
    
      John Ford vs. David Aiken.
    
    Where a transaction, good between the parties to it, is void for constructive fraud, as to the subsequent creditors, without notice, of one of them, a purchaser at a sale made by the sheriff, under executions against that one, acquires the rights of any creditor whose fi. fa. gave authority to the sheriff; and notice had by the purchaser is immaterial, if the creditor had not notice when he extended credit.
    In such case, the authority of the sheriff to sell ceases not when a sum equal to the amount of the subsequent creditor’s execution has been raised, if there are older executions of prior creditors, as to whom the transaction was not void; but continues until the subsequent creditor may be paid, after satisfaction of all older executions.
    Presumptions which attend the transfer of the possession of chattels from father-in-law to son-in-law, and principles upon which secret arrangements between them, reserving rights in the father-in-law, are void as to subsequent creditors, without notice of the son-in-law.
    In cases of constructive fraud upon subsequent creditors, operated by the transfer of the possession of chattels from father-in-law to son-in-law, unexplained by anything that showed the property not to be son-in-law’s, the father-in-law cannot require the purchaser, under a fi.fa. against the son-in-law, to prove that the creditor, plaintiff in the fi. fa., knew of the son-in-law’s possession of the chattels, and trusted to them in extending credit. These matters must be presumed, unless notice of the father-in-law’s rights be brought home to the creditor.
    
      Before Wardlaw, J., at Fairfield, Fall Term, 1849.
    This was an. action of trover for seven negroes — Aggy, her three grown daughters, and three children of those daughters. The report of the case, by his Honor, the presiding Judge, is as follows:
    
      “ David Elkin, in October, 1829, was married to a daughter of the plaintiff, John Ford. John Ford was then considered a wealthy man. Elkin was apparently the owner of a retail store, which he was keeping at Winnsboro’ under his own name, singly; but, really, the defendant, David Aiken, was his dormant partner, and he was indebted to Aiken for the capital upon which he was trading. Soon after his marriage, Elkin received from Ford several negroes, of whom were Dinah, William and Mary. The partnership between Elkin and Aiken was formed for three years only, and expired at the end of 1830. In 1831 and 1832, Elkin kept the books of the store, and was engaged in collecting the debts due to it, and winding up its affairs. In 1833, Aiken took the books, and Elkin removed to a plantation in Fairfield, twenty miles distant from Ford’s residence.
    “ In February, 1834, Ford, at a sale of Martin’s estate, bought Aggy and her three daughters, received possession of them, and took them immediately to Elkin’s. As Elkin testified, Ford offered to give these negroes to Elkin; but Elkin then, as he had done before, refused to accept from his father-in-law any property which was not settled on his wife and children. Two writings, called receipts, both on the same page, and both dated 15th February, 1834, were then drawn and signed, in the presence of a female friend of Mrs. Elkin, then on a visit to her from Chester. The first of these, signed by Ford, was in this form — “ Received from D. Elkin, Dinah and William, hired to him in January, 1830the other, signed by Elkin, was in this form — “ Received from John Ford four negroes, Aggy and her three children, Ellen, Amy and Melinda, which I promise to pay $25 hire, or return to him when called for.” Dinah and William were then taken by Ford. Aggy and her three children were left in possession of Elkin, where they remained till the sale in 1846, except a few days in 1843, when the sheriff had them, as hereafter mentioned. The paper containing the receipts was kept by Ford; a copy of it was procured and exhibited by Elkin at the sale in 1843 ; but neither original nor copy appeared to have been seen by any other person in the intermediate time. No hire was ever paid by Elkin to Ford for these negroes. As Elkin testified, he did not, when he signed the receipt, expect ever to be required to pay; but he would, at any time, whilst he was able, have paid the hire, if it had been demanded from him.
    jü “ On 12th May, 1834, David Aiken filed a bill in Equity against David Elkin, for an account of their partnership dealings. Various references, reports and other proceedings were had, and a final decree was pronounced in 1842, upon which a fi-fa. against Elkin was lodged 13th March, 1843, for $3,167.22, with interest from July, 1842. This amount consisted of the balance of capital furnished by Aiken, in 1828, and collections made by Elkin, (none of which were after 1832,) with interest thereon.
    
      “ In 1843, D. Elkin was insolvent. Many executions were in the sheriff’s office against him, founded upon debts contracted by him after 1834. In January, March and April of 1843, A. W. Yongue, then sheriff, made sales of land, negroes and other property of Elkin, the proceeds of which sales satisfied all the executions against him, except the one of D. Aiken from Equity above mentioned, and except a balance of $278 44, which remained due upon ten other executions. At the sale in April, the negroes now in dispute were offered by the sheriff, but they were claimed by the plaintiff, Ford. The sale was forbid; and, upon the refusal of Aiken to indemnify the sheriff, they were permitted to return to the possession of Elkin. At that time Elkin exhibited to Aiken and to others, a copy of the receipt he had given to Ford for these negroes. Elkin testified that this receipt was copied from one, embracing other negroes, which Mr.' McDowell, attorney at law for D. Aiken, had prepared for Ford and Elkin in 1830; and Mr. McDowell testified that he had written for them something to serve as a temporary expedient until a settlement which they spoke of could be made, but that he never made any communication on this subject to D. Aiken. Elkin further testified that, pending the Equity suit between Aiken and himself, he had communicated the fact that the negroes he ' received from his father-in-law were only hired to him, to Hammond and Lakin; and these persons testified that he had done so, but they could not fix the time more definitely than he had done. Like communications, Elkin said, he had made to Gen. McMeekin, and to two other friends, all of whom were dead or removed. Nath. Ford, brother of the plaintiff, testified that, about 1831, he had told Aiken that some other negroes, which Elkin received from Ford, and then had in possession, were only hired. Many neighbors of Elkin testified that, prior to 1843, they had always regarded the negroes in Elkin’s possession as his own — that he spoke of them as his: that they had no doubt of his title, and that his credit was just as if all which was in his possession had been his own. Thomas Stanton, one of these neighbors, testified that, in 1836, Elkin sharply questioned him concerning- a report which he had mentioned, that all the negroes in Elkin’s possession were not his own: Elkin contradicted the report, and, in positive terms, claimed the negroes as his own.
    “ On 14th April, 1843, John Ford, the plaintiff, gave to N. A. Peay a bond, in the penalty of $60,000, with condition to indemnify Peay against various liabilities which he had incurred by indorsements and suretyships for Ford; and, on the same day, John Ford gave to his son, C. D. Ford, another bond in the penalty of $30,000, with like condition as the bond to Peay. At the same time, John Ford executed two mortgages, one to N. A. Peay, and the other to C. D. Ford, to secure these bonds. Each of these mortgages covers eighty-six negroes, (including those which are now in dispute and which were then in the possession of Elkin,) mules, stock, furniture and other personalty. Each is in the usual form, a conveyance to be void “ on payment of the bond intended to be secured according to its contents,” with a stipulation that, on breach of the condition, the mortgagee may seize and sell. Before the date of these papers, John Ford had become greatly embarrassed: all his property, not covered by mortgages, has been sold, and he is now hopelessly insolvent. Some of the liabilities, which the above bonds were intended to secure, have been met by the mortgagees, and all of them will have to be met. The negroes and other property, which were in the actual possession of John Ford at the execution of the mortgages, or the greater part thereof, remain in his possession still. The mortgagees were both present at the trial, giving all the aid they could to the plaintiif.
    “ 21st November, 1842, was lodged a fi. fa., Z. Price vs. D. Elkin, for $75, besides interest and costs, founded on a note dated 31st May, 1842.
    “ 14th August, 1845, was lodged a fi.fa-, John Buchanan, Ordi-' nary, vs. Elliot Elkin & David Elkin, for $1952, besides interest and costs, which was founded upon a bond which Elliott Elkin, David Elkin and Jeremiah Glenn gave to the Ordinary, dated 9th April, 1834, and conditioned for payment of $1952. Jeremiah Glenn had died in the progress of the suit on the bond, so that no judgment had been obtained against him.
    “ Both of these two last mentioned fi.fas. are unsatisfied, and nothing is known which can be made applicable to them, if they should receive no part of the proceeds of the following sale, to wit:
    “In January, 1846, J. Cockrell, sheriff, under the execution of David Aiken and other executions, sold the seven negroes, now in dispute, to David Aiken, for $1,500: Amy and her child, which were first sold, bringing $435. Aiken has had the negroes in possession since that sale; and there have been some children born, which have increased the value of the whole lot, but have diminished the profits derived from the use of the grown hands.
    . “Of my instructions to the jury, enough for explanation of the grounds of appeal may be collected from the following summary :
    “ I held that a mortgagor, who is permitted by the mortgagee to retain possession of mortgaged slaves, after breach of the condition of the mortgage, may maintain an action of trover for them against a defendant who holds possession in opposition both to him and to the mortgagee; and may, in such action, recover the full value of the slaves, if the consent of the mortgagee to the recovery be apparent; that, if the plaintiff’s claim was just, he might, after possession was taken by the defendant from Elkin, and Elkin’s right was determined by the assertion of plaintiff’s rights, be regarded as the bailee of the mortgagees, and, in that view, be entitled to the immediate possession; that therefore the case might be considered as if there had been no mortgage, and the contest was in reality, as it was in form, between the plaintiff only and the defendant.
    I directed the jury that, from delivery by Ford to his son-in-law, a gift would, without some explanation, be presumed ,• and left it to them to decide whether the plaintiff had satisfactorily shown a bona fide contract of hiring by him to Elkin. If, in truth, there was a gift, and the receipt was only a contrivance to meet contingencies in fraud of creditors, then I held that the property was liable to all creditors of Elkin, prior as well as subsequent.
    “But if, in truth, there was a bona fide contract of hiring, and not a gift, then I held that the slaves were liable to the execution of any subsequent creditor who was misled by the possession which Elkin held, and the course which Ford took, and permitted Elkin to take, in regard to them. Aiken was not himself a subsequent creditor, but, as purchaser at a sale under execution, was entitled to all the rights which belonged to any subsequent creditor whose execution was in the hands of the sheriff; and this, even if Aiken himself had notice of the receipt at or before the sale, provided the subsequent creditor had :not notice when he was misled. I left it to the jury to decide, whether the ten execution creditors, to whom the balance of $278 44 was due, Z. Price, and Buchanan, Ordinary, had severally been misled to extend credit to Elkin upon the faith of these slaves in Elkin’s possession, without notice of Ford’s claim to them. As to Buchanan’s case, the plaintiff insisted that the short time between the date of the receipt and the date of the bond to Buchanan, and the other names upon the bond, shewed that Buchanan had not looked to these slaves. Upon the question submitted, these circumstances were called to the attention of the jury on one side, and, on the other, they were told that, without proof to the contrary, it should be presumed that every one who gives credit looks to all the property in his debtor’s possession.
    
      “ I instructed the jury that, if it should appear that some of the creditors above mentioned had been misled, and others not, then the sheriff had no authority to sell, after enough to satisfy the claims of those who had been misled had been raised; for, although a sheriff’s sale would be referred to any existing authority, yet money raised under one execution, which alone bound certain property, could not be transferred to another execution even older, to which the property was not liable. Therefore, if the ten execution creditors and Price had been misled, but Buchanan had not been, as Amy and child (which were first sold) produced enough to pay these ten and Price, the sheriff had no authority to sell for the benefit of Buchanan or Aiken, to whose executions the property was not liable, and the sale of the slaves sold after Amy, was unauthorized and void.
    “ The jury found for the plaintiff $3,174. I do not know what estimate of value and hire they may have adopted, but it seems to me that, according to the weight of the testimony, this sum is large enough to cover the value of all the seven slaves and their hire for four years.”
    The defendant appealed, and moved this Court for a new trial, on the following grounds:
    1. Because the plaintiff having conveyed the slaves in dispute by way of mortgage, previous to the commencement of this suit, was not entitled to maintain this action.
    2. Because, even if the plaintiff should be held entitled to maintain this action generally, notwithstanding the mortgages, yet, it being proven that the bonds of indemnity, upon which the different mortgages are predicated, were forfeited previous to the commencement of this suit, byfreason of the morgagees’s having been put to expense and suffered loss on account of their liability recited in said bonds, connected with the fact of the plaintiff’s utter insolvency, and that the plaintiff never had possession of the slaves in dispute from the time of the mortgages (1843) to the time of trial, it is submitted that the plaintiff had neither property, possession, nor the right of immediate possession, sufficient to maintain this action.
    3. Because the pretended hiring by the plaintiff, to David Elkin, of the slaves in dispute, 15th February, 1834, was color-able, pretensive, and founded on real and intended fraud, as it appeared from the testimony that the nominal hire therein mentioned was neither paid at any time, nor intended to be paid, and that the said pretended agreement of hire was in violation of the law of marriage settlements, and intended only to secure the said slaves from the creditors of Elkin, in the event of his insolvency.
    4. Because the defendant was protected in his purchase at sheriff’s sale by the executions of the junior creditors, as to whom no notice was proven, especially the executions of Buchanan and Price.
    5. Because, it is respectfully submitted, his Honor erred in charging the jury that they were to determine whether credit was given to Elkin, by the junior creditors, on the faith of this property; whereas, he should have charged them that, in the absence of proof to the contrary, they should presume that credit was given by them on the faith of this property.
    6. Because it being proven that there was a balance due on junior executions, after certain sales of Elkin’s property, of $278 48, it is respectfully submitted his Honor erred in charging the jury that, if they found that Buchanan did not extend credit on the faith of this property, the sheriff was only authorized to sell one negro; whereas he should have charged them, that he was authorized to sell, under any execution entitled to levy, sufficient to satisfy prior liens, as well as the particular execution under which he might be so authorized to sell.
    7. Because the jury erred in finding for the plaintiff the value and hire of all the negroes, contrary to the charge of the presiding Judge.
    
      Boylston & A. W. Thomson, for the motion.
    
      Black, contra.
   Curia, per

Wardlaw, J.

It was correctly held on the circuit that, in a case like this, a purchaser at sheriff’s sale acquires the rights of any creditor to whose execution the sheriff’s authority may be referred. Notice of the opposing claimant’s rights, had by the purchaser, is of no consequence, if the creditor, at the time of extending credit to the debtor, had not such notice. If this were not so, public notice given before the sale would either prevent the sale altogether, so that the creditor’s right to treat the fraudulent transaction as void would be a mockery, or it would confine the competition in the bidding to the creditors and the claimant; a result which might be disastrous to the debtor and to every one whose interest would be promoted by a fair sale.

Taking with us the proposition thus established, we proceed to consider the sixth ground of appeal, in connection with the observations made thereon in the report. The question involved is well calculated to suggest cautious inquiry concerning the preference of subsequent creditors to prior ones, and the priority of senior executions (o junior ones, when these two rights seem to come into opposition in the course of a sheriff’s execution of various writs of fi. fa. against the same debtor. Here we have the case of a contract between father-in-law and son-in-law supposed to be invalid, because of the constructive fraud thereby operated upon the subsequent creditors of the son-in-law: but the question is not confined to cases like this — it extends to cases of unrecorded mortgages, and of interests in the vendor, reserved by verbal agreement upon a sale of chattels, which may arise under the Act of 1843, (11 Stat. 256,) and to cases of parol gifts of chattels, unaccompanied by delivery, which may arise under the Act of 1832, (6 Stat. 482,) and indeed to all cases where a transaction is void as to subsequent creditors, which is valid as to the parties and prior creditors.

Treating as a nullity a transaction which the law considers to be void as to him, a subsequent creditor causes a levy to be made under his fi. fa. upon chattels, as the property of his debtor, which, as to prior creditors of that debtor, belong to a third person, the opposing claimant. The sheriff sells, but the money is instantly by law appropriated to the oldest fi. fa. against a debtor, being the fi. fa. of a prior creditor (see Cooper vs. Scott, 2 McMull. 155): and thus the subsequent creditor is defeated of all enjoyment of what his rights have produced, and the prior creditor takes what would have been beyond his reach but for the accident of there being in the sheriff’s hands the fi. fa. of a subsequent creditor junior to his.

If, in the case before us, Ford or any person for him had paid to the subsequent creditors the whole amount due to them, or had even paid the same to the sheriff, with special instructions that application should be made to the executions of those creditors, (Adams vs. Crimager, 1 McMull. 309,) there would no longer have been authority in the sheriff to treat the slaves in question as the property of Elkin. If the parties to this suit and all the creditors had been before a Court of Equity, their relative rights could have i een settled, and suitable orders have been made accordingly. Perhaps even in a court of law, in a contest for the money in the sheriff’s hands, after all the facts had been ascertained, the exclusive right of the subsequent creditors to treat the slaves sold as the property of the common debtor, might prevail over the prior hen which the older execution ordinarily gives. But the case now presented regards the right of the purchaser from the sheriff — in effect, the authority of the sheriff to sell.

Was the sheriff bound to stop his sale when enough to pay certain subsequent creditors had been raised? If so, and the sheriff, under the prior lien, paid to older executions, the subsequent creditors would have been only cheated by a formal recognition of their rights, whilst the substantial fruits went to others. If the sheriff stopped and kept the proceeds in his hands, to abide the order of the Court, he was bound to have enough to satisfy all subsequent creditors before he stopped, and then upon him was thrown the decision of the grave and difficult questions of law and fact often involved in such contests. How was he to know the time and circumstances of the imputed fraud; and having only the writs of fi. fa. in his hands, what information did he possess of the time when each creditor extended credit? How could he distinguish not only between executions, whose dates he knew, but between two creditors, whose executions were both lodged subsequent to a fixed time, but were founded on debts of which one was contracted before and the other after that time ? Supposing him to have fixed satisfactorily the time of the fraudulent transaction, and the true time of every credit as it was originally extended, however complicated by renewals and changes the securities taken for it may have been, how could he determine the disputes which so often vex courts and juries concerning the notice which each creditor may have had, that deprived him individually of the right to complain of that, whereby others may have been deceived ? The impossibility of a sheriff’s settling the questions which every such case presents, shews that, in determining the extent of his authority, no rulé can be prescribed but the ordinary rule of our law and practice, that he must regard all the writs of fi. fa. against the same debtor as entitled to payment in the order of their priority, and of consequence that his levy and sale mrder a junior fi. fa. must be measured not by it only, but by it and all those which have priority over it. His authority to sell under a junior fi. fa. ceases not until it be paid — and it cannot be paid from sales until all older ones have been first satisfied.

An indemnity to the sheriff has been suggested as a means of relieving him from embarrassment here, as in other disputes concerning chattels seized as the property of a debtor in execution. But in no case does indemnity affect the sheriff’s authority, or give a new rule for his conduct. It merely secures him against the consequences of a proceeding that may turn out to be unlawful. With and without indemnity to the sheriff, the rights of the various creditors would here have been the same.

It has been supposed that, in a case like this, justice, according to the true rights of creditors and opposing claimant, may be done by deducting from the value of the property sold the amount due to subsequent creditors, and finding against the purchaser the remainder of the true damages of the plaintiff. This would be to shift the responsibility of decisions, proper only for Courts, from the sheriff to the purchasers, and would necessarily lead to the sacrifice of property for want of bidders. If the sheriff has authority to sell, the purchaser need look no further, but acquires such right as the sheriff sold. We must not establish a rule which would operate only when the same person was purchaser of all the chattels sold, and would compel him to bear the burden of a law-suit for settlement of the rights of other persons; but a rule under which a prudent purchaser, having ascertained the rights of the debtor and the authority of the sheriff, may safely conclude that he has acquired whatever any creditor, whose agent the sheriff when selling was, might rightfully claim to have from the debtor. The sheriff was the agent of every subsequent creditor having execution, until that execution was satisfied in the regular order of priority.

2. We are then satisfied that the instructions given to the jury were wrong in holding that the sheriff’s authority ceased, if the proceeds of the first parcel sold were equal to or greater than the amount due upon the executions of all the subsequent creditors who had been really deceived by the transaction complained of, notwithstanding older executions remained unsatisfied. For this error a new trial would seem to be necessary, but it is said that the error was immaterial, for the jury have found the value of all the slaves, and so have shewn that they did not find that there was any subsequent creditor, whose rights, under the instructions given, would, pro tanto, have protected the defendant. We cannot safely conclude any thing as to the process by which the amount of the verdict was fixed, and must suppose that the instructions given to them were regarded by the jury. It is hardly presumable that, without any evidence whatever to rebut the presumptions by which they should have been guided, the jury have found that neither Price nor any of the ten execution creditors had trusted Elkin on the faith of these slaves. The intimation that they may have done so requires, however, that we should bestow a hasty notice upon the 3d and 5th grounds of appeal, which are applicable to all the subsequent creditors, including Buchanan.

That every contract and transaction, whereby a party in evil design has contrived to perpetrate a positive fraud upon another, should, in a contest between that party and the person defrauded, or between their several representatives, be held void, is law which the common sense of every impartial juror will recognise. Not less certain, if a little less plain, is the law which holds that a party who enables another to commit a fraud, is answerable for the consequences; that one who designedly or knowingly produces a false impression, whereby another is drawn into some act or contract, injurious to that other’s rights or interests, has done the same harm which an actual fraud would have produced, although he may have had no actual fraudulent intention, and should not be permitted to take benefit from his own wrong ; and that gross negligence in giving the information, which ought to have been given to prevent a false impression, is equivalent to intentional concealment.

Where chattels pass from a father-in-law to the son-in-law, and no contrary explanation of the transaction is given, the presume tion is that this has become the property of the son-in-law; and this is so consistent with the habits of the country and the decisions of our Courts, and is so generally understood, that every person may be expected to act upon the impressions which the transaction is calculated to produce. Between the parties, private arrangements may avail to control the ordinary presumption ; but third persons, knowing nothing, and having no adequate means afforded to them of knowing any thing of these arrangements, must draw the ordinary inference, and act accordingly. Thence the anxiety of the law, by registry acts and other regulations, to guard creditors and purchasers against the exceptions which marriage settlements, deeds of trust, and other solemn writings may make, from the ordinary results that attend a transfer of possession from father-in-law to son-in-law. If, in violation of the wise principle upon which all these regulations are founded, a stipulation of a loan for an indefinite time, or of rights reserved by the father-in-law, may be made by some informal instrument, and that instrument, without any recording or public notice given of it, may afterwards be produced to defeat the rights of creditors or purchasers, who have trusted to the visible and unexplained possession of the property, injury most grievous and unjust may be done, and this when the parties have acte$ without the least intention of fraud.

In the case before us, the loose agreement signed by Elkin to pay $>25 hire, or return the slaves when called for, to Ford, shews that no real contract of hiring was ever intended; and that, coupled with the facts that no hire was ever paid or demanded, or expected by Elkin to be paid, make the paper itself evidence of either an absolute gift, or of a gift accompanied with the reservation of some unusual and indefinite right in the donor, such as justly excites suspicion of unfairness. Elkin’s refusal to accept the slaves as a gift, betrays a consciousness, on his part, of the dangerous condition of his affairs, and his desire of a settlement on his wife and children points to the nature of the interest which the parties may have wished to secure in this property, and the principles which should be applied to the instrument they adopted. The continued and unquestioned possession of Elkin for nine years before Ford’s claims were made public, and the circumstances that the only witness to the paper was a female living out of the district, and that no person appears ever to have seen the paper from 1834 till 1843, impute to Ford, at least, blameable negligence in suffering other persons to be misled by the appearances he had contributed to produce. The treatment of the property by Elkin as his own, his acknowledgments that he had never mentioned Ford’s rights therein to any person, besides five friends, and that he could not be sure as to the time of his communication to any of them ; the failure of the only two of these friends that could be produced to remember any time when he spoke to them on the subject before his litigation with Aiken; and his sharp reproach of Thomas Stanton, and positive assertion to him that the negroes were his own, seem strongly to lead to the conclusion, that, whatever may have been the original design, there was subsequently existing, at least on Elkin’s part, an intention willingly and knowingly to deceive those who were misled by his possession of the slaves.

From these circumstances we think it might fairly be inferred that the receipt was only a contrivance to meet contingencies, never to be resorted to if Elkin’s affairs should continue prosperous, but to be brought out, if it should be needed, to save the property for the enjoyment of his family. It could not have been brought out, in case of need, without injury to creditors or purchasers; and therefore, upon this supposition, the original scheme contemplated advantage to the parties, or one of them, at the cost of innocent sufferers, and so was unfair and unworthy of the sanction of the Court. But if no design existed, beyond the purpose of maintaining the title in Ford, come good or ill, still those creditors who have been misled by the false impression which was necessarily produced, may treat the slaves according to the appearances exhibited, as the property of Elkin. And when they have shewn the subsequent extension of credit to him, it is not for Ford to require them to shew that they knew of Elkin’s possession, or had faith in this property when they trusted him. In consideration of the ready means of intelligence which exist throughout this country, and of the vigilant selfishness which guards private interests, it must be presumed that every subsequent creditor did know of the possession, and did, in extending credit, regard all the means which he might reasonably conclude belonged to his debtor; unless such creditor be shewn to have had for himself that notice of the true condition of the property, which it was the duty of the parties to an' arrangement that altered the presumptions raised by appearances, to have furnished to the whole community.

There are other questions involved in the case which it is unnecessary now to consider.

The motion for new trial is granted.

O’Neall, Frost, Withers and Whitner, JJ., concurred.

Evans, J.

concurring. I agree there shall be a new trial:

1. Because the facts proved make, in my opinion, a case of fraudulent intent as well as an actual fraud perpetrated on the subsequent creditors.

2. That Ford was a mere tenant at will of the mortgagees. He might maintain trover for the taking and conversion of the negroes, but he could recover only the value of his interest.

There are some commercial contracts, where one having a possession or right of possession, may sue, and all others would be barred by his recovery. Thus a carrier may recover the value of goods taken out of his possession. So also may the consignee; and a recovery in such cases would bar the consignor ; but this depends on commercial law, and has no application to negroes. A tenant for life can recover only the value of his life estate, in tro-ver. In detinue he could recover the specific chattels. In tro-ver the verdict operates as a sale of the plaintiff’s interest, and no more. I do not therefore believe the verdict will give to Aiken any better title than Ford had. He would still be liable to the mortgagee.

Motion granted.  