
    Glasscock, &c. v. Batton.
    November, 1827.
    Conveyance of Personalty — Retention of Possession by Grantor — Fraud.—Where a slave has been mortgaged, and afterwards sold absolutely to the mortgagee, but the Bill of sale not recorded, and. possession permitted to remain with the vendor, such saléis fraudulentas against a subsequent purchaser; and Equity will-, (under the particular circumstances,) entertain such purchaser to recover the slave against the fraudulent vendee who had clandestinely gotton possession of him. Nor can such fraudulent vendee prevent a recovery, by showing, that the Plaintiff did not take possession at the instant of the purchase; as such omission cannot make good the fraudulent sale.
    This was an appeal from the Chancery Court of Clarksburg, where Thomas Batton filed a bill against John P. Singleton and Enoch Glasscock, alleging the following facts: That in 1820, the complainant Batton purchased of John E. Singleton a negro boy named Garrison, of about 13 or 14 years of age, at the price of 440 dollars, 340 dollars of which were paid by the complainant to the said Singleton, leaving 100 dollars still due: that Singleton shortly afterwards delivered possession of the said slave to the complainant: that some time after he held the said slave, and had paid the said 340 dollars, he found that *Glasscoclc held a conveyance by Bill of Sale or Deed of Trust from the said Singleton, bearing date a few days prior to the complainant’s purchase, conveying, or purporting to convey, the said negro boy, with one or more other negroes, which conveyance, as the complainant is informed, was in fact given to secure a debt, or supposed debt, of about 600 dollars, which Singleton owed to Glass-cock; and Singleton, notwithstanding such conveyance, was suffered to retain the entire possession of the said negro boy, and to remain as the visible owner, without any notice or knowledge, on the part of the complainant, of the said conveyance: that the said Glasscock, (who resided in Loudoun County,) heard of the complainant's purchase, and about six months thereafter, came to Lewis County, to see the said Singleton on that subject, and came to some agreement or compromise with him, with the terms of which the complainant is not acquainted; although he is now informed, and charges, that Glasscock received property or security, or both by way of substitute, or in lieu of the said negro boy, and perhaps by way of satisfaction or security for his whole demand; that Glasscock then received of the said Singleton two other negro slaves, and also a bill of exchange, or draft, or written order, on some person in Loudoun, or elsewhere, for about $300, which order was paid to Glasscock, or he made the order his own by retaining the same, without returning it to Singleton, or giving him any notice of the dishonor thereof: that Glasscock, while in Lewis County, publicly declared, and sent word to the complainant, that he had no claim to the said negro boy; because Singleton had settled his business otherwise, and to his satisfaction : that the complainant continued to hold and possess the said negro boy, till the night of the 19th of November, 1821, when he was clandestinely taken front his possession by Glasscock, who had privately traveled to Lewis County, in which he lurked, till that night furnished an opportunity for the seizure, and the complainant has never since been able to regain him, or to ascertain *what Glasscock has done with him. The bill prays for a Decree for the said slave with his profits, or, if that cannot be obtained, that the money paid by the complainant, with interest may be decreed, &c.
    The answer of Singleton states, that it is true, that the complainant purchased the negro in question, and that the Defendant had previously given a lien on the same to Glasscock, and had paid the debt, by letting Glasscock have two other slaves, and giving him an order to a certain W. Byrne of Fauquier County for $440: that the said Byrne accepted the order, as the Defendant has heard, upon some terms agreed on between him and Glasscock: that Glasscock has never returned the said order, or called on the Defendant for payment thereof; but has, as the Defendant is advised, made the order his own, by detaining it: that the Defendant delivered the said boy to Batton, and that the latter lost his possession of the boy, without the previous knowledge or procurement of the Defendant.
    Glasscock answered, saying, that about the end of 1819, or beginning of 1820, Singleton being largely indebted to him, executed a Deed of Trust on three negroes, one of which was the boy in question : that the Deed was duly recorded: that the Defendant went to the County of Lewis, for the purpose of having the said negroes sold under the Deed of Trust, and Singleton proposed to sell the negroes to the Defendant, in preference to have them sold under the Deed of Trust: that this proposition was accepted, and the negroes were sold to this Defendant, in discharge of the debt; and a Bill of Sale was executed by Singleton, and the negroes delivered: that at the time of this transaction, Singleton had a large crop to manage, and at his earnest solicitation, the Defendant was prevailed upon to leave two of the negroes with Singleton, one of whom was the boy Garrison, until about the succeeding Christmas, at which time Singleton undertook to return them; at the same time, the Defendant promised Singleton, that if he paid him $600 at Christmas, he would let him have *the negroes back again, and indulge him further for the balance of the purchase money : that at the time last mentioned, Singleton failed to send on the negroes, as he had promised, or to send the $600; in consequence of which, the Defendant, after taking legal advice, went out to Lewis County to take possession of his negroes: that upon arriving at the house of Singleton, he got one of the negroes and received from Singleton, a letter directed to the complainant, directing him to deliver up the boy Garrison, stating that the negro was the property of the Defendant; and that although he had1 sold the said negro to Batton, he , had no right to do so: that the Defendant accordingly called upon Batton for the negro, who denied that he had the negro, and stated that he had sold him, and that he was then half way to New Orleans, which statement the Defendant did not believe: that the Defendant returned to Singleton, and informed him of the fact: that the Defendant then proposed to Singleton to give him an order on his Agent in Fauquier County, William Byrne, for $440, the amount he was to receive for the boy; with an understanding, that if he received the amount of the order, the Defendant should not trouble himself further upon the subject; but, if he did not receive it, he should enforce his right to the boy: that Singleton accordingly gave the order hereto annexed ; but, upon application to Byrne, there were no funds in his hands to meet the order: that Byrne offered a conditional acceptance depending on the event of a suit in Chancery; which the Defendant refused to accept, but was content to receive the money if it came to the hands of Byrne, by the time contemplated, to avoid litigation: that the Defendant, sometime afterwards, was informed that the negro1 was in the possession of Batton, and that he had deceived him by a false statement of his having been sold: that in consequence of the advice of Counsel, he repaired to the neighborhood of Batton, and took the boy from the kitchen of Batton, &c.
    *The Chancellor decreed that the Defendant Glasscock, should deliver to the complainant the slave Garrison, and that the Defendant should render an account of the profits of the said slave. The Defendant appealed.
    Leigh, for the Appellant.
    Wickham, for the Appellee.
    
      
      SaIe of Personalty — Retention of Possession by Grantor — Fraud Per Se. — See on this subject, discussion in foot-note to Davis v. Turner, 4 Gratt. 423; monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris. 11 Gratt. 348. The principal case is cited in Sydnor v. Gee, 4 Leigh 549; Rose v. Burgess, 10 Leigh 197; Davis v. Turner, 4 Gratt. 450; Benjamin v. Madden, 94 Va. 68, 26 S. E. Rep. 392.
    
   November 13.

JUDGE COALTER

delivered his opinion, in which the other Judges concurred.

The jurisdiction of a Court of Chancery, I think, can be maintained in this case, if on no other ground, on the one taken in the argument, that if the Plaintiff in Equity had sued at Law, he could have been successfully resisted by the mortgage, which was duly recorded. Even if the Bill of Sale had been produced there, it might not have been a clear case at Law, that it was a release of the mortgage, so as, in that Court, to divest the legal title, and leave the Defendant simply on his title under the Bill of Sale. This, however, •would be the consequence in a- Court of Chancery, where substance is looked to, as decided in the case of Clayborne v. Hill, 1 Wash. 177. There it was decided, that the mortgage, being recorded, was not fraudulent and void by reason that the possession remained with the mortgagor; but that the subsequent absolute Bill of Sale operated as a release of the mortgage, and became the title under which the bar-gainee held; and that a continued possession in the bargainor afterwards, rendered that-conveyance void. But the Defendant could have kept that Bill of Sale in his pocket, so that a resort must have been had to a Court of Equity to extract it; and if, for this purpose, the Appellee had a right to come into Equity, I can see no reason why he should not claim relief also th'ere; so as *to have possession restored, and an account of hires and profits. Besides, he had a right to go into Equity, in order to enquire into the compromise between the Appellant and Singleton the bargainor, and the compensation received under that agreement. Had the-slave not been taken from the possession, of the Ap-pellee in the manner he was, the Appellant must have sued at -Daw; and had he recovered there under his mortgage, the Ap-pellee surely could have enquired into these matters, in a Court of Equity. The manner of that possession, admitting that it was not a stealing, (as it has been denominated at the bar) and was not absolutely illegal, provided the party could have shown a better title, is nevertheless such a procedure, as does not deserve the countenance of Courts of Justice, and cannot be insisted on, in Equity, as placing the party on higher .ground than he would have occupied, had it not taken place.

As to the merits, it seems to me, that on both points, they are equally clear for the appellee. Twyne’s Case, 3 Co. 80, where it was held that absolute conveyances of goods, not accompanied by possession, are fraudulent and void, “for that the -donor continueth in possession, and useth them as his own, and by reason thereof he tradeth and trafficketh with others, and defrauds and deceives them,” followed up by the cases of Edwards v. Harbin; Hamilton v. Russel, and by the case of Clayborne v. Hill, above noticed; Fitzhugh v. Anderson, 2 Hen. & Munf. 289, and Alexander v. Deneale, 2 Munf. 341, and other cases in this Court, clearly show, that the Bill of Sale to the Appellant was fraudulent and void as to the Appellee, at the time he made his purchase.

But, it is argued, that the Appellee cannot avail himself of this, because he also permitted the property to remain with the seller. and that his purchase therefore was void.

In the first place, it does not. appear to me, that this is proved. Delivery at the moment of the sale, is not necessary. The possession must remain, and if it did so, it *was a matter very susceptible of proof. The Appellee was found in possession by the Appellant, and although it does not appear when that possession was acquired, yet, as this Court will not presume a fraud, there ought to have been proof of it by him, who seeks to avail himself of such fraud.

-But, if it were otherwise, and if we must take it that it did so remain, still if he got possession before • any one was deceived, and became a purchaser thereof, it is not void. I speak of subsequent purchasers, •not of creditors. The Appellant is not such a purchaser; and X cannot perceive how this prior purchase, which was void as aforesaid at-the time the Appellee purchased and paid his money, can - be reinstated, so as to place him in the condition of a subsequent purchaser.

This seems, indeed, not to be contended for to this extent; but, it is said, that there is par delictum, and that there is equal Equity, and the Appellant, not only being prior in time, but being Defendant in Equity, must prevail. But, it 'seems to me, that this is not so as to either point. It is true, if there had been a subsequent purchaser to both, neither could have prevailed against him, if possession remained, as has been alleged. He would have advanced his money, and must have held the property; but, the Appellant was not so deceived, did not so advance his money. The Appellee, however, was so deceived by the conduct of the Appellant, and so there is no par delictum, and the Equity is not equal.

A.s to the compromise and compensation received by the Appellant from Singleton, it is clearly proved by many witnesses, and it is admitted, that it would have put this case to rest, had it not been entered into, as is alleged, in consequence of a false suggestion by the Appellee, that the slave was not in his possession when demanded. This suggestion, true or false, could only have operated on the Appellant, so as to prevent his summary mode of redress, after-wards resorted to. It could no more have prevented a suit against the Appel-lee,' or caused the appellant *to resort for satisfaction to Singleton, than if he had simply refused to deliver him. But, how was the fact? The Appellant admits in his answer, that he did not believe' this statement; and he also admits, that before he made the compromise, he had taken the advice of Pindal, as to this summary redress. But he wished, probably, to avoid the scandal of-such a transaction, and preferred trying to obtain satisfaction from Singleton. This he did, and procured an order for $440, bearing interest, the price which the Appellee gave for the slave. The price of the three negroes sold to this Appellant, being about $1,100, and the two he received, being about twenty years of age, and one about eighteen, whilst the one in dispute was about twelve, it is fair to presume that he considered he obtained more than he gave for him. Nor is it at all unlikely that he should so have expressed himself, when speaking of the transaction. The witnesses, who testify to this, are in no otherwise discredited,- and ought not be disbelieved from the mere improbability of such a conversation, especially as many others prove his declarations, that he had made the compromise and was satisfied.

On every ground, therefore, the Decree must be affirmed. • 
      
      The President, and Judge Greek, absent.
     