
    *Thomas Jones vs. John A. Crawford.
    A deed executed by a debtor, with the view to defeat, delay, or hinder a creditor, is void.
    The judgment under which the land is sold, at sheriff’s sale, becomes a part of the title of the purchaser.
    A debtor taking the benefit of the “prison bounds’ Act,” rendered in his schedule, ¿liter alia, a small tract of land, and assigned his schedule to W. F. P., (the plaintiff in the case on which he had been arrested.) W. F. P. afterwards assigned his right to the assignment, the judgment, and the ca. sa’s. not under seal, and without witnesses, to the plaintiff. He constituted P. E. P. his attorney, to sell the land, who advertised, sold, and became the purchaser of it, and after-wards conveyed to the plaintiff: Held, that the deed of P. E. P. was null and void, and that the assignment of an assignment cannot have the effect to pass land.
    An instrument to pass the title of land, must be under seal, and witnessed by two witnesses.
    The true view of an assignment under the “ prison bounds’ Act,” is not that it vests the assignor’s estate absolutely in the assignee, but that it operates as a mere authority to him to enter upon, recover, sell, and convey, in satisfaction of the debt.
    Before O’Neall, J., Richland, Spring Term, 1841.
    This was an action of trespass to try titles to a small tract of land in the neighborhood of Columbia, called “ Farmer’s Inn.”
    The land was the property of one Hinson Barker. The plaintiff gave in evidence the recoveries of Wm. F. Pearson vs. Hinson Barker, in two cases, and ca. sa’s. issued thereon. Under them Barker was arrested, and petitioned for the benefit of the prison bounds’ Act ; with the petition he filed a schedule, containing, inter alia, “ Farmer’s Inn.” Barker assigned, in January, 1835, his schedule to Wm. F. Pearson. Soon afterwards, Pearsou assigned, by writing, not under seal, and without witnesses, the judgments, ca. sa’s , and assignment, to the plaintiff, Jones. He, (Jones,) constituted Philip Edward Pearson, Esq., his attorney to sell Farmer’s Inn. He accordingly gave public notice, and in July, 1836, sold it, at public outcry, and bought it for the plaintiff, and conveyed it by deed to the plaintiff. An acknowledgment of tenancy to the plaintiff, signed by Barker and wife, was given in evidence.
    It appeared that Jones, (the plaintiff,) was the brother of Mrs Barker, and that to him had been conveyed the only negro *which Barker and wife had in possession, and her entire interest in her father’s estate. The defendant purchased Farmer’s Inn at sheriff’s sale, in October, 1837. It was sold under execution, as the property of Hinson Barker, in the case of John Black vs. McPherson and Barker. The judgment, execution, levy and sheriff’s deed, were given in evidence. It appeared that Barker was in possession, when the land was sold by the sheriff; and that his possession had remained unchanged, notwithstanding the assignment to Pearson, and the supposed acquisition of title by Jones. Barker was wholly insolvent.
    The jury were instructed that the plaintiff might recover on the acknowledgment of tenancy by Barker to Jones, if Jones’ title was not affected by fraud. They were told that Wm. F. Pearson’s assignment of Barker’s assignment to him, could not convey the land to the plaintiff. Land could only pass, inter vivos, by deed executed in the presence of two witnesses ; that Philip Edward Pearson’s conveyance to the plaintiff, was a mere nullity; it was the conveyance of the agent to his principal, which was rather worse than the conveyance of a man to himself
    The jury were told, in making up their conclusion whether Jones’ title was fraudulent, they might look to the facts, that he was the brother-in-law of Barker; that to him his entire estate had been conveyed; and that Barker had been suffered to remain in the possession of the land, to the time when seized and sold by the sheriff. From these facts, they were told they might find against Jones’ title, as affected by fraud against creditors. For the defendant, a purchaser at sheriff’s sale, stood in the place of the creditor under whose execution he derived title.
    The jury found for the defendant, and the plaintiff appeals, on the annexed grounds.
    GROUNDS OF APPEAL.
    1.Because his Honor charged the jury that they were at liberty to presume fraud against the plaintiff, from the fact that he permitted Barker, his relatiou, to remain on the premises after he had sold the same to him, as tenant of the premises.
    2.Because his Honor charged the jury, that the defendant *occupied the same position as a creditor of Barker would have occupied had he been the purchaser.
    3. Because his Honor charged that the assignment of William F. Pearson, to the plaintiff, of the assignment to him, of said house and lot, was a nullity; and that the assignment of the fi.J'a’s. and ca, na’s. for the satisfaction of which Barker’s assignment was made, to said plaintiff, by said Pearson, made no difference in the case.
    4. That the verdict was contrary to the law and the evidence.
    
      Blach, for the motion,
    said, Crawford claims under a title that cannot be maintained.
    By the assignment, the legal estate passed to Wm. F. Pearson. This is not impeached for fraud.
    The estate being in Pearson, he might sell; had he conveyed, a title would have passed ; but Pearson assigned to Jones.
    The equitable interest then passed to Jones, who constituted Pearson his agent to sell; he did sell — purchased Farmer’s Inn, and conveyed, by deed, to plaintiff.
    Farmer’s Inn was sold under an execution against Barker. That sale gave Crawford no title, for Barker had none.
    Jones may have acquired his claim to the negro and estate of Mrs. Barker, by fraud, but it has no application to this case.
    The j ury were instructed that they might presume fraud.
    
      W. F. De Saussure, contra,
    submitted the case without argument.
   Curia, per

O’Neall, J.

In discussing this case, I will first consider the second ground of appeal, which supposes that the judge below was iii error in saying that the defendant occupied the position of the creditor under whose judgment he bought This will only need to be touched, to be placed in its proper point of view.

As against a creditor, a deed executed with a view to defeat, delay or hinder him, is void. He is therefore at liberty to treat the estate of his debtor, thus conveyed, as if no such conveyance existed, and to sell it in satisfaction of his debt, The purchaser buying at such sale, must be permitted to show all the facts which make his title good, or else a sale by the ^creditor would be of no importance. To do this he must stand in the place of the creditor. Indeed the judgment is a part of his title, and for that reason, if there was no other, he must be allowed to show the same facts which the creditor could, in order to give it effect.

This much I have thought it necessary to say, in answer to this ground, in the hope of making that past all future dispute, which has been heretofore treated as not admitting of question, as will be seen by referring to the almost innumerable cases of fraud with which our books are crowded.

The third ground raises the question of the validity of Wm. F. Pearson’s assignment to the plaintiff of Barker’s assignment of Farmer’s Inn, accompanied by the assignment of the judgment and ca. sais. It would be enough here to concede that Barker’s assignment of Farmer’s Inn, under the prison bounds’ Act, vested in Wm. F. Pearson the legal estate. For, in that event, it was an estate in land, which, to be legally conveyed in this State, must be evidenced by a deed, executed in the presence of two witnesses. Alston vs. Thompson, (1 So. Ca. Rep. by Cheves, 271.) A short assignment of an assignment, conveys nothing, but wanting the requisites of being under seal and witnesses, (if it were even otherwise sufficient,) it cannot have the effect to pass land. It is a great deal more like the instrument in Cline vs. Black, (4 McCord, 431,) than it is like a deed. In that case, a nonsuit was ordered, because the instrument was not under seal, and could not, therefore, pass land. In the Court of Appeals, my brother Johnson said, with great truth, “ Upon the whole, I scarcely recollect a case in which there were so many well founded objections to the plaintiffs recovery.” The same might, I think, be very well said of this part of this case.

; But, I think, the true view of an assignment under the prison bounds’ Act, is not that it vests the assignor’s estate absolutely in the assignee, but that it operates as a mere authority to him to enter upon, recover, sell and convey it, in satisfaction of the debt. The words are that the “judge, justice, or commissioner of special bail, before whom the prisoner shall be brought, shall order an assignment of the prisoner’s estate, and effects mentioned in the schedule, to be made to the plaintiff, subject, nevertheless, to all prior incumbrances; whereupon the creditor, if necessary, may take possession, and if necessary, *sue in his or her own name for the recovery thereof.” These words, without stopping to comment upon them particularly, plainly import a mere authority, (if necessary to be exercised,) to take possession and sue for the recovery thereof. Stopping there, possession taken under the assignment, would be merely satisfaction of the debt. (5 Stat at Large, 79.) But the fifth section provides, if the property mentioned in the schedule “ should prove deficient, any other property which the prisoner may have, or thereafter may acquire, shall be liable.” This shows that it was intended that the creditor should ascertain the money value of the property assigned ; and no better mode can be resorted to than a sale, and the application of the proceeds in satisfaction of the debt. The assignee’s power over his debtor’s estate assigned, is the same in most respects with that of the sheriff under execution. He has the right to enter, sell, and convey, in satisfaction. This was, however, not done here. The assignment of an assignment under the prison bounds’ Act, is the assignment of a power which can have no effect whatever. The assignment to Pearson was not carried into legal effect. He suffered Farmer’s Inn to remain in the uninterrupted possession of Barker, and his estate remained undivested, for the plain reason that the power which he had granted was not exercised. This view of it was taken by the parties themselves, for Jones, as Wm. F. Pearson’s assignee, constituted P. E. Pearson his attorney, to sell and convey Farmer’s Inn, and he accordingly sold it, purchased it for, and conveyed it to, his principal. This proceeding was illegal, and has not been attempted to be sustained in argument. But it shows that the parties claiming under the assignment did not suppose that it clothed them with the title to the land, but only with an authority to[s ell and convey.

The assignment of the judgments and the ca. sa’s. cannot help to vest in the plaintiff an estate which he has not otherwise acquired. They would only support his title, if it could be legally deduced from them. But here, when Pearson did not act under his assignment, the assignment of the judgment and executions, when the assignment of the assignment was made, may go far to show that the title of Barker was not intended to be divested, but to be so covered up with incumbrances that it could not be reached by his other creditors.

*This brings me to the first ground, which supposes that the Judge below erred, in submitting to the jury the question whether Jones’s title was, or was not, fraudulent. From what has been already said, it is plain that Jones cannot connect himself with Pearson’s title under the assignment, whatever it may be. But when it is remembered that Pearson, under his assignment, had no title to the absolute estate, but that he had a mere power to enter upon Barker, and sell and convey “Farmer’s Inn,” in satisfaction of his debt, and that no such entry was made, there is, it seems to me, an end of all pretence on that score. But, I go further : the jury might well conclude, from the relationship between Jones and Barker, from the conveyance to the former of the whole of the personal estate and interest of the latter and his wife, that the debts to Pearson were really paid by Jones, out of Barker’s funds, and the assignments were made as a cover to protect the property against creditors.

But the true view is to put Pearson’s assignment out of view, and to look to the plaintiff, Jones, as standing on Barker’s acknowledgment of tenancy. To give that its strongest effect, it is only an admission by him of Jones’s title ; and standing by itself, in a question of fraud, it could not certainly claim to stand on higher grounds than his deed. Looking to it, it furnishes evidence that at or before its date, the debtor, Barker, had conveyed Farmer’s Inn to Jones ; the question can then well be made by a creditor, whether the conveyance is not void by fraud.

To enable the jury to decide this question, the following facts had been proved, to wit: 1st. That Barker, from the day on which he purchased the place called Farmer’s Inn, to the day on which it was sold by the sheriff, had remained in the undisturbed possession. 2d. That Jones was his brother-in-law. 3d. That to him Barker and his wife had conveyed all his and her estate, property and interest. To them the attention of the jury was directed, and they were told, that if they satisfied them that Jones’s title was a mere cover to protect Barker’s property from the claims of his creditors, then they might find for the defendant; otherwise they must find for the plaintiff.

This was submitting the question of fraud, as one of facts merely, to the jury, and it would be strange to say that the *matter which belonged appropriately to them, should be withheld from them. And it is still stranger that the plaintiff should complain of error, when the question of fraud is put to the jury as a fact, which is the most favorable way in which it could be put for him.

The motion is dismissed,

RichaRDSON and Evans, JJ., concurred. 
      
       4 Rich. 129.
     