
    *Cocke v. Haxall’s Ex’x.
    November, 1843,
    Richmond.
    (Absent Cabell, P., and Stanard, J.)
    Fraudulent Conveyances — Recordation of Deed — Case at Bar. — It was the intention of the legislature, in the act of 1792 regulating conveyances, (1 vol. of old revised code, p. 1S7, § 2, 4.) to require a deed of trust or mortgage of personal estate to be recorded in the general court, o? in the court of the district, county or corporation in which the grantor resided. Therefore where a deed of trust of personalty, dated the 15th of July 1812, stated the grantor to be of Henrico county, and the trustee and cestui que trust to be of the town of Petersburg, and the deed was never recorded in Henrico but only in Petersburg, and there was no evidence to shew that either at the date of the deed or of its recordation in Petersburg,, the grantor resided in that town, Held, the deed so-recorded is void as to the grantor's creditors.
    By deed bearing date the 15th of July 1812, purporting to be between John Bell “late of the town of Petersburg but now of Henrico county” of the first part, George -Keith Taylor of the said town of Peters-burg of the second part, and William and Henry Haxall of the same town of the third part, it was recited that Bell was indebted to William and Henry Haxall the sum of 10,000 dollars, the payment of which he desired to secure, and be conveyed to Taylor, in trust for that purpose, certain articles of household and kitchen furniture and liquors mentioned in a schedule annexed to the deed. In the court of hustings of Pe-tersburg on the first of March 1813, this deed was acknowledged by Bell, Taylor and William Haxall, and with the schedule annexed admitted to record.
    In 1817, Benjamin Cocke, a creditor of William & John Bell & Co. brought an action in the superior court of 471 *Prince George county to recover his debt. In that action, judgment was obtained against John Bell on the 27th of April 1818, for 1634 dollars 72 ceñís with interest from the 1st of June 1815, and costs; and on the 3d June 1818 a writ of fieri facias was issued upon the judgment, and levied in the city of Richmond on property which William and Henry Haxall claimed to have been conveyed by the deed of -trust aforesaid. Upon a bill by them in the court of chanchery at Richmond, the sale was in-joined, and the property restored to the possession of Bell. Under an order of the court of chancery, William Haxall, the surviving partner of William and Henry Haxall, entered into bond on the 8th of November 1831, with Philip Haxall his surety, in the penalty of 4000 dollars, conditioned to pay to Cocke all such costs and damages as might be awarded him in consequence of the injunction, in case the same should be dissolved. This injunction was dissolved on the 25th of June 1833. And thereupon Cocke brought an action upon the injunction bond, in the circuit court of Henrico, against Clara Haxall as executrix of Philip Haxall. Issues were joined upon the pleas -of conditions performed and non damnificatus, and at the trial the facts appeared to be as herein before stated. It was admitted that before the dissolution ■of the injunction, John Bell had died insolvent.
    In this state of the case, the plaintiff moved the court to exclude from the jury the deed aforesaid, upon the ground that at the time of its execution Bell the grantor resided in the county of Henrico, and the property conveyed by it was also in that county, and the deed had never been recorded in Henrico, and was therefore void as to the plaintiff. But the court overruled the motion, and permitted the deed to be given in evidence to the jury as a deed properly and duly recorded. To which opinion the plaintiff excepted.
    472 *The plaintiff also moved the court to instruct the jury that the deed was void as to him, unless by the evidence it should appear to the satisfaction of the jury, that either at the date of the deed, or of its recordation in the hustings court of the town of Petersburg, the grantor resided in that town: but the court refused to give the instruction, and the plaintiff excepted to this opinion also. A second instruction was moved and overruled, the purport of which it is unnecessary to state.
    A verdict being found for the defendant, judgment was rendered thereupon; and to that judgment a supersedeas was awarded.
    The cause was argued by Stanard and Lyons for the plaintiff in error, and by C. and G. N. Johnson for the defendant in error.
    In the course of the argument, the counsel cited and commented upon the following statutes and decisions: Act of 1748, in 5 Hen. Stat. p. 409, $ 4; Clay born’s ex’or v. Hill, 1 Wash. 177; Note to Moore’s ex’or v. The Auditor, in 3 Hen. & Munf. 235; Act of 1785, in 1 vol. of Old Rev. Code, p. 15, 16, ch. 10, | 2; Act of 1792, in same volume p. 157, ch. 90, 'i 2, 4, and p. 158, ‘i 8; Moore’s ex’or v. The Auditor, 3 Hen. & Munf. 232; Hodgson v. Butts, 3 Cranch 140; Bond v. Mewburn and others, 1 Brock. 316; Act of 1814, Sess. Acts of 1813-14, p. 36, ch. 10, $ 8; Act of 1819, 1 R. C. p. 364, ch. 99, \ 11; Lane v. Mason, 5 Leigh 520.
    
      
      He had been counsel for the plaintiff in error.
    
    
      
      See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
   ALLEN, J.,

delivered the following as the opinion of the court:

The court is of opinion, upon a consideration of the various acts of the legislature ; for regulating conveyances, and especially ; of the acts of 1705, ch. 21; 3 Hen. Stat. 318,— I of 1710, ch. 13 ; 3 Id. 517,--of 1734, ch. 6; 4 Id. \ 397, — of 1748, ch. 1; 5 Id. 408, and of; 1785, ch. *62; 12 Id. 154, that it was the j intention of the legislature, in the act! of 1792, to require a deed of trust or mortgage of personal estate to be recorded in the general court, or in the court of the district, county, city or corporation in which the grantor resided. And it appearing from the recital in the deed in the bill of exceptions referred to, that the grantor John Bell resided in Henrico county, and the deed having been recorded in the corporation of Petersburg; such deed, so recorded, was void as against the creditors of said grantor. The court is therefore of opinion, that the court below erred in permitting said deed to go in evidence to the jury, and in refusing to give the first instruction asked for by the plaintiif. Therefore the judgment is reversed with costs, and the cause remanded, with instructions to exclude the said deed from going in evidence, if no other testimony should be adduced on the trial, and to give the first instruction ‘ as prayed for by the plaintiif, if the same should be again required.  