
    Sommerville and Crutcher vs. Horton, Adm’r.
    
    A deed of trost, executed bona fide, and for a just debt, cannot be avoided by the creditors of the grantee, because possession of the articles or property was permitted to remain with the grantor, both before and after the time stipulated for the payment of the debt.
    Where property of a perishable nature, and the use of which consists in its consumption, is permitted to remain with the grantor, it will render the deed void as to creditors.
    The use of such property is its consumption; and to secure the use of it to the vendor, hinders and delays other creditors, and renders it void by its terms.
    A deed colorable and fraudulent as to part, is fraudulent and void as to the whole of the articles of property contained in it.
    This was an action of trover brought by the plaintiffs in error, to recover the value of certain articles of personal property, sold by the defendant’s intestate, as sheriff of Davidson county, as the property of Alpha Kingsley, under the authority of several executions issued from the circuit and county court of Davidson county. The facts of the case are these: Alpha Kingsley, on the 17th August, 1819, being indebted to the Branch Bank of the State of Tennessee, in the sum of five thousand dollars, by note, which fell due on that day, conveyed to John Sommerville and Thomas Crutcher, as trustees of the Bank, certain negroes, several articles of household furniture, two horses, four cows and calves, and other personal property particularly specified in the deed of trust, for the purpose of securing the aforesaid note, and delivered the same to the trustees, who left them in the possession of Kingsley. By the terms of the deed of trust, if the said note was not paid on or before the first of September, 1820, the trustees were authorized to sell immediately the property therein mentioned, without further notice, and apply the proceeds of the same to the payment of said note; and should any thing remain after satisfying ^Iey were t0 rePay it over to Kingsley. On the 26th January, 1820, Kingsley conveyed other articles of personal property, consisting of household furniture, liquors and provisions, to the same trustees, to further secure the payment of said note; the terms of the deed being the same as the one previously mentioned. There was a covenant in each of the deeds by the trustees, that Kings-ley should remain in the quiet' possession and use of the articles until the said first day of September, 1820. The deeds were proven and registered within the time prescribed by law. The trustees permitted the property to remain in possession of Kingsley after the 1st of September, 1820, upon his urging the officers of the Bank to renew his note, he paying the discounts regularly. On the 21st February, 1821, Sommerville and Crutcher, the trustees, advertised in the Nashville Whig that a sale of the property would take place on the 24th March thereafter. But in the meantime, on the 2d March, 1821, the property was levied upon by the sheriff, by virtue of the several executions before mentioned, all of them bearing test in January and February, 1821. The sale by the sheriff took place on the 2d April, 1821, and the proceeds of the same amounted to two thousand four hundred and ninety five dollars eighty two and a half cents. It was admitted on the trial, that Crutcher was the President and Sommerville the Cashier of the Bank. It was proved by Kingsley, that his object was bona fide to secure the Bank what he owed it, and to secure his endorsers; that the note was regularly renewed in Bank, and that he paid the discounts, and that although he used some of the perishable articles, their value was not more than the amount paid by him for discounts.' There was a verdict found for the plaintiffs, which was set aside by the court and a new trial granted, 'which was excepted to by plaintiffs’ counsel, and the cause brought by appeal to this court, which at the January term, 1827, was dismissed, on the .ground that the judgment below was not final. At the November term, 1828, of the circuit court, the facts as set forth in the bill of exceptions, were submitted to the court for its opinion, who thereupon gave judgment for the defendant, and the plaintiff appealed in error to this court.
    
      F. B. Fogg, for the plaintiffs in error,
    contended that the judgment of the circuit court should have been for the plaintiffs in error, for the following reasons:
    1. That the possession by Kingsley under the deeds of trust was not fraudulent, as they were conditional upon the face of them, and were duly proven and registered; and that being conditional, their registration was notice to all creditors and subsequent purchasers. Claiborne vs.. Hill, 1 Wash. Rep. 177: 1 Scott’s revisal, S57: Act of 1805, 1 Scott, 1068-9.
    2. The possession of Kingsley of the articles of property after the time had arrived specified in the deeds for their delivery, viz. the 1st of September 1820, was not a fraud in itself, but only a badge of fraud, and might be explained away by parol testimony. See Kid vs. Rawlin-son, 2 Bos. and Puller, 59: Bissell vs. Hopkins, 3 Cow-an’s Reports, 166, where all the cases upon this subject are collected in a note.
    3. That fraud is a matter of intent, and that all the evidence given in the case shows that the possession by Kingsley was bona fide, and that the intention of the Bank, its officers and the trustees, in permitting him to remain in the possession and use of the property, was not for the purpose of hindering, delaying or defrauding creditors. See Sturtevant vs. Ballard, 9 Johns. Rep. 337: 1 Ruf-fin and Hawks, 320, and the cases above cited.
    4. The court below erred in granting a new trial on the verdict of the jury in favor of the plaintiff: as the evidence was properly submitted to the jury by the court, it was for them to judge as to fraudulency of intention, and that they were authorized in finding as they did under the charge of the court.
    
      Rucks, for defendant in error. ’
    The first question is, whether these conveyances were not contrived to the m-tent or purpose to delay, hinder or defraud creditors. Act of 1801, ch. 25, sec. 2.
    Kingsley, on his examination, said he remained in the possession and use of the property up to the time it was levied on. That he sold some of the live stock without asking or obtaining leave from any one. That he used a considerable portion of the perishable articles mentioned in both deeds, in carrying on the business of the inn; though he thought he had paid the value of it in discounts. He wished to secure those creditors who agreed to give him time for the payment of their debts, rather than those who had sued, or would sue, and who might levy upon the articles put upon his breakfast table after it was set. He still had the watch mentioned in the deed; it cost $200, and had never been demanded from him. The nature and description of the property, proved beyond doubt, that the only object was, that he should be protected in the use and enjoyment of it. The bank never demanded such a deed; the money was secured to the bank by the endorsers. The endorsers never demanded such a deed; we are not so much as informed who they were, except John Nicho!, and he was in Orleans at the time, and knew nothing about it. The circumstance that the note was renewed from time to time for a long time after the levy upon the property, proves that neither the bank nor endorsers looked to this property.
    The whole circumstances taken together, lead very palpably to the conclusion that there was fraud in fact.
    If Kingsley reserved to himself the power to defeat the object of the conveyance, it is fraudulent in law. Tar-back vs. Marbury, 2 Ver. 510-11: Riggs vs. Murry, 2 J. C. R. 579, 580: Lavender vs. Blackstone, 2 Levitz, 146: 5 Cow. R. 566.
    This deed is surely fraudulent and void as to the wine, bacon, wood, hay, &c. articles which it was intended Capt. Kingsley should use every day; and if fraudulent as to them, it is void as to the whole under the statute, Hyslop vs. Clarke, 14 John. 465: Fermor’s case, 3 Rep. 78: Wimbusb v.s. Tailbois, Plow. 54: 1 Mod. 35.
    Capt. Kingsley believed he could pay the debt from the profits of the tavern; his principal objects were the present use of the property, and the resulting trust to himself. He did not provide that if this debt was paid, the trustees should- sell and pay other creditors, nor if there should be a surplus, .that it should be paid to them; but he substituted and provided for himself in both these events. Twyne’s case, 3 Rep. 81: Wilkes vs. Ferris, 5 John. 340-5: Austin vs. Bell, 20 John. 450.
    Another ground is, that after the 1st day of September, 1820, the possession was inconsistent with the deed. This, from having been one of the best settled points in our whole system of law, has become a vexed question.
    The dispute has principally been, whether it is fraud per se, or only prima facie evidence of fraud, and subject to be rebutted or explained by other evidence.
    The decisions in England have all been uniform since the passage of the statutes of Elizabeth. Sir Edward Northey, in Bucknell vs. Roiston, (Pre. Chan. 287,) said it had been so ruled forty times in his experience. Rob. Fraud. Conv. 564.
    The Supreme Court of the United States, "Virginia, Kentucky, Pennsylvania and South Carolina, have followed these decisions. Massachusetts, New-Hampshire and North Carolina, have held it only prima facie evidence of fraud. See the cases, Starkie’s Ev. 4th part, 618. In New-York, the decisions are both ways. Chancellor Kent throws his great authority into the scale of the English decisions.
    Tennesse, in Ragan vs. Kennedy, (1 Tenn. Rep. 100,) adopted the English construction of the statute, which has been followed uniformly until latterly called in question.
    
      
      Gibbs, on the same side.
    1. This assignment of personal property was void as to creditors, possession of the property not having been changed; he cited 1 Campbell’s Rep. 332, Woodall vs. Smith: 2 Term Rep. 587, Edwards vs. Harben: 3 Coke’s Rep. 2d vol. page 81: 5 Taunton, 212, Reed vs. Blades: 1 Cranch, 209, Hamilton vs. Russell: 2 Munford, 341, Alexander vs. Deneal: 5 Munf. 28: 2 Henning' and Munford, 289: 1 Littell’s Rep. 112, Boyler vs. Smithers: 5 Sergt. and Rawle, 278, Clow vs. Ward: 4 Binney, 258, Davis vs. Cope: 2 Desaussure, 229, Croft vs. Aither: 9 Johnson 337, Sturtevant vs. Ballard: 1 Esp. Cases, 205, Pagot vs. Porchard: 8 Term Rep. 82, Donley vs. Smith.
    2. If it could have been sustained at first, it not being executed in a reasonable time after the first of September, 1820, execution creditors acquired a superior lien or priority. The same is absolute after September, 1820. Donley vs. Smith, 8 Term 82.
    3. A deed of trust, which puts it in the power of the conveyor to defeat the object of the trust, is fraudulent and void in law. Livintz, 146, Lavender vs. Blackstone: 2 Vin. Abr. 510, Tarback vs. Marbury: 2 John. Ch. Rep. 579, Rigs vs. Murry.
    Although here is no provision in the trust deed upon its face to revoke, yet leaving the possession of convertible chattels with the maker, is the same thing in substance. See 5 Cowan’s Rep. 566.
    Suppose the trust deed had created a lien, (the possession not in fact taken,) it must yield to the execution, not being presented in reasonable time. See 4 East, 524, Payne vs. Drew: 1 Wilson’s Rep. 44, Bradly vs. Wind-born: 1 Raymond, 251, Smattomb vs. Cross.
    It is not very material in this case, whether the court pronounce it fraud per se, or only prima facie evidence of fraud; but it is of infinite importance to the community, that the possession should accompany the right of personal property.
    
      If the court adopt the construction that it is only prima facie evidence of fraud, then the question is, whether this presumption is rebutted by the plaintiffs.
    It is insisted that every fact and circumstance in the case has a directly contrary tendency. Wardall vs. Smith, 1 Cam. 332: Darwin vs. Handley, 3 Yerger’s Rep. 502.
   Catron, Ch. J.

delivered the opinion of the court.

The first question presented is, whether the deed of the 17th of August 1819, from Kingsley to Crutcher and Sommerville, in trust for the bank, is void as to other creditors of Kingsley. It is fair upon its face, and was duly registered. It is agreed the facts stated in the hill of exceptions are true. This rests the rights of the parties mainly on Kingsley’s evidence.

He says he owed the hank $5000, borrowed from it. The officers of the bank wished it to be secure, and he wished to secure it, as well as his endorsers on the note, but especially the latter, as they were his friends, and he did not wish them to lose by him. That he preferred securing his bank debts, because others were bound as his sureties.

That he did not intend or wish to defraud any one of his creditors. That said deeds were not made by him for that purpose, referring to both deeds.

The property was to remain in the possession of Kings-ley from the date of the deed, 17th of August 1819, to 1st of September 1820, when, if the debt was not paid, the trustees were authorized to sell.

He further states, that at the time of the execution of the first deed, it was understood between him and the plaintiffs, if any of the property should perish in the using, he should make it as good when the trustees should find it necessary to take possession, as it was at the timo of making the deed.

None of tiie property in the first deed was of a description to be exhausted by the use, being, to a great extent, household goods pertaining to a large tavern, very capable of preservation, but also liable to destruction.

If the deed was untainted with fraud, and valid in its inception, and vested the title of the property in the plaintiffs, then after circumstances could not render it fraudulent and void. Shep. T. 67: 5 Rand. R. 260. After circumstances could only be evidence of the original intent of the parties to hinder and delay the creditors of the grantor, not provided for by the deed.

We recognize the soundness of the argument, that if the deed did in fact hinder and delay the creditors of Kingsley, it is void, no matter what were the intentions of the officers of the bank and the grantor. But this postion can only rest on the fact, that the rproperty was hoi den in trust for Kingsley, and not a creditor, the bank. To rebut such a conclusion, it is proved, that the debt due the bank was much larger than the sum the property produced, or was worth. It was neither illegal or immoral to prefer one, set of creditors to another; especially innocent sureties. The time given Kingsley, (twelve months,) to raise the money, was not unreasonable, and the permitting him to retain possession of the property in the mean time, was the only probable mode of enabling him to conduct a public house to the advantage of himself and creditors. He was keeping the Nashville Inn, a large tavern, and all prospect of gain would have been cut off had his servants and furniture been taken from him. He agreed to pay the discounts on the note during the indulgence, which he did do. During the year, Capt. Kingsley sold a horse, and two or three head of horned cattle, included in the deed, because useless and expensive; but it was not with the assent or with the knowledge of the trustees for the bank, from any thing appearing. After the first of September, 1820, Capt. Kingsley interceded with the officers of the bank, and got further indulgence, to the first of the year 1821, when the property was advertised tor sale, about which time the executions of the creditors were levied upon it, which produced this suit.

The trust, in its creation, seems to us to have been a fair transaction, calculated to answer a fair and legal purpose, by legal means: nor do we see any thing in the manner of carrying it into execution, which should stamp the deed as intended to hinder and delay creditors. Indeed, the nature of the property, and situation of the parties were such, as to preclude a course materially different from that pursued. Truly,' the property might have been holden in possession in fact by the trustees, and sold immediately after the first of September 1820, yet that it would have been more available to the bank, and sureties of Kingsley, is not proved or probable. One tiling however is certain; it at no time was worth within several thousand dollars of the bank debt, and therefore the other creditors had no right to complain. The trust being valid, had there been an overplus the execution creditors could have compelled the trustees, in equity, to apply the fund to the extinguishment of the bank debt, and the residue to discharge the executions, and then the execution creditors could have thrown on the bank all the waste of the fund by permitting Capt. Kingsley to use and dispose of any part of it. Yet in a court of law, the waste and mismanagement of the trust property, can form no subject of enquiry, to the end to reach an overplus, because the deed divested Kingsley of the legal title; and on the equity of redemption, or the overplus, had it been ever so great, the executions could not attach.

For the value of the articles contained in the first deed of trust, the plaintiffs are entitled to a judgment.

We will next examine into the validity of the second deed, made 26th of July 1820.

Amongst some trifling articles of household goods, was mortgaged, to secure the debt, one barrel of whiskey, two barrels of vinegar, one barrel of flour, one barrel of Cogmac brandy, quarter casks oí lenernie, Madeira and Port wines, one barrel of coffee, one barrel of sugar, one hundred pounds of loaf sugar, six .thousand pounds of bacon, four hundred pounds of salted and smoked beef, fifty pounds of candles, twenty cords of wood, seven barrels of corn, and one ton of hay.

To test this deed it is necessary some principles should be stated.

1. If the deed was intended to secure to Kingsley the use of the above named property, and which in its nature was subject to be consumed in the use, and not to appropriate it in part discharge of the $5000 debt, then, as to the consumable articles, it was colorable, and delayed and hindered creditors. Being colorable as to part, it is void as to every article contained in it. Darwin vs. Handley, 3 Yer. R. 502: 5 Johns. Rep. 314: 14 Johns. Rep. 464, and cases cited. The court said, in Darwin vs. Handley, that “ creditors, or those bound as surety for others, cannot be permitted to secure their honest debts on the defendant’s property, and at the same time to cover his remaining all from every othér creditor, with the intent to let the debtor use and exhaust his means of payment, reserving the object secretly intended to be applied to the discharge of the mortgagee’s debt.” A remark that applies itself to this case, quite as strong as it did to that.

2. The court say, in Darwin vs. Handley, the retaining possession by Faris was prima facie fraudulent as if the deed had been absolute upon its face. In that case, it was not stated on the face of the deed, that Faris should retain possession until the trustee saw proper to sell: but the court there also expressed the opinion, “that it would make no difference if it were expressed on the face of the deed that the debtor was to retain possession of the property.”

The circumstances in this case, that the debtor must necessarily have used, and of course consumed, the articles mortgaged, consisting of liquors, provisions, groceries, candles, forage and firewood, and this in the midst of winter, stamps this deed with a character not to be mistaken, as intended to cover the articles in a course of daily and rapid consumption, from seizure by Kingsley’s execution creditors, until he could convert them to his own use, in supplying his house of entertainment. The fact corresponds with the probability; he did so appropriate the property. From the nature and character of the property included in this deed, it was prima facie fraudulent upon its face: and the provision, “that Kingsley should remain in quiet possession and use, so far as respects this trust, of the before recited articles of property, from the date hereof to the said first day of September 1820,” instead of helping the transaction, is the more conclusive of its invalidity. 2 Kent’s Com. 412 to 419.

But this deed is void by its terms. The great portion of the property covered by it, if used, must- have been exhausted. Kingsley, the debtor, so far as respected that trust, reserved the power to use and destroy the fund, and did destroy much the greater part of it; nor had the trustees any right to restrain him, contrary to their explicit covenant, “that he might use the articles.” Of course, the deed was for Kingsley’s benefit; it was a holding in trust for him, not the bank. In such a case we might safely appeal to our perceptions of right and wrong, which are independent of all learning, and declare a deed, neither changing the possession of property, or prohibiting the owner from selling or exhausting it In the use, merely colorable and void, because in fact it had no operation. Authorities are abundant to this effect. 20 Johns. R. 446: 5 Cowan’s R. 566.

The discrepancy between the deeds of August 1819, and January 1820, is worthy of remark. In the former, the trustees covenant, that Kingsley shall remain in the quiet possession and use, so far as respects the trust. And Kingsley covenants with the trustees, “to preserve, , , • , , , , , , keep, and at all times have ready and m good order, the before recited property, to the use aforesaid, and no other. ” The second deed, far from containing any such covenant, when it comes to provide for the possession from January to September, leaves the absolute dominion in the grantor, by covenanting, on the part of the trustees, that Kingsley shall remain in quiet possession, and use the property mortgaged, from the date of the deed to the first of September. The principles asserted in Smith T. vs. Bell and wife, (Mart, and Yerg. Rep. 305,) apply to such a state of facts; always bearing in mind, that the use of this property from its nature, was its destruction; and that this examination has no reference to property of a character not subject to be exhausted by the use.

The court thinks the first deed, from its face and from the circumstances attending its execution, clearly valid; and that the second deed, from its face, was intended to hinder and delay creditors,(and is clearly void. For any property, therefore, covered by this deed, and not contained in the first deed also, the plaintiffs cannot have judgment. The clerk will examine the facts, and render judgment accordingly.

Judgment affirmed.  