
    *Shields, Adm’r &c. of Waller, and Others v. Anderson, Adm’r of Byrd &c.
    May, 1832.
    (Absent Brooke, J.)
    SMe— Retention of Possession by Vendor — EF Sect. An absolute bill of sale of slaves being- executed for valuable consideration, the vendor notwithstanding- the deed retains uninterrupted possession, and dies in possession, of the slaves, and the vendee takes possession after his death, and then a creditor of the vendor takes administration of his estate: on a bill in equity by the adm’r oí the vendor against the vendee, to subject the slaves to the debt duelo theadm'r, Held, the bill of sale was fraudulent and void as against the adra'r. being also a creditor, of the vendor; and that the rights of vendor’s creditors attached on the subject immediately on vendor's death, and therefore before vendee's possession commenced.
    Same — Same—Effect Where Possession Changes before Creditor’s Rights Attach- QtsfEre.--Whet.her, in general, if there be an absolute bill of sale of chattels, and possession do not accompany and follow the deed at the time, but the vendee after-wards gets the possession, before a creditor recovers judgment and sues out execution, or the creditor's rights otherwise attach on the .subject, the bill of saléis, in such case, fraudulent and void, or good, as against such creditor?
    Same- In Reality Florlgage — Effect as to Creditors.— A bill of sale of chattels, absolute in form, is executed by debtor to creditor, but the transaction is really a mortgage to secure debt: such absolute bill of sale tends to deceive and injure others, and is fraudulent and void -per Tijokigr. P.
    Equity Practice- -Fraud — From What Time Statute of Limitations Rums.— To a bill in equity by a creditor, for relief against a fraudulent conveyance of his debtor, the act of limitations if well pleaded in bar would (it seems) run only from the time when the fraud was discovered.
    Slaves — Interest on Hires and Profits — From What Time Allowed. Interest upon estimated hires and profits of slaves, should be allowed only from the date of the decree, and it is error to allow interest from the date of the report ascertaining the amount of such hires and profits.
    Richard Byrd late of York, by bill of sale dated the 22d March 1805, expressed to be in consideration of 377 dollars paid him by Francis Bright, conveyed to Bright two slaves, named Sam and Tom. The fact was, however, that Byrd was indebted to Bright in the sum of 377 dollars, and that the bill of sale, though absolute on its face, was intended and delivered as a security for the debt; and, accordingly, Byrd continued in uninterrupted possession of the slaves. The bill of sale was never recorded.
    *In September 1805, John W. Waller, the brother of Byrd’s wife, paid Bright the debt of 377 dollars due him by Byrd, with interest, and took from Bright an assignment of Byrd’s bill of sale; and, afterwards, Waller paid Byrd the difference between the sum he had paid Bright and the full value of the slaves, and thereupon Byrd executed an absolute bill of sale of the slaves to Waller. The avowed object of Waller in thus purchasing these slaves, was, that he might give them to his sister Mrs. Byrd. He suffered them, therefore, to remain in Byrd’s possession; and, in fact, the possession never was changed from the time of the bill of sale executed to Bright, but remained constantly in Byrd, until his death in 1807. After his death, and before administration was taken of Byrd’s estate, the possession of the slaves was transferred, to Waller, whether as his own property, or as the hirer of them from his sister, was, upon the proofs in this cause, somewhat doubtful. Waller held the possession till his own death which happened early in 1814.
    Robert Anderson, a creditor of Byrd, took administration of his estate; and, in 1811, he brought an action of detinue against Waller to recover the two slaves, claiming them as part of the estate of his testator; in which action, there was a verdict and judgment for Waller, who afterwards died, with the slaves in his possession.
    After Waller’s death, Mrs. Byrd brought an action of detinue for the slaves, against Gawin Corbin the administrator of Waller, claiming them as having been given and delivered by Waller to her, and having been hired by her to him during his lifetime; and she recovered a verdict and judgment for them.
    In 1818, Anderson exhibited a bill in the superiour court of chancery of Williams-burg, against Mrs. Byrd, and Corbin, the administrator of Waller, shewing, that he was a creditor of Byrd, and had therefore taken administration of his estate, the whole of which sufficed to satisfy only a small part of the debt due to him; and alleging, that Byrd’s bill *of sale of slaves Sam and Tom to Waller, of September 180S, was covinous in fact, Waller having (as the bill charged) redeemed the slaves from Bright’s mortgage, not with money of his own, but with money furnished him by Byrd for the purpose: that, if the transaction was not thus covinous in fact, yet that Byrd’s bill of sale to "Bright was fraudulent in law and void as against Byrd’s creditors, whether considered as a mortgage', or as an absolute sale; if as a mortgage, because it was never recorded; if as an absolute sale, because possession did not accompany and follow the deed, but remained uninterruptedly with the vendor: that Byrd’s bill of sale to Waller of September 1805, was also fraudulent in law and void as against Byrd’s creditors, because, notwithstanding that deed, Byrd’s possession continued without interruption: and that, even supposing Waller had giyen the slaves to his sister Mr. Byrd (which he denied) she had taken this gift with full notice of every fact which rendered Waller’s title to them nugatory as against Byrd’s creditors. Therefore, the bill prayed, that the slaves should be held subject to the debt Byrd owed the plaintiff, and that Waller’s administrator should render an account of the profits-while Waller held them, and Mrs. Byrd an account of the profits since they had been in her possession.
    Mrs. Byrd, in her answer, denied all the circumstances of actual fraud imputed by .the bill; but she did not deny the fact of her husband having continued in uninterrupted possession of the slaves, until his death, notwithstanding the bills of sale to Bright and to Waller. She said, that Waller had bought the slaves with a view to give them to her, and had suffered them to remain in the possession of her husband, for her use and maintenance; that after Byrd’s death, Waller took possession of them, and gave them to her according to his original design, and that she hired them to him; and upon these grounds, she had brought a suit for them against his administrator after his death, and recovered them. And.she pleaded the statute of limitations in bar of the claim set up in the bill,
    *Corbin, administrator of Waller, answered, that he was ignorant as to all the facts alleged in the bill, except that the slaves, Sam and Tom, were in his intestate’s possession at his death, and that Mrs. Byrd had since recovered them in an action of detinue. He did not rely on the statute of limitations as a bar to the plaintiff’s claim.
    The proofs in the cause ascertained, very clearly, that Byrd remained in uninterrupted possession of the slaves till his death in 1807, notwithstanding the two bills of sale to Bright and to Waller, and that Waller took possession of them after Bj’rd’s death; but there was no evidence of any actual covin in the transactions. The other evidence related to the profits of the property.
    The court of chancery declared, that both the bills of sale were fraudulent in law and void as against Anderson, a creditor of the vendor Byrd, because he had been permitted to retain uninterrupted possession of the property; that Anderson, as a creditor of Byrd, had a right to impugn these bills of sale for the fraud; and that the statute of limitations was not a bar to the claim asserted in the bill, because the frauds complained of appeared not to have come to the plaintiff’s knowledge, till within five years next before his bill was exhibited. And the court ordered accounts to be taken, of the debt due by Byrd to Anderson; of Anderson’s administration of Byrd’s estate; of the profits of the slaves since they had been in Mrs. Byrd’s possession; of the profits while they remained in Waller’s possession, and in that of his administrator Corbin; and of Corbin’s administration of Waller’s estate.
    The accounts reported by the commissioner, ascertained, that there was a balance of debt contracted by Byrd in his lifetime to Anderson, of 1542 dollars, with, interest from the 18th March 1807 — that the profits of the slaves, while they were in Waller’s possession amounted 909 dollars— that the profits thereof, while in possession of Corbin administrator of Waller amounted to 299 dollars — and that the profits thereof since they had been in Mrs. Byrd’s possession, ^amounted to 541 dollars. The account of Anderson’s administration of Byrd’s estate, shewed that Byrd was insolvent, and the small amount of assets that came to Anderson’s hands was applied to the credit of the debt due to Anderson. No account of Corbin’s administration of Waller’s estate was reported; for,
    About the time these accounts were taken, Corbin died; and the suit was revived against Richard Corbin his administrator, and John Shields sheriff of York, to whom administration de bonis non of Waller’s estate was committed.
    Upon the coming in of the commissioner’s report, the court of chancery, with the consent of the plaintiff and the defendant Mrs. Byrd, decreed that she should deliver the slaves, Sam and Tom, to the plaintiff, and should pay him the amount of the profits reported to have accrued while they were in her hands; and that Corbin’s administrator shohld pay the plaintiff, the sum of 299 dollars, the amount of the profits of the slaves Sam and Tom, while he held them as administrator of Waller, with interest from the 18th September 1821, the date of the commissioner’s report — 'to be applied by the plaintiff in due course of administration of Byrd’s estate.
    There being still a large balance due to the plaintiff, he obtained leave to amend his bill, and make new parties; and, by an amended bill, he shewed, that all Waller’s personal estate except certain slaves which had been delivered by his administrators to his distributees, had been exhausted in the payment of specialty debts, which bound his lands in the hands of his heirs; and, therefore, he made Waller’s children, who were his heirs and distributees, and Shields, his administrator de bonis non, parties defendants ; and prayed that the slaves of Waller’s estate, which had been distributed, might be held subject to his claim against Waller, for the profits of the two slaves Sam and Tom, while in his possession ; and that the court, if necessary, should marshal the assets of Waller’s estate, and substitute and subject Waller’s lands, to the extent to which his personal 'x'assets had been applied to the payment of specialty debts, to the satisfaction of this claim of the plaintiff.
    The administrator de bonis non, and the heirs and distributees of Waller, having put in their answers, wherein they contested the justice of the former report of the commissioners as to the amount of profits received by Waller; the court of chancery opened that account, and referred it to a commissioner to be stated, as between the present parties to the controversy ; and ordered an account to be taken of Cor-bin’s administration of Waller’s estate.
    The account of Corbin’s administration of Waller’s estate shewed a very trivial balance in his hands. New evidence was exhibited as to the profits of the two slaves Sam and Tom, while in Waller's possession ; and an account thereof, founded on this new evidence, reduced the amounts of profits received by Waller, from 909 dollars, appearing by the former report, to 444 dollars; which sum (though these were estimated profits, not actual hires received) the commissioner charged to Waller’s estate, with interest from thel8lh September 1821, the date of the first report.
    Upon this, the court of chancery decreed, that Shields the administrator de bonis non of Waller should pay the plaintiff the sum of 444 dollars with interest from the 18th September 1821,, cut of the assets of his in-tesiate, if so much thereof be had, and in default of any assets in his hands, directed that the slaves which had been distributed, and which were in the hands of Waller’s distributees, should be sold to pay the debt and interest.
    The “defendants” prayed an appeal to this court; the court of chancery allowed the appeal, without requiring any appeal bond, and no appeal bond was given. Anderson also, thinking the estimated amount of profits charged by the last report, and decreed, against Waller’s estate, too low, appealed from the decree.
    The cause was argued here, by Scott for the parties who were defendants below, and by Stanard for Anderson.
    
      
      Fraudulent Conveyances — Retention of Possession by Vendor. - On this question the principal case is cited in Williamson v. Goodwyn, 9 Gratt. 506. and foot-note. See monographic note on '‘Fraudulent and Volun-tarv Conveyances” appended to Cochran v. Paris, 11 Gratt. 318.
      Chancery Pleading — Right of Personal Representative Who Is a Creditor to Bring Suit in Character of Both —Parties.—In Spooner v. Hilbish, 92 Va. 338, 23 S. E. Rep. 751. it is said: “The plaintiff being both a creditor and the personal representative of the debtor, he might have brought the suit in his own right as creditor and made himself in his liduciary character a party defendant, Rodes v. Rodes, 24 Gratt. 256; Booth v. Kinsey, 8 Gratt. 560. He chose to bring the suit in his dual character of creditor and personal representative, as was done in Shields v. Anderson, 3 Leigh 729. In this there was no error, and certainly not under the allegations of the bill. See Spoon v. Smith. 36 S. C. 588, 15 S. E. Rep. 801, and Werts v. Spearman, 22 S. C. 217.”
      Personal Representative— Judgment against — Heirs or Devisees Not Parties — Effect.—On this question, the principal case is cited in foot-note to Robertson v. Wright, 17 Gratt. 534. To the same effect, see Brewis v. Lawson, 76 Va. 40; Laidley v. Kline, 8 W. Va. 230; Anderson v. Piercy, 20 W. Va. 331: Bank v. Good, 21 W. Va. 462.
    
    
      
      Biil of Sale — Retention of Possession by Vendor-Effect Where Possession Changes before Rights of Creditors Attach. — In Sydnor v. Gee, 4 Leigh 535, the last headnote is to the effect that if an absolute sale of chattels, fair in itself, be not accompanied and followed by immediate possession. but possession is taken by the vendee before the rights of any creditor of the vendor attaches, the sale is good against the vendor's creditors. And in the same case. Tucker, P., says: “According to the view I have taken of the case, it is unnecessary to examine the interesting question, which has been so ably argued, as to the effect of the subsequent acquirement of possession by the vendee upon intervening rights of third persons. This question has been touched by one of the judges of this court in Claytor v. Anthony, 6 Rand. 305, and by another in Batton v. Glasscock, 6 Rand. 78, and is mentioned and waived, in the recent case of Shields v. Anderson, 3 Leigh 735, 7.”
    
    
      
      Fraud — At What Tline the Statute of Limitations Commences to Run — in Rowe v. Bentley, 29 Gratt. 760, it is said: “In the cases of fraud the authorities are conflicting, as to whether at law the statute begins to run from the commission of the- fraud, or from its discovery. Angell on Lim. § 183 to § 189; Callis v. Waddy, 2 Munf. 511; Rice v. White, 4 Leigh 474; 1 Rob. Rrac. (Old Ed.) pp. 82, 87, 110.”
    
   ‘CARR, J.

When the amended bill was filed in this case, and Waller’s heirs were thereby made parties, in order to charge the lands in their hands, they were not bound by any previous order in the cause, but were at full liberty to contest every thing, which might bear upon Waller’s liability for the hire of the slaves in question, and the amount of that liability. T'hey were at liberty, then, to shew, if they could, that the bill of sale of Bright, and the purchase from him by Waller, were fair transactions; for, if fair, Waller was not at all liable for heirs. This liberty, however, has not availed them much ; for I agree with the chancellor, that we must take both the bills of sale from Byrd to Waller, and from Byrd to Bright, to have been fraudulent and void as to creditors, though as between the parties and those claiming under them, they were valid; that from Byrd to Bright being taken as a mortgage. I agree too with the chancellor, that the bid of Anderson is not touched by the statute of limitations, both for the reason he assigned, and for the further reason, that the statute was not pleaded on behalf of 'waller the purchaser.

In the argument of the case, the counsel discussed this question: A. purchases slaves of B. the possession not accompanying and following the deed; but A. gets possession under his purchase, before the right of a creditor of B. to come upon the slaves, vests; will such purchase and possession make good the title of A. against the creditor? The question is a grave one; but it does not arise in this case.

Upon the question, whether the chancellor estimated the hires correctly? I cannot find in the record sufficient evidence to satisfy me, that the decree is erroneous. The estimates of hires, when taken, as in this case, after the parties to the transaction are dead, and you can make no deductions for physicians’ bills, and the various other drawbacks which may have existed, are nine times out of ten, I think, fixed by commissioners too high. We must remember too, that the last account was taken expressly to give the heirs (who were then first sought to be charged) an opportunity *'of contesting as well the true amount of the hires, as their liability to them: as to them the question was to be taken up ab integro. It was decided in Mason’s devisees v. Peter’s adm’r, 1 Munf. 437, that a judgment against executors, is no proof against devisees of land, because there is no privity between them: I presume, there is as little between the executor and the heir. Again, we know that depositions cannot be read against a party who has had no notice of the taking them; and still less against those who, at the time they were taken, were not parties to the suit. Now we see, that all the evidence on which the first report was founded, was taken before the heirs were parties; and this appearing upon the face oí the record, need not be presented in the form of an exception to the account. Upon this new evidence, adduced after Waller’s hires were made parties, the chancellor was clearly right in his estimate of the hires. But I should not feel authorized to say he was wrong upon the whole evidence.

I do not think we can touch that part of the interlocutory decree, which directs that Mrs. Byrd shall deliver the slaves Sam and Tom to the plaintiff, instead of directing a sale of them ; 1. because that was a consent decree; and 2. because it is not before us as to that point, there being no appeal by Mrs. Byrd. Nor does it seem to me, that such sale is necessary, in order to a final decree as to the hires: for the amount of the plaintiff’s claim exceeds the sum total of the profits of the slaves and of the value (upon any possible estimate) of the slaves themselves.

The only error I see in the decree, is the allowance of interest*on the estimated hires of the slaves from the date of the first report: interest should be allowed only from the time of the decree.

CABEEE, J., concurred.

TUCKER, P.

In whatever light we consider Byrd’s bill of sa'le to Bright, the result, in this case, must be, that the ^transaction was void as to bona fide creditors of Byrd. If it was a mortgage, it was void, not only because the taking a bill of sale in form, where the real transaction is a mortgage, tends to dfeceive and injure others, and is therefore fraudulent and void, (6 Johns. C. R. 432, 2 Johns. C. R. 191,) but also for the conclusive reason, that it was not recorded. If it was really an absolute sale, then possession not having accompanied the deed, it was void for that reason. That Byrd remained during life in the undisturbed and uninterrupted possession of the slaves notwithstanding the alleged successive sales to Bright and to Waller, the evidence very' clearly establishes.

But it was said that Waller took the possession before the claim of the creditor intervened, and this will protect him against the application of the doctrine of Edwards v. Harben, 2 T. R. 587. And the cases of Bartlett v. Williams, 1 Pickering, 288, and Robinson &c. v. M’Donnell &c., 2 Barn. & Ald. 134, were cited. Whether the presumption of fraud would have been removed even if possession had been obtained at a period during Byrd’s life, subsequent to the sale, but anteriour to an execution against him, seems by no means settled with us. The affirmative is very strongly contested by judge Green in Claytor v. Anthony, 6 Rand. 285, 305, and, in the same case, judge Carr waives the expression of any opinion upon the subject. The point cannot be decided here. The possession was not taken till after Byrd’s death. Now, although the delivery of possession in his lifetime, before execution, should prevent the application of the rule, the same effect would not necessarily follow here. According to the class of cases of which Temple v. Chamberlayne, 2 Rand. 384, is one, the creditor has no rights until he has issued his execution. To construe, therefore, a delivery of possession subsequent to the sale, as operating to give validity to the transaction, — as amounting even to a new transaction, to the surrender of the former right, and to a resale with immediate delivery, would not interfere with vested rights. But not so here. * According to Blow v. Maynard, 2 Leigh, 29, there was a vested right in the creditor at the death of Byrd, to charge these slaves in equity. This vested right cannot be impaired by any act of the party, who, in the ’eye of the law, is a fraudulent donee. In the case of Robinson &c. v. M’Donnell &c., Bailey, J., expressly confines his opinion to cases in which there is no intervening right in a third person. See his opinion in Mair v. Glennie, 4 Mau. & Selw. 248. The ■plaintiff, therefore, as creditor of Byrd, had a right to institute this suit against the holders of the slaves as executors de son tort, and to render them, and their profits liable to the discharge of his debt. In doing this, he cannot be turned over by one to another, upon the allegation, that, though one received the profits, he has paid them over to the other. All are equally without right, and it can be no exemption to one who has received my money, to shew, that he paid it over to another, who claimed it, but who had no righ’t to it. Waller’s estate was, therefore, liable for the hires received by him.

I incline to think, that the estimate of the hires charged to Waller’s estate, which was approved and allowed by the court of chancery, was too low: but as the other judges are of a different opinion, I readily yield my objection to the decree on this score.

There is a formal error also in the de-cretal order directing the slaves Sam and Tom to be delivered up to the complainant, instead of providing for the sale of them. But for the reasons given by judge Carr, I think the error' immaterial as it respects the appellants.

The statute of limitations was relied on in the argument; but it was not pleaded by Shields as a defence for Waller’s estate, even if it had not been explicitly answered by the remarks of the chancellor in the first decree. Shields is, in effect, the only party appellant here: though the appeal was allowed to all, yet as no appeal bond was given, or indeed required, it can only be considered as the ■ appeal of that party (namely’, Shields, the administrator) of whom an appeal bond could not be required.

*It was contended, that Waller should be considered as a creditor for the amount of his advances, and be paid pro rata. ■ I do not think so. Though I am not of opinion, that the transaction was actually covinous, yet the law avoids the sale as fraudulent, and treats the holder as executor de son tort. Now an executor de son tortean never retain. Moreover, the contracts of sale as between Byrd and Bright, or Byrd and Waller, are valid as between them. They are not avoided. Of course Byrd’s estate is not debtor for the advances, because those advances were made as the price of property, which Waller has received, and not as a loan, or as money paid for his use. If Byrd’s estate could be liable, it would only be because of the loss of those slaves. But they were not lost for any defect of title in him; and, therefore, his estate is not responsible. Whether the estate could be made liable on the ground of money paid for its use, provided there were funds to repay it, it is not necessary to decide. The question here relates only to the application of these funds. And considering it in this light, it is obvious, that if the payment of the debt to Anderson, out of the proceeds of this property, which Waller claims, is to be the ground of reclamation, then just in proportion as Waller becomes debtor of the estate, is the fund reduced out of which he expects payment. The proposition of course is inconsistent and not sustainable.

The decree is however deemed to be erroneous in this, that the chancellor has given interest upon the estimated conjectural hires of the slaves from the date of the first •report, instead of hires from the date of the ■decree. According to the case of Baird v. Bland, 5 Munf. 492, interest is not to be allowed upon conjectural and unliquidated hires; for until they are ascertained, the party is in no default for not paying. Now, this reason applies in full force to the allowance of interest from the date of the report ; since until it be confirmed by the decree of the court, the hires are still un■certain, conjectural and unliquidated. This emphatically appears in this case, in which the court has reduced *the estimate to less than one half of that made by the first report. The sum thus ascertained to be due, was, therefore never known uptil the decree; and yet the chancellor has given back interest for many years on this unknown sum. This cannot be right upon the principles of Baird v. Bland. The decree must be reversed for this error, with costs. 
      The principal case is cited in dissenting opinion in Dabney v. Kennedy, 7 Gratt. 327.
     