
    W. Hoskins & Co. vs. Carroll.
    The question whether a deed be fraudulent or not, is proper to he submitted to the jury on the facts and circumstances of the .case.
    If a mortgagee give a general and unlimited parol authority to the mortgagor to sell the property mortgaged, and deliver him possession, or suffer him to retain possession, a sale of the property by the mortgagor to a third person will vest the title in such third person. But if the authority were special and limited to a particular price, and conditioned that the mortgagor paid over the money to the morgagee, and the authority was not pursued by the mortgagor, and the condition not performed, a sale of the property would not be good against the mortgagee.
    If the law of the case be fairly presented to the jury, a new trial will not be granted because of a conflict of evidence, unless the preponderance be great against the verdict.
    This was an action of detinu, brought by the plaintiffs in error, who were plaintiffs below, to recover of the defendant in error, a negro man. T-he plaintiffs produced as evidence of their title, a mortgage, executed to them by Burge, embracing the negro in dispute, and other property. The defendant read a bill of-sale from Burge to him forthe negro subsequent to the date of the mort-ga&e’ anc^ Proved that be had paid a full and fair price for the negro in cash, to Burge, and received the possession of the negro. The defendant resisted the claim of the plaintiffs to the negro, upon the ground that the mortgage was fraudulent and void, was made to cover more property than the amount of the debt, was made to delay other creditors, and to secure future advances. That if the mortgage was valid that the mortgagee had given Burge a general authority and power to sell and dispose of the negro. The plaintiff contended, that if any authority was given to sell the negro it was limited and special, and upon the condition that the proceeds of the sale were to be paid to the plaintiff, and that the power had not been pursued, and the condition been performed, and that said power being in parol was void and did not authorize the sale. The defendant offered to prove by parol evidence, that a general and unlimited power was given to Burge to sell the negro, which proof was objected to, but the objection was overruled by the court and the proof admitted, to which the plaintiffs excepted. There was much proof read and given upon both sides, which it is unnecessary to detail, as the opinion of the court states so much of the proof as was considered by the court necessary to be considered in revising the case. The circuit judge charged the jury, “That if the mortgage was given for a bona fide debt, and not fraudulently made to cover money not due, and in no other respects fraudulent, they would find that the deed was valid. If the mortgagee gave to the mortgagors a special and limited parol authority to sell the negro, fix a particular sum, as the best that could be had over a certain amount, provided he would pay over the money secured by the mortgage, still the case would be with the plaintiffs, unless the authority had been pursued in paying over the money, but if the authority by parol had been general, and the payment over of the fund to be raised was not made a condition, but left to the honesty of the mortgagor to sell and account, which he never did, and the negro was delivered to and supposed to remain in the possession of the mortgagor, then the jury would be warranted in finding for the defendant, in as much as the mortgagee had to look to the honesty of the mortgagor, whom he had trusted. That a parol authority to sell the negro, whether special or general, would be good, and was not necessary to be given by deed, and a sale in pursuance of such authority by the agent would vest in the purchaser the title to the negro.” The jury found for the defendant, and the plaintiffs having moved for a new trial, and the motion being overruled, they appealed in the nature of a writ of error to this court.
    
      F. B. Fogg, for the plaintiffs in error.
    
      George S. Yerger, for the defendant in error.
   Peck, J,

delivered the opinion of the court.

The circuit judge in his charge to the jury, left them to consider of the case in one of three aspects: first, as to the honest intent of the parties to the mortgage deed? second, was the power given by the mortgagor to the mortgagee (if it existed at all) to sell the negro, a special or limited power? and thirdly, was it (if given) a general power?

If the mortgage was given for a bona fide debt, and not fraudulently made to cover money not due, and in other respects not fraudulent, then, there being nothing more in the case, it was well left with the jury to find for the plaintiffs. And if the mortgagee gave to the mortgagor a special and limited parol authority to sell the negro for a particular sum, as the best that could be had above $425, provided he would pay over the money secured by the mortgage, still the case would be with the plaintiffs, inasmuch as the authority had not been pursued m paying over the money.

But if the authority by parol had been general, and the payment over of the fund to be raised were not made a condition, but left to the honesty of the agent to sell and account, which he never did, then the jury would be warranted in finding for the defendant, in as much as the mortgagee had to look to the person in whom he had trusted.

If the facts in the case establish the existence of the parol authority in the view the court has taken of it, that authority, though by parol authorized, the sale, pri-ma facie possession, in him making the sale was evidence of right. When the plaintiffs rebutted that evidence of right by the production of the mortgage deed, he was met with the, authority to sell, and this included within itself the evidence of a parting with the property; the power being general and not special the plaintiffs’ right to recovery was negatived as before observed. If it were permitted the plaintiffs to part with the possession under the parol agreement to sell, and then recover alone on the mortgage, the effect would be a fraud secretly practised upon Carrol.

It follows, therefore, that the circuit court fairly presented the law of the case to the jury, for it is not questioned chat the power to sell the negro might be good, though a parol power.

The evidence in the record conclusively proves the power. Mrs. Burge says it was talked of when the mortgage was drawn, and afterwards a letter was sent to Burge by the plaintiffs offering to purchase at $425, and in case that sum would not be received, the negro might be sold for more if it could be had, and in these authorities to sell no limitation is fixed.

William Burge, another witness, is still more particular to this point. The evidence appears to have been very candidly detailed, and is such as might well warrant the jury in finding for the defendant on this question alone. Upon another ground, the suspicious character of the mortgage including other property,, the sum secured being probably greater than the debt due, and the fact that it was made in part to “keep off others,” were matters alone for the jury to weigh, touching the imputation of fraud in procuring the mortgage. In short, the evidence was for the jury, and we are so far from con-troling the inferences drawn from it, that we think it sustained by the proof.

Judgment affirmed.  