
    William Bogard vs. William Gardley.
    A voluntary conveyance from a parent largely indebted, at the time, of slaves to his child, will not prevail against prior creditors.
    Whether a voluntary conveyance of personal property is fraudulent, as against subsequent creditors, is a matter peculiarly within the province of a jury to decide; and one which, •when once found, is not to be disturbed on light grounds.
    The removal by the grantor in a deed of trust, of personal property from the county, in which the deed of trust was recorded, to another county, .will not, unless shown to have been done with the permission of the trustee or cestui que trust, affect the lien previously attached by the deed.
    The possession by the grantor in a deed of trust, of personal property conveyed by the deed, will not be fraudulent where the deed authorizes the grantor to retain possession until default of paymeut of the notes secured by the deed is made.
    The possession of personal property by the grantor in a deed of trust, after the period in which, by the terms of the deed of trust, the money is to be paid, to secure which the deed of trust was given, may be: prima facie evidence of fraud, but is not fraud per se.
    
    In error, from the Marshall circuit court.
    William Gardley sued William Bogard, in the circuit court of Marshall county, in an action of. detinue for two slaves, named Milly and Julia the daughter^ of Milly. The declaration Was filed, and the writ issued on the 5th of August, 1841; the defendant, at the' return term of the writ, plead non detinet; and after a nonsuit and reinstatement of the case, the cause was submitted to a jury, who brought in a verdict in favor of the plaintiff.
    At the trial the plaintiff read to the jury a deed of trust from one James Wyse to him, made on the 10th of May, 1840, in the county of Leake, in this state, to secure to William Ferriday, of Adams county, the balance of a judgment rendered by the high court of errors and appeals against the said James Wyse, and Lucas Vanersdale and Daniel Skinner, his sureties in the writ of error bond, after the value of four negroes were credited upon an execution that had issued upon the judgment referred to ; by this deed of trust several negroes were conveyed to the plaintiff, and among them the negroes sued for; and on default of payment, by the 14th of March, 1841, of the balance due upon the judgment, the precise amount of which, or the balance due upon it, not being stated in the deed, the trustee, who was the plaintiff, was authorized to take possession of the negroes, and sell them, ,and make title to the' purchasers. This deed of trust was duly acknowledged before a justice of the peace in Leake county, and admitted.to record in the proper office in that county, on the 12th day of May, 1840. It did not appear to have been recorded in Marshall county.
    A. W. McGowan, on the part of the plaintiff, testified, that on the 24th of June, 1841, as the agent of the plaintiff, he demanded of the defendant, Bogard, the negroes sued for; that Bogard stated, he had purchased the negroes of James Wyse, and the plaintiff would have to sue for them; the demand was made in Holly Springs, Marshall county.
    John C. Teel, for plaintiff, proved that James Wyse brought the negro girl sued for to Marshall county, in the fall of 1840, together with several others of those named in the deed of trust, and sold the negro Milly to Bogard in the spring of 1841, together with her infant child, born in Marshall county, at the house' of the witness, who was a brother-in-law of Wyse; that Milly was worth four hundred and fifty dollars, and, the child one hundred and fifty, at that time ; and that Milly’s hire was worth forty dollars a year.
    The defendant then read to the jury the following bill of sale: “ For and in consideration of the sum of five hundred dollars, I have bargained and sold to David S. Wyse my negro girl Milly, thirteen years old ; I also warrant said girl to be sound and healthy, and a slave for life, and warrant and defend from any claim or claims whatsoever. Witness my hand and seal 8th October, 1835. Attest, A. G. Forry, James Wyse. John B. Blackwell. (Seal.)”
    James Wyse’s deposition was taken, and proved that Blackwell executed and delivered the above bill of sale on the day and year of its date in his presence, and that of the other subscribing'witness; that DavidS. Wyse had authorized him to sell to the best advantage the negro conveyed by the bill of sale, and that under this authority he had sold the negro Milly to Bogard, the defendant; that at the time he, witness, made the deed of trust to Ferriday, he had no title to the negro Milly conveyed by it, and was then able to pay all his debts contracted in Mississippi; that David S. Wyse was the son of witness, was then about ten years old, and had resided with him up to that time. Upon being cross-interrogated, he answered that he himself purchased the negro of Blackwell, and paid for her; that on the 8th of October, 1835, he owed about four or five thousand dollars, which was arranged by contract with Gardley, to whom it was due; that his property was worth about ten thousand dollars; that his debt to Gardley was due to him as agent for Ferriday, and was on the 12th of October, 1835, about four thousand five hundred dollars; that his reason for having the bill of sale made to his son was, that he had given to his older son one negro, and wished to do the same to the younger ; that the negro had always been in the family known as his son’s; and that, since the purchase of the negro of Blackwell, he has been able to pay all his debts. Here the defendant closed his proof.
    The plaintiff then read, as rebutting evidence, the record of a judgment in Leake county against James Wyse, in favor of William Ferriday, obtained on the 13th day of April, 1839, for $5,150 13, which judgment was founded upon notes dated October 12,1835, of James Wyse, in favor of Ferriday. Wyse took the case by writ of error, with bond, to the high court of errors and appeals, which court, on the 30th of January, 1840, affirmed the judgment of the court below, with ten per cent, damages, and rendered judgment for principal, interest, damages, and costs, against Wyse and his sureties, in the writ of error bond.
    This was all the evidence in the case. The defendant moved for a new trial, which was overruled,' and he prosecuted his writ of error.
    The errors assigned are:
    1. The introduction of the deed of trust, without its record in Marshall county.
    2. In overruling the motion for a new trial.
    
      
      D. C. Glenn, for plaintiff in error.
    1. I contend that the deed in question was void as to Bogard. He is before the court in the light of a purchaser for a valuable consideration, without notice. As to such the statute of 1822, H. & H. 343, requires a deed to personal property to be recorded in twelve months after the removal of the same to another county. This slave was removed to Marshall, and the deed has never been recorded there. The defendant has never complied with the statute. But it may be said that notice is tantamount to registration. That is true, generally, and if Bogard had purchased after he received notice of the deed, he could not now claim protection upon the ground of the deed not having been recorded according to the statute. 'But he purchased before he received such notice. It is admitted that although this is so, that if defendant had recorded his deed within twelve months, according to the statute, he would be entitled to recover. He has not done so. Our character as a purchaser without notice entitles us to the protection of the court, and is a fair offset to the claim of defendant under the deed, with constructive notice to us. Then I think the court, before it will divest us of the right we have acquired fairly and bona fide, will compel the defendant to show that he has placed himself on the vantage ground as to us by having rigidly complied with the statute, which he has never done. A different construction, it is conceived, would open wide the door of fraud intended by the statute to be prevented. As for instance, a man in Hinds county will convey his whole slave property to another in trust, retaining possession. He removes them to Marshall, and disposes of them to purchaser without notice; On the day before the expiration of the twelve months from the time of removal, demand is made, and suit commences. Under such circumstances would the court sanction a recovery if upon the trial it appeared that the deed never had been recorded ? I think not, for the notice is only cohstructive; no evidence of ownership was given to the purchaser, and the court would by construction deprive a bona fide purchaser of his legal rights, in favor of one whose conduct has raised the suspicion of fraud, and who has not complied with the statute.
    
      2. The deed was void as to Bogard, upon the ground of fraud. By the terms of the deed the property was to remain in possession of Wyse until the 1st of January, 1841. If the debt secured was not then discharged, the trustee was to take the property into his possession. Now, on the 1st January, if the debt was discharged, the deed, by its very terms, is satisfied ; if the debt was not discharged by that time "the conditional trust became, and did become an absolute conveyance. From and after that time the continuance in possession of Wyse was prima facie evidence of fraud. 5 Rand. 211. Many other authorities might be cited. The presumption is strengthened by the fact that by the very terms of the deed itself a limitation upon that continuance of possession is declared to the world, namely, the 1st January, 1841. Yet the evidehce shows that Wyse was in possession long afterwards, and no attempt made by the trustee to enforce the provisions of the deed until he had been enabled', by holding possession, to defraud an innocent purchaser. If a sale be conditional, or upon trust, no reservation of possession will protect the transaction from the imputation of fraud, or excuse the want of possession in the purchaser. 3 J- J. Marshall, 648. Upon the 1st January the condition expired, the deed became absolute, the whole right of property became vested in the trustee, and the continuance of possession in Wyse thereafter was fraudulent as well as if the deed had been absolute in its origin and upon its face. 2 Bail. 188 ; 1 Hill, 16; 2 lb. 629. Say that this deed is notice — By the very terms of the deed, the continuance of possession in Wyse after .the 1st January, 1841, creates the presumption that the debt secured in the deed is discharged, and is an inducement held out to the world to purchase from him; this is fraudulent, and no explanation, being given the deed is void as to innocent purchasers. 2 T. R. 596; 1 Cranch, 317; Dawes v. Cape, 4 Binn.; 9 Johns. 337, where Chief Justice Kent says, except in special cases, and for special reasons, to be shown to and approved of by the court, continuance of possession is fraudulent. See also 5 Johns. 258 ; S. P. 3 Cranch, 88, per Marshall, Ch. J. And in this case all presumptions should be strengthened in favor of Bogard, as he is an innocent purchaser, and the party-resting under an imputation of fraud is claiming the property from him by a kind of constructive notice in lieu of registration, as required by the statute.
    3. Lastly: Admitting that the deed is valid as to Bogard, upon the point of fraud as well as of registration, I contend that by all the evidence adduced upon the trial, it is clear that Wyse had no right to convey said slave to defendant. He had given the slave to his son; it was regarded as his property, and possession of the father is possession of the child. He was able to pay his debts at the time of the gift, and such being the case the gift is valid. The rebutting testimony is a judgment upon a liability incurred subsequently which could not affect a prior gift for a good consideration. It is needless to weary the court upon this point, as the evidence is short and simple, and of the whole of it the verdict of the jury is a gross contradiction, and the court manifestly erred in overruling the motion for a new trial.
    IF. Cr. Thompson, for defendant in error.
    The record in this case, though voluminous, presents very few points for the consideration of the court. The action is detinue to recover of Bogard a negro woman and child which had been conveyed by deed of trust to William Gardley as trustee for William Ferriday, by James Wyse, to secure a debt due from Wyse to Ferriday. The deed of trust was recorded in the county of Leake, the residence of Wyse, who subsequently carried the negroes to the county of Marshall, and sold them to Bogard. - The deed of trust was executed 10th May, 1840, and was recorded ten days afterwards. In the fall of 1840 Wyse carried the negroes to the county of Marshall, and in the spring of 1841 sold them to Bogard.
    As if aware of the infirmity of his own title, Bogard endeavors to set up a title in a son of G. Wyse, an infant of some ten or twelve years of age. This title consists in a bill of sale for the negroes in controversy, from John B. Blackwell to David S. Wyse, bearing date 8th October, 1835, and which has never been recorded. It is in proof, by the deposition of James Wyse, taken by Bogard, that he bought the negro woman, the mother of the infant, from Blackwell, paid for her with his own money, and caused the conveyance to be made to his infant child, then some four or five years of age. About the same tune with the date of this bill of sale, James Wyse was indebted to Ferriday in the sum of $4500, a debt which it is shown by the record is still due. It is also shown that some of his other slaves which were levied on under executions, issued on a judgment recovered for the same debt for which this deed of trust was executed, were claimed by other members of the family of Wyse, and found to be subject to the execution. No charge was asked from the court by either party, and no exception taken in the progress of the trial. The jury found a verdict for the plaintiff, a new trial was moved for, the motion overruled, and the case brought to this court.
    No legal principle has been violated by the verdict and judgment, and the verdict is fully sustained by the evidence. The question involved was whether the transaction was fraudulent, a question peculiarly for the determination of the jury, and the-court will not disturb their finding unless very clearly erroneous. 1S.&I. 383.
    So far as any presumptions arise in the case, they favor the verdict. It is certainly the better doctrine that no voluntary conveyance of property will be upheld to the prejudice of a creditor, whose debt was in existence at the time of such conveyance, O’Daniel v. Crawford, 4 Dev. 97. It is there said that there is not one English casein chancery, in support of such a gift; and it is so at law. And a voluntary conveyance, if made with fraudulent views, is void, even as to subsequent creditors. 2 Kent’s Com. 442. It is not very clear whether the debt to Ferriday existed at the time of this bill of sale or not, but from the testimony of Wyse himself it is fair to infer that it did. If not, it was created so immediately afterwards as to raise a strong presumption that the conveyance was made and kept secret, that he might contract debts and evade their payment by his fraud. That has been the practical working of the scheme, if this judgment should not be sustained. It is plain Ferriday did not know of the bill of sale, or he would not have taken a deed of trust on the very negro as security. The doctrine of purchase for valuable consideration without notice does not obtain in reference to personal property, with the single exception of negotiable paper. Ash v. Putnam, 1 Hill, (N. Y.) R. 307; 2 Kent, 324, 514, in notes. And it is observable in this case, that there is no proof that Bogard has ever paid one dollar for the negro. The witnesses speak of a purchase, but none speak of what he paid, or even of what he agreed to pay, nor is his title exhibited. -
    The circumstance that the grantee in the deed of trust retained possession, is not, in reference to such an instrument,even prima facie evidence of fraud. Placing it upon the record comes in lieu of an actual delivery of possession. It is plain that this is the construction of our statutes. H. & H. 343, s. 3; 371, s. 2. And such is the interpretation given of the statutes in most of the States of the Union. 2 Kent, 494, 530, in notes. But possession is at most, according to the now well understood doctrine, only prima facie evidence of fraud, and the finding of the jury in this case negatives the idea of the existence of any fraud. 2 Kent, ut supra.
    
    The removal of the slaves was not voluntary on the part of Ferriday; it is not even shown that he knew of such removal until he brought suit. He did not, therefore, in the words of the statute, permit the removal. H. & H. 344, s. 4. To have recorded the deed in Marshall county after the purchase of Bogard, and after suit brought, would have been a vain act; and the suit was brought within the twelve months.
    It is submitted, therefore, that the judgtnent of the circuit court is correct, and should be affirmed.
   Mr. Justice Thacher

delivered the opinion of the court.

This was an action of detinue, instituted in the circuit court of Marshall county, to recover a slave and her child, which had been conveyed by James Wyse to Gardley, as trustee for Ferriday, to secure a debt due by Wyse to Ferriday. The deed was executed May 10, 1840, and recorded in Leake county, where Wyse resided. Subsequently Wyse carried the slaves to the county of Marshall, and in the spring of 1841 sold them to Bogard. The deed has never been recorded in Marshall county. By the deed, Wyse was permitted to retain possession of the slaves until January 1, 1841. A bill of sale of one of the slaves, from one Blackwood to David S. Wyse, a child of James Wyse, was exhibited in evidence on the trial, dated in 1838 ; and it appears that Wyse had paid the consideration of the bill of sale, and had procured the bill of sale to be made in this child’s name, intending the same as a gift to him.

The ground assumed in this case, that the slaves in question are the property of David S. Wyse, cannot avail. It seems clear, front an examination of a copy of a record of judgment introduced as evidence on the trial, that James Wyse, the father, was indebted to Ferriday in an amount of at least three thousand dollars at and before the date of his purchase of the slave for his child. Such a gift, and under such circumstances, according to the best received authorities, cannot be sustained. A voluntary conveyance will never be upheld to defeat a prior creditor, whatever be the amount of his demand, and there is no exception in favor of dispositions made by parents in favor of children. Doe, dem. O'Daniel v. Crawford, 4 Dev. 197. But even were Ferriday a subsequent creditor, it might then be a question whether the conveyance had not been procured to be made fraudulently as against him, which is a matter peculiarly within the province of a jury to decide, and one which, when once found, is not tobe disturbed on light grounds. Bennet v. Bedford, 11 Mass. 421; Damon v. Bryant, 2 Pick. R. 411; 2 Kent. 441.

The removal, by the grantor in the deed of trust, of the slaves from Leake to Marshall county, is not shown to have been done with the permission of the trustee, or cestui que trust, who claimed title under the deed. The statute H. & H. 344, s. 4, requiring a deed respecting personal property to be recorded in the county to which the property is removed, does not affect the lien previously attached by th§ deed, without such removal is shown to have been made with the consent, permission, or participation of the person claiming title under it.

The fact that the grantor in the deed of trust retained possession of the property conveyed, was no evidence of fraud, because, by our statute of frauds, H. &H. 371, s. 2, the deed having been recorded, his possession was lawful. His possession, after the period which, by the terms of the deed of trust, payment should have been made, or the consequences of the deed followed, although it might have been prima facie evidence of fraud, could not be regarded as fraud per se, and that inquiry was a matter for the jury.

The judgment of the court below is affirmed.

Mr. Justice Clayton, having been counsel below, gave no opinion.  