
    Givens and Reynolds v. Manns.
    
    Decided, Oct. 23d, 1818.
    i. Suit lor Freedom — Evidence—Acknowledgment of Owner. — A person, who has had possession of slaves more than five years, before the date of a deed of emancipation from another who previously was their owner, has a right, in opposition to their suit for freedom, to prove by the acknowledgment of such owner, made before execution of the deed, or by any other legal evidence, that such possession of his was adverse to the claim of such owner; butnot by any such acknowledgment made thereafter._
    
      2. Same — Same—Declarations of Proprietor.—If a proprietor of slaves deliver them to another, who thereupon claims them, as sold; any declarations made hy the former, after such delivery of possession, and not in presence of the latter, are not admissible as evidence in opposition to such claim.
    3. Emancipation Deed — Grantor Not in Possession — Effect. — Qu.? Whether a deed of emancipation from a person having- the right to slaves, of which another has adverse possession at the time, be competent to confer a right to freedom?
    4. Same — Same—Same.—A deed of emancipation can have no effect, if made by a person out of possession ; another holding the slaves by a title adverse to his; and the possession of such other person having continued for five years before the execution of such deed.
    5. Same — Recordation in Wrong Court — Effect.—A deed of emancipation recorded in a District Court, is not so authenticated as to be lawful evidence in a suit for freedom.
    See Acts of May 1782, c. 21, § 1; 1792, edi. 1794, 1808 and’14. c. 103, § 6; R. Code of 1819, c. Ill, §53, vol. 1st, p. 433
    6. Personalty — Title—Evidence of — Bill of Sale.— A BUI of sale of personal property, (not being- necessary to pass tbe title,) need not be shewn in evidence by persons claiming under tbe grantee, in a controversy between tbem and tbe grantor, or those claiming under him; for they may prove, by any other legal evidence, a title in the person under whom they claim; and such grantee, or his representatives, may prove their title by other evidence than the Bill of sale, unless it be alledged that such Bill of sale contains other matter than the mere transfer of the property, (and of which the grantor, or those claiming under him might avail themselves,) and notice be given to produce it: but in neither case can the substance or contents of the Bill of sale be given in evidence, without due affidavit by the party, or other satisfactory proof, of it’s loss, or that it is not in the power of the party so offering the evidence.
    7. Depositions — Commission to Take — Necessity of.— It seems, that a deposition taken de bene esse, by two magistrates, and with due notice, (it appearing that an order of Court was made awarding a Commission to take it, and that the Cierk charged a fee for issuing the commission,) may be read as evidence, on proof of inability of the Witness to attend; notwithstanding there be no other proof that it was taken by virtue of a Commission delivered to the magistrates; (no Commission being found among the papers;) and it be returned to the Clerk’s Office, open and unsealed, but without being shewn to have been erased or altered.
    Milly Mana and others brought suit in August 1815, against Joseph Givens and Magdalen Reynolds, in Botetourt *County Court, in forma pauperis, to recover freedom ; and issue was joined on the question of freedom or slavery.
    At the trial, (which took place in November 1817,) the plaintiffs introduced a Deed of Emancipation from Thomas Reynolds in their favour, dated October 18th 1797, and recorded, in the-District Court, holden at the Sweet Springs, on the 19th of the same month. It was admitted by the parties, that the said Thomas Reynolds was once the owner of the slaves in the said paper mentioned, of whom the plaintiffs constituted a part; but the defendants contended that, long before the date of the said paper, he had sold them to his son John; and, in proof thereof, they adduced the parol evidence of three witnesses:— 1. Daniel Givens stated that the plaintiff Milly at the time of the birth of her first child (Isaac, stated in the said paper as being ten years of age,) was in the possession of the said John, as were also the other slaves mentioned in the said paper; that, about one or two years afterwards, the said Thomas told the witness, several times, that he had sold the said slaves to his said son John, and had made him a bill of sale for them; and John and those claiming under him remained in possession thereof ’till John’s death, which happened about the year 1814. 2. Amy Handly testified that, some years ago, (the number she could not recollect,) the said Thomas came to her house, and, in conversation, in which he manifested some dissatisfaction towards his son John, with whom he resided, said it was true that he had sold him the said slaves, and executed a Bill of Sale to him for them; and that the said John had executed a Bond for 2001., as the price for them; but that he had lost the bond, and John had lost the Bill of Sale; by which the witness believed he meant ’‘John had it not now.” The Witness, though a neighbour, did not recollect to have heard, at the time of that conversation, of a deed of Emancipation or other disposition of said slaves by Thomas Reynolds. 3. George Hancock testified that, some years ago, John Reynolds consulted him as Counsel, on the effect of a bill of sale (which he shewed him) of slaves from his father to him ; viz. whether his father could (as he intended) *make any other disposition or alienation of them; and the Witness, being informed by John that he had been in possession of tbe slaves some years, advised him that his father could not make another disposition of them. The plaintiffs objected to any other evidence being given to prove the sale from Thomas to John, without producing the said Bill oí Sale, or proving it’s existence, and it’s loss, and the manner of it, by satisfactory evidence; and, though the defendants offered to prove the sale by parol evidence of the same, and the payment of the consideration contracted to be paid, the Court sustained the objection ; whereupon the defendants fiied a bill of exceptions.
    The defendants also offered in evidence the deposition of John Caldwell sen., taken de bene esse, by virtue of an order of Court, and written notice to Moses E. Cook Attorney for the plaintiffs, and proved the inability of the witness to attend at the trial. The plaintiffs objected to the reading thereof, because no commission appeared among the papers; (though it appeared from the Clerk’s fee-book that one had been charged to the defendants;) and there was no other evidence that the Magistrates who took the deposition acted under a Commission; and because it appeared, from the Clerk’s endorsement, in these words, “Returned open, 22d August 1816,” that the said deposition was returned to his Office, open and unsealed. The Court sustaining this objection also, tha defendants again excepted.
    
      After the deed of emancipation had been read to the Jury, and the defendants had given in evidence declarations made by Thomas Reynolds, (not in the presence of John,) for the purpose of proving that a sale had been made of the negroes, by the said Thomas to John, after the said John had come to the possession thereof, (some of which declarations were made after said John had so come to the possession,) the plaintiffs offered to give in evidence other declarations made by said Thomas, (not in the presence of John,) after the latter had come to the possession as aforesaid, for the purpose of proving that, when the negroes first came to his possession, they continued to be the property of Thomas, and came with his consent to John’s posses-sionto which evidence the defendants objecting, it was excluded by the Court; and thereupon the plaintiffs excepted.
    After the Court had rejected the evidence offered by the defendants, (as stated in the first bill of exceptions,) the defendants introduced a Witness who swore that, some time previous to the deed of emancipation, (how long he did not recollect,) he heard Thomas Reynolds say that he had sold to John Reynolds, or let him have the negroes, “and that said John was to keep him and furnish him with suitable cloath-ing, which he had failed to do.” The plaintiffs’ Counsel then moved the Court to instruct the Jury that, if they should be of opinion that the sale spoken of by said witness was the same sale of which evidence had been rejected as aforesaid, they ought to disregard said evidence so far as the same went to prove a sale of the negroes by Thomas to John: — audit being admitted that said negroes were the property of Thomas up to the time when they came to the possession of John, the plaintiffs’ Counsel moved the Court farther to instruct the Jury, that if they should be satisfied, from the evidence in the cause, that, when the said John came to the possession' of said negroes, the right of property was not transferred to him by said Thomas, then, unless they should be satisfied that the said John subsequently and previously to the deed of emancipation, acquired the right of property by alienation to him, the mere continued possession thereof for more than five years would not bar the plaintiffs’ right under the deed of emancipation. Whereupon, the Court gave the first instruction, but declined giving the, last, and left it to the Jury ; all which, on the application of the plaintiffs’ Counsel, was ordered to be spread on the record.
    A verdict was found, and judgment rendered, for the plaintiffs, which being affirmed upon an appeal to the Superior Court of law, the defendants again appealed.
    Wickham for the appellants.
    — 1.A Bill of sale for the slaves was not a necessary muniment of our title; for personal property passes by deli very  without a deed.
    2.That title, too, became unquestionable by five years uninterrupted possession. The right of the slaves to *freedom cannpt stand on a better footing than that of the person under whom they claim.
    3. The Court at the instance of the plaintiffs suppressed evidence concerning the sale, and gave the most singular instruction that ever was given by a Court. How could the Jury know whether it was the same sale, or not, when the evidence in relation to it had been excluded?
    4. The deposition of Caldwell ought not to have been excluded; for it appears that a Commission to take it actually issued,, and, not being found among the papers, must have been mislaid.
    Heigh for the appellees.
    The main point, certainly, is that presented by the first bill of exceptions; but, in the first place, I will endeavour to clear the case of minor objections.
    1. Caldwell’s deposition was properly excluded. In England, commissions to take depositions de bene esse, as evidence in trials at law, are awarded only on consent of parties,  In Virginia, they are au-thorised by Act of Assembly in particular circumstances. But, in both Countries, the practice, doubtless, is adopted to save the necessity of resorting to a Court of Chancery to award the commissions for obtaining such depositions. We therefore must look to the practice in Chancery to ascertain the form of such commissions, and modes of executing and returning them. And there, surely, it is not sufficient that the commission be awarded and issued, but it must be delivered to the Commissioners; and, regularly, it must be returned,  Such is the constant practice. But, in this case, it does not appear that the Commission ever was delivered to the Commissioners: — they do not even profess to act under it’s authority: — in other words, it does not appear that they had any authority at all.-
    Again ; the deposition was returned open. —The rules of practice prevailing in Virginia, in regard to publication of depositions, are certainly different from those in England; but, in this respect, the practice is the same in both Countries; the depositions must be returned *under cover, sealed up. The Commission itself always requires it; and such rule is necessary, to prevent undue practices, to-alter the testimony, or, indeed, to suppress it, if found unfavourable, 
    
    2. As to the instruction given by the County Court in relation to the character of the transfer of possession from Thomas Reynolds to his son; there can be no question, now, concerning it, (according to the settled practice in our Courts,) whether that instruction was right or wrong. The defendants acquiesced in it at the time: they neither opposed it before, nor excepted to it after it was given : — they cannot therefore be permitted to stand by in silence, take their chanee before the Jury, and, if the result be unfavourable, avail themselves, in order to impeach the verdict and judgment, of an error of which they made no complaint at the trial.
    3. The principal question rémains; -whether parol evidence could be given of the contents of the alledged bill of sale, without accounting for the non production ■of the instrument itself in a more satisfactory manner.
    It may be remarked, in the first place, -that, before this objection was made, the defendants had already examined several Witnesses to prove the sale; and then, the Court did not instruct the Jury to disregard the evidence that had been given on that point, but only excluded other evidence on the same point. It appears, too, from the ■exceptions filed by the plaintiffs, that the ■defendants did, even after farther evidence on that head had been excluded by the Court, adduce testimony of the very kind which the Court had declared inadmissible: —so that, notwithstanding that opinion, which it seems the Court did not enforce, they in fact availed themselves of the benefit of the evidence intended to have been ■excluded.
    Excepting the testimony that Thomas Reynolds said his son John had lost the bill of sale, there is none other that it was lost. If ever there was a ■case in which a party should be held to strict proof of the loss of an instrument, before he should be allowed to prove it’s contents, this is one. The paper was certainly not lost before *John Reynolds had notice of his father’s design to emancipate or alienate the slaves; for he afterwards consulted Counsel on it’s effect, and it is probable it was not lost ’till after the deed of emancipation was recorded. Here then was the strongest motive for a careful preservation of it; so that, if it were lost, it would be wonderful that the very time, cause and manner of such loss could not be proved. With full notice of the deed of emancipation on record, John would have complained of the loss of his title paper to every neighbour he had. The purchasers from him could not have failed to hear of such a remarkable fact as this recorded manumission ; and they doubtless enquired of their vendor as to the particulars of his title, and the fate that had befallen the evidence of it. Yet no kind of evidence is adduced to shew when ■or how this paper was lost; which evidence was indispensible to enable them to prove ■it’s contents,  It does not even appear that any enquiry had been made, for the paper, of John Reynolds’ representatives.
    4. Length of possession is now relied upon by the defendants, though, in the Court below, they made no such objection to our right: — but, to suits for freedom, the act of limitations is no bar. The slavish condition and ignorance of the plaintiffs exempt them from it’s operation.
    Wickham in reply. I admit the act of limitations does not run, against the plaintiffs, since the date of the deed of emancipation : but they claim under Thomas Reynolds: — if his title was barred by length of time, before he executed the deed, he •could convey no right by the deed; because the slaves were then the property of another.
    As to the instruction, if it was erroneous and appears on the record, a bill of exceptions is not necessary; the only object of which is, to get the thing spread on the record. There is no appearance of any assent, or waiving of the objection, on the part of the defendants. — Either Mr. Leigh is wrong, or the record is. The Court did exclude the defendants’ parol testimony to prove the sale, after it was discovered there was a bill of sale.' — That instrument was not a part of the res gesta at the time of the sale: — it was executed afterwards, being ’’intended as a confirmation of the title: — but it was no muniment of our title: — we were purchasers from John, it is true; but there is no proof that we knew, or ever heard, of the bill of sale, until it came out in evidence, from the other side, that there had been such a paper.
    Another argument was had, on the following questions suggested by the Court; viz:—
    1. Is the acknowledgment of a deed of emancipation in the District Court a due probate thereof, or must the probate be in the Court of the County or Corporation?
    2. Is it competent to one to emancipate slaves of which another has adverse possession at the time?
    As to the first point, Leigh remarked, that the Act does not require the Deed to be recorded, but only that it should be proved or acknowledged in the County or Corporation Court. It’s object therefore is not the same with that of the Statutes requiring registration of other deeds, to give notice thereof to the world; it is, simply, to provide a convenient and solemn method of taking and preserving the evidence of the act of emancipation. This was necessary for taking the evidence; because the slaves are merely passive, and incapable of making a contract with their master for their freedom; and therefore the Court is appointed a trustee to receive delivery of the deed for them ; which accordingly takes effect, not from the day when it was signed and sealed, but from the date of it’s probate. It was also necessary for preserving the evidence; because, since many might claim freedom under the same deed, to entrust it to the custody of one might be highly injurious to all the rest: it is committed therefore to the custody of a Court of Justice, to take care of it for the benefit of all. •
    If such was the object of the Act requiring probate of these instruments, it would seem too literal a construction, too regardless of the end proposed by the probate, to say that probate in a district Court, is not as good as in a County or Corporation Court.
    In relation to the 2d point, it would be very rigid to apply the doctrine which prohibits the assignment of choses in action, to a donation of freedom. It is agreed *on all hands, that the Act of Limitations is no bar to a claim to freedom: and, if a positive statute be not allowed to defeat the right, it were strange that a technical rule, respected in Courts of law only, and disregarded in equity, should be allowed to defeat it. In Lemon v. Reynolds, 5 Munf. 552, the pauper claimed under a Will that had been lost. A claimant of any other right under the Will, must have resorted to a Court of Equity to set it up: — 'but, it’s substance being proved ex parte in the County Court, this Court sustained the pauper’s claim to freedom. In that case, the pauper enforced, in a Court of law, an equitable right to freedom. I insisted in argument, that he might do so; and the Court sus tained the claim. So, in this case, I hold that the donor might lawfully give his slaves all the right he had in them, whether they were in his own possession, or in another’s.
    But how does it appear that this pauper was in the adverse possession of John Reynolds, at the time Thomas Reynolds emancipated her? Looking to the circumstances of the case, as they appear on the record, the Jury (their verdict being for the plaintiffs,) have found the direct contrary; that John’s possession was not adverse. The case comes here on particular exceptions; not on demurrer to evidence, or case agreed, or special verdict: we know not what evidence might have been given, besides what appears. It does not appear that the County Court was called on to give any opinion upon this point, or that it ever was presented to it’s consideration. Appellants here have the right to complain of errors actually committed, not of such as might have been committed, if points had been submitted by them, which they did not submit. If the judgment be reversed on this ground, it will be for error in an opinion not pronounced.
    Wickham. Every thing in the laws on this subject shews, that the Legislature contemplated the emancipation to be made by the person having possession of the slaves, and power to give the instrument full effect. If *the plaintiffs be at all entitled to freedom, their remedy is in equity, not in a Court of law.
    Leigh. If there be a remedy in equity, there is one at law, in this case; for, in pauper causes, the question is, as to the mere right to freedom, unshackled by technical rules.
    The Deed’s being recorded in the District Court is not important. Even in the case of a Patent, Judge Pendleton, in his opinion in Lee v. Tapscott, 2 Wash. 276, lays it down as a general principle, that the attested copy of a Patent recorded in a County Court, is as good as a Copy from the Register’s office.
    Wickham. The case of Lee v. Tapscott relates altogether to old Patents. A copy of a Patent now recorded in a County Court, would certainly not be evidence.
    
      
       For monographic note on Bills of Sale, see end of case.
    
    
      
       Suit for Freedom — Evidence—Declarations of Proprietor. — To the point that the admissions made by a person before he has parted with his interest in the matter in controversy are admissible as evidence but not admissions made thereafter, the principal case is cited in Ben v. Peete, 2 Rand. 548; Dade v. Madison, 5 Leigh 403, 405.
    
    
      
       Deed of Emancipation — Recordation in Wrong Court — Effect.—A deed of emancipation,. not recorded in the proper court, but in some other, gives no title to freedom until properly recorded. (Sawney v. Carter, 6 Rand. 175) citing principal case as authority. To the same effect, see principal case cited in Moses v. Denigree, 6 Rand. 564; Thrift v. Hannah. 2 Leigh 312, 313, 315, 317, 319; Manns v. Givens, 7 Leigh 710.
    
    
      
       Bill of Sale — Proof of Loss. — To the point that a party, by affidavit, may prove the loss of a bill of sale, the principal case is cited in Ben v. Peete, 2 Rand. 542.
    
    
      
       Jacob v. Lindsay, 1 East. 460.
    
    
      
       3 Tuck. Bl. 383.
    
    
      
       1 Harr. Ch. Prac. 330.
    
    
      
       Harr, Ch. Prac. 328, 350.
    
    
      
       Peake on Ev’ce. 97.
    
   The following was this Court’s opinion.

The Court, (not deciding whether.a Deed of emancipation of slaves, of which another holds adverse possession at the time, is competent to confer a right to freedom,) is of opinion, that the admitted possession by John Reynolds, under whom the appellant claims, of the appellee and the other slaves in the first Bill of exceptions mentioned, being more than five years before the al-ledged Deed of Emancipation was executed, the appellant had a right to prove that such possession was adverse to Thomas Reynolds, the former owner of said slaves, either by the acknowledgment of said Thomas, that such possession was adverse, (as that they were held by said John as a purchaser from him, or otherwise by adverse claim,) or by any other evidence proving the adversary nature of such possession ; and that it should have been left to the Jury to decide whether such declarations were made before or after execution of the said Deed; with directions that any such declaration made thereafter should be rejected by them.

The Court is also of opinion, that a bill of sale of personal property, (not being necessary to pass the title,) need not be shewn in evidence by persons claiming under the grantee, in a controversy between them and the grantor, or those claiming under him ; but that *the former may prove, by any other legal evidence, a title in the person under whom they claim; and that such grantee or his representatives may prove their title by other evidence than the Bill of Sale, unless it is alledged that such Bill of sale contains other matter than the mere transfer of the property, (and of which the grantor, or those claiming under him, might avail themselves,) and notice be given to produce it; but in neither case can the substance or contents of the Bill of Sale be given in evidence without due affidavit by the party, or other satisfactory proof of it’s loss, or that it is not in the power of the party so offering the evidence. The Court erred therefore in rejecting the evidence of the declarations of Thomas Reynolds, and the other evidence offered to prove a sale by him; and also in rejecting the evidence of the witness Hancock, so far as it tended to prove an adversary possession in the said Jonn Reynolds; but that the same ought not to have been relied upon as tending to prove the contents of the Bill of Sale, in the absence of sufficient proof that the same was not then in the possession or power of the party.

The Court is farther of opinion that the alledged deed of emancipation, (made part of the record in this Bill of exceptions,) not being acknowledged or proved in the Court of the County or Corporation, as the law directs, was not so authenticated as to make it evidence in the trial, nor ought to be received as such evidence until it shall be proved or acknowledged before the proper Court.

The Court is also of opinion, that there was no error in rejecting the evidence mentioned in the third Bill of Exceptions; and that, as the instruction contained in the fourth Bill of Exceptions was predicated on the rejection of the evidence mentioned in the first, the same was erroneous; — that there was also no error in refusing to give the last instruction asked for and stated in the said fourth bill of exceptions; but, instead of leaving the matter thereof to the Jury, they ought to have been instructed, that, if the possession of John was adverse to that of Thomas, and so continued for five years before the ^execution of the deed of emancipation, such possession as effectually prevented the operation of that Deed, as the change of property by alienation.

With respect to the deposition mentioned in the second bill of exceptions, a majority of the Court is of opinion that, as it sufficiently appears to have been taken under a Commission, and upon notice, and as the same is not shewn to have been erased or altered, and as, for aught appearing by the Clerk’s endorsement, it may have been returned open by the magistrates themselves, it would be too strict to reject it as evidence at the trial; and that there is error in the judgment of the Court in this particular.

The judgment is to be reversed, and the cause remanded, with directions to the Court to admit the evidence, so improperly rejected, if again offered.

BILLS OF SALE.

I.Considered Generally.

A. Possession Remaining- with. Vendor.

1. General Rule.

2. Rule Illustrated.

B. Chattel in Possession of Third Person,

C. Vendor Retaining Title.

D. When Treated as a Mortgage.

II.Recordation.

III.Evidence.

Cross References to Monographic Notes.

Fraudulent and Voluntary Conveyances, appended to Cochran v. Paris, 11 Gratt. 348.

Mortgages, appended to Forkner v. Stuart, 6 Gratt. 197.

Sales.

I. CONSIDERED GENERALLY.

A.POSSESSION REMAINING WITH VENDOR.

1. General Rule. — Where there is an absolute sale of chattels, the purchase money paid, hills of sale executed, and the possession of the property retained by the vendor, it is prima facie fraudulent, hut the presumption may be rebutted bv proof. Davis v. Turner, 4 Gratt. 422, repudiating a contrary doctrine laid down in the earlier cases. See also, Kroesen v. Seevers, 5 Leigh 434; Forkner v. Stuart, 6 Gratt. 197. Compare Poling v. Flanagan, 41 W. Va. 191, 23 S. E. Rep. 685.

2. RULE Illustrated.

Vendor Taking Possession before Creditor’s Rights Attach. — But if an absolute bill of sale, fair in itself, be not accompanied by immediate possession, but possession is taken by the vendee before the rights of any creditor of the vendor attach, the sale is good against the vendor’s creditors. Poling v. Flanagan, 41 W. Va. 191, 23 S. E. Rep. 688. See Syd-nor v. Gee, 4 Leigh 535; McKinley v. Ensell, 2 Gratt. 333.

Chattel Hired Back to Vendor . — So, too, where an absolute bill of sale of slaves is executed by 15 to C for a valuable consideration, and the slaves are delivered by the vendor to the vendee; and then the vendee hires the slaves to the vendor, for their victuals and clothes, taxes and levies, till the end of the ensuing year; the sale and the hiring are both bona fide transactions; at the end of the year, the vendee takes possession of the slaves, holds them for several years, and then dies; a creditor of the vendor recovers judgment against him, after the vendee has taken possession of the slaves and levies his execution on them in the hands of the vendee’s executor. In a controversy between the creditor of the vendor and the executor of the vendee, it was held, that the slaves are the property of the vendee's estate, and not subject to execution at the suit of such creditor of the vendor. Sydnor v. Gee, 4 Leigh 535.

Executor Retaining Possession. — But an absolute bill of sale of slaves by an executor who Is, nevertheless, permitted to retain possession thereof is fraudulent and void as to legatees, as well as creditors and purchasers. Robertson v. Ewell. B Munf. 1.

Retained by Mortgagor, after Absolute Sale to Mortgagee. — And where a slave has been mortgaged, and afterwards sold absolutely to the mortgagee, but the bill of sale has not been recorded and possession has been permitted to remain with the vendor, such sale is fraudulent as against a subsequent purchaser, and equity will entertain such purchaser to recover the .slave against the fraudulent vendee who had clandestinely obtained possession of him; nor can such fraudulent vendee prevent a recovery by showing that the plaintiff did not take possession at the instant of the purchase, as such omission cannot make good the fraudulent sale. Glasscock v. Batton, 6 Rand. 78.

B. CHATTEL XN POSSESSION OF THIRD PERSON.

Rule That Possession Must Accompany Sale. — It is a general rule that an absolute sale of chattels not accompanied and followed by transfer of possession to the vendee is per se fraudulent and void as against creditors of the vendor; and though there are exceptions to the rule, yet it is no ground of exception that the possession at the time of the sale was in a third person, if, notwithstanding such possession, the vendor had a right, and it was in his power, to take the possession and deliver it to the vendee. Mason v. Bond, 9 Leigh 181.

Exception to Rule. — So, an absolute bill of sale, made in March, of a slave hired to a third person for the year; at the end of the year, the vendee applies to the bailee to deliver him the slave, and the bailee tells him he may have possession, yet the vendee does not take actual possession, but leaves the property in the hands of the bailee. The failure to deliver the slave to the vendee at the date of the bill of sale having been caused by the existing bailment to a third person, and the bailee after the expiration of the bailment becoming in effect bailee of the vendee,’ so that his possession was the vendee's, or at least not the vendor’s, the bill of sale is good against the creditors of the vendor. Kroesen v. Seevers, 5 Leigh 434. See Davis v. Turner, 4 Gratt. 422.

C. VENDOR RETAINING TITLE . — Where the vendor of goods, by an unrecorded bill of sale, delivers possession, but retains title until the price is paid, such sale is void as to creditors and purchasers without notice from such vendee. Hash v. Lore, 88 Va. 716, 14 S. E. Rep. 365.

D. WHEN TREATED AS A MORTGAGE.

As between Parties. — An instrument appearing on its face to be an absolute bill of sale is admitted to have been intended only as a security for the sum of money therein mentioned, as the price of the property granted, will be treated and enforced a.s a mortgage. Gold v. Marshall, 76 Va. 668. See Dabney v. Green, 4 Hen. & M. 101; Ross v. Norvell, 1 Wash. 14; Poling v. Flanagan, 41 W. Va. 191, 23 S. E. Rep. 688; Bird v. Wilkinson, 4 Leigh 266.

As to Subsequent Fair Purchasers. — L. executed a bill of sale of a slave to B. which, 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 of 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 after-wards 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 of the previous bill of sale to B.; held, that the hill of sale from L. to B. must he taken for what it was intended to be, a mortgage, which was void as against the subsequent fair purchaser, because it was not recorded. Bird v. Wilkinson, 4 Leigh 266. See Poling v. Flanagan, 41 W. Va. 191, 23 S. E. Rep. 688.

II. RECORDATION.

where the courts held an absolute bill of sale to be a mortgage, intended only as a security for a debt, there is a right to record it as a mortgage, 'and its record is notice to creditors and purchasers. Poling v. Flanagan, 41 W. Va. 191, 23 S. E. Rep. 687. See Bird v. Wilkinson, 4 Leigh 266.

But a mere bill of sale is not required to be recorded, and. if recorded, is not constructive notice. Poling v. Flanagan, 41 W. Va. 191, 23 S. E. Rep. 687.

1«. EVIDENCE.

Evidence. Though Not Recorded. — A bill of sale of a slave should be permitted to go to the jury as evidence, though not recorded. Fowler v. Lee, 4 Munf. 373.

Where Bill of Sale Is Lost. — But a bill of sale of personal property need not be shown in evidence by persons claiming under the grantee, in a controversy between them and the grantor, or those claiming under him; for they may prove, by any other legal evidence, a title in the person under whom they claim, and such grantee, or his representatives, may prove their title by other evidence than the bill of sale, unless it be alleged that such bill of sale contains other matter than the mere transfer of property (and of which the grantor, or those claiming under him, might avail themselves), and notice be given to produce it; butin neither case can the substance or contents of the bill of sale be given in evidence, without due affidavit by the party, or other satisfactory proof, of its loss, or that it is not in the power of the party so offering the evidence. Givens v. Manns, 6 Munf. 191.

Declarations of Defendant. — And where a defendant produces a bill of sale to support his title to a chattel, the plaintiff may prove parol declarations of the defendant, disclaiming title under the bill of sale after he had notice of the plaintiff’s purchase, and before he had perfected his own title by obtaining possession. Fowler v. Lee, 4 Munf. 373.

Parol Evidence to Prove Instrument a Mortgage.— Parol evidence may be admitted to prove that an absolute bill of sale was intended to operate as a mortgage. It cannot be laid down as a general rule that parol proof to contradict a bill of sale is not to be admitted in any case or that it is to be admitted in all cases. Ross v. Norvell, 1 Wash. 14. 
      For sequel of principal case, see Manns v. Givens, 7 Leigh 689, 690, 698.
     