
    *Bird v. Wilkinson.
    February, 1833.
    Bill of Sale — Intended as Security for Money — Unrecorded — Bona Fide Purchaser — Effect.—B. executes a bill of sale of a slave to’B. which bill of sale, though absolute on its face, was in fact intended as a mortgage: the bill of sale, though intended as a mortgage, was never recorded; and possession oi the slave was never delivered to or acquired by the vendee, and could not be at the time the deed was executed, the slave being- then a runaway; but the vendor afterwards got possession of him, without the knowledge or consent of the vendee; and then sold him to C. a fair purchaser, for valuable consideration, without notice ot the previous bill of sale to B.: Hki,d, that the bill of sale from L. to 15. must be taken for what it was intended to be, a mortgage, which was void as against the subsequent fair purchaser, because it was not recorded according to the statute of conveyances, 1 Rev. Code, ch. 99, I 4.
    In ari action of detinue for a negro man slave named Phil, brought by Bird against Wilkinson, in the circuit court of Henrico, there «vas a special verdict stating the following case:
    John Lunsford, by bill of sale, executed on the 6th August 1822, conveyed the slave Phil, with two others, to Bird. The bill ox sale was absolute on its face, and expressed to be made in consideration of 1300 dollars paid by Bird to Lunsford; but it was, in fact, a conditional conveyance, being intended and received as a collateral security for the due application by Luns-ford, of a sum of 1300 dollars put into his hands by Bird, to purchase slaves for the latter; it was intended to have the effect of a mortgage or deed of trust. This bill of sale was never recorded. It did not appear, that Lunsford had applied the 1300 dollars put into his hands by Bird, to the purchase of slaves for him, or had returned the money to Bird; no evidence was adduced bj- either party, as to those points. The slave Phil was not delivered to Bird, at the time the bill of sale was executed; he was then a runaway, so that no actual delivery could have been then made; nor did Bird ever after acquire actual possession of him. But Lunsford got possession of him, and had him secured in the jail of Lancaster; whether with the knowledge or consent of Bird, or not, did not appear. *On the 10th September 1822, Lunsford executed another bill of sale to Osmond Johnson ; whereby, in consideration of 400 dollars, he conveyed to him, this slave Phil and sundry others; and, shortly afterwards, he gave Johnson an order on the jailor of Lancaster, for the deliverjr of the slave to him ; and he was delivered to him accordingly. Johnson, thus having the possession, sold the slave to Wilkinson, for a valuable consideration actually paid, and delivered possession to Wilkinson immediately. This was done before this suit was instituted. It was not found that Johnson purchased without notice of the bill of sale previously executed by Luns-ford to Bird; but it was found, that Wilkinson was a fair purchaser from Johnson, without notice of Lunsford’s bill of sale to Bird. And the question referred to the court, was, Whether, upon this state of the case, Bird was entitled to the slave?
    The circuit court held that he was not, and gave judgment for Wilkinson; from which Bird appealed to this court.
    Robinson and Scott, for the appellant.
    The decisions of this court have recognized the general principle of Edwards v. Har-ben, 2 T. R. 587, and Hamilton v. Russell, 1 Cranch 309, that an absolute bill of sale of goods is fraudulent per se, as to creditors, unless possession accompanies and follows the deed. But Edwards v. Harben is now doubted in England; Steward v. Lombe, 1 Brod. & Bing. 506; 5 Eng. C. L. R. 167. And there, the court established the principle, that the sale will be valid, if such possession be given as the nature of the case admits of. So, if the property is absent at sea, or for any other cause it is impossible for the vendee to take possession, this impossibility is an answer to the presumption of fraud that might otherwise arise. Conrad v. Atlantic Ins. Co., 1 Peters 449; Gardner v. Howland, 2 Pick. 599. In the case cited from Peters, the proprietj' of the rule that the fact of possession not accompanying and following the deed, is fraud per se, is left an open question; so that Hamilton v. Russell is not now considered *more conclusive in the supreme court of the United States than Edwards v. Harben is in England. In Beals v. Guernsey, 8 Johns. Rep. 348, and Butts v. Swartwood, 2 Cowen 431, sales were sustained, where the vendor’s possession continued no longer than convenience required. Like principles have been recognized by the judges of this court, in Land v. Jeffries, 5 Rand. 216, 252, 259, 271, 603, and in Claytor v. Anthony, 6 Rand. 304. In the case now before the court, the slave was a runaway at the time of Ihe sale, so that it was impracticable for the vendor to give, or for the vendee to take, actual possession immediately The fact of inability to deliver or take possession, is an excuse for non-delivery; and that inability being found here, the sale is valid. To hold otherwise, were in effect to hold, that personal property cannot pass by sale, unless it be capable of being delivered at the time of sale. The circumstance of Lunsford having regained the possession of the runaway slave, cannot affect Bird’s title; for Luns-ford took the possession without his knowledge or consent, and without any right to exercise that or any other act of ownership over him; and Lunsford’s sale to another could pass no title as against Bird.
    There is, however, another objection to Bird’s title, which will be mainly relied on — that the bill of sale under which he claims, though absolute on its face, was in fact a mortgage or deed of trust, and is void as to subsequent purchasers without notice, because it was not recorded according to the statute, 1 Rev. Code, ch. 99, | 4, p. 362. But this objection to a bill of sale, that though absolute on' its face, it was intended only as a mortgage, is not matter for a court of law; Robinson v. M’Donnell, 2 Barn. & Aid. 134; Stark. Law of Ev. part IV. vol. 3, pp. 1002, 1009, n. 2. The remedy is in a court of equity; Ross v. Norvell, 1 Wash. 14. A party ought not to be permitted to claim a benefit from the omission to record a deed, as to whom the registry of it would have been of no avail, if it had been *duly made. If the bill of sale, in this case, had been recorded, and it had been proved that it was in fact intended as a mortgage, this would not have afforded an excuse for the non-delivery of possession to the vendee (per Green, J., 5 Rand. 251,) nor would it have made the deed valid as a mortgage. The rule should work both ways. Here, the bill of sale has not been recorded as a mortgage; and it ought not to be regarded as a mortgage, merely to favor a subsequent purchaser, when he would not have been affected by it as a mortgage, if it had been recorded. It may be of mischievous consequence, to extend the statutes of registry so far as to require deeds to be recorded as deeds of trust or mortgages, which are not so expressed on the. face of them: nor is there any necessity for it. For, if the deed be absolute on its face, the rights of creditors and subsequent purchasers are protected by the rule which requires that possession shall accompany and follow the deed, if practicable, or as far as practicable: it is only where the deed is not absolute, but is on its face a deed of trust of mortgage, so that the possession may lawfully be separated from the property, that the law does or ought to require that it shall be recorded. This subject was touched in Hand v. Jeffries; and the judges, so far as they expressed opinions upon the point, regarded the statute as applying to such deeds only as are trusts or mortgages on their face; S Rand. 221, 272, 615. The counsel for the appellant also cited and commented on Dey v. Dunham, 2 Johns. Ch. Rep. 182, 191; James v. Johnson & Morey, 6 Id. 417, 432; James v. Morey, 2 Cowen 246, S. C. and Coterell v. Purchase, Ca. Temp. Talbot 61.
    The attorney general and Lyons, for the appellee. In any view that can be taken of the case, thé bill of sale from Lunsford to Bird must be regarded as fraudulent and void as against Wilkinson, a subsequent fair purchaser, for value paid, without notice. The bill of sale to Bird must be taken for what it purports to be, an absolute sale, or for what it was really intended, a mortgage. As au absolute sale, it *was fraudulent and void, because possession did no wise accompany and follow the deed, and the parties in truth intended that the vendor should retain the possession. The circumstance that the slave was a runaway cannot excuse the non-delivery of the possession, and so bring the case within any of the exceptions to the rule of Edwards v. Harben: because, in the first place, the vendee took no steps whatever to obtain the possession; and, in the next place, the circumstance that the instrument was in truth intended as a mortgage, affords a conclusive answer to the argument, that the actual delivery of possession was impracticable, and therefore not necessary' to the validity of the transaction; since it shews, that it was designed that Lunsford should not deliver the possession, as a vendor, but that he might retain it, as a mortgagor. If this bill of sale be taken as a mortgage, as a conveyance with a secret trust, according to the real intent of the parties, it was void, not only because the taking a bill of sale in form, where the real transaction is a mortgage, tends to deceive and injure others, and is therefore fraudulent, but also for the conclusive reason, that it was not recorded; Shields v. Anderson, 3 Leigh 729, 737. If the deed had expressed the real contract between the parties, the law would have required that it should be recorded, in order to give it validity against creditors and subsequent purchasers: the mortgagee could not exempt himself from the duty of recording it, by the omission to express in the instrument the real terms of the contract.
    
      
      Bill of Sale — Intended as Security for Money — Effect. —In Poling v. Flanagan, 41 W. Va. 195, 23 S. E. Rep. 687, it is said: “It is very evident from the evidence ' that the bill of sale, though simply such, passing the legal title, and silent as to any right of redemption, was simply a security for the payment of money due Poling Bros., so intended by the parties, and therefore, in the view of equity, a mortgage. McNeel’s Ex’rs v. Auldridge, 34 W. Va. 748, 12 S. E. Rep. 851; Bird v. Wilkinson, 4 Leigh 266.”
      Also, in Klinck v. Price, 4 W. Va. 9, the court said: “Without referring to the evidence in detail, it is clear the proofs in the record show that the conveyance was made to secure the payment of money to Klinck. and is therefore, in effect, a mortgage. Ross v. Norvell, 1 Wash. 14: Thompson v. Davenport. 1 Wash. 125; Robertson v. Campbell. 2 Call 421; Chapman’s Adm’x v. Turner, 1 Call 280; King v. Newman, 2 Munf 40; Dabney v. Green. 4 Hen. & M. 101; Pennington v. Hanby, 4 Munf. 140; Bird, v. Wilkinson, 4 Leigh 266.”
      See monographic note on "Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
      Deeds of Trust — Unrecorded—Bona Fide Purchasers. —A deed of trust unrecorded is void as against subsequent purchasers without notice. Weinberg v. Rempe. 15 W. Va. 858, citing McClanachan v. Siter, 2 Gratt. 309: Bird v. Wilkinson, 4 Leigh 266; Beck v. De Baptists, 4 Leigh 349.
      The principal case is also cited in Cox v. Wayt. 26 W. Va. 817. See monographic note on “Deeds of Trust” appended to Cadwallader v. Mason, Wythe 188.
    
    
      
      Ingraham’s edi. Boston 1828.
    
   CARR, J.

If the transaction between Lunsford and Bird had been, what the bilL of sale purports, an absolute sale of slaves, the question would fairly have arisen,, whether the fact of the slave in question being at the time a runaway', excused the actual delivery, and whether the subsequent assertion of his right by Bird, and. the other facts found, cleared him of the imputation of fraud? It was contended, that a court of law must take this as a bill of sale; and Robinson v. M’Donnell was cited in support of the position ; *but to my mind, it does not support it. There, Bell & Clarkson executed a bill of sale for two ships to the Sharps: they retained possession, and acted as owners: the Sharps became bankrupts, and their assignee took possession of one of the ships: at a subsequent time, Bell & Clarkson, became bankrupts, and their assignees brought trover for the ship. At the trial, it was proved, that the real consideration of the bill of sale was, that the Sharps should accept Bell & Clarkson’s bills to-the amount of ^12,000. and that the ships were to be a security for their advances upon such acceptances, but were to remain with Bell & Clarkson, until they made default in providing for the acceptances;. which they had not done, when the bankruptcy of the Sharps happened, and their assignees took possession of the ship. The plaintiffs were nonsuited at nisi prius, and a rule was moved for at bar, to enter a judgment for them; which, on argument, was refused. Chief justice Abbot said — “I think that it was not competent for Bell & Clarkson to avail themselves of the parol agreement, in contradiction to their own deed. The bill of sale might be void upon the statute of Elizabeth, as against creditors, but not as against the parties who> executed it; and their assignees are in this-respect, in no better situation.” It will be remarked, that the point of the decision was, that a party shall not avail himself of a parol agreement, in contradiction of his own deed; and so far from deciding that a court of law could not, at the instance of any' one, receive such evidence, the court decided in effect, that it might; for the chief justice added, that the bill of sale, though good between the parties, might have been void as against creditors; which could only' be by their shewing the facts, and disclosing the true nature of the deed. In the case before us, it is not Lunsford the grantor, who seeks to shew, that the bill of sale is in truth a mortgage, but a subsequent purchaser without notice from Lunsford; and as our statute enacts that as to-all such purchasers, mortgages shall take effect and be valid, from the time they are proved or acknowledged, and ^delivered to the clerk to be recorded, and from that time only, it would seem to follow, that, in whatever court such purchaser is impleaded, he may avail him-seli of all proper evidence to prove, that the deed, however absolute on its face, is in truth a mortgage; and therefore of no validity as to him, because unrecorded: and then it would devolve on the other party, to prove notice upon him. The evidence then being admissible, the question is, do facts found in the special verdict, prove this a mortgage? And that indeed is no question; for it is found, in so many words, that ‘ ‘it was intended to have the effect of a mortgage or deed of trust;” and whether the one or the other, we know that the effect, in respect to the recording, and subsequent purchasers, is precisely the same.

I do not think it necessary to notice any other point. This is an action of detinue for a slave brought by a mortgagee on an unrecorded mortgage, against a subsequent purchaser for a valuable consideration without notice — and the judgment is for the defendant. I think it must be affirmed.

CABELL, J.

As the deed from Lunsford to Bird, although absolute on its face, was intended by the parties, at the time of its execution, to operate only as a mortgage or deed of trust, I am of opinion, that, not having been recorded according to law, it is void as to subsequent purchasers without notice. On this ground, without considering any other, I think the judgment is right and ought to be affirmed,

BROOKE, J-

It is the admitted principle of the common law, that the title to personal property passes by the actual delivery, or by a constructive delivery of it, as in the case of Pleasants v. Pendleton, 6 Rand. 473, and many like cases. Mortgages and deeds of trust of personal property, which are directed by statute tobe recorded, (by which the title passes without actual delivery), do not impair this principle of the common law. A bill of sale of personal property “'absolute on its face, is not within the statute, and need not be recorded to give any greater validity to it; and if recorded, it does not affect this common law principle. The possession of the property must accompany it, to make it a valid transfer of the title; unless, indeed, there are unavoidable circumstances (such as in the case of the transfer of a ship at sea) shewing that delivery was impracticable at the time, and that such circumstances made no part of the contract; for, otherwise, if the circumstances which prevented the delivery, made a part of the contract, they ought to be stated on the face of the bill of sale, and it ought to be recorded, in order to give it validity. As regards creditors and subsequent purchasers, where that is not done, the sale or transfer is fraudulent per se; that is, it is prima facie evidence of fraud, which is conclusive until evidence to explain it is introduced; (see my opinion in Land v. Jeffries). But, in the case before us, it appears by the special verdict, that it was not the intention of the owner, Luns-ford, to deliver the slave in question to the appellant, though it is found that he was a runaway at the time, but to transfer to him the title of this and two other slaves, as a security for the due application of 1300 dollars, to be laid out in the purchase of other slaves for the appellant. This was one of those secret trusts, which the statute requiring mortgages and deeds of trust to be recorded, intended to inhibit, as> to creditors and subsequent purchasers. Therefore, the second bill of sale to Johnson, under whom the appellee claims the same slave, accompanied by delivery of the possession, must prevail, notice to Johnson of the previous bill of sale to Bird,, being negatived by the finding of the jury. As to the question raised at the bar, whether evidence of the secret trust was proper at law, there can be no doubt. The bill of sale is only' evidence of the title; as to third persons, it does not pass the title of itself, as in the case of a deed recorded for that purpose, in which case, resort is had to a court of equity to remove the deed out of the way of proceedings at law. But its validity may be questioned, by ered-itors or subsequent ‘“purchasers, at law as well as in equity. Stratton v. Minnis, 2 Munf. 329. The judgment must be affirmed.

TUCKER, P.

This is, I think, a very clear case against the appellant. The special verdict finds, that the deed under which the plaintiff claims, which is absolute upon its face, was intended and received as a conditional conveyance; that it was intended only to secure the payment of the sum of money specified therein. It was, therefore, in fact, nothing but a mortgage. Now, if it had been a mortgage on its face, it would have been void as to the subsequent purchaser, because it had not been recorded. So far as that purchaser is concerned, it would never have taken effect at all; because mortgages “take effect as to subsequent purchasers from the delivery to the clerk, to be recorded, and from that time only.” Can it be then, that the falsehood of the conveyance, places the plaintiff in a better situation, than if the deed had been draughted according to the truth of the case? Can it be that even a fair deed would be considered void, because it is hidden from the eyes of purchasers, and that this deed is good, which, even when seen, hides in impenetrable secrecy from every eye, except those of the parties concerned in the transaction, its real character? I cannot think it. Every well received maxim must be overturned before it can be so: Suppression must become a merit, and falsehood a virtue; and a guilty party must be permitted to take advantage of his own wrong. So far from the absolute form of the deed making the appellant’s case better, it stamps it in my judgment with stronger features of fraud, as respects purchasers and creditors. Independently of express adjudications upon the subject, it is but a corrollary from the principles established in Twine’s case. It is a transaction calculated to work a double fraud; to deceive a double set of creditors and jmr-chasers; creditors and purchasers both of the grantor and grantee. To those of Bird, he is held out as the absolute owner of the slave; and when a creditor seeks to charge it, or a purchaser acquires it, this ^secret defeasance is brought forward to defeat them. To the creditors of Lunsford, on the other hand, the property is held out as the absolute property of Bird, while there is a secret trust between the parties, covering the equity of redemption of Lunsford in the mortgaged subject. What transaction can be more directly fraudulent? If I convey my estate to another, without any consideration-, upon a secret trust for my benefit, the deed is indelibly stamped with fraud, in all contests with my creditors: Because my grantee covers my property from them. If they confide in the good faith of the transaction, they are led to suppose, that that property is not chargeable with their debt. And if this be so, where there is no consideration, how does it differ where there is a false consideration? where there is an equity of redemption, which the creditor would have a right to subject to his demand, which, by the falsehood of the deed, is hidden from his view?

The authorities, I think, very strongly sustain this view of the case; but it is unnecessary to examine them.

Judgment affirmed.  