
    William H. Coudery v. John M. Zealy.
    A voluntary conveyance of the whole of the donor’s visible property is void as to existing creditors, although the only existing debt proved is not of large amount, and the donor is intitled to an interest of much greater extent in an undivided estate, which remains in the hands of executors, and is in litigation in the Court of Equity.
    Where, after a gilt of his property, the donor retains possession, the gift is fraudulent and void as to subsequent creditors, without explicit notice, unless fully and clearly explained.
    W.here there is a trustee to the gift, the circumstance that the donees are the nieces of the donor, and live with him, is not, it seems, a sufficient explanation of the donor’s retaining possession of the property, and exercising the exclusive control overit.
    The registry of a deed of gift of personal properly in the office of the Secretary of State, is not notice to creditors, where the debtor retains p ossession — semble»
    
      Tried before Mr. Justice Gantt, at Coosawhatchie, Fall Term, 1830.
    Trover for two slaves. Plaintiff claimed by assignment from William Oswald, made under the provisions of the prison bounds act, and executed 2d March, 1829. Defendant relied on a voluntary conveyance from Oswald, in trust for his nieces Martha and Mary Scanlan, executed 12th January, 1825, and recorded in the Secretary of State’s office, at Charleston, 31st January, 1825.
    The plaintiff’s judgment against Oswald was signed 14th of April, 1828, for principal and interest of two notes, one dated 1st of January, 1825, for one hundred and forty-four dollars, the other dated 2d of August, 1825, for six hundred dollars. Seven other judgments against Oswald, remaining unsatisfied, were introduced in evidence, amounting to about five hundred dollars, all of which had been signed subsequently to the defendant’s deed of gift. Oswald’s schedule, filed 16th of February, 1829, contained a list of wearing apparel of no value, to which his interest in the negroes now in question, and his interest in the estate of George Steevens, deceased, were subsequently added. Plaintiff’s attorney admitted that Steevens’ personal estate amounted to thirty-three thousand dollars, and that this amount was not likely to be very greatly diminished by his debts; that it was questionable also, whether the debts were not chargeable on another fund; and that it was not disputed by the executors, that Oswald was intitled to one seventeenth part of the residue, it being questionable, whether he was not intitled to an eleventh. .On the other hand, it was admitted by the defendant’s attorney, that Oswald had joined with others in a suit in Equity, against the executors, for an account and settlement of Steevens’ estate ; that the bill was filed in 1825, and was still pending ; and that no decree or decretal order, had as yet been made in the cause.
    Oswald, the donor, was examined by defendant, by consent; and the following facts were testified to by him and other witnesses. In 1824, Oswald who had just come of age, received nineteen hundred dollars, for his portion of Steevens’ real estate; and the greater part of the money having been thriftlessly expended, he by the advice of a gentleman who had been recently his guardian, employed what was left of it in the purchase of the slaves now in question, with the view of making them over to his nieces ; and immediately afterwards he executed the deed of gift to the defendant. His nieces and their mother, who was a widow, lived with the donor, and he retained possession of the slaves, and exercised the sole control over them. One of them generally remained about the house; the other was hired out, but Oswald, as he himself testified, always received the wages, though he added, that he always paid them over to his sister. He likewise admitted, that about twelve months before this action was brought, his sister and the nieces had removed to a separate residence; but that the slaves remained in his possession, and under his control.
    His Honor charged the Jury, that Oswald’s possession of the negroes was consistent with his deed of gift, and that there was no evidence to impeach the validity of the deed, or to impugn the fairness of the transaction; and he directed them to find for the defendant, which they did accordingly.
    From this verdict, the plaintiff appealed, and now moved to set it aside; and for a new trial, on the following grounds :
    1. That a voluntary conveyance of all the grantor’s visible property, at a time when his only other estate of any description, consisted of a claim upon the estate of a deceased person, which claim was litigated in the Court of Equity, and more than four years after the date of such conveyance, had not been adjudicated, is void as to existing creditors ; and being void as to them, is void as to subsequent creditors also.
    2. That a voluntary conveyance, the plain and obvious effect of which, is to delay a bona fide creditor in the recovery of his debt, is fraudulent, and void as to creditors.
    
      3. That his Honor misdirected the jury, in charging that William Oswald’s possession of the property conveyed by his deed, was consistent with the avowed objects of that deed.
    4. That his Honor erred in charging the jury, that under the circumstances of this case, there was no ground in law to presume fraud in the deed, under which the defendant claims.
    5. That the verdict is contrary to law and evidence.
    Bailey, for the motion.
    De Treville, contra.
    
   O’Neall J.

delivered the opinion of the Court.

The rule as to the validity of a voluntary conveyance against existing debts, has been often and very distinctly laid down. “ Slight indebtedness, such as for the current expenses of a family, or debts inconsiderable in comparison to the value of the donor’s estate,” will not generally avoid the conveyance. But subject to this qualification it may be laid down as a settled rule of law, that one who is in debt, cannot make a voluntary conveyance, which will prevail against existing debts. The debt in this case, was not, it is true, a large one, but the only visible property of which the donor was possessed, was that which was conveyed. He had, it is true, an interest in a large and valuable estate, but depending upon a litigation, then commenced, and not yet determined. He could not voluntarily convey away from the reach of his creditor, that property which constituted a certain fund for the payment of his debt, and throw him upon one, which might, or might not, after considerable delay and expense, become available. This interest was altogether a chose in action, and could not be regarded as presenting a certain, and adequate fund, for the payment of his creditors’ debt.

The possession of the donor after the execution of the deed, was an evidence that it was fraudulent, both against existing and subsequent debts. In the case of subsequent creditors without explicit notice, I should think, the possession was conclusive evidence of fraud. For they credit him on the faith of the property in his possession, and as to them, he ought to be regarded as owner. In all events, and in all cases, it is however evidence of fraud, until fully and clearly explained.

The principles involved in the case were fully considered, and decided in the cases of Smith v. Henry, and M‘Elwee v. Sutton, at our last session in Columbia: and after having generally explained the law applicable to this case, it is only necessary to refer to them as authorities against the verdict. The motion for a new trial is granted. 
      
      
         Vide ante, pp. 118, 128.
     