
    NOVEMBER TERM, 1844.
    Lewis & Nichols v. Horace M. Gilmer.
    McK. sold a slave to S. upon conditions, and delivered to him the possession; McIC., and G. his assignee, failed to have the instrument setting forth the conditions of the sale recorded within three years from its date ; held, that as to creditors of S. the absolute property in the slave must be taken to be with him and liable for his debts.
    Error from the Circuit Court of Madison county.
    This was a trial of the right of property. Lewis &> Nichols recovered a judgment in the Circuit Court of Madison county on the 1st day of February, 1840, against Wm. Smith. On the 22d day of April, 1841, the execution which was issued on said judgment was levied on a negro man named Dave. The negro was claimed by Horace M. Gilmer, who gave bond in accordance with the statute to try the right of property. At the trial the plaintiffs read to the jury their judgment and the execution which was levied on the negro, and proved that Smith purchased the negro (with other property) of M. J. McKie, in 1837, and had possession of him from that time until the levy was made. It was also proven that the sale to Smith was conditional, and that he was not to have the absolute title to the negro until the purchase-money was paid ; that all of the purchase was not paid by Smith ; but that a portion of it was paid by H. M. Gilmer, and McKie’s right or claim to the negro transferred to him ; and that the conditional sale was never recorded.
    The counsel for the plaintiffs then asked'the Court to instruct the jury, “ that if they believed from the testimony the possession of said negro remained with Smith for three yearsj by virtue of the conditional sale from McKie, then the absolute property in said slave was in Smith, unless said conditional sale be duly recorded, and liable to judgment creditorswhich the Court refused to give, and the plaintiffs excepted. The plaintiffs, after verdict and judgment for the claimant, moved for a new trial. The Court overruled their motion, and they again excepted,- and prayed any/ appeal to this Court.
    
      T. and C. C. Shackleford, for appellants.
    The counsel for Lewis and Nichols contend, that the Court erred in refusing the instruction asked, and also in refusing a new trial, •because the jury found contrary to law and evidence.
    Of the first error assigned, it is almost too plain to need an argument to show the Court erred. It was proven that Smith held undisputed and uninterrupted possession of the négro Dave, for more than three years. It is true, he held a conditional title, but that title was not recorded, and consequently, as far as third persons were concerned, vested in Smith a perfect and indefeasible title. •Three years adverse possession, under our statute of frauds, gives a title where none was had before.' Consequently, Smith having held Dave adversely, to McKie and Gilmer for three years, during which time our judgment was rendered, the negro was bound for our debt, the conditional safe not being recorded. The case is clearly within the second section of the statute of frauds. Rev. Code, p. 192, 193. In this case Smith held the negro three years, /luring which time no effort was made by McKie to assert his right, or enforce his condition, if any. But the testimony shows that McKie considered the negro Smith’s, and the condition spoken of as having been complied with by Smith, when Smith gave the deed of trust to secure the note given for Dave and the other property. That three years vests a title, see the decision in the case of Withers v. Smith, 4 Bibb, 170 ; also 2 l¿ittell, Strode v. Campbell, 78, 79 ; 2 Pirtle, 405, 417 ; 2 Bibb, 244 ; 4 Bibb, 337 ; 2 Law Compend. 273.
    The second error assigned is, that the Court erred in not granting a new trial, because the jury found contrary to law and evidence. The counsel contended, and now contend, that the facts, as shown by the testimony, show a clear case of fraud.
    The testimony shows Smith to be insolvent; his son-in-law, C. G. Gilmer, insolvent; Smith had mortgaged to Baker and McKie everything he had, not excepting anything but his clothes. C. G. Gilmer does all the trading for his brother, the claimant, H. M. Gilmer, who has never been seen on the premises, nor was he present when the sale was made, nor does it appear he had ever been on the place ; Smith had always continued in possession, and was at thé time of the levy in possession. McKie transfers-his interest in Dave to H., M. Gilmer, and yet Gilmer, in 1840, gets a bill of sale directly to himself from Vaunoy, who sold in 1837 to McKie, &c. The testimony shows fraud in the beginning and at the conclusion.
    1st. Why should McKie have sold the negro Dave on conditions, and not had his bill of sale recorded within the three years as required by the statute, during which time our debt was created ?
    2d. Why did McKie and Baker take a mortgage upon all and everything Smith had, except Dave, to secure the purchase-money due for Dave, unless it was to cover up Smith’s property for him ? and if Dave had been levied on, why, McKie could claim him as his property under the conditional sale.
    3d. If the transaction was bona fide between McKie and Gilmer, why did McKie tranfer his deed “ without recourse on time ? ”
    4th. If Gilmer’s purchase had been bona fide from McKie of the negro Dave, why did he seek to claim under a bill of sale direct from Vaunoy, McKie’s vendor ? Thus, as he supposed, could he defeat any claim or judgment against Smith which might be asserted.
    5th. H. M. Gilmer’s purchase was made for him by his brother, C. G. Gilmer ; he was not present at the sale, and had never been seen on the premises.
    6th. Through all the trades, transfers, assignments, and other doings, Smith continued in possession of the whole property all the time.
    These facts constitute a clear case of fraud, in the opinion of appellant’s counsel, independently of the last, which they contend is in itself sufficient to constitute fraud. Possession by the vendor, after an absolute sale, is considered fraudulent, ,as also a mortgagor, where the property is transferrable. See 2 Kent’s. Com. page 512 to 529, and cases referred to, from which it will be seen that in the most, or nearly all of the States, the United States Court have maintained the doctrine of possession being, per se, fraudulent; but admits that possession is only prima facia evidence of fraud. Smith nor Gilmer have explained in any way how or why the possession is retained by Smith. With these views the case is submitted.
    
      Mitchell, for appellee.
   Mr.- Justice Clayton

delivered the opinion of the Court.

_ This was a suit to try the right of property to a negro man, seized under an execution in favor of the plaintiffs in error, against William Smith, and claimed by the defendant in error. Upon the trial, the plaintiffs in error requested the- Court to charge the jury, “ that if they believed from the testimony, that the possession of the slave remained with Smith, the debtor in the execution, for three years, by virtue of the conditional sale from the claimant, without legal demand or other'process on the part of the claimant, then the absolute property in said slave was.in Smith, and liable to judgment creditors, unless said conditional sale were duly recorded.” This charge was refused by the Court; a verdict and judgment were rendered in favor of the claimant, and the case brought by appeal to this Court.

The charge, as asked for, is founded upon the terms of our statute of frauds, H, &H. 371, and in substance embodies its provisions. The statute of Virginia, from which ours is .copied, has long since received a judicial interpretation in consonance with the instruction requested in this case. It is there settled, “ that five years’ possession will create a title in the possessor, which will inure to the benefit of creditors and purchasers, unless, the deed creating the loan, limitation or condition, be within that time recorded.” The lapse of three years under our statute will have the same effect. Pate v. Baker, 7 Leigh, 88; Boyd & Swepson v. Stainback, 5 Munf. 305; Beasley v. Owen, 3 H. & M. 449. As between the parties and their representatives, the condition or limitation may be effectual after the expiration of the three years, although the instrument be not recorded.' But, as to creditors and purchasers without a compliance with the directions of the act, the absolute property must be taken to be with the possession. See Palmer v. Cross, 1 Sme. & Mar. 66.

The Court therefore erred in refusing the charge under consideration. For this error the judgment will be reversed and a new trial awarded.  