
    Alexander v. Deneale.
    Thursday, Sept, 19th, 1811.
    i. Sale of Personalty — Retention of Possession by Vendor — Fraud Per Se, — It seems now settled, that an absolute deed of slaves, or other personal property, the possession of which remains with the vendor, is fraudulent, per se. as to creditors.
    See Edwards v. Harben, 2 T. R. 587; Hamilton v. Russel, 1 Granch, 315; Roberts on Fraudulent Conveyances, 552-586, and 2 H. & M. 302, 303. Judge Roane’s opinion.
    William Henry Washington and Philip Alexander instituted an action of trespass in the Haymarket district court against William Deneale, as sheriff of Fairfax county, 'for taking certain slaves claimed by them as their property. The declaration was in the usual form ; plea not guilty, and issue. The suit afterwards abated, as to the plaintiff Washington, by his death.
    A bill of exceptions disclosed the following case : George Minor obtained a judgment against John Euke, and informed him of it, in pursuance of his previous request. Euke then executed to Washington and Alexander a deed, which was duly recorded, conveying absolutely to them all his personal property, (comprehending the negroes in question,) in consideration of the sum of three thousand dollars, according to the instrument itself; but, according to other evidence, in order to secure them, they being his creditors to a considerable amount. Part of the property was delivered at the time, but immediately restored to the vendor, and remained in his possession. Minor after-wards sued out execution on his *judgment, and Deneale, as sheriff, seized and sold the negroes as the property of Euke, though the sale was forbidden, and the recorded deed produced by Washington. The defendant moved the court to instruct the jury that the deed was fraudulent. The court stated that, “as the law now stands, an absolute conveyance of personal estate, where the party making it retains possession, is void, as to creditors, even without other evidence of fraud; though this appears to he carrying the matter too far, and, perhaps, agreeably to ancient determinations, it would have been better to have considered it as evidence of fraud, connected with other circumstances.” To this opinion the plaintiff excepted. Ver-diet and judgment for the defendant, and appeal taken by the plaintiff.
    Peyton Randolph, for the appellant.
    Edmund I. Eee and Botts, for the appellee.
    
      
      Sale of Personalty — Retention of Possession by Vendor — Fraud Per Se. — The proposition laid down in the principal case and in many other early Virginia cases-that an absolute sale of personalty, the possession of which remains with the vendor, is fraudulent per se — is repudiated in Davis v. Turner, 4 Gratt. 422. See foot-note to Davis v. Turner, 4 Gratt. 422, where the subject is discussed, the cases in point collected, and where it is shown that Davis v. Turner is considered binding authority by decision subsequent thereto.
      The principal case was cited on the point in Hard-away v. Manson, 2 Munf. 233; Hill v. Harvey, 2 Munf. 525; Land v. Jeffries, 5 Rand. 252, 258; Land v. Jeffries, 5 Rand. 606, 608; Glasscock v. Batton, 6 Rand. 83; Claytor v. Anthony, 6 Rand. 304; Davis v. Turner, 4 Gratt. 447, 456, 459; Bindley v. Martin, 28 W. Va. 792; Howard v. Prince, 12 Fed. Cas. 651.
    
   Saturday, September 28th.

JUDGE} ROANE

pronounced the opinion of this court.

“The court, being of opinion that the instruction of the judge of the district court conforms, in substance, to the settled rule that an absolute deed of slaves, or other personal property, the possession of which remains with the vendor, is fraudulent, per se, as to creditors, approves of that instruction, and affirms the judgment.”  