county of King William, by the permission of the plaintiff; and if by his permission, then he is not entitled to recover in this cause. The Court refused to give this instruction in the form proposed; but instructed the jury: That if they were of opinion from all the evidence in the cause, there was a permission, or acquiescence on the part of the plaintiff in the removal of said slave, then the deed, not being recorded in the county of Henrico within twelve months from the removal of said slave, would not give the plaintiff such title as he can recover on in this action. To these several opinions of the Court refusing the instructions asked for, the defendants excepted. The jury found a verdict for the plaintiff, upon which the Court gave judgment; and the defendants applied for and obtained an appeal to this Court.
    *Lyons, for the appellants,
    insisted, 1. That the deed should have been excluded, because not recorded in the county of Henrico. 1 Rev. Code, ch. 99, % 11, 12; Claiborn v. Hill, 1 Wash. 177; Dane v. Mason, S Leigh S20; Cocke v. Haxall’s ex’x, 2 Rob. R. 470.
    2. That the Court should have given the first instruction asked. He insisted that the fact of the removal of the property embraced in a trust deed, and its continuance in another county for twelve months being shewn, the permission to remove it is to be presumed, unless there be evidence to shew that the removal was forcible or fraudulent: of which there was none in this case.
    3. That the refusal to give the third instruction was also error. That the facts upon which the instruction was based, most clearly, are facts from which a permission by the trustee to remove the slave, may be inferred. The instruction given by the Court did not cure the error, because the instruction asked having reference to all the evidence in the cause, the refusal to say that the permission might be inferred from that evidence, left the jury without any facts to which to apply the latter declaration.
    Daniel, Meredith and Young, for the appellee,
    insisted, 1. That the Court was right in refusing to exclude the deed. It could not be known until at least the plaintiff’s testimonj' was heard, whether the failure to record the deed in the county of Henrico was or was not material. It might appear that the slave never had been removed, or had not been removed twelve months, or (as was the fact) had not been removed by the permission of the plaintiff. But the recording of the deed in King William, where the parties to it resided, and where the property was when it was executed, was proof of its execution; and entitled the plaintiff to read it.
    2. The instruction given by the Court was as favourable to the defendants as they could legally ask. It assumed '*that their vendor was such a person as the statute contemplates; and that he had possession of the slave in the count}' of King William: in both respects an error. And it then authorized them to infer from all the evidence, a permission by the trustee to the vendor to remove the slave. The instructions asked by the defendants below, shew that they admitted there must have been such a permission by the trustee. And, surely, the Court did not err in saying the permission was to be inferred, if at all, from the whole, and not a part of the evidence.
    
      
      The act 1 Bev. Code, ch. 99, § 11, says, “Every deed respecting tie title of personal chattels, hereafter executed, which by law ought to he recorded, shall he recorded in the Court of the County or Corporation, in which such property shall remain: and if afterwards, the person claiming title under the deed, shall permit any other person in whose possession such property may he, to remove with the same, or any part thereof, out of the county or corporation in which such deed shall he recorded, and shall not, within twelve months after such removal, cause the deed aforesaid to he certified to the Court of County or Corporation into which such other person shall so have removed, and to he delivered to the clerk, to he there recorded, such deed, for so long as it shall not he recorded in such last mentioned County or Corporation Court, and, for so much of the property aforesaid as shall have been so removed, shall he void in law, as to all purchasers thereof for valuable consideration, without notice, and, as to all .creditors.”
    
   By the Court.

Affirm the judgment.  