
    John J. Humphries vs. Neill Bartee.
    A judgment obtained by fraud and collusion, between one not a party to the record and the defendant, predicated upon a forged note of the defendant to the apparent plaintiff) who is a real person, but does not participate in the fraud, is fraudulent, and a nullity and all proceedings under it are of the same character.
    T., being indebted to B. for borrowed money, conveyed certain slaves, by absolute bill of sale, to B., to secure the debt; these slaves were afterwards sold at public auction, by agreement between T. and B., and bought by B.; afterwards by collusion between H. and T., a judgment for a large sum was obtained in favor of one R., who was a non-resident, against T., in a different county from that of T.’s residence, upon a forged note of T.’s, for a debt not owing, and the suit brought without the knowledge of R. ; H. pretending to be the assignee of this judgment, levied an execution on the slaves in the hands of B., who gave bond to try the right of property. On the trial, T., being admitted as a witness, testified, that the sale of the slaves to B., was fraudulent, upon which the jury found the slaves subject to the execution against T. ; and they were sold under it, and bought by II; B., afterwards finding that the judgment under which H. claimed, was fraudulent, and that the whole proceeding had been conducted by fraud and collusion between H. and T., filed his bill to vacate the sale of the slaves to H. ; held, these facts being made apparent, that the original judgment was void, and the proceedings under it void, and no title passed to H. by the sale under it.
    The rule that holds a party to strict vigilance, when he resorts to equity for relief against a judgment at law, the defence to which was purely legal, is fully complied with in a case where the party seeking relief against a sale of property claimed by him, shows that the sale was made under a judgment to which he was not a party, which judgment, he alleges, was obtained by fraud, of which fact he had no knowledge at the time his property was held subject to an execution on it; the plaintiff1 in which judgment, was a nonresident, who had lately changed his residence, and had no interest in, or knowledge of, the fraudulent judgment rendered in his name, and the party seeking the relief had no knowledge of these facts, until he filed his bill.
    Where one is about to be affected by a judgment to which he is not a party, his proper remedy for avoiding it is in chancery ; he may there show, that the judgment was recovered by fraud.
    No relief can be had against a void contract, when a judgment has been rendered thereon at law, where the defence ought to have been made; you cannot go behind the judgment; it is otherwise however, if the judgment itself be void for fraud in its rendition.
    Nor can a judgment, void for fraud, on which an execution has been issued and levied, and the property levied on, claimed by a third party, and, on a trial of the right, declared subject thereto, be made valid by the failure of the claimant at the time he set up the void character of the judgment; the rule which holds the party to vigilance in making his defence at law, does not apply to such a case; for want of vigilance on his part, could not make the void judgment valid.
    Where slaves were conveyed by an absolute bill of sale to the vendee, but in reality, merely as a mortgage, to secure a debt due by the vendor, and judgments are subsequently rendered against the vendor, and the vendee seeks relief in equity against executions on these judgments, the proper remedy is, to decree a sale of the slaves, and order the proceeds to be appropriated first to the satisfaction of the mortgage-money, the amount of which is to be ascertained by an account; and, second, to the payment of the judgments, in the order of their priority, excluding such judgments as are not recorded in the proper county, according to the statute ; if he desire it, the vendee may redeem from judgment creditors of the vendor.
    An absolute bill of sale, designed however between the parties as a mortgage, if delivery of the thing sold accompany the bill of sale, need not be recorded to be valid as against subsequent judgment creditors of the vendor. A court of equity, in treating it as a mortgage, will protect the rights of the vendee ; the possession by the vendee, was equivalent to notice by registration, even if it had been competent to record an absolute bill of sale.
    Appeal from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.
    Neill Bartee alleges in his bill, in substance, that on the 21st of February, 1839, he loaned Samuel W. Turner ¡§1500, to pay off certain judgments against him with, and took his note, bearing ten per cent, interest for loaned money, secured by a deed of trust to Pascal B. Wade, on two houses in Columbus. On the 7th of May, 1840, Turner conveyed the slaves Ben, Nancy, Kitty, Esther, and Peggy, to Bartee, by an absolute bill of sale, but intended to secure payment of the same and other money. The consideration expressed was $2700; as soon as this was paid by Turner the bill of sale was to be void, though absolute on its face. The slaves were delivered by Turner to Bartee.
    At the time this bill of sale was made, Turner was indebted to R. S. Blount, in the sum of $266, secured by a deed of trust on the slave Kitty, executed in August, 1838; at the request of Turner, Bartee paid this debt, and took an assignment of it and the deed of trust. Besides this sum Bartee paid at different times, before the bill of sale was made, about $811 for Turner; he files his bill of items.
    The bill further proceeds to detail the history of the two houses conveyed by the deed of trust, and gives an account of their rents, &c., which is not material to the merits of the main controversy. These lots were sold in March, 1842, by the trustee, and bought by Bartee, for $100, but were afterwards resold by the sheriff, under an execution in favor of Owen against Turner, for $62, rendered 9th April, 1839.
    At this time, by an agreement between Turner and Bartee, the slaves were also sold at public auction, except Nancy, who had died. They were sold at the court-house for a full price, and brought $1500; they were all bought by Bartee; but no credit was made then, or subsequently, on Turner’s indebtedness to Bartee, nor could he then, or at any time, procure a settlement with Turner, who had then formed the design to defraud Bartee.
    Turner put into Bartee’s hands certain notes for collection, out of which he had made some small sums stated, for which he was chargeable.
    In the summer of 1842 these slaves, except Ann, were levied on under an execution purporting to be on a judgment rendered on the 6th of March, 1841, in favor of David Reinhardt against Turner, for the sum of $5383.06, rendered in Lowndes county. Bartee claimed the slaves, gave bond, and an issue to try the right of property was made up to the October term, 1842, of the circuit court. On the trial Turner was allowed to testify. He stated that he was not interested in the event of the suit; that the arrangement between Bartee and himself was entered into for the purpose of defrauding Turner’s creditors; and upon his evidence the jury found the slaves subject to the execution.
    
      A suit was also brought against Bartee for the lots, and upon Turner’s evidence he lost that suit also. But the bill seeks no redress for the lots.
    That Turner early conceived the design to defraud Bartee out of his money and securities; and to that end sought confederates. He found an ingenious, capable and ready one in Humphries ; they held frequent conferences at Humphries’s and finally devised and executed this scheme to accomplish their end. Turner made his writing obligatory, by which he promised to pay one David Reinhardt $2300, on the 1st of January, 1825, dated on the 21st of March, 1824. This writing he gave to Humphries to collect, as an attorney at law. Humphries after-wards pretended that he had bought it on the judgment after-wards rendered on it, from his client, and paid for it in land. Suit was brought to October term, 1841, in Lowndes county, though Turner lived in Octibbeha county ¡..judgment by default was rendered, execution issued, and the trial of the right of property had as stated. That Turner could not identify Reinhardt as his creditor, nor show his residence, or the dealings which led to his indebtedness, and formed the consideration of the bond ; nor could Humphries tell who left with him the bond, identify his client, show how he bought the bond, to whom he gave the land, nor what land. That Turner, in a quarter where he had not expected exposure, had boasted of his success in this scheme of frauds; had said he had part of the property fixed, meaning the lots, would soon have the other part, meaning the slaves; and after a while he would get the property or its proceeds turned over to his boys.
    After the verdict on the trial of the right of property, an execution issued on the Reinhardt judgment, and the slaves were taken into custody by the sheriff, when the following executions were issued, and levied on the slaves, to wit: one in favor of Wright and others against Turner, for $169.32, rendered December 13, 1839; one in favor of James Owens against Turner, for $62, of the 9th April, 1839; one in favor of Alexander Gray against Turner, for $1444, rendered on the 28th of May, 1839; and one in favor of Charles M. Rogers, for $193,63, of December 31, 1839; all these executions but those of Gray, which was the property of Bartee, were issued by the procurement of Hum-phries, to enable him to carry out his scheme of fraud. That before the slaves were sold under these executions, Humphries had an alias execution on the Reinhardt judgment issued, and, on the day of sale, in order to deter bidders, proclaimed that, as soon as the sale was over, he would seize and sell the slaves again under that judgment, to which they had been declared liable; in consequence of which the slaves only brought $735, about half their value, and were bought by Humphries. That, emboldened by his success, Humphries had directed a writ of garnishment on this judgment against Bartee, as a debtor of Turner; and on Bartee’s answer that he owed nothing, had taken an issue, which was yet pending. The slaves were yet in Humphries’s possession, nor had he paid anything, having agreed with the sheriff to pay the money to such executions as the circuit court of Lowndes should direct, and no direction had yet been made.
    The bill attacks the validity of the various executions under which the sale of the slaves took place, states that Humphries, “before he embarked in the Reinhardt speculation,” knew of the loan of money by Bartee, and the nature of his title, and insists that if any of the executions under which the sale took place are valid, Bartee should be allowed to redeem them. The prayer was for injunction and general relief.
    Turner denied in his answer that the object of his bill of sale to Bartee, and also of the subsequent public sale, was to secure the debt he owed him; but says, it was made to put his property out of the reach of his creditors and to defraud them, especially those who had claims against him as a member of an unincorporated banking company. He denies his indebtedness to Bartee, to the extent set up in the bill; denies the fraudulent combination with Humphries, and says, “ that the graphic statements in the bill about the fictitious hero, Reinhardt, is all a humbug, and without the shadow of a foundation; ” and adds, “see how a plain tale of truth will put this scare-crow to flight.” He proceeds to detail the mode in which he became indebted to 'Reinhardt for goods purchased of him, while Reinhardt lived in Alabama. It is not deemed necessary to set out at greater length this part of the answer. He admits, that the body and signature of the note are in his hand-writing; that he has no interest in Humphries’s proceedings or the judgment of Reinhardt. He admits the statements attributed to him by the bill, but says they were made for Bartee’s ear, “ to punish him for his base treachery,” and were merely expressions of his rejoicing at the writhings and mournings of the miser defeated.”
    At this late time he could not remember any other particulars connected with the Reinhardt note; he did not defend the suit, because he had no motive, being irretrievably ruined, and Bartee having all his property.
    Humphries’s answer admits the loan by Bartee to Turner of the fifteen hundred dollars, and of the bill of sale, but insists that one of the objects of the latter was to defraud Turner’s creditors. He dwelt at length on the fraudulent nature of the dealings between Bartee and Turner, both as to the matters mentioned in the bill and other matters; and also denies at length the correctness of Bartee’s claims against Turner, and sets out his own views as to what was due.
    He admits the delivery of the slaves to Bartee, but insists that it was merely a cover to avoid impending suits against Turner, and that the consideration expressed in the bill of sale was for a far greater amount than was due to Bartee, and was so inserted fraudulently. He states and insists that the public sale was also a mere sham sale; Bartee paid nothing, credited nothing, and only intended to further defraud Turner’s creditors; that the sale was void for not being by order of court.
    The rendition of the judgment in favor of Reinhardt, the execution, the trial of right-of property, the testimony of Turner, and the verdict are admitted, and it insists that this verdict estops Bartee from further inquiry as to the ownership in the slaves. It is claimed to be conclusive.
    He denies the charges of collusion and confederacy with Turner, and all fraud as to the Reinhardt judgment; says he believes the note on which it is founded genuine, and executed when it purports to have been ; it was sent to him by mail for collection, as an attorney at law, by one who styled himself, in his letter, Jeremiah C. Billingsley, and so far as known to him, Bil-lingsley claimed to be the owner, and he receipted to him for it as such ; the letter enclosing it was dated at Memphis, Tenn. early in 1841, and it informed him, as Turner was under the weather, the writer would have an agent in Columbus to do the best he could with it; that he has been informed that Bil-lingsley lived in North Carolina. In due time a man by the name of Runnels, who held his receipt, and reported himself as the agent of Billingsley, came to Columbus, and finding out Turner’s situation, traded the claim to respondent for the aggregate amount of two thousand acres of unimproved land in Neshoba county, for which he executed and delivered a deed in the name of Billingsley. He sued on the note in Lowndes because the property and witnesses were there. He believes the consideration of the note valid between Reinhardt and Turner; knows nothing of Reinhardt’s present residence; he once lived in Lincoln county, North Carolina.
    Humphries also proceeds to answer, at length, the allegations of the bill touching the sale of the slaves to-which he became the purchaser; gives the history of each execution; insists the sale was by agreement with Bartee, who claimed to own one of the judgments under which the sale was made, and who was present at the sale and bid on the property, and is thereby concluded from attacking the sale as fraudulent.
    Reinhardt’s answer was subsequently filed. He says, he is an entire stranger to the matters and things set forth in complainant’s bill, between complainant, Humphries and Turner, and can say nothing in relation thereto; he knows nothing of the judgment in his favor; Turner never owed him the money; and never gave him any such obligation as that stated in the bill on which the judgment is founded. He lived in Lincoln, North Carolina, in 1822, 1823, 1824 and 1825 ; was a merchant.
    His deposition, subsequently taken, stated that he moved to Florida in 1842; for fifty years previously, had lived in Lincoln county, N. C.; he knew Turner in North Carolina, had some small dealings with him, he was a journeyman saddler; on cross examination, he says his brother-in-law took some saddles to Alabama, does not know that Turner obtained them.
    Bartee filed an amended bill, stating that he did not know of the fraudulent character of the Reinhardt judgment until after the trial of the right of property, nor did he know of Reinhardt’s residence until his bill was filed.
    Hezekiah W. Goode testified, that about the month of August, 1840, at the house of Turner, in Octibbeha county, he heard Turner say, that he let Bartee have a lot of negroes for the purpose of securing a loan of fifteen hundred dollars ; but he intended to arrest the property out of Bartee’s hands by law, and did not intend to pay a single dollar of it; that he had a plan with others, to law the property out of Bartee; that he would not be known in the transaction, but would be the only witness, and when the property was recovered, would share half of it; since 1840, he had heard Turner say, he had gained a part of the property agreeably to his plan, and at next court would gain the rest. He did not know Bartee.
    Yarious depositions were taken to establish similar declarations by Turner, and the indebtedness to Bartee, and the other matters set up on either side in the pleadings; but it is not deemed requisite to set them out.
    Vardy McBee, whose deposition was taken in North Carolina,, proved, that he was the brother-in-law of Reinhardt, knew Turner in North Carolina, well; he had worked for him in his saddlery store; it was impossible for Turner to have traded with Reinhardt for so large a sum; the witness gives the history of Turner’s life and dealings in North Carolina at length, and shews that from his condition in life, means, occupation and the witness’s personal knowledge of Turner’s character and situation, he could not have dealt with Reinhardt, or been trusted by him for any such sum.
    Charles R. Crusoe testified,' that he was the attorney who obtained the judgment on the Reinhardt note; it was placed in his hands by Humphries, who represented himself as the agent or attorney of Reinhardt; he had no cause to suspect Reinhardt not to he the owner until after the judgment, when Humphries wanted to give the sheriff an indemnifying bond to levy the execution, when Humphries told him, that he and some others had an interest in it.
    Turner’s deposition was also taken ; among much other matter he testified, that he knew nothing about the consideration of the Reinhardt note; his impression was, he never executed it.
    Several witnesses testified, that from the general character of Turner for veracity, they would not believe him upon his oath.
    Depositions were also taken with reference to the sale by the sheriff; the agreement with Humphries and the sheriff as to the payment of the money.
    The cause was referred to a commission of the court, to report the amounts due on the different judgments against Turner; and due by Humphries for the hire of the negroes since 1843. The report was made accordingly ; and found that Humphries was indebted in the sum of $520.
    The vice-chancellor, on final hearing, confirmed the report, and ordered that Bartee pay to the sheriff of Lowndes county, the sum found due by the commissioner on the different judgments, which was $576.56; and that thereupon, the sheriff deliver to Bartee the slaves in controversy; it was further decreed, that Bartee recover of Humphries, the sum of $520, and have execution therefor; and recover of Turner and Hum-phries his costs.
    Humphries prayed an appeal; and subsequently, Bartee a cross appeal; upon which the cause was argued in this court.
    
      R. Evans, for Bartee,
    Reviewed the facts and points involved in an argument of thirty pages in length. He contended, 1. That the answer of Humphries was in itself incredible in the account he gives of his connection with the matter, and clearly established his guilty collusion with Turner.
    2. That the proof of fraud on the part of Turner and Hum-phries, developed by all the facts, and especially by Turner’s false swearing and general conduct in' the course of the plot, was perfectly overwhelming, and left nothing for the court to do but to make restitution to Bartee.
    3. That the whole record refuted the charge set up in Hum-phries’s answer of the fraud between Bartee and Turner; it rested alone on the statement of Turner; and it was plain that Bartee was to be the victim of Humphries’s and Turner’s fraud ; but if Bartee had defrauded Turner, it would be no answer in Humphries’s mouth to the fraud he had committed on Bartee; however Bartee may have defrauded Turner, it could be no shield to Humphries’s fraud on Bartee.
    4. The various executions levied on the slaves at the instance of Humphries, to shield his pretended right, derived under the fraudulent trial of the right of property, can none of them avail to disturb Bartee’s right to the slaves. On this point, Mr. Evans examined each execution separately, and insisted that they were, under the facts of each, ineffectual to bar Bartee’s rights.
    5. That Bartee really made a bona fide loan of the fifteen hundred dollars to Turner, and in all their subsequent dealings had acted with integrity and probity. The dealings between Bartee and Turner were scrutinized at great length.
    6. That the hill of sale from Turner to Bartee, though absolute on its face, yet intended merely as a mortgage, was not therefore void. It was no evidence, or presumption even of fraud, and it could be shown by parol that it was a mortgage. Whittick v. Kane, 1 Paige, 202; Slee v. Manhattan Company, Ibid. 77; 3 Dana, 176, 252; 2 Cow. 330.
    7. The insertion of the consideration of $2700 in the hill of sale was no evidence of fraud. The actual consideration may always he proved. 2 Phil. Ev. (Cow. & Hill’s ed.) 217; 3 lb. 1441, n. 964; 4 N. H. 229; 1 J. J. Marsh. 388. ,
    8. Even if the subsequent deed to Bartee were fraudulent, it would not make the bill of sale fraudulent; yet there was no proof Bartee accepted that subsequent deed, and without that it was no deed. Jackson, ex dem. Eames v. Phipps, 12 John. R. 418; McCrea v. Dunlap, 1 John. Cases, 116; Maynard v. 
      Maynard, 10 Mass. 456; 3 Phil. Ev. (Cow. & Hill.) 1283-1285, n. 888.
    9. There was no proof that the subsequent deed was fraudulent; or if so, that any one but Turner shared in the fraud.
    10. The charge in the answer of Humphries, that Bartee swore falsely when he made oath to the ownership in these slaves, is unsupported; for though he had title but as mortgagee, he was still the legal owner. 2 Sto. Eq. 297, § 1031; 2 Kent Com. 582; 4 Ibid. 139 ; Brown v. Bennett, 8 John. 96 ; 1 Pick.' 389; Ferguson v. Lee, 9 Wend. 258; Astor v. Hoyt, 5 Ibid. 617 ; Hart v. Ten Eyck, 2 John. Ch. 100.
    11. The decree of the vice-chancellor was erroneous as to Bartee, in making him pay off the bona fide judgment executions, which, had been levied on the slaves. Bartee’s lien was older than that of the judgments.
    12. Bartee ought not to pay the costs; to exempt fraud from the costs and punish the innocent, is an error which should be corrected.
    Baine, on same side.
    1. All parties admit the validity of Bartee’s loan of the fifteen hundred dollars ; no one even hints at fraud in it but Turner ; and the case shows that he was guilty of perjury in so doing.
    2. Bartee’s mortgage of May 11,1839, by absolute bill of sale, is no evidence of fraud ; the mortgage could be shown by parol. James v. Johnson, 6 John. Ch. R. 417.
    3. The proof shows that there were at least $>2754 due Bartee by Turner, nearly double the original loan after allowing all credits.
    4. The whole record establishes the fraudulent combination to defraud Bartee; the Reinhardt judgment is a nullity; the trial of the right of property under it void, and in no way affects Bartee’s rights.
    5. Bartee’s advances went to pay judgments against Turner; even if Bartee contemplated a fraud, he will be protected to the extent of the legal right conferred by the judgments he paid off; for if a fraud was contemplated, it was absque injuria. 5 How. Mi. 687; 1 Sto. Eq. 212; Freem. Ch. R. 343.
    6. Even if Bartee designed defrauding, and did defraud Turner’s creditors, it could not be relieved against unless it militated against an existing right. Humphries had no right whatever; he claimed under fraudulent and void proceedings throughout.
    7. It is plain from the proof that Bartee committed no fraud.
   Mr. Chief Justice Shaükey

delivered the opinion of the court.

The object of the bill in this case was to vacate a sale of certain slaves mentioned in the bill, of which respondent, who is appellant in this court, was the purchaser at a sale made by the sheriff.

The record is very long, but a very brief summary of the important facts will show the grounds on which the decision must rest.

On the 21st of February, 1839, Bartee loaned to one S. M. Turner the sum of $ 1500, and took a deed of trust on two town lots as a security. On the 11th of May following, Turner also conveyed to Bartee the slaves in controversy, and received, as it is alleged, other sums of money, and Bartee also agreed to pay a debt which was secured by a prior deed of trust. The bill of sale of the slaves was absolute on its face, though it is admitted to have been intended as a mortgage. This conveyance was accompanied by possession, and was intended as a further security for the original loan. Turner failed to pay, and by his consent the slaves were sold at public sale, and Bar-tee became the purchaser.

On the 6th of October, 1841, a judgment was rendered against Turner in favor of one David Reinhardt, for upwards of $5000, on a writing obligatory dated as far back as the 21st of March, 1824, payable the 1st of January, 1825. This suit was brought in Lowndes county, although Turner resided in Octibbeha county, and the judgment was taken by default. An execution issued on this judgment, which was levied on the slaves in the hands of Bartee, who claimed them as his property. An issue was made up to try the right, when Turner was introduced as a wiiness, and on stating that he was disinterested, was permitted to testify. He stated that the bill of sale to Bar-tee was made to defraud creditors, and the jury found in favor of the plaintiff in execution. The property was delivered up and sold under the Reinhardt judgment, though prior to the sale other executions had been placed in the hands of the sheriff. Humphries purchased the slaves at about half their value. He claims to be the assignee of the Reinhardt judgment. The note on which it is founded, was sent to him by mail for collection by one Billingsley, and he afterwards purchased the judgment from an individual, who professed to be an agent of the person who had sent the note for collection. This judgment constitutes the groundwork of this whole proceeding. The bill alleges that it was recovered by fraud and collusion between Turner and Humphries, on a note forged for the purpose, with a view of taking the slaves from complainant. Reinhardt is made a party to the bill, and his testimony was also taken. He positively disclaims ownership of such a note, or knowledge of the transaction, and says Turner never owed him that amount of money. He it seems resided in Lincoln county, North Carolina, at the date of the note, and had resided there many years, both before and afterwards,- but now lives in Florida. He had known Turner when he was a young man, and had, as a merchant, some dealings with him, but never to the extent of the note. In addition to this testimony, Turner’s declarations as to his purpose, were also in proof. The scheme was no doubt concocted for the purpose mentioned in the bill. This judgment is beyond all doubt fraudulent, and it is enough to say of it that it is a nullity, and all the proceedings under it are of the same character. No execution predicated on it could operate to pass a title to Humphries, who claims to be the owner of the judgment, and is, to say the least, chargeable with notice of the fraudulent character of the transaction.

In the answer of Humphries, the judgment on the trial of the right of property is relied on as a bar to the relief sought. We have said the original judgment was void for fraud. The subsequent proceeding was equally so. When a court of equity is resorted to for the purpose of letting the party into a defence which is, in its character, triable at law, he will be held to strict vigilance. By an amended bill it is alleged that complainant had not obtained information as to the nature of the Reinhardt judgment, until after the trial at law. In July, 1843, he received the first information as to Reinhardt’s residence, and his informant assured him that he was satisfied, from his acquaintance with both Reinhardt and Turner, that the latter could not have owed to the former any such debt. He then opened a correspondence with Reinhardt, and did not become fully informed on the subject until after he had filed the original bill. The circumstances of this case are peculiar. A note was forged bearing date nearly twenty years before the judgment was rendered on it. It was payable to a stranger, who was a citizen of another state, whose residence was likely to be unknown. But even if it should be found out where he had lived, he had changed his residence to a distant state. The great wonder is that the scheme was discovered at all. Under the circumstances, it would be difficult to say, what was or what was not proper vigilance.

But this case differs from those in which the rule of vigilance is usually applied. The complainant is affected by a judgment to which he was not a party. His proper remedy for avoiding it was in chancery. It is a subject over which chancery has original jurisdiction. The complainant might have proceeded by bill for that purpose, before the trial of the right of property. A stranger to a judgment may always show that it was recovered by fraud. 1 Starkie’s Ev. 241; 1 Phillips’s Ev. 341; 3 Ib. (C. & H.) 854. Has a court of chancery lost its power to interpose? Surely not, when the judgment is void. No relief can be had against a void contract, when the defence ought to have been made at law; but if the judgment itself be void, it is a different question. Hence, on gaming contracts, chancery will give relief, because the judgment is void, although the defence might have been made at law. If the contract be void, and the party fails to make his defence at law, the judgment is valid, and chancery will not interfere with it. But this judgment was void by the common law, and also by statute. It derives no validity from the failure to make the defence on the trial of the right of property. The original judgment was relied on as binding the property, but it was void, and may be set aside by a court of chancery. 1 Story’s Eq. 275, § 252. It is true that Bartee might have pleaded, on the trial, of the right of property, that the judgment was fraudulent. But his failure to do so, does not make it valid. His want of vigilance has not imparted validity to the judgment, and the rule therefore does not apply.

But there are other judgment-creditors, whose rights are not to be overlooked. The bill of sale was made 11th of May, 1839. It was to operate as a mortgage. There is no doubt about the loan of $1500; that is admitted by all. The judgment in favor of Owens was rendered 9th of April, 1839, and is therefore a lien on all the negroes except Kitty, she having been previously conveyed in trust to secure a debt due to Blount. The other judgments were rendered after the bill of sale, and could bind nothing but Turner’s right to redeem.

The case must be remanded for an account, and the rights of the parties will be regulated and allowed, according to the following directions. Bartee alleges that he paid a debt to Blount, who held a deed of trust on the woman Kitty, and took a transfer. If this be so, it constitutes a prior lien on the property included in that deed of trust, inasmuch as it bears date in August, 1838. By this arrangement Bartee was substituted to the rights of Blount.

2. Bartee is entitled to be allowed the $1500, and the other sums which he may prove to have been paid as a consideration for the conveyance of the negroes. Humphries is also to account for hire for the time he has had the negroes in possession, and Bartee is of course to be charged with what he has received.

3. Any surplus that may remain is to be appropriated to the judgment-creditors, in their order of priority, excluding, however, such judgments as were not recorded in the proper county according to the statute. Or Bartee may redeem from these creditors.

4. In order to adjust these rights the negroes will be sold.

The vice-chancellor decreed the judgments to he a lien on the property, on the ground that the bill of sale, which was to operate as a mortgage, had not been recorded. In Dey v. Dunham, 2 Johns. Ch. R. 182, a deed absolute on its face, was converted into a mortgage by a subsequent defeasance in writing, and it was held that the subsequent agreement should have been registered as a mortgage, and that the registry of the absolute deed was not sufficient, because, as it was said, a subsequent purchaser was not bound to search the record of deeds to be protected against the operation of a mortgage. But here there was nothing to record. It is an equitable mortgage, an absolute instrument which equity converts into a mortgage, and equity will not so convert it to the prejudice of the grantee. The general rule is, that the instrument which gives rise to an equitable mortgage must be registered, if it be not an actual conveyance, but merely an instrument which raises an equitable mortgage. 2 Powell on Mort. 621, note. A bill of sale need not be recorded, and any parol agreement in relation to it cannot be. In the case cited from 2 Johnson, the possession probably remained with the grantor. Bartee took possession of the negroes, and no other conveyance was necessary to pass title. This was equivalent to notice.

Decree reversed, and cause remanded.  