
    Simpson vs. Mitchell.
    A stipulation in a deed, purporting to be absolute on its face, that part of the property thereby conveyed should be sold, and the proceeds accounted for by the grantee, is demonstrative evidence that there was a trust reposed in the grantee, and that the conveyance was only a security for the payment of a debt due the grantee.
    When a deed was made, conveying perishable property in part, the use of which consisted in its consumption, and the property is permitted to remain with the grantor, the deed is void against creditors.
    Taking a conveyance of perishable property, which must necessarily consume in the using, and permitting it to remain in the possession of the grantor, is to hinder and delay creditors, and makes the deed void.
    Where a deed is made to secure an honest debt due to the grantee, but includes among other things not perishable, property ¡which must necessarily consume in the using, the possession of which is suffered to remain with the grantee, the deed is void as to such property, and being void in part, is void for the whole as against creditors.
    An absolute deed, made without any reservation of a trust for the use of the grantee, the property remaining in his possession for two years, all the time being used as. though it were his own, is evidence of fraud.
    This is an action of trover, to recover two negro slaves, and some other property, which had been tallen .as the property of John Staples, and sold by Mitchell as sheriff, and to which the plaintiff claimed title By virtue of a deed, which, though absolute in terms, appeal’s from other parts to be only a surety for a debt from said Staples to himself, dated the 27th of January, 1832. The deed, for the express consideration of seven hundred and seventy-one dollars and fifty cents, conveys to the plaintiff all the property of Staples, consisting of the two negroes, stock of every description, furniture, corn and pork. The property remained in possession of Staples, was used by him as before the sale, and the com and pork was consumed. It is stipulated in the deed, that the stock of groceries thereby conveyed should be sold, and the proceeds to be applied to the payment of Staples’ part of the parnership debts, for which, himself and Simpson were liable, and that the proceeds were to be accounted for without delay. John Staples, the grantor, being introduced as a witness, swore that he was justly and honestly indebted to Simpson in the sum of seven hundred and seventy-one dollars fifty cents, the consideration for which said deed was given, at the time the deed was executed.. The jury, under the charge of the court, which is not excepted to, found a verdict for the defendant. The plaintiff moved for a new trial, which being refused him, he appealed in error to this court.
    
      A. B. Lane, for plaintiff in error.
    The plaintiff insists, that the transaction between himself and Staples, is destitute of fraud in fact, and if it is avoided in favor of a creditor, it must be on the principle that his permitting Staples to make use of the corn and pork he did, vitiated the deed from its creation. It is not provided by the deed, that Staples shall use and consume the property; and the plaintiff’s conduct in relation thereto, could only be used as evidence to create the presumption of fraud. The plaintiff’s conduct in relation to the property, is explained by the evidence of Staples. Indeed, if he gave a full consideration, no creditor has a right to question the propriety of Simpson’s charity to ■ Staples and his family. See Cullin vs. Thompson, 3 Yer. 475 : 4 Yer. 164. The case of Darwin vs. Had-ley, 3 Yer. 502, does not apply to a case like this; there the deed was, on its face, only made to secure a third . person, being a trust deed. It is.believed that the case of Sommerville and Crutcher vs. Horton, 4 Yer. 541, is subject to the same remark. ,
    
      R. Wilson & J. Rucks, for defendant in error.
    The bill of sale from Staples to Simpson was clearly fraudulent, as much so as Twine’s case, 3 Coke’s It. 80.
    
      1. Staples was extensively embarrassed.
    2. It is inmaterial how just the debt bp owed Simpson, be must not give to him all his property, and permit him to use the same, and set his other creditors at defiance.
    3. He, in point of fact, retained the possession, which possession was inconsistent with the bill of sale.
    '4. The property so conveyed, and so retained in pos-sesion, was such as must perish in the use of it; and as he did use it, the presumption of fraud cannot be resisted. Darwin vs. Hadley, 3 Yer. Rep. 502: Sommerville vs. Horton, 4 Yer. Rep. 541.
   Green J.

delivered the opinion of the court.

It is manifest from' the face of the deed in this case, that although it purports in terms to be an absolute conveyance of the property, that, in fact, it was only intended as a security to Simpson. The stipulation that some of the property should be again sold, and the proceeds accounted’ for, and to be applied to the payment of certain debts, is demonstrative that there was a trust reposed in Simpson, and that the conveyance was only for his security. In this view of the case, the deed is liable to the full force .of the objection which existed in the cases of Darwin vs. Hadly (3 Yer. Rep. 502), and Sommerville and Crutcher vs. Horton (4 Yer. Rep. 541). Doubtless there was an honest debt due to Simpson, to secure which, the deed was in part intended; but as it also included property which must necessarily consume in the using, and which must have been covered by the deed, that’it might be secured for the use of Staple’s family, it was so far fraudulent, and was made to “hinder and delay creditors,” and being fraudulent in part, it is good for nothing.

Had it been an absolute sale, without any reservation of a trust for the use of Staples, then the property having remained in possession of Staples for two years, all the time being used as though it were his, would be evidence g,au(j^ wj1jcj1 is repelled by proof of fairness. The jury was, therefore, justified in finding that the deed was fraudulent; and the judgment will therefore be affirmed.

Judgment affirmed.  