
    Benjamin A. Anderson and Wife vs. Joel G. Rhodus and others.
    
      Fraud — Mortgage—Tenant for life and remaindermen — Title Toy Adverse Possession — Trustee.
    An absolute deed of conveyance, made for the double purpose of securing the payment of debts due by the grantor to the grantee and of defeating the other creditors of the grantor, cannot be set up by the heirs of the grantor as a mortgage.
    B made an unsealed instrument purporting to convey to A for life, with remainder over, certain lands and personalty, and in the instrument it was recited that the lands had been conveyed by A to B. A accepted the conveyance, had it recorded, and for twenty years treated the personalty as held under it. A had been the owner of the lands, had always had them in his possession, and continued in possession of them until his deathHeld, that A’s title should be referred to the unsealed instrument under which he had acquired it by adverse possession, and that his heirs could not dispute the right of the remaindermen.
    Where, under an unsealed instrument purporting to convey lands to one for life with remainder over, he, the tenant for life, holds long enough to acquire title by adverse possession, he cannot question the title of the remaindermen, his possession enuring to their benefit as well as his own.
    BEFORE CARROLL, CH., AT CLARENDON, JUNE, 1859.
    This case will be sufficiently understood from tbe circuit decree, which is as follows:
    “ Carroll, Ch. The claims asserted by the bill have their origin in a written instrument executed by William Hilton, dated July 6,1836. The consideration it recites is the grantor’s ' natural love, good will and affection’ for the eight children of William Bhodus, enumerated by name. It purports to convey a tract of land, nine negro slaves, two horses and a small stock of cattle, to William Ehodus and his wife Jane, to be had and held to and for the uses; trusts and purposes following, “ that is to say, the said William, and Jane his wife, are to take, keep and continue in possession of the above-named property during the term of their natural lives, and to enjoy the profits arising therefrom, excepting so much as may be necessary to give to John, Joel, Gabriel and Eebecca Ehodus (four of their children) such an education as to place them upon an equality with the rest; and at their decease the property, with the increase of the negroes, to be equally divided between the aforesaid eight children, or such of them as shall then be living, and in case one or more of them shall die, leaving no lawful issue at their death, then their part or parts to be equally divided between the survivors, to vest in them and their heirs, executors or administrators, absolutely.” There is no seal affixed to the signature of William Hilton, and the instrument contains no warranty of title. It was recorded in the Secretary’s office at Charleston, 14th December, 1886. In the lifetime of William Ehodus, died his son John Ehodus, having never married, and his daughter Mary Ann Brunson, leaving surviving her two. sons, David 0. and Charles H. Brunson. Her brother Gabriel D. Ehodus has the grant of the administration of her estate. Jane, wife of William Ehodus, departed this life in December, 1856, and he in September, 1857, leaving of force a will, of which his son Joel G. Ehodus is executor, whereby he disposes of his estate in unequal portions among certain of his surviving children and grandchildren. In his lifetime William Ehodus sold Eachel, one of the slaves referred to, and by deed dated July 28,1857, transferred absolutely three others, Peter, Elsey, and Mary Ann, to his son Joel, who since his death has disposed of two of them, Elsey and Peter. The remaining slaves, with their issue born since 6th July, 1836, and the other chattels comprised in the unsealed instrument of that date, are' in the possession of Joel G. Ehodus. The bill is exhibited by Benjamin A. Anderson and his wife Rebecca, against the surviving children of William Rhodus and his grandsons, David 0. and Charles H. Brunson. It prays partition of the property included in the unsealed transfer by William Hilton, as also an account against Joel U. Rhodus, for the hire of the negroes since his father’s death, and for the value of those appropriated by himself and his testator respectively. At the hearing, Joel Gr. Rhodus produced a formal bill of sale dated November 8, 1829, from William Rhodus to William Hilton, of the stock of negroes and the other chattels now in controversy. It purports to be an absolute transfer, with warranty of the title, for the consideration of $1750. No conveyance of the land by William Rhodus to Hilton was produced. The written instrument executed by the latter to the former and his wife Jane, however, describes the property comprised in it as having been “ conveyed to Hilton by William Rhodus, by deed dated the third November, 1829.” In his answer, Joel Gr. Rhodus maintains that, whatever may have been the form of the conveyances or transfers from his father to Hilton, they were intended and should be regarded as mere mortgages; that the mortgage debt was subsequently paid to Hilton, whose interest in the property thereupon became extinct; and that the instrument whereby he assumed to dispose of the same in July, 1886, was therefore wholly inoperative. There was proof that shortly before its execution, Hilton had declared that William Rhodus was indebted to him, but had very nearly paid him, and as soon as he was paid he intended to make a deed of the property then in possession of Rhodus to his children, as Rhodus was in debt, and he (Hilton) wished to protect the property thereafter against any debts or contracts of Rhodus. It further appeared that William Rhodus had never been divested of the possession of the property; that between 4th November, 1829, and January, 1830, judgment debts against him, amounting in the aggregate to some six hundred dollars, had been assigned to Hilton, and that subsequently Hilton had held other demands against him, though of smaller amounts, and a formal receipt by Hilton was produced, bearing date March 24, 1843, whereby he acknowledged payment in full of all judgments in his favor against Rhodus, “in Sumterville or Kingstree, up to that date.” On the other hand, it was in evidence that in 1827, William Rhodus, being in debt, and with a view to protect his property from sale by the Sheriff, made a voluntary conveyance of the whole of it to Moses Benbow, and that this deed was shortly afterwards suppressed and destroyed; that with the same purpose, on the 28th August, 1827, he executed three voluntary deeds, purporting to be upon valuable consideration, of his entire visible estate, to Gabriel Dingle; that the written transfer executed by Hilton in July, 1836, was drawn under the instruction of Hilton alone; that after its execution, it was recorded by William Rhodus, in the Secretary’s office, and that Rhodus spoke afterwards of the negroes as the property of his children, and always claimed them as belonging to his children, under the deed from Hilton. The tax collectors, to whom were paid the public taxes on the negroes since 1848, inclusive, deposed that the negroes were returned by William Rhodus as belonging to his children, and- tha.f William Rhodus, in his lifetime, usually made the returns, and when he did not, his son Joel G. Rhodus did, cmcl in the same way. The declarations of William Hilton were objected to, as being in var-iance and contradiction of the absolute bill of sale by Rhodus to Hilton. It is not necessary to decide whether that objection be valid, as the declarations in question, if admitted, are not regarded as available for the defence. In Arnold vs. Mathison, 3 Rich. Eq. 153, it is said that “ if an instrument, absolute on its face, can be converted by parol into a defeasible instrument, except when the omission to reduce the defeasance to writing was occasioned by fraud or mistake, the evidence must be very clear and convincing.” The circumstances disclosed by the proof go far to explain why the transfer of the negro slaves and other chattels, from Ehodus to Hilton, was absolute in form. It may have been intended to answer the purpose of a mortgage as between the parties, but at the same time to operate as an absolute transfer as against the other creditors of Ehodus. That such was its real character, is fairly inferrible from the evidence. To protect his property against liability for his debts, he had previously executed the several voluntary deeds to Benbow and Dingle. That to Benbow had been destroyed. The deeds to Dingle appear to have been executed in his absence, and without his knowledge. There is no proof that they were ever in his possession, or that he had ever asserted any rights under them, or had ever recognized their existence. Dingle was probably found unwilling to perform the part of a confederate, and hence the subsequent conveyance1^ Hilton.
    The declarations and acts of Hilton are utterly irreconcilable with the supposition that he was a mere mortgagee. On the contrary, they import the right of perfect and absolute control over the property; and in the assertion and exercise of such right, there was on the part of William Ehodus complete and entire acquiescence. A conveyance in fraud of creditors is nevertheless good and effectual between the parties. Certainly the evidence is not very clear or convincing that the transfer was intended to operate only as a mere mortgage. As between William Ehodus and Hilton, it is considered that the latter was possessed of an actual and absolute title to the negro slaves and other chattels, the subject of controversy in this suit. On behalf of Joel G. Ehodus, it is objected, however, that there was no evidence of a conveyance of the land by Ehodus to Hilton. Such conveyance has not been shown by direct and primary evidence; but, in the judgment of the Court, it has been proved presumptively. The presumption is sustained by the concurrence of many and significant circumstances: by tbe declarations of Hilton, without disguise, of his intention to execute a conveyance of the property (the land included) in favor of the children of Bhodus; by the fact that the instructions for the framing of the instrument proceeded solely from Hilton, and seemingly without reference to the wishes of William Bhodus, or even conference with him; by the actual execution of such conveyance; by its special recital of the very fact in controversy, a prior conveyance to Hilton of the identical property by the deed of William Bhodus, of a particular date; by the acceptance by Bhodus of the transfer, and of the life-interest it conferred ; by his procuring it to be recorded, and by his explicit and uniform recognitions for twenty years of the instrument, as effectual to dispose of the slaves, much the most valuable portion of the property, without denial of its being operative also as to the other chattels and the realty conveyed. Such an array of circumstances-is deemed sufficient to warrant the conclusion that a prior conveyance by Bhodus of the entire property had been executed, according to the recital in the transfer by Hilton. The will of William Bhodus, and the deed whereby he assumes to transfer to his son Joel three of the slaves in controversy, are acts which do not import acquiescence in the disposition of the instrument executed by Hilton. But it should be borne in mind that both will and deed were made after the lapse of more than twenty years from the execution of the transfer by Hilton. The sale of Bachel appears also to involve an assertion of right adverse to that instrument. At what date, or under what circumstances, this sale was made, does not appear by the evidence; and of itself it is insufficient to counterbalance the other significant acts and declarations of William Bhodus of opposite import. The lapse of time has been adverted to as one of the circumstances raising the presumption of a prior conveyance by Bhodus to Hilton; but no technical or artificial efficacy is assigned to it, beyond its natural force and significance. It is farther objected, that the transfer by Hilton to Ehodus, having no seal, was ineffectual to convey the land. If so, then the title at the outset continued in Hilton, notwithstanding that instrument. But after twenty years of adverse possession, his title cannot be regarded as still subsisting. It was divested by the possession of Ehodus. The character of that possession must determine in whom the title became vested. A party’s declaration, if contemporaneous with his acts, are explanatory of them, and are admissible in evidence as parcel of the res gestse; Martin vs. Simpson, 4 McC. 262. In point of fact, the possession of Ehodus was in nowise hostile to the rights of his children, the claimants in remainder; but, on the contrary, was in assertion and support of the common title. It must enure, therefore, to sustain that title, and the instrument creating it. In the contemplation of this Court, the life-tenant stands in such relation to the remainderman that, if he purchases an incumbrance, or outstanding title affecting the estate, it accrues to the benefit of both; 1 White’s Leading Oases in Eq. (note) 57; Randall vs. Russell, 3 Meriv.196.
    Still more clearly, it would seem, must this result follow, if the claim or interest were acquired by presumption or operation of law. Apart from these objections to the acquisition of a title by the life-tenant, in derogation of the interest in remainder, it might well be doubted whether William Ehodus would not have been precluded, upon another ground, from setting up such claim or title had it been acquired. The equity doctrine of election extends to other instruments than wills; Moore vs. Butler, 2 Sch. and Lef. 266; Dillon vs. Parher, 1 Swan, (note,) 401. If it be assumed that Hilton had the right to dispose of the slaves, it is by no means clear that William Ehodus, after having accepted a life-interest in them, under the transfer by Hilton, did not become bound to give full effect to that instrument in respect of the land; Ball vs. Hall, 2 McC. Oh. 300.
    
      It is conceded in the bill that the share of Mary Ann Brunson in the personalty, upon her death, vested in Gabriel D. Bhodus, her administrator, or was transmitted to her children, David 0. and Charles H. Brunson. Their right to her portion of the property, either as donees under the transfer, or distributees of her estate, was not called in question at the hearing. Whatever interest they take in the property, it is apprehended, must accrue to them in the latter character. An estate in the sons, as purchasers, cannot be raised by implication ; McOlurevs. Young, % Bich. Eq. 578; Addison vs. Addison, 9 Bich. Eq. 61.
    It is adjudged and decreed that the instrument of transfer executed by William Hilton, and exhibited with the bill, is a valid and effectual disposition of the property therein comprised.
    It is further ordered that the defendant, Joel G. Bhodus, account before the Commissioner for the hire of such of the slaves disposed of by the said instrument as passed into his possession after the death of the life-tenant, William Bhodus, as also for the value of such of the said slaves as have been converted by him to his own use ; and that his portion in the residue of the property comprised in said instrument be appropriated to satisfy his indebtedness in that behalf.
    It is also ordered that Joel G. Bhodus, as executor of William Bhodus, account for the value of the slave Bachel, sold by his testator in his lifetime.
    And it is further ordered that one or more writs of partition issue, to divide the negro slaves and tract of land among the parties, according to their rights and interests as herein adjudged; and that the commissioner sell the other chattels comprised in said instrument, with a view to partition of the proceeds, at public auction, upon a credit of twelve months, after fifteen days’ notice, at some suitable time and place to be fixed by the parties, if they agree, or by himself, if they do not; the purchase money to be secured by bonds with adequate sureties.
    The defendant, Joel G-. Rhodus, appealed, and now moved this Court to reverse the decree, on the grounds:
    1. That the conveyance by William Rhodus to William Hilton of the property in question, though absolute on its face, was sufficiently established to have been made merely as a security for debt, and must be construed as a mortgage, which was extinguished by the payment of the mortgage debt.
    2. That the conveyance in question, having been made for a particular purpose, and no transmutation of possession having been made, William Rhodus remained seized and possessed of his original estate in said property, and the same passed by his will.
    3. That, at all events, there was no sufficient evidence of a conveyance of the real estate by Rhodus to Hilton, and if there had been, the deed from Hilton to Rhodus was not sufficient to re-convey the same.
    
      Kershaw, for appellant.
    Acceptance of a deed poll is not an estoppel. The party may set up an independent title. Giles vs. Pratt, 2 Hill, Ml.
    An absolute bill of sale given as a security for debt is construed a mortgage. Haltier vs. Kiinaud, 2 DeS. 571; Berry vs. Vineyard, Harp. Eq. 153.
    The conveyance being for a particular purpose, the grantor is in equity lawfully seized, and may pass the estate by will. Schmidt vs. Schmidt, 7 Rich. Eq. 216.
    
      F. J. Moses, contra.
   Per Curiam.

We concur in Chancellor Carroll’s decree, and, for the reasons which he has assigned, it is affirmed and the appeal dismissed. -

O’Neall, 0. J., Johnstone, J., and Waedlaw, J., concurring.

Decree affirmed.  