
    Lillard vs. Ruckers.
    Where a deed or other Instrument is required by law to be registered, as to creditors, personal notice to the creditor will not do away the necessity of such registration, nor will such creditor be affected thereby.
    A conveyance, by deed, of slaves to a person or persons not in lessee at the time of such conveyance, as where a conveyance is made by A to such children as B and C may afterwards have, is inoperative, and vests no title in such after born children.
    In an action of detinue, a stranger who has no right or title to sue, cannot be joined with others who may have.
    W here a party is improperly joined as a plaintiff, the court may permit an amendment by striking out his name.
    This is an action of detinue brought for three negroes, by the defendant in error against the plaintiff in error. Lillard, as deputy sheriff of Rutherford county, levied, an execution in favor of Thos. Rucker against Jonathan Rucker, the father of the plaintiffs below, on the negroes in question, as Jonathan Rucker’s property. The record shows, that on the 14th day of May, 1829, Jonathan Rucker executed his note to Norvell & Walkers, of Nashville, with Thomas Rucker security, for seven hundred and fifty dollars, payable at the United States Bank at Nashville, seven months after date. The note was not paid when it fell due, and both the leers were sued m Davidson county court, and at April term, 1831, judgment was rendered against them for debt and interest, amounting to eight hundred and seventy-one dollars, besides costs of suit. Several executions were issued on this judgment, and on the 5th day of January, 1833, it was satisfied by Thomas Rucker. On the 25th day of January, 1S33, Thomas Rucker obtained a judgment, by motion in the circuit court of Davidson, for the amount of debt and costs paid by him as security for Jonathan; and on the same day an execution issued on the judgment against Jonathan Rucker, directed to the sheriff of Rutherford county, which execution the plaintiff in error, Lillard, on the 29th day of January, 1833, levied on the three negroes in controversy, which were then in Jonathan Rucker’s possession. One of these ne-groes, together with his mother, was sent to Jonathan Rucker in 1808, shortly after his marriage, by Jones Read, his father-in-law. The two others are the children of the woman, and were born while the mother was in Jonathan Rucker’s possession.
    In 1815, Jonathan Rucker had become involved in debt, and Read went to Rucker’s, took into possession and carried home the woman who had been sent to Rucker, together with all her children, alleging that they were only loaned, of which, there is some proof. Read kept the negroes in possession about one year, and then returned them all to Rucker, he and Rucker entering into a written agreement at the time Rucker got them in possession again, which was on the 1st day of April, 1816, specifying that they were loaned to Ruc-ker “for the term of one, two and three years, from that date,subject to be returned when Read should make demand, or' should desire them to be taken home,” Rucker binding himself to pay taxes, feed and clothe them, &c. This agreement was proved by one witness, and registered in Davidson county, in-1816, and in Rutherford, in 1834.
    The negroes continued in Rucker’s possession, under this loan, up to the 16th day of July, 1832, when Jones Read' conveyed them all by deed of gift, to four of the defendants in error, (the children of Jonathan Rucker) by name, and to any other children he might thereafter have. Francis, a joint plaintiff in this suit, was born after the deed was made. This deed was proved and registered on the 14th December, 1822, in Davidson county. Jonathan Rucker lived in Rutherford county, and the negroes were all there at the time this deed was executed, and continued there ur.til the levy was made. The deed is as follows:
    “Know all men by these presents, that I Jones Read, do, for the natural love and affection I have for my grand children, Emmeline Rucker, Benjamin Rucker, Thomas J. Rucker, and James Rucker, children of Jonathan Rucker, who married my daughter Polly, and the children that the said Jonathan Rucker may have by his present wife, Polly Rucker, my daughter; I do,, by these presents, give and grant, to the above named Emmeline, Benjamin, Thomas J. and Jonathan Rucker, and all the children that said Jonathan may have by his present wife Polly, a certain negro woman by the name of Jude, and all the said Jude’s children and their increase; I do now say, I give and bequeath unto these children, all these negroes, to them and their lawful heirs forever, to be equally divided and allotted off to those children, when any of them may become of lawful age,” &c.
    From the date of this gift, up to the levy on the negroes, Jonathan Rucker countinued to hold possession of the ne-groes for his children, who lived with him. It was proved that Jonathan Rucker was considered good for all his debts, from 1816 up to 1826, although somewhat embarrassed; and for most of the time, he had more than double enough of property to pay his debts. There was proof before the jury, tending to show that Thomas Rucker had notice of the existence of the deed of gift from Read to Jonathan Rucker’s children, for the negroes in controversy.
    The court charged the jury amongst other things not necessary to be.noticed, thus: “It is said at the bar, that Jones Read did.lend them to Jonathan Rucker, and give him the possession of them again for one, two, or three years, at the option and will of Read; and that such a.lean was indefinite, which is evidenced by the paper writing introduced by the plaintiffs. The 00⅝1 believes such a loan to be an indefinite óne; and if the possession of such loan shall have remained with Jonathan Rucker for the term of five years, and no mand made and pursued by due course of law on the part of Read; and no reservation, limitation or remainder, shall have been made by will, or deed, or writing, duly proven and registered as required by law, the right, as well as the possession, would be vested in him, and the absolute property therein would be in him, as to his then existing creditors, and they have a right to consider the negroes as Jonathan Ruc-ker’s, unless his possession has been changed by a bona fide gift of the negroes by Read to Rucker’s children; but in such case, such gift and change of possession could only affect creditors who had become such after such gift was made. And I hold, that unless there was an actual surrender of the possession by Rucker to Read, before or after the five years had run out, it would require a deed duly registered in this county, before Col. Rucker 'became a creditor, to supply the place of a change of possession; or, under .the act of 1827, Col. Rucker must have had personal notice of the gift of the- negroes, and of the deed evidencing that gift to the children, to supply the place of registration.” The court then charged that the notice might he proved either positively or by circumstantial evidence. A verdict and judgment were rendered for the plaintiffs, and a new trial refused.
    
      TV. E. Anderson ⅜ A. J. Hoover, for plaintiff in error.
    It will be contended by the defendants in error, that the deed of 1822 is a written reservation or’limitation to the loan of 1816, and is a compliance with the act of 1801. We present two answers to this argument.
    1. That the deed was not registered in Rutherford as the act requires, and not until after the levy of the execution, in April, 1834.
    
      2. We contend for the plaintiff in error, that the act of 1801 requires the written reservation or limitation in writing to he executed at the same time the pretended loan is made.
    The statute does not declare this in terms,, but it must be .evident, that if tHe loan can be made on one day, and the re? servation or limitation declared in writing five or six, or ten ■years afterwards, the statute will he a dead letter; every man who wishes can evade its provisions. Upon the supposed construction of this statute, the loaner will have nothing to do to defeat the statute, hut to suffer the possession to remain for four years and eleven months, and then convey the title to a friend; which conveyee will thenceforward he the loanor, and the possession, although continued, will be upon a new loan from the new owner. This process can be repeated ad in-finitum., and the statute fail to effect the security of the creditor. 2 Munf. Rep. 543, Gray vs. Mosely, is a case in point, a construction given to a similar statute of Virginia. This case also proves that no notice can be substituted for what the statute requires, to wit: registration. See, also, 4 Munf. Rep. 313.
    The charge of the court as to the effect of notice, was founded upon the act of 1817, c. 59, which was a misconception of the law. The act of 1827, makes registration good at any time, providing that it is not to “affect the rights of creditors, or bona fide purchasers, for valuable consideration without notice. ”
    Now, if the act of 1827 had any application whatever to this case, the words “without notice,” in the proviso of that act, applies to purchasers only, and not to creditors. Washington vs. The Bank, Mart. & Yer. R. 301. But the great error is in applying the act of 1827 to the case; that act applies alone to the creditors of, and purchasers from the grantor, and not the loanee. The notice of the deed of gift* from Read, of 1822, might effect the claim of a creditor of, or purchaser from Jones Read, by the act of 1827; but this act has surely nothing to do with the case provided for by the act of 1801. 4 Yerg. 449, and the cases there referred to.
    The acts of 1801 and 1827, can well stand together; each ■of them have separate and distinct objects. The act of 1801, has in view the protection of the public from being deceived by the appearance of property, which possession always indicates, and making that property liable for debts, when possessed more than five years, unless the public are informed by registration, of the loan.
    
      The act of 1827 was designed to prevent the real owner from defrauding his creditors, or the public, by a secret sale. They are perfectly consistent, and can stand together; nor does the construction which we give to both, produce any clashing between them.
    The plaintiff in error contends in the second place, that the negro Jude was given to Rucker in 1808. 1 Haywood’s Report, 2, 97, 451, 452: 2 Hay. 72, 154. If it was a gift in 1808, the re-delivery to Read in 1815 was fraudulent and void.
    If not fraudulent in fact, and the title passed to Read, yet it was a voluntary conveyance, and so was Read’s deed of 1822. Read was made a mere medium of a transfer of Rucker’s property to his children, and all was voluntary and void against creditors, not being duly proved and registered as required by the act of 1784, c. 10, §3:3 Mur. Rep. 429 and 468: 1 Hay. 289: Morford vs. Douglass, 8 Yer. Rep.
    The 3d ground of error is the joining of Francis Ann in the action, who has no interest and could not be joined. Vide 1 Chit. Plead. 54: 2 Sound, 116, n. a.: 3 Bos. & Pal. 150: Cro. Eliz. 473. No title could pass to Francis Ann by the deed of 1822, she not being then born. Shepard’s Touchstone, 81, 234.
    
      C. Ready, for defendants in error.
    The principal questions in this cause, arise upon the effect of Jonathan Rucker’s possession of the negroes from 1808 up to 1815, and from 1815 up to 1822; the deed of gift in 1822 from the defendants in error; and upon the registration of the deed of gift.
    Let it be admitted that the legal title to the negroes was vested in Jonathan Rucker, as between him and his creditors, by virtue of his possession up to 1815, and still it does not follow as a necessary legal inference, that the surrender of the property at that time to Read, was fraudulent and void. It would be void as against existing creditors, who could not satisfy their debts out of the property remaining in Rucker’s possession. But there were none such. All the debts which he then owed were satisfied out of his remaining properly, of means which he could command. And if his then existing debts were all paid, there was surely no one to complain or defrauded by a transfer or surrender of the property to Read. To make the surrender fraudulent, there must have existed at the time, some one in a situation to he injured thereby. Walker vs. Wynne and others, 3 Yer. Rep. 449.
    The surrender or transfer, supposing the title to have been vested in Rucker by his possession, would divest the title and re-invest it. in Read, as well without a writteu instrument as with it, under the act of 1801, c. 25, § 1. The title to the negroes being re-invested in Read, it was necessarily incident thereto, that he could dispose of them in whatever way he chose, either by sale, gift, or by a loan; and if we take it for granted, that the agreement between Rucker and Read, on the 1st day of April, 1816, was for an indefinite loan; and that more than five years possession under it, would make the property Rucker’s as between him and his creditors; still, as between him and Read, the title would remain in Read, according to the 3d section of the act of 1801, c. 25, and he might still dispose of it in any way he thought proper, provided it did not operate to the prejudice of Rucker’s existing creditors.
    The gift of the negroes from Read to the defendants in error, did dot operate to the prejudice of Rucker’s creditors, and could not so operate. The proof shows, that from 1822, when it was made, until 1826, Rucker had an abundance of property to pay all his debts, and that he did pay them.
    If Rucker himself, in 1822, had been possessed of a good title to the negroes against all the world, he might himself have made a gift of them to his children, or to any other person, and it would have been good against all the world; he still retaining property sufficient to pay his debts. It is wholly immaterial what property, or how much, he gives away, if he does not thereby injure his creditors.
    The deed of gift ought, under our registration laws, to have been proved or acknowledged, and then registered within a given time in Rutherford county, where the property was kept; but the omission to do this, does not destroy the effect r 7 ’ J of the deed. If Thomas Rucker, who was the creditor, ' ⅜ # became such after the gift was made, had notice thereof, it would, under the act of 1827, c. 59 § 1, be good against him, no matter when it was registered.
    The proof shows he had notice of the gift before he became a creditor, and he could not, therefore, have been deceived. A question may be made, as to the kind of notice T. Rucker should have had of the deed of gift. It was not necessary that he should have direct and positive notice. Notice may be implied, and is as effectual in many instances as positive notice. If such facts and circumstances existed, and were proved, as would put a prudent man upon inquiry, it would be sufficient.
    The possession of the negroes by Rucker, after the deed of gift from Read to his children, was not inconsistent with good faith. Ilis children lived with him, and were supported, clothed and educated*by him; and his possession of the ne-groes was for their benefit.
    The charge of the judge to the jury in the court below, is in accordance with the true principles of law governing the case; and the jury responded to the facts in the cause fairly submitted to them; their finding is not against or contrary to the testimony, and a new trial ought not, therefore, to be granted to the plaintiffs in error.
    
      J. Rucks,
    on the same side.
    A father • being the natural guardian of his children, may take and hold possession of them, and the possession is theirs. Davis vs. Mitchell, 5 Yer. Rep. 281: Franklin vs. Sanford, S. C. N. 1828: Williams vs. Walton, 8 Yer. Rep.
    The deed of gift to the children, though acknowledged and registered in Davidson county, in 1822, was not registered in Rutherford county until the 17th April, 1832, near twelve months before Thos. Rucker obtained his judgment. This, however, is wholly immaterial; for a parol gift to the children, accompanied with a delivery of possession is good. 1 Hay. R. 1: Carnes vs. Morley, 2 Yer. 585: Davis vs. Mitchell,, 5 Yer. 281.
    
      Jonathan Rucker may have been somewhat indebted at the this gift was made to the children, in 1822, but he was clearly not indebted to insolvency, as laid down ⅛ Lush vs. Wilherson, 5 Vez. 384. It has been decided, that if the conveyance be declared void, as to one creditor, it shall be void as to all, both precedent and subsequent. 12 Vez. 156, note (a): 5 Vez..386, note (i). Butin this case, there is no precedent creditor; Jeremy says, the better opinion is, that if there be a precedent creditor, the voluntary settlement shall be void as to him, but good as to subsequent creditors, provided there be no actual fraud. Jer. Eq. J. 413: 12 Vez. 136: 1 Mad. R. 4, 21, 414.
    This is a case where a subsequent creditor stands alone, unaided by any precedent debt; the authorities are all one way that he cannot complain of this prior conveyance. Walker vs. Wynne, 2 Yer. R. 62: 2 Vez. 326: Twine’s case, 3 Coke, 83, (a),l Atk. 15: 2 Bro. 90: 9 Vez. 193:. 5 Vez. 386, note: 1 Swan, 106: 3 J. C. R. 492, 507, note (a).
    But be all this as it may, this is not a conveyance by Jonathan Rucker to his children; as between Rucker and Read, the property was Read’s. The gift was made by Read to his grand children, in 1822; a creditor of Rucker’s of that date might have gainsayed that-gift; but as to this subsequent creditor, Jonathan Rucker, had no interest in these negroes; no creditor subsequent to that gift could impeach the gift, but a creditor of Read’s.
   Reese, J,

delivered the opinion of the court.

The material error in the charge of the circuit court to the jury, and upon the ground of which we feel very clear that the judgment must be reversed, consists in the statement, that although the deed of gift set up by the defendants was not registered in the county of Rutherford, where the negroes were, and where they were at its execution, still, if the creditors had notice of its existence, the omission to register would not, as against them, affect the title of the defendants. This position, the circuit court supposed to be sustained by the provisions of the act of 1827, c. 59, § 1. "We think that die proper construction of tliis statute, (a construction which repels the application made of it to the case in the circuit court,) is given in the case of Douglass vs Morford and Terrel, determined by this court at Sparta. 8 Yer. R. 200. That statute having enacted, “that deeds, grants, bills of sale, and other instruments, whenever registered, should he as good and valid as if registered in the time prescribed by law, contains a proviso, intended to guard the rights of creditors and purchasers against a mischievous operation or construction of the law; and this proviso declares, that nothing in the act contained, or in such registration, shall affect the rights of creditors or bona fide purchasers for a valuable consideration without notice. This proviso, it is attempted to convert into an affirmative proposition, introductive of a new rule, which, in its application and consequences, would utterly subvert the salutary operation of the act of 1784, c. 10, § 7, and the act of 1801, c. 25, § 2, that a creditor, if he have notice of an unregistered deed of gift or other instrument, shall be affected by it to the same extent, as if it had in proper time been registered in the proper county. We think on the contrary, that the legislature did not propose in the proviso to introduce any new rule, affecting the rights of creditors and purchasers, but leaving those rights unimpaired as they had before been; it declared, that as between grantor and grantee, those instruments, whenever registered, should be good and valid and take-effect from their date. Under the act of 1784, c. 10, § 7, the question of any difficulty at first, was, not whether a creditor or purchaser would be affected by notice of a parol gift or unregistered deed, but whether such gift or deed would be good even as between the parties themselves, and against the express terms of that statute, judicial construction in North Carolina and Tennessee has settled it in favor of the operation of such gift and such deed, as between the parties. But it has been as clearly settled, that if a creditor have notice of such parol gift, or such unregistered deed, he is not affected by it. See Mart, and Yer. Rep. 391. The same point is ruled in Virginia, in a case very like the present. See the case of Gray vs. Mosely, 2 Mumford’s Rep. 545.

We are also of opinion, that the deed of gift in this case confers upon" the defendant, Francis Ann, who was not ire being at the time of its execution,, no title whatever, and that in any form of action, a stranger who has not title to sue, cannot he joined with others who-may have; and that it would be error, if such matters appeared upon the record, to give a judgment in favor of such stranger and the others entitled. But we believe that it would be proper for the circuit court, upon application, to strike out such party.

As to the operation of the statute of limitations upon the title of the-' defendants, in error,' which has been somewhat insisted upon in this court,- we deem- it improper to give any opinion. No charge was given or asked for upon that point in the circuit court, nor do the parties seem to have prepared and investigated the cause with a view to that question.

Let the judgment be reversed, and the cause be remanded to the circuit court to be there tried again.

Judgment reversed.  