
    John W. Belk and Wife vs. John Massey.
    
      Recording — Notice—Possession—Fraud—New Trial.
    
    Where a deed of land is recorded after the time prescribed by law, notice will be presumed from the time it is recorded.
    Possession after an absolute conveyance of land is a badge, but not conclusive evidence, of fraud.
    The facts reviewed and the verdict held not to be so clearly against the evidence, that the Court would be justified in setting it aside and ordering a new trial.
    BEFORE WARELAW, J., AT LANCASTER, FALL TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “ Trespass to try title.
    “The tract in dispute contains eight hundred acres or more, and is separated by Bird’s branch from a larger tract which, as it was said, the defendant at some time heretofore, under the sheriff’s conveyance to him hereafter mentioned, recovered against some occupant who held under Elijah Phillips hereafter mentioned.
    
      “ The plaintiff produced, 1st,, a conveyance of the tract in dispute, from Leonard Cagle to Elijah Phillips, dated February 18, 1817 ; and recorded April 16, 1817.
    
      “ 2. A conveyance without reservation or exception, from Elijah Phillips, to his daughter Wilmuth, (now a plaintiff,) of' the same land, and for the same consideration, six hundred and fifty dollars, which is expressed -in the former deed, ' ited October 4, 1824 and recorded April 25, 1825.
    “3. Evidence that Elijah Phillips lived on this tract from 1817, until his death in 1852; that his widow, Sarah, sister of the defendant, continued to live. on it till ber death in 1853 or 1854; that Wilmuth was about sixteen years old in 1824, and intermarried with the plaintiff, John W. Belli, in 1827 ; that there was a verbal agreement between the plaintiff on one part, and Elijah Phillips and his wife Sarah on the other, that E. Phillips and wife and the survivor of them, should occupy the land in dispute undisturbed during life or pleasure; that soon after the death of Sarah, widow of E. Phillips, the plaintiff, J. W. Belt, put a tenant on the tract, who was ejected by the defendant, under some proceedings had before a magistrate, and then this suit was commenced; and that the rent of the land was worth twp hundred dollars a year.
    “ The defendant produced, 1st, two records, W. B. Eaves vs. E. Phillips, and John Williams vs. E. Phillips, showing judg-. ments and fi. fas., in April and June 1844 — levy September, 1844, on the land 1 whereon the defendant (E. Phillips,) lives adjoining J. McManus and others; sale January, 1845, by Sheriff Hancock; land bid off by Alfred Knight, (son-in-law of E. Phillips,)for three hundred and twenty-five dollars: assignment in writing of the bid by Alfred Knight to Col. Huey; payment to the Sheriff by Huey of two hundred and sixty-three dollars; and receipt given March, 1845, by Sarah Phillips, (then the wife of E. Phillips, acting as a sole trader,) to Huey ‘ in full of .the balance of his bid on my land sold by the Sheriff, sales day in January last, being the amount over the judgments for which the land was sold — assignment in writing, March 4, 1850, by Huey to the defendant John Massey, 1 of the bid assigned by Alfred Knight.’
    “2. A Sheriff’s conveyance, by James Adams, a successor of Hancock’s (ill drawn, with erasures'and interlineations, which, although unexplained on the face of the deed, the witnesses knew existed there at the time of its execution,) ‘ for three hundred acres whereon Elijah Phillips then lived,’ (with some further description not contained in the levy,) to John Massy, the defendant, dated June 27, 1850.
    “3. A deed, of conveyance dated January 10, 1842, from Elijah Phillips to Noah Phillips, his son, for two hundred acres, part of the tract in question, called the Cagle land.
    “ 4. A deed of conveyance from Noah Phillips to the defendant, Massey, of the land conveyed to Noah as above, dated January 3, 1846.
    “ 5. The record of a case, Ben Blalceney vs. Elijah Phillips —slander:—writ lodged September 27, 1824, served October 1, 1824: Judgment by confession for one hundred dollars, April 19, 1825; fieri facias, April 21, 1825, renewed and lodged again February 14, 1837; various payments amounting to seventy dollars entered on the jieri facias, but no satisfaction entered, although many junior executions against E. Phillips have been satisfied by the Sheriff, and some of them by sale, as appears above.
    “ 6. Thirteen other writs of fieri facias against E. Phillips; the oldest lodged in 1832, .and founded on an indebtedness of 1828, yet standing open and unsatisfied. The dates of the lodgment of the others running from 1837 to 1847, and all, or all except some of the oldest, being marked 1 satisfied.’
    “ 7. Evidence, that Wilmuth, daughter of E, Phillips, never had any property before her marriage, not reckoning this land. That Aaron Philips and Noah Phillips, sons of Elijah Phillips, and Baker and Threat, his sons-in-law, and Push, bis grandson, all lived upon different parts of the tract in question for periods of eight, ten and twelve years; but none of them had a color of title, except Noah, as above from 1842 to 1846 ; and except Rush, to wbom in 1842 or 1843, Elijah Phillips conveyed all his land, three negroes and everything valuable that he had, saying when he executed the deed that he had been much bothered, was looking for more suits against him, and intended to put his property out of the way. (This deed to Rush was not produced — no actual delivery of it was shown, and no claim under it appeared to have been ever asserted.)
    “ 8. Further evidence that at the death of his father-in-law, old John Massey, E. Phillips was understood to be much in debt, (date unknown,) and son-in-law acquired of his father-in-law lands, the larger tract over Bird’s Branch, which his wife called hers; that E. Phillips made a will, whereby he directed a division of his property amongst all of his children, except Mrs. Belk, to whom he gave five dollars: — the defendant said, because he had fallen out with Belk, for buying some of his land at sheriff’s sale, and holding on to all the profits of a sale which he made of it to one Cook. The plaintiffs said, because he had given to ’Wilmutlumore than her share in the gift of the land now in dispute.
    “ 9. Returns to tax collectors, showing that the plaintiff Belk paid taxes only for the land he lived on, (six miles from the tract in dispute,) from the year 1845 to 1857, and that Sarah Phillips, wife and widow of Elijah Phillips, paid for one thousand three hundred and twenty-seven acres for most of these years prior to her death.
    “ IN REPLY. — The plaintiffs showed that Elijah Phillips had two negroes in 1817, and as many or more always afterward until his death; also horses, cattle, &c. That he was a substantial farmer, and at his death left personal estate which sold for more than twelve hundred dollars, and debts to the amount of only eighty dollars.
    
      “ I submitted to tbe jury all tbe questions of fact wbicb were raised, and especially those wbicb related to tbe fraud imputed by tbe defendant to tbe plaintiffs’ title. I called attention to tbe possession remaining in tbe grantor, and beld that if tbe effect of tbis was not rebutted by notice to tbe defendant, be stood in the shoes of tbe creditors, who bad given credit on tbe faith of tbis possession, and under whose liens tbe title to him was acquired, and so, either as creditor or purchaser, be might complain of a voluntary conveyance unaccompanied by a transfer of possession.
    “ The jury found for tbe plaintiffs tbe land in question and one hundred dollars damages.”
    Tbe defendant appealed on tbe grounds,
    1. Because tbe deed from Elijah Phillips to Wilmuth Phillips was fraudulent, and could confer no right on tbe plaintiffs.
    2. Because tbe defendant John Massey, was an innocent purchaser for valuable consideration, without notice of any former conveyance, and should have been protected.
    3. Because tbe verdict of tbe jury was against tbe charge of tbe Judge and tbe law, and without evidence to support it.
    
      DawJcins, Wylie, for appellant.
    
      Moore, contra.
   Tbe opinion of tbe Court was delivered by

Whither, J.

Tbe second ground of appeal may be briefly disposed of, as it is manifestly concluded by tbe cases of Steele vs. Mansell, 6 Rich. 435, and Leger vs. Doyle, 11 Rich. 109.

The deed set up by plaintiffs, cannot be postponed to the sheriff’s conveyance to defendant, because not registered within the prescribed time. The registration was nevertheless anterior to the sale by the sheriff, and, under the authority of those cases, operated as a notice to '■.chsoquent purchasers.

The remaining grounds impute no error to the Circuit Judge in matter of law, and v>v. are left only to inquire whether the verdict of the jury was “ without evidence to support it.”

The allegation in me first ground is that the deed under which the plaintiffs derived title, was fraudulent, and could therefore confer no right. The verdict being otherwise, it is not enough to justify an order to set it aside, that doubt may be entertained on the merits. The appellant now undertakes to show that it was against or without evidence. It is insisted that the long possession which followed the execution of the deed, was of itself conclusive evidence of fraud, but such a position is not sustained by our cases. It is recognized as a badge of fraud, and affords therefore prima jade evidence, but is not conclusive. Amongst many other cases reference maybe made to Terry vs. Belcher, 1 Bail. 572, in which JOHNSON, J., enters very fully into the consideration of this question, and reviews the authorities of Ch. Kent, and some of the English and American cases. We are to regard, in the case before us, the relation in which the parties stood to each, and especially likewise the fact of cotempo-raneous notice to the world, by the registration, of a change of title in fact, rebutting the presumptions that possession might otherwise justify. Another view pressed upon this Court, is the significant fact that plaintiff’s deed bears date only three days after the service of a writ in slander, aud was not recorded until six days after a judgment was confessed thereupon.

The plaintiffs were held, and justly, on the circuit to encounter such an assault as either creditors or a purchaser should be entitled to make. If the sale under which the defendant claims could be satisfactorily referred to this judgment, or if it could be seen that the suspected deed in any way effected a disappointment to the plaintiff in that suit, the objection to the verdict would be well founded. But the jury doubtless reached the conclusion, as the circumstances warranted them in doing, th; the judgment was in fact satisfied before the sale by the sheriff.

The deed in question was good in any view as between the parties. No creditor or suitor has in any way been disappointed or hindered by this conveyance, unless some one who chose to credit upon the faith of property which he was duly notified had been regularly transferred.

It would be hazardous in a Court to convért even a strong suspicion into an established fact, and thereby override the verdict of a jury.

The motion for a new trial is dismissed.

O’Neall, Wahdlaw, Withees, G-loveb and Muíteo, JL, concurred.

Motion dismissed.  