
    Moses H. Adams versus John Wheeler Junior.
    A debtor,e< in consideration of his indebtedness to the plaintiff,” conveys to him, by an instrument in writing, certain personal property, 66 and it is agreed that the debtor shall remain in possession of the property until default of payment of what may be due to the plaintiff, at such time as he shall make demand of payment.”
    
      Held, that this mortgage was valid as against creditors, it being bond fide, and a delivery of the property having been made before any attachment or levy by any creditor, though not at the lime of the execution of the instrument ; and that it purported to secure, not only subsisting debts due to the plaintiff, but also to saxre him harmless from liabilities which he might subsequently incur for the debtor.
    Trespass for taking and carrying away twenty tons of hay, averred to be the property of the plaintiff. The hay was taken by the defendant, a deputy sheriff, on the 16th of February, 1829, on an execution against Henry P. Warren.
    At the trial, before the late chief justice Parker, the plaintiff, in order to show the property to be in himself, proved that Warren, being the owner of the hay, on July 24th, 1828, executed and delivered to the plaintiff an instrument under seal, of that date, as follows : — “ Know all men, &c., that I, Henry P. Warren, &c. in consideration of my indebtedness to Moses H. Adams, &c. do hereby grant, sell and convey unto the said Moses, his heirs and assigns, forever, &c. twenty tons of hay in my great and small barns, estimated at twenty tons, be the same more or less, $ 160, —one horse, valued at $ 65, — one cart, valued at $ 15 ; to have and to hold the aforegranted property to the said Moses, his heirs and assigns, to his and their use forever. And it is further agreed by the parties to this instrument, that the said Warren shall remain in possession sal'd property until default of payment of what may be due the said Moses at such time as he shall make demand of payment.” With .regard to the consideration of this instrument, Warren testified that he was indebted to the plaintiff on two notes of hand, one dated March 3d, 1828, for $ 30, the other dated June 16th, 1828 for $14; that wanting money to pay some pressing debts, he proposed to the plaintiff to lend him $ 130, and to take security for that sum and for the two promissory notes, in the hay above mentioned; that the plaintiff said he had not the money, but agreed to give his name upon a note whereon the money might be raised ; that it was intended, by the foregoing instrument, to secure the two small notes, as well as the sum of $ 130 which was to be raised on a note to be signed by the plaintiff; that some time afterwards a note made payable to the Millbury bank, was signed by the plaintiff, no date being given to it, and that he (Warren) took possession of it with a view to raise the money, which he was unable to do on account of the scarcity of money ; that on the 26th of September, on which day the note bears date, the money was procured from the cashier of the Millbury bank, and the note was deposited in the bank, where it was paid by the plaintiff on February 28th, 1829.
    At the time of the execution and delivery of the instrument above mentioned, there was no delivery of the hay ; but after the 26th of September and before the hay was levied on by the defendant, possession was taken by the plaintiff; but the . hay remained in the barn until the time of the levy.
    Evidence was given on the part of the defendant, tending to prove that the transaction respecting the hay was fraudulent; which was left to the jury ; who returned a verdict for the plaintiff, on the instruction from the judge, (given for the purpose of reserving the question,) that if they were satisfied that the transaction was bond fide, and that the note was signed by the plaintiff in pursuance of the agreement stated by Warren, although it might not have been signed until the day of its date, this note, together with the two small notes, formed a sufficient consideration for the conveyance of the hay in mortgage, as above set forth.
    
      If the instruction to the jury was wrong, or if the instrument, intended to be a mortgage, was insufficient in law to pass the property in the hay, the plaintiff was to become nonsuit; otherwise judgment was to be rendered on the verdict.
    The case was argued in writing.
    
      Newton and Lincoln, for the defendant.
    A new trial ought to be granted, because the judge submitted to the decision of the jury a question of law, namely, whether the note for $ 130 was or could be secured by the mortgage ; or, in other words, whether the mortgage secured to the plaintiff the future demands which he might have against Warren. This was a question depending on the construction of the language used in the instrument, and was not to be controlled by evidence. 3 Stark. Ev. 1006, 1007, and notes ; Hamilton v. Wagner, 2 Marsh. R. (Kentucky), 333.
    Had the jury decided this legal question correctly, perhaps a new trial ought not to be granted ; but their decision was erroneous. The mortgage did not extend to future indebtedness, and parol evidence was admissible only to show what part of the original indebtedness remained undischarged.
    There being no “ indebtedness ” of Warren to the plaintiff arising out of a note for $ 130, until after the hay had been levied on, but only a liability on the part of the plaintiff, the mortgage could not secure that note.
    At least the uncertainty whether the mortgage does or does not secure future indebtedness, both in regard to the kind of debts and the amount of them, renders it void as against crediitors. Butterfield v. Baker, 5 Pick. 522 ; Worthington v. Hylyer, 4 Mass. R. 196 ; Hall v. Leonard, 1 Pick. 27.
    
      Merrick, contrà,
    
    to show that the mortgage was valid and effectual as against creditors, cited Brooks v. Powers, 15 Mass. R. 244 ; Badlam v. Tucker, 1 Pick. 389 ; Holmes v. Crane, 2 Pick. 607 ; Ward v. Sumner, 5 Pick. 59.
   Putnam J.

drew up the opinion of the Court. Present indebtedness is a sufficient consideration for the sale ; and the inadequacy of it is not per se fraudulent. Nor is the fact, that the vendee suffered the property to remain in the hands of the vendor after it was delivered, per se fraudulent. Those facts were properly left to the jury, and they have found that the conveyance was bond fide. The right to the property passed by the deed, as between the parties, and after delivery the conveyance was good against the creditors of the vendor.

We think it clear from the instrument, that the vendee was to hold the property, not merely in payment of existing debts, but until the vendor should save the vendee harmless from liabilities thereafter to be incurred. But the vendor was notwithstanding to have the possession, “ until default of payment of what might be due to the vendee at such time as he should make demand of payment,” without employing words restricting the amount to the debts then due, with interest, as it would have been, but embracing whatever (as we think) from any other lawful cause might be due to the vendee when he should make his claim.* *

Nor is that an illegal or inconvenient arrangement. Badlam v. Tucker, 1 Pick. 398. The truth is, that possession of personal property is only evidence tending to prove that the possessor has a title to it. But it may be controlled by other evidence proving an honest appropriation of it, either absolute or in mortgage. The public, we trust, well understand the rule, and will not confide in or be deceived by the mere possession.

In the case at bar, the vendee became the trustee for the vendor, for any surplus exceeding the amount of debts actually due, and liabilities incurred. If the creditor had resorted to the trustee process, the surplus existing at the time of the service of it, would have been held ; and the vendee could not rightfully prejudice the attachment, by assuming new liabilities after the service of the foreign attachment. By such conveyance the property is not placed beyond the reach of creditors. It is true that frauds may be practised in sales of personal, as well as of real property, and in various other transactions ; when the fraud is proved, the pretended sale will be avoided.

We do not think there is any substantial objection to the charge of the late chief justice, or that it was left to the jury 10 settle a matter of law. It was properly intended to have the jury settle the fact, whether the liability upon the large note was incurred before the taking by the defendant; and parol evidence was clearly admissible to that point, as well as in regard to the amount of the debts due from the vendor at the time of the making of the deed.

Now, applying the facts to the principles of the law which are here settled beyond controversy, the case is clear for the plaintiff. It was an honest transaction, for valuable consideration ; the conveyance is sufficient in substance ; it purports to cover future liabilities ; they were in fact, incurred, and the property was delivered, before the taking by the defendant, and no payment or tender was made of the amount due to the vendee and for which he was liable when the attachment was made.

The title under the conveyance must prevail, and judgment be rendered upon the verdict for the plaintiff. 
      
       See Stewart v. The State, 2 Har. & Gill, 114; Knobb v. Lindsay, 5 Hammond, 471; M'Kinney v. Pinckard, 2 Leigh, 149; Goree v. Wilson 1 Bailey, 597.
     
      
       See 15 Mass. R. (Rand’s ed.) 237, note (a); Wheeler v. Train, 3 Pick. (2d ed.) 257, note 1, and cases cited; Lunt v. Whitaker, 1 Fairfield, 310; 2 Pick. (2d ed.) 611, note 1.
     
      
       See Holbrook v. Baker, 5 Greenleaf, 309; De Wolf v. Harris, 4 Mason, 530; Divver v. M‘Laughlin, 2 Wendell, 596; Pettibone v. Griswold, 4 Connect. R. 161; Shepard v. Shepard, 6 Connect. R. 37; Hubbard v. Savage, 8 Connect. R. 215; Crane v. Deming, 7 Connect. R. 387; Union Bank, &c. v. Edwards, 1 Gill & Johns. 363; Clagett v. Salmon, 5 Gill & Johns. 314; 9 Connect. R. 286.
     
      
       See St. 1829, c. 124.
     
      
       Property so situated may now be attached, under the provisions of the Revised Stat. c 90, § 78 et seq.; Johnson v. Sumner, 1 Metcalf, 172; Moriarty v. Lovejoy, decided in Essex in 1840.
     