
    Josiah Pyron, surviving executor, plaintiff in error, vs. Sarah C. Parker, and others, defendants in error.
    A deed of gift of a slave, if made and recorded according to the provisions of the Act of 1838, “to prescribe the mode of making gifts of slaves,” is good against subsequent purchasers from the donor.
    Trover, from Spalding county. Tried before Judge Cabiness, November Term, 1857.
    This was an action of trover brought by Sarah C. Parker, and others, against Josiah Pyron and Lewis Pyron, executors of James Shipp, deceased, for the recovery of a negro woman slave named Caroline.
    Lewis Pyron, one of the executors, died pending the suit,, ■and the action proceeded against the survivor.
    
      Plaintiffs offered and read in evidence a deed of gift from John Parker, their father, whereby he, in consideration of love and affection, conveyed to them one lot of land in Pike county containing 202| acres, one half lot in the same county containing 101J acres, and twenty-five acres, part of another lot in same county; also, four negroes, Zill, Till, Caroline and Hannah; also, one bay horse, one bay mare, one cart and oxen, fifteen head of cattle, thirty-five head of hogs, and all Jhis stock of provisions, corn, fodder, and all his household and kitchen furniture. He appointed Beverly Pyron agent, to act and do with the property conveyed to his children as he might think best for them. The deed bore date 29th March, 1842, and was recorded in the office of the Clerk of the Superior Court, 26th May, 1842. It was signed and sealed by John Parker, and witnessed by two witnesses, one being a Justice of the Peace.
    Plaintiffs then read the answers to interrogatories of Henry Jones, who testified, that in the year 1852, James Shipp bought the negro Caroline from John Parker and his wife, but does not know whether Shipp ever had her in possession or not. She was worth between four hundred and four hundred and fifty dollars ; that Shipp, he thinks, died in the latter part of the year 1853, in Pike county; knows that Shipp, at the time he bought Caroline, knew that John Parker had made a deed of gift of said negro to his children, because, before that time, witness and Shipp had stood John-Parker’s security to Isaac B. Williamson, on a note for about $400, and Williamson wanted his money, and hearing that Parker had made a deed of gift of his property to his children, witness and Shipp went to Zebulon and examined the-Clerk’s-office, and found the deed on record.
    In ans wer to the cross interrogatories, witness says, that John Parker was indebted, at the time the deed of gift was made, to John Neal and Joseph Scott, but kno'tvsof no other indebtedness, and knows of no suits then pending against him; that he had no other property not included in the deed of gift, except some little stock; does not know how many children he had; Parker is in a very poor condition; is worth nothing, and is a man of very weak mind, almost no mind at all, and has been in his present condition, as to property and mind, from three to five years ; witness has furnished Ms family with from fifty to seventy-five dollars worth of provision annually for four or five years past, which was paid out of the proceeds of the crops made by the family up to the present year; does not know what went with the money paid for the negro Caroline, but supposes that it went to pay for provisions. At the time Shipp bought the negro, Parker owed him about $120, and supposes he had been owing it one or two years.
    
      Martha Parker, the wife of John Parker, the donor, in answer to interrogatories, testified, that she was present when Shipp bought Caroline; she was delivered to him the same day he bought her, and he carried her off; and told witness afterwards that he hired Ab. Woods to carry her off and sell her for him; Shipp knew that she had been given to the children before he bought her, because he and her husband had made an effort to break the deed and failed.
    To the cross interrogatories, she answered, that she did not know to whom John Parker was indebted at the time of making the deed; he owed Joseph Scott and John Neal,but how much did not know; he may have owed others. John Parker is my husband; we were husband and wife at the lime the deed was made. The two first named plaintiffs are my step-children; William R. Dunn is my son-in-law, and the other plaintiffs are my children; I have two children younger than those named as plaintiffs; my youngest som named as plaintiff was born in December, and the deed was' made the following May; I think about fifteen years ago. Does not know how much her husband was indebted at the time the deed was made, nor to whom, except to Joseph Scot* and John Neal. Never persuaded him, in the presence of Robert Murphy and wife, to make the deed to keep the negroes from being taken to pay his debts, and never heard him say he made it for that purpose. James Shipp bought Caroline and employed Ab. Woods to carry her off and sell her; don’t know how Shipp paid for her; John Parker had very little property besides that contained in the deed when the deed was made, and that consisted of household and kitchen furniture, with perhaps a small stock of hogs and cattle.
    Here plaintiffs closed.
    
      Abraham D. Woods, for defendant,
    testified, that he knew the negro Caroline; was present when she was sold; Shipp did not purchase her, but was present at the sale; he had a debt against Parker, and also against witness; Shipp took up witness’ note, and gave his note to Parker for the balance of the purchase money ; Shipp did' not take possession of the negro, nor did he sell her; he took her up behind him on leaving Parker’s, as witness’ mare was unruly; delivered her to witness on separating with him; he did not employ-witness to sell the negro or to carry her off.
    
      Cross Examination. — Shipp took no bill of sale; the negro was carried off in the summer of 1851. Shipp’s debt on. Parker, which was paid by witness in the purchase of the negro, was sixty or seventy dollars; witness kept her some two or three months ; she stayed at Shipp’s until the next day after she was bought; witness sold her to a man by the name of Hornbuckle, in Perry county, Alabama, for over $500; carried her off in 1851; she was kept after her purchase first at Mark Tidwell’s, in Merriwether county, after-wards at Mr. Stamper’s, in Alabama; she crossed the State line in 1851; witness lives in Haralson county. Shipp and Parker were brothers-in-law; Shipp did act as Parker’s agent; Parker sent word to witness by Shipp, and upon receiving that word, witness went up to Parker’s and made the trade with him; Shipp gave Parker his note for the balance of the purchase mon6y"due from witness for the negro; witness had a note on Grier, and proposed to . give it to Parker; he •refused to take it, but said he would take Shipp’s note; let'^ Shipp have Grier’s note, and Shipp gave Parker his note ; told Parker to send me (witness) word if he accepted my proposition; Shipp brought word that he accepted it, and witness accordingly Avent.
    Defendant then offered to prove by Joseph Seott, that at the time the deed of gift was made, J ohn Parker Avas indebted in an amount about equal to the property he had, and that he was then indebted to John Coggins about one thousand dollars; to Isaac Williams seven hundred dollars; and to said Scott seven hundred dollars ; and at the time the deed was made, Shipp Avas a creditor of Parker. The Court rejected this testimony, and defendant excepted.
    The Court charged the jury, that if a debtor make a voluntary conveyance to his children or others, the conveyance is void as to creditors, but good against the grantor and purchasers from him, Avith notice of the conveyance. And if a creditor purchase from the grantor, with notice of the conveyance, he takes subject to the claim of the grantees in the voluntary conveyance.
    Creditors might set aside the conveyance, so far as their debts are concerned, but not by a purchase from the grantor.
    The grantor having parted AVith title to the property, loses all control and dominion over it; and a subsequent sale, toa creditor, with notice, Avill convey no title; but if a creditor should purchase without notice of the voluntary conveyance, his title Avill be good, and creditors, Avho become such after the execution of the voluntary conveyance, with notice, will acquire no title. But purchasers, Avhether creditors or not, or Avhether prior or subsequent, creditors, purchasing without notice, are protected. • -
    To which charge- defendant excepted.
    The jury found for the plaintiffs four hundred dollars, which might be discharged by the delivery of the negro girl Caroline by the 1st January, next, and the further sum of two hundred dolíais for hire, &c.
    Defendant moved for a new trial on the grounds,
    1st. Because the verdict is against law and evidence, and the weight of the evidence.
    2d. Because the Court erred in rejecting the evidence of Joseph Scott.
    3d. Because the Court erred in charging the jury that a creditor, with notice of a voluntary conveyance, acquired no title by a purchase from the grantor after the making of the deed and notice thereof.
    4th. Because of newly discovered evidence since the trial.
    The Court refused the motion for a new trial, and defendant excepted.
    H. Green; and O. C. Gibson, for plaintiff in error.
    Hall; and Floyd, contra.
    
   By the Court.

Benning, J.

delivering the opinion.

John Parker, in 1842, made a deed of gift to his children, of all of his property, which included some negroes. This deed was signed and sealed by him, was attested by two subscribing witnesses, one of whom was a Justice of the Peace, and was regularly recorded within twelve months from its date.

In 1852, he sold one of the negroes, to Shipp or to Wood, to which of the two, the testimony leaves in some doubt.

At the time of this sale, Shipp held a debt of $120, on Parker, but it was a debt of not more, probably, than one or two years standing; Wood held no debt.on Parker.

The Act of 1838, “to prescribe the mode of making gifts of slaves,” is, in- its first section, as follows: “ Be it enacted, That no gift of any slave, or slaves, hereafter to be made, shall be good or available in law, or in equity, against the creditors of the donor, or subsequent purchasers from him, without actual notice, unless the same be made in writing, signed and sealed by the donor, attested by at least one subscribing witness, and shall be proved or acknowledged, and be recorded within twelve calendar months from the execution thereof.” Cobb Big. 176.

This is as much as to say too, by implication, that if such deed be “made in writing, signed and sealed by the donor,”' &.C., it shall be good and available “ against the creditors of the donor, or subsequent purchasers from him,” even though they be “ without actual notice.”

In that case, whether it was Shipp, or Wood, that was the purchaser, he was a purchaser subsequent to the deed of gift; and if it was Shipp, he was also a purchaser with actual notice of that deed. And Shipp, considered as a creditor, was also a creditor subsequent to the deed.

It follows, that the deed of gift was good and available against Shipp, or Wood, whichever it was, that was the purchaser.

It must also follow, that the rejection of Scott’s testimony, was right, and, that none of the charges of the Court was such, that the plaintiff in error, could complain of it. ■

The newly discovered evidence, could have served no purpose, except to impeach Mrs. Parker, if that; but if her entire testimony were rejected, the verdict ought still to stand — the other evidence, and the statute aforesaid, considered.

Judgment affirmed.  