
    Thomas Harney vs. William Pack and C. R. Clifton.
    If a deed of trust, void on its face, is offered in evidence in a court of law, it is competent for the court to declare it invalid.
    "W., being guardian for B.’s child, and executor of B.’s will, and also executor of the will of G. W., and guardian of his children, executed bonds to the probate court with J. W. and P., as his sureties in large penalties for the faithful discharge of his duties, and long afterwards, to indemnify his sureties, conveyed to P. and C., by deed of trust, his land and negroes, all his household and kitchen furniture, his horses, mules, farming utensils, and crops of cotton to be after-wards raised, with a reservation to himself of possession of the property ; Held, that the deed of trust was not void on its face ; but that the circumstances cited were strong badges. of fraud.
    A deed of trust, made with the intent by the grantor, to hinder, delay, and de" fraud creditors, even though neither the trustee or the cestui que trust, participated in the design, may be void or valid, according to the circumstances.
    A deed of trust made to secure an antecedent debt, may be void, if made with fraudulent intent by the grantor, although neither the trustee nor the cestui que trust participated in the fraudulent intent, and the fraud of the grantor is not disclosed upon the face of the deed. The question whether or no it is fraudulent in fact, should be submitted to a jury ; and if found to be fraudulent, the law condemns the deed as fully as if fraudulent on its face.
    On appeal, from the Hinds circuit court.
    Thomas Harney, on 3d May, 1842, sued out his fieri facias against William S. Parham, Willis M. Gibson, Michael Wall, and James M. Wall, which was levied on sundry slaves as the property of Michael Wall. The slaves were claimed by William Pack and C. R. Clifton. Issue was joined to try the right, and on the trial a verdict and judgment were given for claimants. Harney appealed. By the bill of exceptions it appears that the plaintiff read to the jury a judgment of the high court of errors and appeals of the January term, 1842, against Parham and Gibson, and also against Michael Wall and James M. Wall, as their securities in the writ of error bond, also the fieri facias before named, which issued on the judgment of the court of appeals. He also proved by the deputy sheriff who levied the fieri facias, that the negroes levied on were at the time on the plantation and in the possession of Michael Wall. Here the plaintiff’s evidence ended. The claimants, Pack and Clifton, then offered to read a deed of trust from Michael Wall to them, dated the 20th of April, 1840, to the reading of which Harney objected, and the objection being overruled, he excepted to the opinion of the court. The deed is made part of the bill of exceptions, and recites that "William M. Birdsong, on the 9th of September, 1836, published his will, devising and bequeathing his estate, a specific legacy excepted, to his daughter, Ann E. Birdsong, then about four years old, to be received by her on marriage, or at eighteen years of age, and constituting Michael Wall and George Birdsong her guardians, and also making Michael Wall executor. That the testator having died, Michael Wall, qualified as executor, and with William S. Parham and James M. Wall, his sureties, entered into bond in the penalty of eighty thousand dollars, for the faithful discharge of his duties. That he had reduced to possession estate to the value of between twenty-five and thirty-five thousand dollars, out of which the debts of the decedent were to be paid. And also that George "Wyche, on the 16th of November, 1838, made his will, wherein he left his whole estate (consisting of above thirty slaves, lands, &e.) subject to the superintendence and direction of said Michael Wall, his executor and testamentary guardian to his children, for the -boys till eighteen, and the girls till seventeen years old. Said Wyche having departed this life, the will was admitted to record, and letters testamentary granted to said Michael Wall, who entered into bond with said James M. Wall and William S. Parham, sureties, in the penalty of forty-four thousand dollars, for the due execution of said trusts. That said Michael Wall had ever since been in possession of said Wyche’s estate, and had the custody of his children, except one who was married. . That said Wall was desirous of saying said sureties harmless in consequence of their said suretyships, and especially to have each of the shares of his wards forthcoming and paid, as each shall be entitled to the same; great part of the estates having been therefore converted into money, and received by the said Wall as executor and guardian, therefore the said Michael Wall conveyed to Pack and Clifton lands and negroes in the deed specified, also ten beds, bedsteads, and furniture, four tables, two dozen chairs, one dressing-glass, a burean, a secretary, and his other household and kitchen furniture ; also sixteen mules, four horses, and the farming utensils of the grantor, and the crops of cotton to be grown on the lands thereby conveyed, for the year 1841 and such years as shall succeed, &c., until the full exoneration of said sureties. The trusts expressed are, that whenever the share of any heir or ward becomes due, on request of either surety the trustees shall sell so much of the property as may be necessary to produce the sum so due and unpaid and the costs of sale, and pay the heir or ward the sum to which he or she may be entitled. 2. They are thus to proceed from time to time, as any sum may fall due and be unpaid, until the sureties are fully exonerated, or the trust property exhausted. 3. If either of the sureties become chargeable with any debt of the estates aforesaid, sale to be made for their indemnification. 4. The crops it shall be the duty of the trustees to take and receive when gathered, and sell the same, and out of the proceeds deduct the necessary expenses of sale, and actual expenses incurred in planting, growing, gathering, and preserving the crop, so far only as may regard the slaves, and other of the conveyed property used in said crop, and not including any personal or family expenses of said Michael Wall; and shall presently pay the net products of said sale into the probate , court, or to its order,' towards the extinction of the debts due said Wards; and so proceed annually in reference to the crops conveyed, until said debts shall be extinguished. 5. Until sale of the property, Michael Wall to retain possession and have such use of the property, as may be consistent with the purposes of the trust; and when'the purposes of the trust shall be fully satisfied, conveyance to cease, and be of no further effect.
    The defendants then read the following bonds and wills, namely, the will of William M. Birdsong; the will of George Wyche; the bond of Michael Wall, with James M. Wall and William S. Parham as sureties, as executor of Birdsong; the bond of Michael Wall, with same sureties, as executor of Wyche. It is not deemed necessary to set out these bonds; they are the same described in the deed of trust to Pack and Clifton, to indemnify the sureties.
    Defendants then read a mortgage, dated 3d July, 1838, by Michael Wall, to the Real Estate Banking Company of Hinds county, conveying most of the land embraced in the deed of trust. They next read the record' of a judgment confessed by Michael Wall and William S. Parham, in Hinds circuit court, on 23d December, 1839, for $82/8 in favor of James Ford. A ji. fa., issued on said judgment, was levied on slaves, forthcoming bond given and forfeited 16th March, 1840, fi. fa. issued thereon, under whidh a large quantity of the property of M. Wall, including a considerable portion of the land and sixteen of the slaves embraced in the deed of trust, was sold 1st November, 1841, and proceeds applied in full of said execution. Also, read a judgment of Hinds circuit court, of 16th April, 1840, against Michael Wall and others, in favor of the Commercial and Railroad Bank of Yicksburg, for $2366 which was replevied by defendants giving bond, with G. Kyle, surety; bond forfeited 3d May, 1841. Jacob F. Fout was sworn. Amongst other things, not material, he stated that he prepared an inventory for Wall of the estate of Birdsong; that it was duly filed in probate court, could not now be found; that the estate inventoried amounted to $53,772 That upon a settlement ’ by Wall of Wyche’s estate, made 23d February, 1841, balance against Wall was $6,917 Inventory mostly consisted of debts due Wyche’s estate, and some cash on hand, say five or six thousand dollars; there was included notes of Michael Wall to his testator, amounting to $38,400, in three notes, payable 1st March, 1836, 1837, 1838. These notes of Wall were to be satisfied by paying to one Simmons notes of Birdsong for equal amounts due on same days. That the debts due Wyche’s estate, with the exception of a small amount, were then considered good and collectable. Knew of none of said debts having been collected by Wall, except that he has paid his own notes by satisfying Birdsong’s debts to Simmons. Birdsong had also lent to Michael Wall $22,500, which Wall owed, lent for a term of years, perhaps ten ; that he did not include that sum in the inventory, being of opinion that it was not chargeable to Wall as executor; that he knows the principal part of the debtors, whose debts were included in the inventory. They are now insolvent.
    That he prepared for Michael Wall an inventory of the estate of George Wyche, deceased, consisting of notes and accounts, amounting to $10,480, and also account of sales of estate of said George Wyche, amounting to $3194 63. That neither the inventory or sale embraced any of the slaves. That on settlement with the probate court, Wall was found to be indebted as Wyche’s executor, $8012 87. Most of the debtors then were, and yet are insolvent. He prepared M. Wall’s settlement as guardian of Wyche’s children, in 1841. Wall was indebted $2483. That amongst the debts due the estate was one of Rev. John Lane, of 5 or $6000, who satisfied the same by a bill of exchange on a house in New Orleans, which Wall sent to some other house in that place for collection. The latter house collected and uséd the proceeds, and have not paid it to said Wall. James M. Wall and William S. Parham are in very embarrassed circumstances.
    S. B. Simmons, sworn, states he sold to Birdsong a plantation and negroes for 60 or $70,000. That afterwards, by agreement of parties, Michael Wall was substituted for Birdsong. Wall paid witness $24,500, afterwards the contract was can-celled and witness took back the property and surrendered all the notes, except the $24,500, which had been paid. This was Wall’s loss. He is Wall’s neighbor. Knows no one who ships Wall’s cotton, except Wall himself, who manages and controls the property and cotton on the plantation. 1840 and 1841, raised 130 or 140 bales per annum.
    B. M. Mason sworn, stated that the negroes in controversy were a part of those embraced in the deed of trust. This was all the evidence.
    The plaintiff moved for the following instructions :
    1. By the terms of the deed from Michael Wall to the claimants Tie has an interest in the property which is liable to the execution of the plaintiffs, and should be valued by the jury, subject only to the conditional sale in the deed provided for.
    2. Against a judgment creditor, as the plaintiffs in this case, the deed from Michael W all, under which the claimants set up their right, is not good and sufficient on its face to protect the property from the plaintiff’s execution.
    3. That a deed made by a grantor to- indemnify sureties against the future violation of his duty in a fiduciary character, is illegal and void, as against subsequent judgment creditors.
    .4. The deed of trust being to indemnify sureties against a contingent liability, the claimants must prove that the liability still exists, and the deed is not evidence of the fact.
    These instructions the court refused.
    The defendants moved for these instructions':
    1. That unless they, the jury, believe from the evidencé that the deed of trust read by the-claimants, was made to hinder, delay or defraud - creditors, they ought to find for the claimants.
    2. That if the deed was made with such intent by the grantor, yét his intention cannot invalidate the deed. To render it void it is necessary that the trustees or cestuis que trust should participate in the fraudulent design.
    3. That although the deed is made to the claimants in trust, for the purposes therein declared, it entires to the benefit of the legatees, distributees, and creditors of Wyche and Birdsong, and is, if valid, their security.
    4. A debtor has a right in law to indemnify his sureties ' against loss, or provide for the payment of sums due, or to become, due from him, as executor or.guardian, and to prefer them to other creditors, if others he has, and his doing so is no badge of fraud.
    5. That the deed of trust' is valid on its face, and unless they believe it fraudulent, as stated in the second instruction, from evidence out of the deed, they ought to find for the claimants, •
    6. That no act of Michael Wall, not known to, and concurred in by the trustees, or cestuis que trust can invalidate their right.
    7. That in estimating the amount of liability of Michael Wall to the estate of Birdsong as executor of his will, the $22,500 mentioned by the witness, J. F. Fout, Esq., should be included as part of his liability, although not returned in the inventory, and charged to the executor as part of the estate of the testator.
    All which instructions the court gave, and the plaintiff excepted to the opinion of the court refusing his instructions, and • giving those of defendants.
    
      Lea and Lea, for appellant.
    For the appellant we make a few suggestions, on the character of the deed of trust, and the practice under it.
    1. A deed, fraudulent in part, is fraudulent in toto ; and this general rule is not impugned by the cases which allow some deeds to be good in part, although ineffectual in some particulars.
    2. This deed of trust appears to be fraudulent on its face; for, although it is not necessárily fraudulent to- convey all the grantor’s property, yet it must be done so as to commit it fairly, for the avowed purpose, and not with design to secure a secret benefit to the grantor. Now this deed manifestly conveys all the grantor’s property, professedly excluding him and family from all benefit of subsistence, currently from the proceeds. Yet it effectually gives him the whole proceeds for years, and of whatever may remain from year to year, not applied to paying his wards, as they arrive at ages, to receive their respective shares; and so the proof shows he has received it, by common acquiescence of all concerned. And this is the practical meaning of the instrument. First, the grantor is to keep and use the property, until sold under the trust, and with it he may raise the crops of cotton subjected to the deed nominally ; or he may omit such crops, using the property otherwise. In the latter alternative, the crops or proceeds are not subject to the terms of the deed, the cotton crops only being conveyed, and subject to sale, “ while such crops shall be grown ; ” but the other alternative amounts to the same thing precisely. For suppose the cotton crop raised and sold, what was .to become of the,money? To be paid to the probate court. But the court would have no right to receive it nor dispose of it. Wall himself being guardian, it was his right and duty to keep the money of his wards; and the deed is nugatory and deceptive, in pretending to exonerate him from legal liability and duty, by pretending to constitute the probate court a particular guardian, to receive and pay over the money, especially when it could not be paid to the wards, and ought to be at interest for years to come. This duty of keeping and managing such funds belongs, by law; to the guardian alone, and the deed could not have changed the law; but it did not attempt it, and no provision is there found for any practical disposition of the money, except as the law had previously fixed — to let it be with the guardian ; and so it has been, without any provision for securing it, or any attempt to do so, leaving him the absolute use of all the proceeds of the property, as if the deed had never been made, only secured in it by the delusive covering of the deed.
    If this desideratum had been the principal object, could there have been a better contrivance ?
    Harney, for appellant.
    The deed of trust, in this case, was executed by M. Waif, as guardian and executor, <fcc., to indemnify J. M. Wall and William S. Parham, also defendants in the execution, as his securities in his guardian and executor bonds. It does not recite any fixed indebtedness, or accrued defalcation, on the part of Wall, the executor and guardian ; but it purports to be intended to indemnify against future waste, or other dereliction of duty, by the executor and guardian.
    The court below erred,
    1st. Because such a consideration, based upon such future possible contingency, is fraudulent and void. It is admitted, that an indemnity against any debt, or fixed, specific, existing liability, if bona fide made, is valid.
    
      An indemnity given by a person acting in a fiduciary character, to indemnify against the consequences of future acts of dereliction of duty, is void, and will not be enforced.
    In the case of the Assignees of iSlader v. de Mattos iSlader, 1 Burr. 467, Lord Mansfield decided, “ That the conveyance of the bankrupt’s, whole substance to de Mattos, though by way of security, and for a valuable consideration, is fraudulent”
    
    The decision in that case turned upon the assignment of all the goods, &c., of the grantor. It will be perceived, by inspecting the deed of trust in this case, now before the court, that this objection of assigning all the goods, &c. of Wall, is equally apparent. The case of Unwin v. Oliver, examined in the case of iSlader v. de Mattos, goes to show, that in order to support the indemnity, the liability to be secured must be a definite, existing liability.
    Unwin had been appointed a receiver of a lunatic’s estate ; had given security for the faithful performance of his duty, &c. Two years afterwards, it was ascertained that he was indebted to that estate, in the sum of £604. To discharge this debt, or to indemnify his securities against their liability under it, he made the assignment, &c. Lord Hardwick held, “ that it could not be set aside as fraudulent, in chancery, unless it was fraudulent in a court of laxo, and an act of bankruptcy.”
    In the case of Slader v. de Mattos, fyc., Lord Mansfield says : “ The indemnity, which is the consideration of the deed in question, I allow to be a good, valuable, and true consideration. And I allow this deed to be a valid transaction, as betxoeen the parties.” The court , will here bear in mind that this indemnity, of which his lordship speaks, is not an indemnity given by a person acting in a fiduciary character at all, much less to indemnify against future acts of official misconduct.
    In 11 Mod. R. Chief Justice Holt says : “ A bond to save a man harmless from an unlawful act already done, is not void.” Evidently implying, that" if such a bond were given, to save harmless from such an act to be done in future, it would be void.
    In Kneeland v. Rogers, 2 Hall’s N. Y. R. 579, the court de-
    
      cided, “that an agreement, made as an ¡indemnity against the consequences of an illegal or immoral act, to be done at a future period, is void.” See also Hodson v. Wilkins,' 7 Green. 113. 4 Mass. 370. 14 Johns. R. 378. 1 Caines’s R. 460. 6 Mod. 225{
    
    In Martyn v. Blithman. Yelv. 197, the court say: “ A promise to pay so much to J. S., for his labor and pains about .the business of the Lady Darby, is not good, for it is maintenance. The same law, (say the court) if it had been a condition to save the jailer harmless from an escape, it makes the bond void: because it is a condition against law.” See that case, and the notes. See also Illegality of Consideration, 2 Kent, 466.
    “ An agreement, the natural effect of which is to induce a public officer (and why not an executor ?) to neglect his duty, is invalid.” Chit, ón Cont. 525.
    It may here be remarked that the sole object of Wall, in executing that deed, was to indemnify against his own future acts of official misconduct.
    No sufficient inducement appears on the face of that deed for Wall to .give that deed. . He, with his securities, executed his guardian and executor bonds on the 23d day of May, 1837, and 29th of November, 1838; and afterwards, without any ostensible cause or inducement, he executes this deed, on the 20th of April, 1840. It is true the deed recites that Wall, at the testator’s death, received possession of tangible estate of the decedent, being in amount between $25,000 and «$35,000, out of which the decedent’s debts were to be paid ; but what debts or to what amount, the deed is wholly silent. It is equally true, that the deed states that great portions of those estates had already been converted into money, and received by the said Wall, as executor and guardian. But the amount, or sums so received by him, is not stated. If, however, he had received the whole amount of both estates, he had the proceeds ready to be paid over to the heirs, or to the order of the probate court. The deed recites no defalcation, no indebtedness of Wall, to either of the estates. It does not even state that he was in fail
      
      ing circumstances, or that there was the least danger that the securities were about to be damnified.
    
    In the case of the United States v. Hooe, et al. 3 Cranch, 73, a decision was made upon the validity of a deed of trust, to secure Hooe against his securityship for Fitzgerald, the grantor, on his bond, as collector. But this deed was given to indemnify against certain notes indorsed by Hooe, for the accommodation of Fitzgerald ; and also against an ascertained existing defalcation of Fitzgerald, to wit, $57,157, which was made a part of the consideration in the deed of trust.
    So in the case of Wilkes, et al. v. Ferris, 5 Johns. 335, the deed of trust was based upon the indebtedness of Cheriot, the grantor, “ in the several debts in the schedule B, thereto attached ; ” which debts were ascertained, existing liabilities.
    The case of Hendricks v. Robinson, 2 Johns. Ch. 284, involved the question of the validity of a conveyance of real estate, from Abram and John Franklin to H. Franklin. In 'collating the several items in the consideration of the deed, the Chancellor says : “ The contingent responsibilities were considered and liquidated as so much actual debt, though there is no proof that any responsibility was ever incurred. Thus,, for instance, one item in the account is $7000, the amount of an administration bond, in which Henry was surety for J. Franklin j but we have no evidence that there was any breach of the condition of that bond.” The deed was declared fraudulent and void.
    In that case it was admitted, and it is doubtless the law, that a debtor in failing circumstances may prefer one creditor to another ; and an assignment to him of part of his property in trust, to pay the debt, is valid. But Wall, the grantor in this case, assigned all his property to the trustees, including even household goods, kitchen furniture, farming utensils, stock, &c. ; such perishable property, as could be of no permanent security to the cestui que trust. Besides, can Wall, under the circumstances, be regarded as the debtor of the cestui que trust ?
    It is true the court say, in that case of Hendricks v. Robin
      
      son, “Nor is an assignment, if honestly made, bad, though made to se'cure against future as well as present responsibilities.” But it is manifest, that the court here allude to •assignments between persons acting in their private capacity, for the security of ascertained existing debts; for in the same case the court say, “These assignments were made to procure a loan of money, and for the security of existing responsibilities.” Again, say the court, “ There were large existing responsibilities, affording sufficient aliment to support the assignments.” If the court meant such assignments as may be made by a person to indemnify against the consequences of his fiduciary acts, they must have meant, by referring to the case of the United States v; Hooe, that the assignment, to be valid, must be predicated upon existing ascertained liabilities, on the part of the securities of the fiduciary.
    2. The deed of trust operates as an entail. It ties up the whole property for the space of eight years, until all the children in succession of Wyche and Birdsong shall arrive at a certain age. These children are not parties to the deed. The deed itself in the beginning points out who the parties are. Their rights were amply protected by the probate court, and if their property had been considered as in danger, the court would have required Wall to give new or additional security, or on failure he ought to have been removed. If property may be thus tied up for eight years, may it not for similar reasons be tied up for twenty-one years and a fraction, the utmost length of time allowed in cases of executory devises? See Thellusson v. Woodford, 4 Ves. 227. That property cannot be tied up for that length of time by deed is well established by that case and all subsequent cases involving that principle. Besides, if the court shall sanction such a principle, it is not difficult to perceive that half the property in the state of Mississippi may be thus covered, by executors, administrators, guardians, &c., and thus exempted from the payment of their just debts for the space of twenty-one years and more.
    2d. If, however, the court shall be of opinion that an executor or guardian may give a valid indemnity to protect his sureties in his bond against future acts of his official mismanagement, without any ascertained existing liabilities or actual debts, and that therefore the deed of Wall is not void for those reasons, I contend it is void for the following badges of fraud, namely :
    1. The deed conveys all the property of Wall, including even household, kitchen furniture, stock, farming utensils, &c. perishable property that could be of no permanent security to his sureties and could only have been inserted to hinder, delay or defraud creditors. The case in 1 Burr. 467, already alluded to, declares the deed fraudulent simply on the ground that it conveyed all the goods, &c. of the grantor. In the case in 2 Johns. Ch. 284, the'Chancellor recognizes the invalidity of an assignment of all the grantor’s property, and on that ground' alone. Again, at the time of executing that deed M. Wall had committed no waste, no defalcation, had committed no breach of the condition of his bond, no responsibility incurred by his securities, nor any act of official misfeasance recited in the bond. It is true it contains a general statement that great portions of those estates had already been converted into money and received by Wall as executor and guardian. But this money and property had not been squandered, but was ready to be paid to the heirs, or to the order of the probate court.
    In this condition of things, without being ruled for additional seeurity, or without being required by his securities, as far as we can gather from the deed or other testimony, Wall executes this deed, conveying about sixty negro slaves, about one thousand acres of land, including a plantation in full blast, the then present crop, and all future crops, household, kitchen furniture, &c., already mentioned. If such a deed is permitted to stand judicial scrutiny, it is not difficult to foresee the consequences of the enormous frauds which may be practised on creditors with the utmost impunity.
    By sustaining such a principle as law, A, an executor or guardian, gives a bond with sureties in the penalty of $10,000, but he has assets only to the amount of $5000; but he possesses property in his own right to the amount of one hundred thousand 
      
      dollars, and by a deed of trust like the present, while he is in the full discharge of his duty as executor, he conveys this immense amount'of property to trustees to secure this $5000 to his sureties, while it is apparent, on the face of the deed, that this $5000 is in no danger of being squandered or misapplied. Can such*a deed, under these circumstances, protect this large amount of property from the judgment creditors of A ?
    2. Wall, the grantor, had the control and received the proceeds of the crop of 1841, which is inconsistent with the deed.
    3. Not only did the grantor retain possession of the entire property, but he controlled the entire proceeds thereof and applied them to his own private purposes and not to the objects of the grant, which is inconsistent with the purposes of the grant. t
    
    4. The trustees, Pack and Clifton, never attempted to execute the objects of- the grant, or in any manner interfered with the .property or its- proceeds, but left the whole to the entire control of M. Wall from the execution of the deed, April 20,1840, to the levy in this case June 7, 1842, near two years.
    5. Such perishable property, horses, stock, household furniture, &c. &c. were included in the deed as could be of no petmanent security of the cestui que trusts, and could only have been inserted “ to hinder, delay or defraud creditors.”
    In 1 Johns. Ch. 484, the court say “ the very diminished control which the creditor now has over the person of the debtor, greatly enfeebles the common law remedy of imprisonment, as a means of coercion to justice, and it becomes important to guard with increased anxiety against every possible contrivance to cover or withdraw property from the payment of debts.” The bill of sale of the household furniture, I- consider as absolutely void.
    6. The deed does not mention any indebtedness on the part of Wall to his sureties, no pecuniary embarrassment, no present or future danger, if any, no default'accrued, or waste committed, and no specific object of appropriation of the property or the proceeds; but only a general, possible contingency that may not happen and which the law presumes will not happen.
    
      7. All the parties to the deed were intimate blood and family ■connexions. See Roberts on Fraud. Con. 452 ; 4 Johns. 583.
    8. The deed works like a tub mill, receiving the entire proceeds into the buckets of M. Wall, to be arrested only on a contingency which had not happened, and which the law presumes never will happen, to wit, the official dereliction of Wall as ■executor and guardian.
    9. The deed was not executed at the time of, but long subsequent to the securityship of the cestui que trusts, and that too, without any new consideration, inducement or ostensible cause whatever.
    10. The whole deed, on its face, shows a “ trick and contrivance ” of Wall, the grantor, to retain possession of the entire property and to appropriate the proceeds to his own private use, in defiance of creditors.
    3d. The circuit court erred in not giving the instructions asked for by the plaintiff in the execution.
    Without specifying the three.first of these instructions, as the principle's involved in them have already been considered, I will here only notice the 4th, namely:
    4. “The deed of trust being to indemnify sureties against a contingent liability, the claimant must prove' that the liability still exists and the deed is not evidence of the fact.”
    This instruction is certainly in strict accordance with law. The deed is evidence only of its own existence, and is only binding on the parties to it. The deed might exist, and yet the liability of the sureties might have been removed by Wall having fully accounted, paid up, and settled with the heirs. Nay more, Wall may have resigned as executor and guardian, and thus the object of the indemnity may have been accomplished, and had ceased to exist. And, to negative these fair and reasonable inferences, the proof surely devolved upon the claimants. They ought to have adduced some proof that the contingent liability in the deed still existed; that there was at least some remote danger of converting this contingent liability into a specific and •certain liability. As agents both of the grantor and the cestui •que trusts, they were bound to know that the grantor had or had not performed his duty as executor and guardian; and hence it devolved on them to prove these facts.
    4th. The circuit court also erred in giving the instructions asked for by the claimants. These instructions are the following, viz. :
    1. “ That unless they, the jury, believe from the evidence that the deed of trust read by the claimants, was made ‘ to hinder, delay, or defraud creditors/ they ought to find for the claimants.”
    This instruction is manifestly erroneous. The deed may have been made with no intention of 11 hindering, delaying, or defrauding creditors; ” and yet it might be void as I contend it is, as against the general policy of the law; oras against the constitution of the federal or state constitution; or, with the most honest intentions of the parties in creating it, the deed may bcome void by the subsequent conduct of the parties; or the grantor may have used the property or its proceeds inconsistently with the objects and purposes of thé grant, as was the fact with the grantor in his appropriation of the crops, &c. And hence it is manifest, that the jury might have found no intention in the parties to the deed of “hindering, delaying, or defrauding creditors,” and yet they ought not to have found for the claimants.
    2. “That if such deed was made with such intent by the grantor, yet his intention cannot invalidate the deed; to render it void, it is necessary that the trustees, or cestui que trusts, should participate in the fraudulent design.”
    In the first place, it may here be remarked that these trustees were mere naked trustees, without any beneficial interest whatever ; that deeds of trusts are often made without the previous knowledge or consent of the trustees; that having no interest whatever in the property granted, they cannot have any inducement to perpetrate a fraud., Nay, more, it is apprehended that a deed of trust may be valid without their signature, or perhaps without their previous knowledge or consent. But, that this instruction is erroneous on other grounds, see 2 Johns. Ch. R. 35, and 8 Term Rep. 521.
    
      3. “ That although the deed is made to the claimants in trust for the purposes therein declared, it enures to the benefit of the legatees, distributees, and children of Wyche and Birdsong, and is, if valid, their security.”
    That this instruction is contrary to law, is apparent from these positions, to wit: That those heirs are not made parties* in the deed. The deed itself clearly specifies the parties ; these three parties could, unquestionably, at any time, cancel and annul the deed; and the heirs would surely have no legal right to interpose their objection to such cancellation.
    4. “ A debtor has a right in law to’ indemnify his sureties against loss, or provide for the payment of sums due or to become due from him as executor or guardian, and to prefer them to other creditors, if others he has, and his doing so is no badge of fraud.”
    However correct this instruction may be in the abstract, and however much it might, and probably did influence the jury, it had no application to the case before them. For if Wall, the executor and guardian, without committing any waste, or other dereliction of duty, can be regarded as a-debtor to the heirs or the estate of his testator, he surely cannot be a debtor to his sureties without such dereliction, and hence they cannot be his creditors. Under the cireums¿ánces of the parties at the time of the execution of the deed, his sureties were-certainly not his creditors; and the deed could not have been given to secure them as creditors. Consequently, the court below manifestly erred in giving the instruction.
    5. This instruction is erroneous, for reasons and law assigned and quoted in references contained in and annexed to the second instruction.
    6. This instruction must share the same fate as that of the preceding.
    In conclusion, I will add that I have diligently searched for authorities tending to sanction the principles contained in the deed of trust now before the court; but I have searched in vain. If the court shall sustain the deed,'it will authorize all the administrators, executors and guardians, &c. in the state of Mississippi, to cover their property, and then to place it beyond the reach of- executions of their judgment creditors for the space of twenty-one years. For it will be borne in mind that this deed continues its prospective operation, until the youngest child of the testator shall arrive at the age of eighteen years; and if at eighteen, why not until he arrives at lawful age % If such indulgence shall be allowed to administrators, executors, guardians, &c. to cover their property by such a trick and contrivance, it is easy to see what a door for fraud will be opened to unscrupulous men “to hinder, delay and defraud” their judgment creditors.
    
      Mayes and Clifton, for appellees.
    The first question is, did the court err in permitting the deed, under which claimants set up title, to go to the jury as evidence ? It was contested only on the ground that it was void, on its., face, and is said to be void on its face for the following reasons, as will appear from the argument on the part of the appellant.
    1. That it was a conveyance to indemnify against a contingent future liability, and was therefore fraudulent and void. In support of this objection certain authorities are referred to, which I respectfully suggest have no application to this case. The principal case relied on is that of Sluder’s Assignees v. de Maitos, 1 Burr. 467. That case only decides that a conveyance made of all a trader’s effects was an act of bankruptcy, and turned exclusively on the doctrines applicable to bankruptcy. The opinion of Lord Mansfield shows that the leading features of ;the case were wholly different from those now under consideration. That was a conveyance by a trader of all his effects to secure for future advances. This is a conveyance by a planter to indemnify his sureties in his bonds as executor, &c. That was a secret conveyance. This was public and notorious, and duly recorded. The conveyance was there made in contemplation of bankruptcy, and the necessary consequence of a conveyance by a trader, of all his effects, to secure one for future advances is an act of bankruptcy, as he cannot pay existing debts, having divested himself of the control of means. Finally, there the question was, whether a trader was a bankrupt. Here, it is whether a certain conveyance is void upon its face, for fraud apparent.
    2. It is contended that it is void, because it is to indemnify against a future breach of duty. Here again, it seems to me the authorities have -no application. A bond given me, or a security to' me of any kind to indemnify me for doing an illegal act is void, but it is too plain to admit of remark that a bond given by me or a security of any kind to assure others that I will not commit an illegal act, or if I do that they, as my sureties, shall be indemnified, is valid. All the cases of indemnity against illegal acts are to indemnify the wrong-doer, and they proceed on principles which seem to me so wholly inapplicable to the present case that I will drop this part of the subject.
    3. The third position of the counsel for plaintiff is, that the deed of trust “ operates as fin entail,” and so is void. I pass over this without remark.
    4.' The next ground taken is, that the deed is void, because it conveys all the property of Wall, including farming tools, household goods, &c.
    The answer to this is twofold. I deny the. fact; the deed does not convey, or purport to convey all the property of Michael Wall. There is nothing in the record to show it, the deed does not so declare it, and the court cannot presume it. But if the deed did convey all his property, I deny the legal conclusion. It does not render the deed fraudulent and void in point of law. The plaintiff here relies on the case before noticed in Burrow. It has been shown to have no application. He also relies on Hendricks v. Robinson, 2 Johns. Ch. R. 284. That case is considered directly against him. The reasoning and authorities of Chancellor Kent, 306, 307, are conclusive. He lays it down, that “indemnity is a. good consideration,” and quotes, with approbation, Munn v. Whittemore, 8 T. R. 521, in which it was held, that a grantor, who conveyed a lease of his farm, and all his effects and debts in trust, in consideration of a sum to be paid by one of the trustees, and out of the \Sale the trustee to be reimbursed, and to pay. him other sums, *and then to pay such of his debts as the trustees should, in their discretion, think proper, and the surplus to be held for the use of his wife, was not guilty of a fraud ; that “ it was neither fraudulent! in fact, nor voluntary, from which the law infers fraud, and that putting the bankrupt laws out of the case, a debtor may assign all his effects, for the benefit of particular creditors.” He asserts that the conveyance, &c., “ must be devised of malice and fraud, to bring it within the statute.” That “ the object of the statute was to prevent deeds, &c., fraudulent in their inception and intention, and not merely such as in their effect might delay or hinder other creditors.” He further says, “It is altogether a question of intention; and if that be free from fraud, the assignment is not void,” &c. See also Dey v. Dunham, 2 Johns. Ch. R. 189.
    The numerous authorities referred to, prove the foregoing positions to have been fully established, in equity and at law. How then the naked fact, that Michael Wall conveyed all his effects, (if such fact appeared,) constitutes even a badge of fraud, I am at a loss to conceive. But to enable the plaintiff to sustain his position, it would not be sufficient that it is a badge of fraud. He must prove that it is fraudulent and void, in and of itself, and conclusively so, for he is endeavoring to prove that the court erred, in permitting the deed to be read to the jury. And no odds how many badges of fraud there might be apparent on the face of the deed, it should go to the jury, that they might decide whether it was or was not fraudulent. The court could not, because of a badge of fraud, if it existed, decide upon those evidences, and reject the deed. The deed should go to the jury, that they might weigh the evidences, and pronounce on the existence or non-existence of the fraud, which the badge or evidence conduced to prove.
    , The grounds taken by plaintiff, and numbered 2, 3, 4, 5, 6, 7, 8, 9, 10, commencing with a statement that Wall had the control of the property, &c., constitute no reason why the court should have refused to permit the deed to be read. Make the most of them, and they could only be, as far as the action of the court is involved, ground for certain hypothetical instructions to the jury.
    
      This brings me to the instructions refused and given.
    The first instruction was rightfully refused. The equity which Michael Wall had was not the subject of execution. The property levied on was personal; and that an equity of redemption in personal property is not subject to execution, is too universally admitted to be discussed. Freeman’s Chan. R. 729. But if M. Wall’s equity was subject to execution, that was not a question raised by the issue. The sheriff did not levy on M. Wall’s equity; the 'equity in M. Wall was not claimed by Pack and Clifton. The issue did not involve that equity. The levy was on the slaves, as the property of Wall ; they were claimed by Pack and Clifton, as their property, and the issue was made on, and only involved the legal right. Where a sheriff may by law sell under a fi. fa. an equity of redemption, it should appear that he levied on that equity. Walford v. Phelps, 2 J. J. Marshall, 33.
    The second instruction asked and refused, only involves the validity of the deed on its face. This has already been remarked on. The same may be said of the third instruction asked and refused.
    The fourth and last instruction refused, is so palpably not law, that no remark need be made respecting it.
    The first instruction given on motion of the defendants is fully sustained by the statute, which is but an affirmance of the common law. It only makes void deeds made to hinder, delay, or defraud creditors; and the third section expressly provides, that “this act shall not extend to any estate or interest in any lands, goods, or chattels, or any rents, common, or profit, out of the same, which shall be upon good consideration, and bona fide lawfully conveyed or assured to any person or persons, bodies politic or corporate.” Rev. Code, 193. That this was upon good consideration has already been shown, and will be further shown hereafter, and the very terms of the construction refer to the jury the bona fides of the transaction.
    The second instruction is attacked, and Hildreth v. Sands, 2 Johns. Chan. R. is referred to, as standing opposed to it. It is sufficient to remark, (although it admits of other answers,) that the case of Hildreth v. Sands came before the court of errors, and Spencer, J., in delivering the opinion of the court, says : “ It has been incidentally stated by his honor, the Chancellor, in the opinion given by him in this cause, that if the deed sought to be avoided as fraudulent, was to be considered fraudulent on the part of C. Sands, the grantor, there would be great difficulty in supporting it, even if the grantee was innocent of any fraud.” “ I do not understand his honor as intending to give a decided opinion on this point, nor was it necessary; I cannot, however, refrain from expressing a different inclination of opinion.” He then proceeds, at some length, to show that the Chancellor’s opinion, or rather the dictum, was incorrect. Sands v. Hildreth, 14 Johns. R. 498, 499. And in Roberts v. Anderson, 3 Johns. Chan. R. 378, Chancellor Kent acknowledges and apologizes for his error, saying that “ such a conveyance is supported by the proviso, (to 13th Elizabeth) however fraudulent the intention of the grantor might be; and ,the contrary opinion which I had once received on this point from some of the English cases, without at the time' adverting to this proviso, and which led me to the dictum in Hildreth v. Sands, 2 Johns. Chan. R., was properly corrected by Mr. J. Spencer, when that case was afterwards before the court of errors.” The proviso to our statute, before referred to in this argu-r xnent, is the same with that of 13th Elizabeth, and therefore the case of Hildreth v. Sands is for, and not against the instruction.
    The third instruction given is fully warranted by the authorities and by reason. 1 Story’s Eq. 481, and authorities cited. Rhillips v. Thompson, 2 Johns. Chan. R. 418.
    On this point references might be greatly multiplied, but there being*no diversity, it is unnecessary.
    The fourth instruction is supported by the authorities before cited. So also as to the fifth. The sixth and seventh require no remark.
   Mr. Justice Sharkey

delivered the opinion of the court.

Harney, on the 19th of April, 1842, recovered a judgment against William S. Parham, Willis M. Gibson, Michael Wall and James M. Wall, and sued out a writ of fieri facias, which was levied on certain slaves as the property of Michael Wall. The slaves were claimed, according to the provisions of the statute, by Pack and Clifton, who gave bond to try the right. On the trial of the issue, the plaintiff in execution introduced his judgment and execution, and proved by a witness that the slaves were in possession of Michael Wall at the time of the levy, and here rested his case. To rebut the prim,a facie case made out by the plaintiff, the claimants introduced a deed of trust, as the foundation of their title, made to them as trustees, by Michael Wall, anterior to the date of the judgment; by which he conveyed a quantity of land, a considerable number of slaves, including those levied on; his stock of horses and cattle; a quantity of household and kitchen furniture, and the crops of cotton thereafter to be grown. The history of this deed of trust, as gathered from the recitals and other evidence, seems to be in substance this: Some four or five years before it was executed, Wall had become guardian to’the infant daughter of one Birdsong, then about four years of age, and he was also .executor of Birdsong’s will. He received a considerable amount of property, and executed bond with James M. Wall and William S. Parham as sureties, in the penalty of eighty thousand dollars. He was also appointed executor of the will of George Wyche, and guardian to his children; and for the faithful discharge of this trust, he executed another bond with J. M. Wall and Parham as sureties. To indemnify and save harmless the two sureties, Wall and Parham, the conveyance in trust was made, giving power to the trustees to sell, if it became necessary. But of the crops of cotton to be raised, the necessary expenses of planting, gathering and selling the same, were to be first deducted, and the net proceeds paid into the probate court. The deed contains a clause reserving the right of possession to the grantor. The plaintiff objected to the introduction of the deed, but the deed was admitted. The defendants or claimants next introduced the copy of a mortgage of most of the land conveyed in the deed of trust, to the Real Estate Bank of Hinds county, bearing date 3d of July, 1838, which was executed by Michael Wall. They also read the transcript of a judgment confessed by M. Wall and William S. Parham on the 23d of December, 1839, in favor of James Ford, for $8218, under which a Ji. 'fa. issued, and part of the land and sixteen of the slaves conveyed in the deed of trust, were sold on the first of November, 1841. Another judgment in favor of the Railroad Bank, against M. Wall and others, rendered on the 16th of April, 1840, for $2366. Proof was also introduced in reference to the amount of inventories of property, which had come to Wall’s hands in his fiduciary capacities, and also in reference to his liabilities thereon at the time of trial, by which it appeared to be a sum greatly less than the amount of his bond. Under the charges of the court, the jury found a verdict for the claimants, and the plaintiif in execution has appealed to this court, having taken exceptions to the refusal of the court to grant certain charges, and to the granting of certain others on the part of the claimants.

It is deemed unnecessary to undertake an investigation of all the points raised, either by the charges refused, or those which • were given. The most important are selected for comment. The plaintiif in execution requested the court to instruct the jury, that as against a creditor the deed of trust was not sufficient on its face to protect the property from the execution. If the deed was void on its face, it presented a question of law, and it was competent for the court to declare it invalid. In the case of Hyslop & Campbell v. Clark, 14 Johns. R. 458, an assignment for the benefit of creditors, was held void in law, because of the restrictions imposed on some of the creditors, and the benefits secured to the grantor. And in the case of Harris v. Sumner, 2 Pick. 129, a deed of assignment which preferred certain creditors, was held void, because the grantor had reserved a sum of money for himself. Both of these cases established the principle, that an assignment for the benefit of creditors, preferring some to others, which secures a lasting and material benefit to the grantor, is void in law. The objection to the validity of this deed, as being void on its face, is one of great force. It was made long after the responsibility was incurred; it conveys all the household and kitchen furniture of the grantor, his horses and mules, and all his farming utensils, together with the crops of cotton to be afterwards raised, with a reservation of possession. It is manifest that a portion of the property thus conveyed must be consumed by the use of it, and this circumstance is sometimes regarded as making the conveyance void on its face. 4 Yerg. R. 541. This conveyance was made to indemnify sureties, whose liability was remote, and depended on a mere contingency, and there was no proof introduced to show any act from which an actual present liability could have arisen. Strong as these circumstances may seem, I am disposed to regard them, in this instance, only as badges of fraud, and being such, the court could not properly have declared the deed void on its face.

At the request of the claimants the court charged the jury, that if the deed was made with intent to hinder, delay, and defraud creditors by the grantor, yet his intention cannot invalidate the deed. To render it void it is necessary that the trustees or cestui que trust should participate in the fraudulent design.” In giving this instruction the court announced the general proposition, that a deed of trust is valid unless the trustee or cestui que tnisl has participated in the fraudulent design of the grantor, which is believed to be a mistaken notion of the law, by which the jury may have been misled. It is believed that a deed of trust, designed to defraud creditors, may be void, although neither the trustee nor the cestui que trust knew anything of the design or object of the grantor. That deeds of trust so executed may also be valid is no doubt equally true.

This question must depend upon the construction of the statute of frauds and perjuries in its application to such instruments as this deed. By the second section every gift, grant, or conveyance of lands, or of goods and chattels, contrived or made with malice, fraud, covin or collusion, with intent to hinder, delay or defraud creditors, or -to defraud or deceive those who shall purchase, is declared void. The third section provides that the act shall not extend to any estate in lands, goods or chattels, which shall be upon good consideration and bona fide, lawfully conveyed to any person or body politic. This statute embraces in substance the provisions of the 13th and 27th of Elizabeth, which have received a settled construction, protecting bona fide purchasers for a Valuable consideration, and the same construction has been given to similar statutes in most, or perhaps all, of the States of the Union ; and it is immaterial, says Chancellor Kent, whether he purchases from a fraudulent grantor, or a fraudulent grantee; and there is no difference between a deed to defraud creditors, and one to defraud subsequent purchasers. 4 Kent’s Com. 5th ed. 464. This construction has been given in reference to absolute conveyances, and when we are called on to apply our statute to such a conveyance, we may adopt the same rule.

There is certainly a very just distinction between an absolute conveyance, and a deed of trust, the latter being but a security for the payment of a debt, whilst by the former, the entire estate passes. The legal title, it is true, is said to vest in the trustee, but it does so subject to a condition or a defeasance. These instruments have come into very general use in this state in the place of mortgages. Elsewhere they do not seem to be so generally used, hence there are but few adjudged cases, except those which have taken place on absolute assignments in trust for the benefit of creditors. As a security taken at the time of contracting a debt, they may be useful and valid, and may be entitled to be regarded as coming within the proviso of the statute; but when they are executed to secure the payment of a preexisting debt, or to indemnify against loss on account of a preexisting responsibility, other principles must be kept in view. The effect of such an instrument, and its object, may then be to give a preference to one creditor over others ; and whether this can be validly done under any or all circumstances, becomes the important question. This deed was given for the indemnity of the sureties of the grantor, on account of a preexisting liability, the actual liability depending on a mere contingency.

It is not to be doubted that a debtor may, by assignment, give a preference to one creditor, or to one class of creditors. It is often morally right that he should do so. But his motive must be dictated by a moral'sense. If the act is conceived and perpetrated in fraud, it becomes vicious. It is true that every preference tends to hinder or delay other creditors, but this is the mere consequence of a pure purpose. But when the conveyance originated in a scheme of designed fraud, it comes within the condemnatory provisions of the statute, and is void. Chancellor Kent, in commenting on the right of a debtor to prefer creditors, said, “ It is altogether a question of intention, and if that be free from fraud, the assignment is not void within the statute.” Hendricks v. Robinson, 2 John. Ch. R. 283. The same principle was recognized in the case of Estwick v. Cailland, 5 Term Rep., and by Lord Ellenborough, when he said that it was not every conveyance that might have the effect 'to hinder and delay creditors that is fraudulent within the statute, but it must be devised of malice and fraud to bring it within the statute. Cited 2 Johns. Ch. R. 308. And again in the case of Nicoll v. Mumford, 4 Johns. Ch. R. 522, it was held that such assignments must be bona fide, and referable to an act of duty on the part of the debtor. The case of Hyslop and Campbell v. Clark, before referred to, is decided on the same principle. That was an assignment for the benefit of creditors, giving a preference to some, and exacting a condition from others who should claim under the assignment, on which account it was held void. It was not pretended that the preferred creditors had participated in the fraud; their claim was undoubtedly just, and they had done no act from which a fraudulent design could be imputed to them. The case of Harris v. Sumner, 2 Pick. R. 129, was also on an assignment giving a preference amongst creditors. The grantor reserved a certain sum of money to himself, on which account the assignment was held void, although the preferred creditors had not participated in the fraudulent' design, in any other way than by being a party to the instrument, which was not in fact signed by them until after the attachment was made. It was insisted that the question of fraud was one of fact, and ought to be left to the jury, and the court admitted that this would be proper where the fraud did not appear on the face of the instrument. These two last cases must settle beyond question that a deed of trust which prefers creditors may be void for fraud in law, although the creditors may be innocent of any fraudulent intent. And if such a deed may be fraudulent in law, why may it not be in fact? Reference to a few legal principles will show that it may be so. I apprehend that it will not be pretended that the trustee must know of the fraud, or participate in the design. The trustee is often a party without any consideration : a mere third person interposed to fill the legal requisites of a deed of trust, often without any participancy in the design, or knowledge of the intention of the grantor, as doubtless were the trustees in this instance, even if the grantor contemplated fraud, which is not a question for us to determine. The cestui que trust is the person beneficially interested, and clearly,, if he participate in the fraud, the deed is void, although the trustee be innocent. On the other hand, if the innocence of the cestui que trust must in all cases make the deed valid, it is difficult to say that it would be void for the fraud of the grantor and trustee. If the jaw will in all cases protect an innocent person, will it not protect him notwithstanding the grantor and trustee may both have participated in the fraud ? He is the party beneficially interested, and yet I apprehend that it would not be seriously contended that a deed made by a fraudulent grantor to a fraudulent trustee was valid. Still in such a case the cestui que trust, being the party whose debt was the consideration, if all deeds are within the proviso of the statute, might claim his protection. If a deed so made would not be valid, it seems to follow that the innocence of the cestui que trust does not necessarily make the conveyance valid. But, further to illustrate the principle I contend for: the creditor may be ignorant that his debt has been secured by deed of trust. It may be made in favor of an absent creditor. This point was settled by Chief Justice Marshall, in the case of Brooks v. Marbury, 11 Wheaton; and again in the case of Nicoll v. Mumford, above cited. In such a case the grantor might create secret trusts in his own favor, by conveying to the use of others, and the deed would be valid becáuse of its provision in favor of the bona fide creditor; for part cannot be rejected and another part retained. If a deed is void as to part, it is void as to the whole. In this way it is easy to perceiv'e how a debtor may lock up his property, or the greater part of it, in defiance of his creditors. A deed disclosing such a purpose, would undoubtedly be declared void on its face, but they may be so framed as to keep the deformity out of view; in which case it becomes necessary that a jury should find the fact; and when the fact is found by a jury, the law condemns it, just as it does when it appears on the face of the deed. I am thus led to the conclusion that the proposition laid down by the court in the charge was too broad, and that a deed of trust made to secure an antecedent debt, may be void,' although neither the trustee nor the cestui que trust, participated in the fraudulent intent. The statute protects a bona fide purchaser because he parts with his money under a belief that he is getting a title uncontaminated by fraud ; but the creditor parts with nothing. The giving of the deed of trust does not extinguish his debt, nor did he contract on the faith of such a security. He is not a purchaser, nor does he part with his money for an interest in the land. But his situation is that of a mere creditor, and he is not entitled to have his debt preferred, when such preference is given with a design to defraud other creditors. If such be its purpose it is void under the statute of frauds.

The judgment must be reversed and the cause remanded.  