
    James S. Ewing et al. vs. Cecilia Cargill et al.
    Where, after a public sale under a deed of trust of personal property, the property sold is left in the possession of the grantor in the deed of trust, no presumption of fraud will arise therefrom ; and if the sale be otherwise free from fraud, a purchaser under a judgment against the grantor in the deed of trust, in whose possession the property is left, junior to the sale under the deed of trust, will acquire no title to the property.
    Where, in the trial of the right of property, the claimant claims by purchase under a deed of trust, executed by the defendant in execution of date older than the judgment, and the jury find for him, such verdict will relieve him from the imputation of fraud in fact in the purchase.
    The conveyance of property by deed of trust, which is consumable in the use, is not in itself fraudulent, unless it be stipulated in the deed that the grantor may use it; and whatever may have been the.intention of the parties, if it be not so expressly stipulated in the deed, a bond fide purchaser of property at a sale under the deed of trust, for valuable consideration without notice, will be protected in his purchase.
    In a trial of the right of properly levied on under execution, the defendant in execution is a competent witness for the claimant, who claims under purchase from the same defendant.
    A purchaser of land and slaves, under a deed of trust, allowed the grantor in the deed of trust, out of kindness, to remain upon the property, and exercise a sort of agency over it for the purchaser, the latter employing an overseer, and his right as well as the nature of the possession of the grantor in the deed of trust, under which the purchaser bought, being notorious : Held, that three years of such possession did not render the property subject to the debts of the grantor in the deed of trust; it was in fact the possession of the purchaser, the grantor having no loan of the property or other interest or use in it.
    A bond fide purchaser for valuable consideration without notice, under a deed of trust, not void upon its face, cannot be affected by any intended fraud of the grantor in the deed of trust.
    In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.
    The facts of this case in substance are these, viz.:
    On the 30th of September, 1839, Joseph Clarke executed a deed of trust to John H. Cheatham and John G. Andrews, as trustees, to secure the payment of certain debts, among which was one of $8559.26 to the Commercial and Rail Road' Bank of Vicksburg. The deed is in the usual form, conveys about eight hundred acres of land and about twenty-five slaves, twelve horses and mules, wagons, oxen, fifty cattle, fifty hogs, and “all the household and kitchen furniture of said Clarke, and three thousand bushels of com.” Some of the debts specified were due, and others not due, when the deed was executed. The deed was received for record November 15, 1839.
    On the 21st of December, 1840, one of the trustees sold the personal property, except one negro which was sold afterwards, on 16th July, 1841. Wm. Cargill bought all of it, and paid for it by surrendering to the trustee the two proffered notes held by the Commercial and Rail Road Bank, which Cargill had obtained from the bank by assuming the debt to the bank. The sale was public, the property was sold at fair prices, and delivered to Cargill, who employed an overseer, and allowed Clarke to remain on the place as Cargill’s agent. Clarke and his family remained on the place till Cargill died, in the fall of 1843, and afterwards to the time of the levy of plaintiff’s execution, February 16, 1844. After the sale by Cheatham, Cargill bought mules, &c., for the place; paid the plantation expenses, employed overseers, received the proceeds of the crops, and it was notorious in the neighborhood that the property was his, and that Clarke was his agent. After Cargill’s death, his administrators had possession and control of it.
    All the lands were sold, previous to the time of the sale of the personal property, under executions based on judgments against Clarke older than the deed of trust. Cargill bought the lands under execution, and has' owned them ever since.
    James S. Ewing, and others, on the 22d November, 1843, recovered judgment against Clarke, on a note made by Clarke and others in January, 1836, and payable on the 1st of March, 1840, to one Felix C. Wadlington, who indorsed it without recourse to plaintiffs, in December, 1839. Execution was issued thereon, and levied on a portion of this property in February, 1844; and Car-gill’s administrators gave bond to try the right.
    The plaintiffs read in evidence to the jury the record of this judgment; proved that this officer who made the levy was a deputy sheriff; and proved by this officer that this property “ was on the place where Joseph Clarke, the defendant in the execution, resided, when the execution was levied, before and after.”
    And on this proof the plaintiffs rested their case. It is not deemed necessary to set out the voluminous proof more fully. Numerous instructions were asked; the only one that need be noticed will be found in the opinion of the court. The jury found for the claimant, and the plaintiffs in execution sued out this writ of error.
    
      Thompson and Hughes, for plaintiffs in error, cited
    1 Shep. Touch. 115; Foster v. Wilson, Cro. Eliz. 212; Coke, Litt. 219 a; 1 Term Rep. 86; Hov. 35; Wood’s Inst. 224; 2 Bl. Comm. 298; Gordon v. Coolidge, 1 Sumn. C. C. Rep. 545; 2 Kent, Comm. 514-531; Roy all v. Rowles, 1 Yesey, Sen., 348; 1 Phil. Ev., Cow. & Hill’s Notes, 468; Sug. Pow. 141.
    
      L. Maury Garrett and G. Calhoun, for defendants in error.
    Each filed elaborate arguments, in which they made the following points: 1, that there was no proof of a loan to Clarke; 2, that the deed of trust was not fraudulent on its face. On this point they cited and reviewed Darwin v. Handley, 3 Yerg. 502; Sommerville v. Horton, 4 lb. 541; Simpson v. Mitchell, 8 lb. 417; Burgin v. Bur gin, 1 Ired. Law Rep. 453; Bissell v.' Hopkins, 3 Cowen, 166; Harney v. Park, 4 S. & M. 252.
    3. If the deed of trust is void on its face,fas against creditors, the verdict and judgment below are nevertheless right, for it is an undeniable proposition, that a deed voidable, on account of fraud or covin, may be made valid and effectual by matter ex post facto. Verplank v. Sterry, 12 John. 536-552; Doev. Hoivland, 8 Cowen, 277; Murray v. Riggs, 15 John. 571; Agricultural Bank v. Dorsey, 1 Freeman’s Ch. Rep. 338. This last case is precisely in point, for Clarke authorized and approved the sale by Cheatham, and the property went to pay his debts.
    4. If all the defendants’ evidence is excluded, the verdict would be the same; and if so, the judgment should be affirmed. 4 How. 231; 7 lb. 328. Or if justice has been done. 1 S. & M. 22.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a proceeding in the circuit court of Madison, to try the right to certain property. The execution creditor claimed under a judgment obtained in November, 1843, upon a note of Joseph Clarke, the grantor in the deed of trust, bearing date in January, 1836. Cargill, the claimant, sets up title by purchase under the deed of trust, which bears date in September, 1839, at the sale made in Decamber 1840, at what is alleged to have been a fair price. »

This purchase is assailed upon several grounds. It is first said, that the purchaser, after the purchase, suffered the property to remain in the possession of Clarke; this circumstance is sufficiently explained by the testimony. The publicity of the sale takes away any presumption of fraud, which such possession would otherwise have created, and the proof and verdict negative the existence of any fraud in fact.

• It is again insisted, that the deed of trust was fraudulent, because it embraced articles which are consumable in the use. It will be observed that, not only was the deed of trust executed, but the sale under it took place long before the judgment was rendered, under which the property was seized. If, therefore, the deed of trust were not fraudulent upon its face, and if the purchaser were not guilty of fraud in fact in some part of the transaction, then there is no room to set aside his purchase.

The jury found in favor of the claimant, and thereby relieved him from the imputation of fraud in fact, and there is nothing in the testimony to justify an interference on our part, with this finding on that head.

In regard to the conveyance of property by deed of trust, which' is consumable in the use, it is now settled, that such conveyance is not fraudulent in itself, unless it be stipulated in the deed, that the grantor may use it. In the absence of such stipulation, the conveyance is only prima facie fraudulent, and the fact of fraud is for the determination of the jury. Farmers' Bank of Va. v. Douglass et al., 11 S. & M. 469. This conveyance contains no such express stipulation; this might have been the intention of the parties, but it is not so expressed. There is not the slightest proof that the claimant had any notice of any intended fraud; on the contrary the proof is full, that the.sale was conducted in all respects fairly, and that he paid a fair price. He is thus entitled to the protection of the law, which thro.ws a shield around bona fide purchasers for valuable consideration without notice. Harney v. Pack & Clifton, 4 S. & M. 254.

Objection was taken to the introduction of Joseph Clarke as a witness, but we think the objection was not sustainable. He had no interest that was disclosed ; and if in truth he had any, it was against the party who called him. The property had paid one of his debts, and if he could make it pay another by subjecting it to the execution, his interest lay in that direction. A question asked him, in regard to certain property of his wife, was excluded, and made the ground of exception. It was properly excluded, because in no way pertinent to the issue, and therefore inadmissible.

Some of the exceptions in regard to instructions, require notice. The court was asked to instruct the jury, that the possession of the negroes for three years, by Clarke,’after the sale,, without a written agreement proved and recorded, explaining the nature of the possession, rendered the property liable to the execution. This charge was refused; this refusal was proper. There was no loan by Cargill, the purchaser, to Clarke. An overseer was placed on the plantation by Cargill, in whose possession the property might be considered as vested for the owner. True, Clarke remained on the place, and was in some degree an agent; but the character in which he remained was notorious, and his possession was, in fact, the possession of the owner. The plaintiff in error gave him no credit upon the faith of it. There was no reservation or limitation of a use or property by way of condition, reversion, remainder, or otherwise. The property was in the purchaser unconditionally, and from mere generosity he permitted Clarke to reside upon it, who claimed no interest in it, and exercised no ownership over it, except as subsidiary to Cargill. It seems to us there was no such possession in Clarke, as the statute contemplates, to make the property liable to his debts. The possession was, in fact, with Cargill, and not with him.

The twelfth instruction refused by the court, and made the subject of comment at the bar, falls within the range of what has already been said. ' A bona fide purchaser, for valuable consideration, without notice, under a deed of trust not void upon its face, cannot be affected by any intended fraud of ,the grantor in the deed of trust. He does not stand as the creditor, in the case already cited of Harney v. Pack & Clifton ; or as the purchaser under a deed void upon its face, taking the place of the grantor, in the case of the Farmers' Bank et al. v. Dovglass et al. But he is protected in his purchase, according to the settled American doctrine. 4 Kent, Com. 464.

The judgment is affirmed.  