
    Isaac G. Cutler versus Adolphus Dickinson.
    The obligors in an administration bond are estopped by it to deny that the principal was appointed administrator.
    An absolute deed of land made by the principal in an administration bond to a surety, the grantor taking back a writing, not under seal, for a reconveyance upon tho grantee’s being saved harmless upon the bond, is not per se fraudulent as against creditors of the grantor.
    Trespass quare clausum fregit. The plaintiff claimed a title by virtue of a levy upon the land as belonging to Andrew Hyde, for a debt due before January 6, 1826. The defendant claimed the land under a deed from Hyde, dated on that day ; and the question was, whether this deed was made bond fide and for a valuable consideration.
    
      Sept, term 1828.
    The defendant proved that a part of the consideration was a debt due to him from Hyde, of about 187 dollars. The value of the land was estimated by witnesses at more than 300 dollars. The defendant further offered, as evidence of consider ation, a copy of a bond given to the judge of probate by Hyde as principal and by the defendant and one Scott as sureties, in a large penal sum, conditioned for the faithful performance by Hyde, of the duties of an administrator on the estate of one Eastman ; and the defendant proved that there was an inventory, of the amount of 267 dollars, returned by Hyde, and that Hyde had received 218 dollars from other sources, and had paid 100 dollars ; but it appeared, upon examining the records of the probate office, that there was no decree, nor any other evidenc: of the appointment of Hyde as administrator, except what results from the bond.
    It was contended by the plaintiff, that there was no liability on the part of the defendant as surety in the bond, and the bond therefore could not be regarded by the jury in deciding the question as to the sufficiency and legality of the consideration of the deed. But Putnam J. ruled that the bond was a legal and valid bond, and that it furnished a valuable consideration for the conveyance.
    The jury found a verdict for the defendant. If the. direction was wrong, a new trial was to be granted.
    It was admitted at the argument, that the defendant had given Hyde a promise in writing, which was not under seal and not recorded, for a reconveyance of the land, when the defendant should have received payment of his demand, and have been saved harmless from his liability on the bond.
    
      Dewey, for the plaintiff,
    insisted that the defendant was not liable on the bond, because there was no decree appointing Hyde administrator. Every probate decree must be recorded. Chase v. Hathaway, 14 Mass. R. 226. The obligor may show that the obligee had no right to take the bond. Bail are not estopped to say that no writ issued against the principal. But if there was a legal appointment, the contingent liaAllí ty of the surety was not a sufficient consideration for an ah-solute conveyance. The transaction is fraudulent per se against creditors. A party will not be allowed to put his property out of the reach of his creditors in this manner. The bond may continue in force for more than twenty years. The defendant would not be answerable under the trustee process for the surplus not required for his indemnity. How v. Field, 5 Mass. R. 390.
    
      Jlshmun and Baker, contra.
    
    The defendant would be estop ped by the recital in the bond, to deny that Hyde was duly appointed administrator. Paramour v. During, Moor, 420; Willoughby v. Brook, Cro. Eliz. 756; Rainsford v. Smith, Dyer, 196; Hosier v. Searle, 2 Bos. & Pul. 299. The trans action is not fraudulent, for the verdict finds it to be morally honest, and the trust is good ; Northampton Bank v. Whiting, 12 Mass. R. 110; and a trust estate cannot be taken on execution.
    
      Sept. 24th.
   Per Curiam.

The obligors would be estopped by the recitai in the bond, to deny the appointment of the administrator; and the bond therefore formed a valid consideration for the deed, which was given as an indemnity against the defendant’s liability on the bond The contract to reconvey showed the purposes of the deed, and though it was not a bond of defeasance, yet it would enable the grantor to compel a reconveyance by a bill in equity. There was no conclusive evidence of the deed’s being fraudulent, and the verdict is not to be disturbed.

Judgment according to verdict. 
      
       See Cordis v. Sager, 14 Maine R. (2 Shepley,) 477.
     
      
      
         See Reed v. Woodman, 4 Greenleaf, 400. In New Hampshire an abso lute conveyance made for the purpose of securing a debt, with an understanding between the parties, that the land is to be reconveyed upon payment of the debt, is void as against creditors. Smith v. Lowell, 6 N. Hamp. R 67.
     