
    [Lancaster,
    May 27, 1828.]
    HOWER against GEESAMAN and others.
    IN ERROR,
    An assignment in trust to pay, in the first place, preferred debts, and then all . other debts, absolute on the face of it, is null and void against creditors, if the grantor retain and use, and dispose of the property as his own;.and that though the creditor who levies on it has notice of the assignment before his-judgment;
    Such deed is not void because it contains no schedule, or limitation of time for-execution of the trust, or prefers some creditors, or because the grantor was in debt.
    Assignees entitled to personal property have sufficient possession to maintain trespass. ■ .
    Error to the Court of Common Pleas of Lebanon county.
    • This action of trespass was brought in the court below by Geesaman, Krause, and Keller, defendants in error, against Ilower, the plaintiff in error, the sheriff of Lebanon county, for taking and selling goods upon a fieri fiadas issued against Adam Rice at the suit of Adam Sloever. The plaintiffs below claimed the goods as assignees of Adam Rice, by deed dated the lSlh October, 1823, and duly recorded. By this deed, after reciting the grantor’s inability to pay his debts by reasons of losses, &e., in consideration thereof, and of one dollar paid, Adam Rice, by a general description, .transfers' all his estate,. real, personal, arid mixed, to the defendants in error, in trust, to sell with all convenient speed, &c., and pay off first a judgment bond to John Rice, (mentioning the sum.and the time of payment,) as also two several judgment bonds, one to Matthias Gilbert, the other to Henry Geesaman, (mentioning Sums and days of payment,) both given for the purpose of securing them as bail or surety, as would appear by endorsements On the bonds. Next to pay a debt due to John Krause by note, (stating the date,) as also one hundred and fifty dollars to Samuel Light, the grantor’s endorser to the Farmers’ Bank of Lancaster. And then to pay all his other debts in equal proportipns. Surplus, if any, to the grantor: with a power o'f at-; torney to sue for debts, &c. ' Sloever-, before he obtained his judgment, was.informed by' Adam Rice of the full contents of the deed of assignment. The sheriff also, previous to the sale, had written notice of the claim of the assignees. But the .assignees took no possession of the goods. On the contrary, Adam Rice, the assignor, held the possession — carried on the tavern — carried on the bat-making business in a shop with three or four hands— and disposed of and sold the property as his own, as usual, up to the time of the sale by the sheriff. The verdict was for the assignees, the plaintiffs below, and judgment thereupon. The counsel for the defendant below .put sundry written propositions to the court, and excepted to the answers. All the alleged errors were-now abandoned, except, what in substance may be included in the-answers to the first, fourth, ninth, and tenth, propositions.
    1st, That the deed of Adam Rice to the assignees, without de'scription, valuation, or inventory, for the benefit in the first instance of particular creditors, nominating and appointing the assignees his trustees without consulting his creditors, and- without limiting the time for the execution of,the trust, is in law fraudulent and void. ' . -
    Answer of the court — denied.
    4th. That the deed of the. 13th of October, 1823, assigning the personal estate oí 'Adam Rice to the plaintiffs, is absolute on the face of it, and possession not having accompanied and followed the deed, the same is in point of law fraudulent; the retention of the possession by Adam Rice, the vendor, makes the deed absolutely void in law7, and that is a matter to be determined by the court and not by the jury.
    Answer by the court. — The deed of the 13th of October, 1823, assigning the personal estate of Adam Rice to the plaintiffs, is absolute on the face of it. . The possession not having accompanied the deed does not in point of law make the deed fraudulent, nor did the retention of the possession by Adam Rice, the grantor, for seven or eight days from the execution'of the deed, to the day the sheriff .seized them, make the. same absolutely void in law.
    9th. That if the jury believe that Adam, Rice remained in possession of the personal property, used it as he had done before the deed of assignment was executed, this is a fraud in law, and will make void this deed, at least as far as respects the personal property not delivered. ,
    Answer of the court — denied.
    10th. That a person being indebted at the time he makes an assignment is,a circumstance fropn whence the jury may infer fraud.
    Answer by the court — denied.
    Upon these points the court added, as follows: — A debtor may execute a deed of assignment.of all his property to trustees for the. benefit of his creditors; and in such'deed may give a preference to any creditor he pleases. It has been, given in- evidence that Adam, Stoever, the plaintiff in the execution issued on the 20th of October, 1823, by virtue of which the sheriff on the same day seized and afterwards sold- the goods, had' full notice pi the said assignment on the 16th of October, 1823, before he obtained his judgment on which he issued his said execution. The deed of assignment, unaccompanied by delivery of possession of the' goods, or of an inventory or schedule of the same, and the debtor nominating and appointing trustees' without consulting his creditors,, and without limiting the time for the execution of the trust, is not fraudulent per se. They are circumstances which may be taken into consideration, but are not in themselves evidence of fraud. The deed was executed on the 13th, and the sheriff seized these-goods in execution on the 20th of October, 1S23, after the plaintiff in the execution had full notice of the deed of assignment? and although the deed is absolute on the face of it, and n.o actual delivery-to the assignees, the mere permitting the property to remain for seven or eight days in the possession of JLdam Bice does not in point of law make the deed fraudulent.’ It has also been given in evidence that the sheriff had notice of the plaintiffs’, claim to the goods before he sold them. If the jury are of opinion that there is no fraud on the part of the plaintiffs, it will be their duty to find a verdict in their favour for such amount of damages as they think the plaintiffs are entitled to. ,
    
      Weidman and Norris, for the plaintiff in error.
    The court below erred in supposing us bound to make out a charge of actual, personal fraud. The deed is fraudulent and void-in law.- The grantor’s relations are made trustees. His relations are put among the favoured creditors. There is no description of.the property: no schedule. The creditors have no means of compelling a fair appropriation: no protection against fraud: no means of knowing for what the assignees ought to be held accountable. Our law trusts no man, not even public officers, not even those -who give security for their honest behaviour, with goods untold and unknown. If there is a domestic attachment, or a levy by a sheriff or constable, or if an insolvent, debtor gives up his property, or a man administers upon an estate, in every-instance-a schedule or inventory is required. The retaining possession-of the goods by the grantor was inconsistent with the deed; it was a legal fraud, and incontrovertible. Hamilton v. Russell, 1 Cranch, 313. 9 Johns. 337. Ibid. 342. Clow v. Woods, 5 Serg. & Rawle, 282. The.court erred also in denying that a person being in debt when.he makes-an assignment, is a circumstance from which the jury may infer fraud. Pet. Rep. 454. At any rate the sheriff cannot be liable in trespass. An officer is bound by no constructive possession. Here was no possession in the plaintiffs to support this action against any person. In every case we have found of trespass by assignees in trust for creditors there was actual possession. They cited Lippencott v. Barker, 2 Binn. 174. Cunningham v. Neville, 10 Serg. & Bawle, 201. Martin v. Mathiot, 14 Serg. & Rawle, 214. Selw. N. P. 1108.
    
      Elder, for the defendants in error.
    The sheriff appears to have
    taken an indemnity. He had express notice of the transfer. ^Butthat is not necessary to the case of the defendants in error. If upon an execution against one, the sheriff takes the property of another, he is responsible to the owner: and upon no principle of law can his ease be distinguished from the Case of Stoever, had Stoever been defendant. The preference given by the deed of assignment is not illegal. It is the invariable practice.1 It is supported by all. the decisions in Pennsylvania. To meritorious creditors a preference is permitted. There is no fraud in the case, either in lav? or in fact, unless in Stoever, who attempts to grasp all for himself* and exclude the rest of the creditors by means of a judgment obtained with full knowledge of the assignment. Our case is fully supported by Wilt v. Franklin, 1 Binn. 502. In" that case there was no schedule, no time limited for the performance of the trust* no actual taking of possession. That case is the settled law of the land. Here, as to delay, there was none, either unnecessary or unusual, in taking possession. It would have been inconvenient, to convey the goods out of the tavern to another place to be sold; nor does the law require any such removal. As to the omission to limit the time for performing the trust, there appears no semblance of authority for that objection. The law fixes a reasonable time. The possession was sufficient to support trespass; actual possession is not required. Constructive possession is enough. 6 Bac. Ab.(Wilson’s Ed.) 563, is to the very point. Take the whole charge of the court together, and the main principles of the law are laid-down correctly. .
   -The opinion of the court was delivered by

Tod, J.

I do not apprehend there was any errar in refusing to charge the jury'th'at the deed was fraudulent and void, because it eoiitained no schedule of particulars, nor limitation of time for the execution of the trust; or because it .gives a'preference of some creditors above others: or because the grantor was in debt at the time of the assignment. No doubt all these were matters proper for consideration: and so the judge told the jury. They were inferences of fact, and from them.in some cases and under some circumstances fraud might perhaps be deduced, in other cases not at all. Whether the possession' was sufficient to maintain this action of trespass depends upon the question, whether the property vest-' ed in the assignees. If the property, was theirs, there would, I think, be possession enough to enable them to defend it by this sort of action. But we are all of opinion that the deed of assignment was null and void as against creditors, and fraudulent in law. The deed is absolute upon the face of it. The grantor retained possession. He held and. used the property as before:' sold and' disposed of it.as his own. • To make such a deed valid in any case the possession must accompany and follow the transfer. The notice to Stoever Was immaterial, it being only notice of a transaction void and fraudulent .by the rules of law. The question here-presented seems put' beyond all 'argument. It is settled, if any principle can be said to be settled by precedents. Clow v. Woods, 5 Serg. & Rawle, 275. Cunningham v. Neville, 10 Serg. & Rawle, 201. Martin v. Mathiot, 14 Serg. & Rawle, 214. Hamilton v. Russell, 1 Cranch, 313. Twyne’s case, 3 Rep. 80.

Judgment reversed.  