
    Bruce's Adm'rs. vs. Smith.
    Appeal from Allegany County Court. This was an option of trespass vi et arrnis, against the appellant’s intestate, for seizing and taking certain negro slaves, the property of the plaintiff, (now appellee,) and converting them, &c. Plea, the general issue.
    1. Oil the trial the plaintiff produced to the court and jury a certified copy qf a bill of sale, from Charles F. Bradhag to him the plaiqtiif, both of George-Town, in the county of Washington, and district of Columbia, dated the 26'4i of December 1804, fqr sundry negro slaves, to secure the payment of S3100, with interest, on or before the 26th of December 1805, due to C, C. Jones, and if not paid at that time, the said Smith to make sale of the said negro slaves, &c. The bill of sale was acknowledged the 26th of December 1804, before two justices of the peace of the said county of Washington, and recorded in the records of that county on the 10th of .January 1805, and certified under seal by the clerk of the yireuit court of the district of Columbia for said county, ta be truly taken from the land records for said county? also certified by the chief judge of the circuit court of said district, that the attestation by the clerk, &c. was in due form? and also certified, under seal, by the clerk aforesaid, that the chief judge, who certified as aforesaid, was diiiy conimissjaned and qualified. To the reading of this bill of sale ta the jury, the defendant objected. But the Court, [_Bt(cha,nan, Ch. J.] was of opinion that the same was 'legal evidence, ami permitted it to be read as such. The defendant excepted. l : , , ’ '
    2. The plaintiff then offered evidence to prove, that the defendant, as sheriff of Allegany county, on the 7th of August 1809, seized and sold the goods and chattels mentioned in the plaintiff’s declaration,* and that the goods and i ' L ‘ ' chattels, so seized anrl sold, were the same mentioned in the aforesaid bill of sale. The defendant then offered in evidence the record of a judgment obtained in Allegany county court, by LeonardM. Beakins anti John Hoye, executors of Francis Beakins, against Charles F. Brodhag, at April term 1809, for §1000 current money, damages and costs, to be released on payment of §658 86, with interest thereon from the 13th of February 1805. Also the execution issued on the said judgment on the 7th August 1809, and directed to the sheriff of Allegany county, returnable on the second Monday of October then next, and returned “made and satisfied plaintiff. ZZ. Bruce ShffP The defendant then proved, that the said execution came to his hands as sheriff, and that by virtue thereof he seized and took the goods and chattels, for the taking of which the suit was brought. The defendant also offered evidence to prove, that Charles F. Brodhug in 1804, and until they were taken by the defendant, was in possession of the said goods and chattels. That Brodhag was assessed and charged on the books of the commissioners of the tax for Allegany county for 1804, 1806, 1807, 1808, 1809- and 1810, for the same. The defendant also offered evidence to prove, that ¡n the spring of 1805 Brodhag removed from George Town, in the district of Columbia, to Allegany county, when he brought withhim the said goods and chattels, and that the said Brodhag from that time, to the taking thereof by the defendant, was in possession thereof. The defendant also offered evidence to prove, that before and after the'26th of December 1804, Brodhag was indebted to Leonard M. Dealeins and John Hoye, executors of Francis Dealeins, whoresided in the county of Washington, and district of Columbia, and (hat Brodhag was in possession of one of the negroes mentioned in the said bill of sale, until sometime in March 1813, at which time.he died; that Brodhag was also in possession of another of the said negroes until sometimein April 1812, when he sold the same. Upon these facts the defendant prayed the direction of the court to the jury, that if they found from the evidence that Charles, F. Brodhag was indebted to Leonard At. Beakins John Hoye, executors of Francis Beakins, before and after the execution of the said bill of sale to the plaintiff, on the 26th of December 1§94S and that Brodhag held the possession of the property mentioned in said bill of sale from the date thereof until the execution of the writ effort facias by the defendant, that then tbe.plahiiiff was not entitled to recover. This direction the court refused to give. The defendant excepted.
    
      bill of sale executed by C 1? to C S, both of Pf'iishiiU'tm coun* ty, in ijie^flistrict of Columbwv, on the 20 th ot JDeeemher 3804, tor sundry slaves, to saeujp the pay meat of á debt due m C J, ;jpd acknowledged on the san«i day bd'qrt* two juv? tices oí ihe peaces qf that county, and recorded on t{ie liuh of January 1805 ip^ the records oí stud couni> — /¿#rí*«that $ copy thereof, certified under the seal of the eoutt by the clerk of the circuit court, of the said divtyictfor said epunwith the certificate of tty3 «kief judge of said court, that the at* festuljon was ta due form; and aiv l so q certificate by-said c!erk, mides : the seal of the court, that the» , said chief judge was dif.y eemnus'sioued and qualnli cd, was iegil evi*
    C jB executed a , bill of sale of sun- ’ dry slaves to C Sv to secure the payment of a debt na,fide due, C ft and C S being boih at that lima ' residing in the county of Waah• ip the district of Columbia, i which hill of salts ' wasdui) expected packnowledged and L ret orded, agreeably to the l.aws of ‘ th>? part of the district,mul which ' were ihe same as thp laws of thi$ stare. C £ after-wards removed into this state, bribing) with him the slaves, whisb had rem lined in h;s possession, and ov*-r which he * xorebed acts of ownership, paid the county aasesmieut thereon, and *old vomt* qf them* O li, before and utter his bill of salt.'to C 8, was mdehtr <1 to, F UI of the '»vl county and district* v, ho recove» <‘d( a judgm"nt against C H, u\ Allegany county court in tlii; state, to which county C 1* had removed with the said slaves. Upon ii>is .judgment a writ of futrí facias earned, and the said sfave*. were taken and sold by tin1 .sheriff, agsnii.vi whom C S brought an action of trespass vi eta.mw# K,e.~Held, that C S was cm i tied to recove», them being no proof to impeach the validity of the bill of sale, or contaminate the tvans-ietywi with fraud, nor that the property transferred was mo.re than ¡mífv» cien- to pay the debt intended to be secured.
    It is the ri^-ht oí a debtor to give preference tp one qf his creditor1» by a* fair and honest transfer of hi> floods udt quu.e to the payment of his debt.
    The retuinii.fc, by the £A«n.or, ¡mi session of property included in a bill of sale duly executed, ae* kiiu^'iedged and'rccoruiid5 is sancuuucd by the act of 1729,.vh. 8S '
    
      3, The defendant then prayed the opinion of the court to the jury, that if from the evidence they found that Charhs F. Brodhag was in possession of the goods and chattels claimed by the plaintififat the time of the execution of the deed to the plaintiff on the 26th of December 1804, and'ihat Charles F. Brodhag continued in possession thereof until the 7th of August 1809, when they were seized and taken by the defendant, under and by virtue of the judgment-and execution aforesaid, and that the plaintiff never was in possession thereof, that the plaintiff was not entitled to recover. This direction the court also refused to give. The defendant excepted; and the verdict and judgment being against him, lie appealed to this court; and having died pending the appeal, his death was suggested, and his administrators were made parties.
    The cause was argued before Chase, Ch. J. and Eahle, and Johnson, L
    Magruder, for the Appellants,
    From the facts stated in the bills of exceptions, it appears that the plaintiff in the court below claimed the negroes under a deed executed to him by Brodhag in 1804, by which he was authorised to make sale of the negroes on the 26t]i December 1803, for the payment of a debt due to a third person, if not paid by that day; that the plaintiff permitted Brodhag to remain in the peaceable possession of the negroes, to exercise every act of ownership over them, and to use them as his absolute property, to remove them into this state, and ip make sale of them, and made no claim to them until th? institution of this suit in 1811, (almost six years after he was directed to sell, whep. they had been seized as the property of Brodhag io satisfy a judgment due to jfJeakins’s administrator#. The plaintiff claims andera deed acknowledged and ret corded in the district of Columbia. Brodhag $t the time was indebted to Dealdns. This sale was void against creditors at the time by act of 1729, ch. 8, sect. 5. Brodhag was permitted to hold and exercise every act of ownership over the property, nearly five years after the plaintiff' was authorised, $nd it was his duty to sell the property, if ths debt was not paid. This of itself was evidence, that the debt was paid ta^the bill of sale originally executed to. prott t the property against creditors, ff the deed was not executed with a fraudulent intent, and the debt thereby intended to be secured was not satisfied on the day mentioned in the deed, the possession of Brodhag afterwards was. inconsistent with the deed. Hamilton vs. Russell, 1 Cranch, 316, Edwards vs. Harben, 2 T. R. 587; in which it is determined, that all such deeds, if the possession does .not accompany and follow the deed, the deed is fraudulent and void' ps to creditors. In these cases, it is true the deed purported to be an absolute transfer, whereas Brad-hag’s deed was conditional. Blit this became absolute upon the arrival of the day of payment. To, suffer Brodhag afterwards to keep possession, exercise every act of ownership over the property, and in every respect to use it as bjs own, would be sufficient to make the deed fraudulent and void as to creditors. In Edwards vs. Harben, Judge Bullet takes the distinction between deeds to take place, immediately, and to take place at a future time, Jn the latter case ‘Hhe possession continuing with the vendor, till such future time, or the performace of the condition, is consistent with the deed.” If a deed, executed and recorded in the district of Columbia, could be received -ip evidence in a case like this, then ifie object of our act of assembly, to prevent secret sales, would ba defeated, if such a deed could be used after suffering the grantor to keep the possession, of the property in this state four op five years as' his own absolutely, na credftor could be secure. Fraud may be committed with impunity, if a conditional deed will authorise the par» ty making it to hold the property for any length of time. In order to secure fiis property, and protect it against creditors, a man in debt has nothing to do but to, convey it ta gome person whom he might style a creditor, (for there is no proof, except the deed, of any money basing due to Jones,) and who might, as in this case, refuse ta sell fop payment of the debt, and refuse to, let the claims of other creditors fie paid out of the property. It is contended, that the deed executed in the district of Columbia, could not be used, and ought not to have been, admitted in evidence to establish the plaiufbT’s rigid to this property, and after the long, possession of (he property by Brodhagx the plaintiff coufd not recover.
    
      No Counsel argiied for the Appellee.
   Chase, Ch. J.

delivered the opinion of the court The court concur in the opinion given by the court below in iiic first bill of exceptions.

•The bill,of salé has all thelsoleinnities prescribed and required by'the act of assembly cf 1729, ch. 8, to give it validity and operation in the case in which goods and chattels are intended to be transferred, and the possession is retained by the grantor. The copy offered is legal and competent evidence of the bill cf sale, the kws of this state having been adopted in that part of the district of Columbia ceded by this state, and comprehended within the county of Washington.

The court concur in the opinions expressed by the court below in the second aiid third bills of exceptions; there being no facts stated to impeach the validity of the bill of sale, or contaminate the transaction with fraud. The circumstances that the grantor was indebted to Francis Deakins at the time of the obtaining the bill of sale, and the retention of the possession by the grantor, of the negroes for which the action was instituted,- cannot taint the transaction with fraud of collusion to defeat a creditor of hÍ3 just claim by covering the property by the bill of sale. It is the right of a debtor to give preference to one of his creditors by a fair and honest transfer of goods and chattels, adequate to the payment of his debí; and there are no facts stated to prove that the property transferred was more than sufficient to ¡ray the debt intended to be secured, nor is there proof of any collusion between the grantor and grantee to cover the property remaining, from the claims of the other creditors of the grantor, after the debt of Jones was satisfied. The retaining the possession by the grantor is sanctioned by the act of assembly, and the bill of sale cannot be invalidated or impeached by it.

JUDGMENT AFFIBMEDi  