
    Banks, et al. vs. Thomas.
    FRAUDULENT Conveyance. Sale of slaves. Under the acts of 1784, c 10, $ 7, 1789, c 59, § 2, and 1831, ch. 90, $ 1, asale of slaves, though accompanied with delivery to the .vendee, is not good against the vendor’s creditors, without a bill ,of sale registered.
    SAME. Statutes — sale of slaves — registration. Upon the construction of the two first of these acts, the utmost that has been decided, in North Carolina and Tennessee, is, that as between the parties, a sale of a slave, accompanied with possession in the vendee, is good without a bill of sale. Douglass v. Morford, 8 Yer. 373, Payne v. Lassiter, 10 Yer. 507, recognized.
    Same. Void and voidable. A conveyance in fraud of creditors is not merely voidable at the option of .creditors, but is absolutely void as though it never existed, and is incapable of confirmation. And though good as between the .parties, it is to be treated - when those, as to whom it is void, are contesting it, as though it were void for every purpose.
    Same. Exception. The only exception to the generality of these rules is that which is recognised in Floyd v. Goodwin, 8 Yer. 484, namely, that sales made by public officers, under process of law, are not within the purview of these acts.
    By bill of sale, purporting to have been made on the 12th of March, 1832, George C. Simons conveyed two negroes to his brother, John Simons, to whom possession of them was then delivered. The latter sold and conveyed them, by bill of sale, dated October 22, 1833, to Ezekiel Thomas, to whom the possession was likewise delivered. Between the .3d,of May, 1832, and the 12th of July, 1834, several judgments were recovered against George C. Simons, by the plaintiffs in error, Murray and Crockett, amounting to nearly five hundred dollars.. Writs of fi. fa., issued upon these judgments, were levied between the 16th and 21st of February, 1835, upon the negroes, by the plaintiff in error, Banks, who was sheriff of Carroll, and who, after due advertisement, sold .them to Murray for five .hundred and fifty dollars.
    Thomas thereupon, namely, March 10, 1835, sued Banks, Murray .and Crockett in (rover, in the circuit court of Carroll, for this conversion of the negroes. On the 12th oí' August, 18.36, he caused the bill of sale from John Simons to himself to be proved before the clerk of the county court of Carroll, and to be registered on the same day. The action was tried at July Term, 1837, before Judge Harrzs, of the ninth circuit, and a jury of Carroll.
    
      The defendant in error, on the trial, read the bills of sale proved that the sale from George C. Simons to Jblin was unconditional, that the possession was delivered at the time of the sale, and that it continued in him till he sold to Thomas, to whom they were then delivered, and in whose possession they had remained, umil levied upon by Banks; that at the time of the sale by G. C. to J. Simons, no incumbrance on the slaves was known; and, by one of the witnesses to the bill of sale to him, he proved its execution, and the delivery of the slaves to him by John Simons; that after the sale by G. C. to J. Simons, Murray, one of the plaintiffs in error, requested John Simons to pay him the purchase money which he was to give his brother for the slaves, in discharge of his demands against George C. Simons, and that John Simons agreed to, and did pay him twenty dollars, part of the purchase money.
    The court charged the jury, that it required that both parties to a bill of sale should have acted fraudulently, to make it void; that a sale for a valuable consideration, accompanied by delivery of the property was a good and valid conveyance of the property sold, and would enable the purchaser to hold it against the creditors of the vendor; that if Murray knew all the facts, in relation to the sale from George C. to John Simons, and by his agreement ratified it, and received all, or a part of the purchase money, he could not insist that it was fraudulent.
    The jury found the plaintiffs in error guilty of the conversion, and assessed the damages to $801 50 cents. They moved for a new trial, which was refused, and they thereupon presented their bill of exceptions, in which the facts are stated as above, and appealed in error.
    Fitzgerald, for the plaintiffs in error,
    insisted, that his Honor, the circuit judge, was mistaken in supposing that it required both parties to have acted fraudulently to make the transaction between them void for fraud; and he cited Roberts on Fraudulent Conveyances, 547, &c. in notes; Sheppard’s Touchstone, 66, Hildreth vs. Sands, 2 J. C. R. 35: that the charge was also erroneous in relation to the effect of the delivery of the negroes from the debtor to his vendee, the case of Douglass vs. .Morfonl, 8 Yer. 378, having decided that without a bill of sale registered, the sale is void as against the grantor’s creditors and purchasers from him: and lastly, that in this case the bill of sale had not been so registered as to defeat the lien of the judgments and executions of the plaintiffs in error.
    A. W. O. Totten, for the defendant in error,
    contended, that in the absence of fraud, a sale of slaves, by parol or by deed not registered, is good and valid when possession accompanies the sale, to which purpose he cited Caines §> Wife vs. Marley, 2 Yer. 582; Arrington vs. Arrington, 1 Haywood, 1: 2 Haywood, 62, 67, 87; Morgan vs. Elam, 4 Yer. 449; Davis vs. Mitchell, 5 Yer. 282; Williams vs. Walton, 8 Yer. 301: Hawk’s Digest, 372; Floyd vs. Goodwin, S Yer. 494, and Shaw vs. Smith, 9 Yer. 97: that the validity of the title depends not on the registration of the deed, for if fraudulent, it is void as to creditors even though registered, and the converse of the proposition must also be true, that in the absence of fraud, the gift or sale is good without the registration of the deed; that as registration does not pass, so it ought not to be allowed to affect the title if omitted; that the effect of registration is simply to give notice of the change of property or right, and to remove the presumption of fraud which, at common law, attaches where the right and the possession are in different persons, 5 Johnson, 258; 8 Johnson, 446: that as to real estate, it is the registration, the substitute for livery of seisin, which passes the title, not so of personalty, as to which delivery of possession is still necessary, as at common law, to pass the title, that.alone, and not the deed evidencing the sale, having that effect; that the cases which sustain the validity of official s?»les without bills of sale are not grounded upon any exception in the statutes, but upon their publicity and their usual exemption from fraud, by which they, as well as private sales are equally vitiated, so that it is not the want of registration, but fraud, which enables creditors to overthrow the transaction, and the question is, was the sale, in this case, bona fide? and if the first sale from George to John Simons was not, yet that from the latter to Thomas was, and beyond that, the plaintiffs in error cannot push the ¡rinquiry into the title, Bartlett vs. Henry, 10 Johnson, 185; 14 Johnson, 407; 1 J. C. R. 213; 1 Vernon, 44: that even the sale from George to John Simons cannot be attacked by these creditors, by one of whom part of the purchase money was received, and who cannot therefore pretend want of notice, 4 Kent’s Com. 163, 164; Le Neve vs. LeNeve, 3 Atkins, 646; 1 Yesey, 64: 10 Johnson, 457; 4 Yer. 428; Jlnderson vs. Jlnderson, 2 Call, 206; 16 Ves. 419: that, at most, the sale j from George to John Simons was only voidable, Jlnderson vs. Roberts, 18 J. R., 505; 10 Id. 185, and was therefore capable of confirmation by the creditors, Wheaton vs. East, 5 Yer. 41; 7 Bac. Ab. 68, who might, at least, waite the fraud, 9 B. and C. 59, note: that the defendant in error, having purchased without notice of the claims of creditors, ought to be treated as a bona fide purchaser without notice, Jlnderson vs. Roberts, 18 Johnson, 521, 528; 9 Ves. 190; 1 Mad. Ch. 217; 3 J. C. R. 147, 345; 10 Johnson, 185: 1 J. C. R. 219; and finally, that a new trial would not be •granted for misdirection of the judge as to the register acts, if it appear that the verdict was correct, 2 Harrison’s [Digest, 1525.
    April 9.
   Green J.

delivered the opinion of the court.

This is an action of trover and conversion, brought by Thomas, the defendant in error, to recover several negro slaves. These slaves were the property of George C. Si-mons, and were by him conveyed to John Simons on the 12th of March, 1832, and by him conveyed to the defendant in error, on the 22nd of October, 1833. The bill of sale from George G. to John Simons, has never been proven and registered. The negroes were levied upon on the 16th of February, 1835, by virtue of executions in favorof the plaintiffs in error, and several other persons, against George C. Si-mons, and sóidas his property to Robert Murray, one of the plaintiffs in error. Many of these debts existed, and some of the judgments had been obtained, previously to the execution of the bill of sale, from George to John Simons. The court ehaiged the jury, that a sale of slaves, for a val-liable consideration, accompanied by delivery of possession, was a good and valid conveyance of the property, and would enable the purchaser to hold it, against the creditors of the vendor. The jury found a verdict for the plaintiff below, and the defendants- appealed to this court.

The court erred, in its charge to the jury: — The act of 1784, c 10, § 7, provides, that “all sales of slaves shall be in writing, attested by at least two witnesses, or otherwise shall not be deemed valid.” By the act of 1789, c 59, § 2, it is provided, that “all bills of sale and deeds of gift of whatsoever nature, shall within twelve months after the making thereof, be proved in due form and recorded; also, all bills of sale and deeds of gift not authenticated in manner by this act directed, shall be void and of no force.” By the act of 1831, c 90, § 1, bills of sale for slaves, are required-to be registered. By the sixth section, it is provided, that they shall take effect only from the time registered; and the 12th section makes them void, as to existing or subsequent creditors, unless registered as the act directs.

With these acts of assembly before us, it is difficult to perceive how any one could suppose a sale of slaves would be good, as against creditors, without a bill of sale registered. Such a decision has never been made since the passage of the act of 1784, by the supreme court of this state, or the State of North Carolina. It is true the course of the decisions in North Carolina, sanctioned and followed in this state, restricts the application of the general expressions in the acts of 1784 and 1789, and holds, that as between the parties, a sale of a slave accompanied with possession in the yendee, is good, though there be no bill of sale. This is as far as any case has ever gone, except the case of Floyd vs. Goodwin, 8 Yerger, 484, in which the court determined, that these acts have no application to sales under process of law by public officers. But in the case of Douglass vs. Morford, 8 Yer. 373, a sale of a slave, accompanied with possession, was held to be void, as against a creditor, there being no bill of sale registered. This case was recognised as the settled law, at the last term of this court at Nashville, in the case of Payne vs. Lassiter, 10 Yer. 507.

As in this case there was produced no registered bill of sale from George C. to John Simons, the title tó the slaves, so far as creditors are concerned, did not pass out of George C. Simons, by the sale to John, and consequently the defendant in error, Thomas, acquired no title by his purchase from John Simons.

But it is said the deed was only voidable, and that the sale to John Simons was confirmed by Murray, one of the execution creditors of George C. This is not the description of voidable deeds, which is subject to confirmation by the act of the party who may avoid it. The cases referred to are those, where the party making the deed may set it aside or confirm it as he may choose. In this case the sale is said to be voidable only, because for some purposes it is good, it being obligatory upon the parties. So are sales made to defrauded creditors good between the parties, and therefore only voidable. But in all these cases the sales are absolutely void, so far as creditors are concerned, and may be treated as though they had never existed. Such sale is to be treated where the parties, as to whom it is void, are contesting, it, as though it were void for every purpose.

The judgment must be reversed, and the cause remanded, to be determined upon the principles stated in this opinion.  