
    *Bryan v. Cole &c.
    November, 1839,
    Richmond.
    (Absent Parker and Cabell, J.)
    Deed of Trust Conveying Personalty — Removal of Property — Registry . — A deed of trust conveying personal chattels is recorded in the court of the county in which the property is at the time of making the deed. Afterwards the grantor, who' has the property in possession, is permitted to remove with the same out of that county, and there is a failure, tor more than twelve months alter such removal, to cause the deed to he delivered to the clerk of the court of the county into which the grantor has so removed. Whereupon an action is brought against the grantor by one of his creditors. The deed is then delivered to the clerk of the court of the county into which the grantor has removed, and is there recorded, before an execution against the grantor’s chattels is delivered to the sheriff, and indeed before the grantor's creditor obtains judgment. IIbi/d, the deed is valid against the creditor.
    By a deed made the 21st of May 1821, between George W. Banks of the county of Essex of the one part, and Lawrence Muse of the same county of the other part, the former conveyed to the latter certain real property and personal chattels, in trust that Muse should hold the same to the use of the said George W. Banks and Charlotte his wife during their lives, without being subjected to any debt or contract theretofore made by the said George, or which he might thereafter make or enter into ; and at the death of the said George and Charlotte, then in trust that the said Muse should convey the same to such children as the said Charlotte might have by the said George.
    The parties residing in Essex county at the time the deed was made, it was, on the day of its date, acknowledged by them in the court of that county, and admitted to record.
    In November 1821, Banks removed from Essex to the county of York, and carried with him, by permission *of the trustee, the personal chattels conveyed, of which he retained possession in York from the time of his removal into the county until the property was levied on under an execution at the suit of Cole & Sheldon.
    The debt from Banks to Cole & Sheldon arose on the first of July 1823, and was put in suit on the 5th of August 1826.
    At a court held for York county the 15th of January 1827, the deed from Banks to Muse was produced in court, and, together with the certificate of its acknowledgment by the parties in the county court of Essex, ordered to be recorded.
    In the suit of Cole & Sheldon against Banks, the plaintiffs obtained judgment the 4th of May 1827, and issued their execution the 17th of that month, which came to the hands of the sheriff of York the 23d of the same month, and was levied on most of the personal chattels embraced in the deed.
    On the 16th of July 1827, Cole & Sheldon entered into an indemnifying bond, with sureties, to John E. Bryan the sheriff of York, and the property levied on was sold by Bryan’s deputy.
    Thereupon, an action was brought on the indemnifying bond, in the name of Bryan the sheriff of York, for the benefit of Muse as trustee, against Cole & Sheldon and their sureties, in which action the defendants pleaded conditions performed.
    At the trial before the circuit court of York on the 9th of October 1833, after evidence had been given shewing the case to be as before stated, the defendants moved the court to instruct the jury, that if they believed, from the evidence, that the debt of Banks to Cole & Sheldon arose after 12 months had elapsed from the time of Banks’s removal in November 1821 with the property, and before the 15th of January 1827 when the deed was recorded in York, then the property embraced in the deed was liable to the debt of Cole *& Sheldon, and the recording the same on the 15th of January 1827 where the property then was, did not f>rotect the property against a debt which had been so contracted. This instruction the court gave ; and the plaintiff excepted.
    A verdict being found for the defendants, and judgment rendered thereupon, on the petition of the plaintiff a supersedeas was awarded.
    Leigh, for the plaintiff in error, said, that the question in the case depended on the construction and effect of the statute 1 Rev. Code, ch. 99, §11, p. 364.* He insisted, that until Cole & Sheldon recovered judgment against Banks, and indeed until their fieri facias was delivered to the sheriff, they were, with respect to any personal property of their debtor Banks, creditors at large, having no rights whatsoever that attached upon any chattels in his possession. It was well settled, he said, that the phrase “all creditors,” in all these statutes, means not creditors at large but creditors whose rights have attached on the subject. This deed was recorded in York before any rights of the creditors Cole & Sheldon attached upon the trust subject. It was duly recorded within the meaning and intent of the statute, as against those creditors.
    There was no counsel for defendants in error.
    
      
      The section referred to is in these words: “livery deed respecting- the title of persona,! chattels, hereafter executed, which by law ought to be recorded, shall be recorded in the court of that county or corporation in which such property shall remain : and if afterwards the person claiming title under such deed shall permit any other person, in whose possession such property may be, to remove with the same, or any part thereof, out of the county or corporation in which such deed shall be recorded, and shall not, within twelve months after such removal, cause the deed aforesaid to be certified to the court of that county or corporation into which such other person shall so have removed, and to be delivered to the clerk to be there recorded, such deed, for so long as it shall not be recorded in such lastmentioned county or corporation court, and for so much of the property aforesaid as shall have been so removed, shall be void in law as to all purchasers thereof for valuable consideration, without notice, and as to all creditors.’’
    
   BROOKE, J.

The judge who decided this case seems to have supposed that as the deed was not recorded within twelve months after the removal of the property into York county, it was void as to all the creditors of the grantor, whether creditors at large or creditors whose rights had attached on the property. All these acts regulating conveyances have received a different construction. It was never supposed that if a deed under one of the former acts was not recorded within eight months, as required by that act, it was void as to creditors at large, whose rights had not attached on the property before the deed was recorded after the expiration of the eight months. But independently of that construction of the former acts, the words in the act under consideration, “such deed, for so long as it shall not be recorded &c. shall be void &c.” ought to put that question at rest. These express words were intended to give validity to the deed, though not recorded within the twelve months from the removal of the property into another county, as soon as it should afterwards be recorded in such county : and the judgment not having been rendered, and the fieri facias placed in the hands of .the sheriff, before it was recorded according to the provisions of the act, Cole & Sheldon were still creditors at large, their rights having never attached on the property conveyed by the deed. X think, therefore, that the judgment in this case must be reversed, and the cause sent back to the circuit court.

TUCKBR, P.

I concur entirely in the interpretation given by the appellant’s counsel, of the act of assembly, 1 Rev. Code, ch, 99, § 11. If, during the interval ^between the removal of Banks in November 1821, and the recording of the deed in January 1827, a judgment had been obtained and a fi. fa. delivered to the sheriff, the deed of trust would have offered ' no obstacle to its levy. But the recording here having taken place anterior to the judgment, Cole & Sheldon had no rights which had attached upon the chattels, until the deed of trust had been resuscitated in all its force by the recording in York county in January 1827. To give to the'law any other interpretation, would be in effect to give a lien to the creditors at large, where no such lien had been contracted for. If there had been no deed of trust when the debt was contracted, Banks would have been at liberty, notwithstanding its contraction, to sell or incumber his property to any other person : and certainly the case before us is not less strong than it would be, if, instead of recording the old deed of trust, Banks had executed a new one. Had he done so, it would have withdrawn the chattels from the reach of Cole & Sheldon ; and pari ratione the revivification of the original deed must have that effect. The effect of the act of assembly was indeed, as to transactions occurring in the interval between the removal and recording, merely to give to the deed the operation of a new deed, as of the date of its record in .the county to which the property may have been removed. The instruction was therefore wrong. The judgment must be reversed, and a new trial directed, in which the instruction given on the former trial must not be repeated.

STANARD, J.,

concurring, judgment reversed, verdict set aside, and cause remanded for a new trial, in which the instruction given on the former trial is not to be repeated.  