
    Thomas B. Gilliam vs. Moses B. Moore.
    The legislature in 1820 (H. & H. 591, § 13,) passed an act providing that if in detinue, on an issue concerning several things in one count, no verdict he found for part of them, it should not be error, but the plaintiff should be barred of his title to the things omitted; in 1830 they passed an act (H. & H. 654, § 75,) providing that issues for the trial of the right of any property should be tried and governed by the same rules which regulate and govern the trial of issues in an action of detinue; it was held, that the legislature, by the use of the word “ detinue" in the latter act, had reference to the action as modified by the former statute.
    Therefore, in an issue to try the right of property in six slaves, it will not be error for the jury to find only as to four, and bring in no verdict as to the others.
    In a trial of the right of property in slaves, the claimant relied on his purchase of the slaves under a deed of trust given by the defendant in execution to secure him from loss in consequence of his suretyship for the defendant in execution; the court below, after having instructed the jury that the deed of trust was prima facie good and valid, instructed them that it rested with the claimant to prove the consideration of the deed of trust to be fair and Iona fide, and to show clearly that he was liable for the payment of the debts named in the deed of trust, as surety for the defendant in execution ; it was held that this latter instruction was erroneous, because it implied that the plaintiff in execution had made out a prima facie case of fraud, with reference to the deed of trust; the court should have added the qualification, “ if the jury believe from the evidence that a prima facie case of fraud has been made out, then the claimant must prove,” &c.
    It is the peculiar province of the jury to pass upon questions of fraud in fact; it is, therefore, erroneous for a court to predicate instructions to the jury, based upon the existence of fraud in fact, without informing the jury that it is for them to judge whether fraud exists.
    It was held, therefore, to be erroneous, and to be instructing the jury as to the weight of evidence, to instruct them in an issue to try the right of property where the claimant claimed under a deed of trust, that the deed. of trust was not of itself evidence that the claimant was bound as surety in the mode in which the deed recited him to be bound, or that the defendant in execution was indebted to the claimant, as recited in the deed, but that they must loolt to the other proof for the establishment of those points.
    Where an instruction is erroneous, as assuming that fraud in fact exists, the error will not be cured because the record contains proof that seems to make out a case of fraud; the jury have a right to pass on the question, and it is neither for the court below, nor for the high court of errors and appeals to preclude them from that inquiry.
    In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge.
    On the 13th day of December, 1843, the sheriff of Tippah county, hy virtue of an execution in favor of Moses B. Moore against Edward Pegram, levied on six slaves, as the property of Pegram. Thomas B. Gilliam claimed them, according to the statute, as his property; and at the January term, 1844, an issue was made up to try the right of property. On the trial the record and proceedings in the judgment against Pegram were read, by which- it appeared that Moore’s judgment was rendered in the Tippah circuit court, on the 29th of March, 1843, for $1,760.44; on which the execution was issued and levied, as stated.
    
      Samuel Mathews, in behalf of the plaintiff in execution, proved that in March, 1840, Pegram removed his slaves to this state fl'om Tennessee, to avoid certain debts he owed there. The witness, soon after the arrival of Pegram, was called up to act as a trustee in a deed of trust from Pegram to secure Gilliam from liability on various debts, on which he was surety for Pegram. This deed conveyed all his horses, cattle, sheep, hogs, household and kitchen furniture, and the crop of cotton to be raised that year. About the same time Pegram made another deed of trust to William S. Winfield, for the purpose of securing Gilliam in other debts. In December, 1842, the witness sold the property conveyed to him, by direction of Gilliam, except a small part previously sold by consent of Gilliam; on the same day Winfield sold under his deed of trust which conveyed the slaves; Gilliam purchased all the property sold under both sales, amounting to about four thousand two or three hundred dollars. Pegram’s crop of cotton of the year 1841, was shipped by Gilliam; it was about ninety-five bales; the crop of the year 1842 was sixty-five bales, which, after supporting Pegram’s family, witness understood from the parties, was appropriated to the debts secured by the deeds of trust. Among the latter was one to John Booth, for about $2800, given for the land on which Pegram lived. Gilliam was principal, Pegram surety; the deed was made to Gilliam. In January, 1843, Gilliam employed Pegram, as manager, to live on this land, and take charge of the property purchased by Gilliam under the deed of trust; Gilliam was to support Pegram’s family. Under this arrangement Pegram lived on the place for the year 1843, and made a good crop, which was applied as the former ones. The witness was employed by Booth to collect his accounts, among them, including the debt secured by the deed of trust, was about $8000 due by Gilliam. In the fall of 1843 the witness and Gilliam agreed on a compromise of this debt; Booth to take back the land at $5000, Gilliam to pay $2000 in cash, and confess judgment for the residue. A day was fixed for concluding the compromise, at Gilliam’s house; prior to which Pegram called on witness, and stated that if he would release Gilliam from the payment of the $2000, and take him and his son Samuel for that amount, Gilliam was willing to convey all the slaves which he had bought under the deed of trust to his son Samuel; and urged the witness with much feeling to do it; the witness declined, but told Pegram if he would raise the $2000, it could be done. Pegram replied, he would endeavor to raise the money. On the day appointed for the compromise they all met at the house of Gilliam. Pegram again privately urged on witness, with great earnestness, his former proposition, and said if it were refused he should be ruined, as Gilliam would certainly sell the negroes tó reimburse himself the amount he had to pay. Witness still refused, informed Gilliam of his refusal, and the latter completed the arrangement. Soon after this Gilliam sold to diiferent persons several of the slaves for about $4000.
    William Pegram, for plaintiff in execution, testified that his father, the defendant, came to this state in 1840, with about eighteen slaves, including those levied on, all of whom were conveyed by the deed of trust to secure Gilliam. He also proved the value of the slaves levied on. Gilliam sold a portion of the slaves conveyed to him, and a portion- were still in his possession in De Soto county. Pegram married Gilliam’s sister. The latter, in 1843, lived in Tippah county, afterwards moved to De Soto county; the six slaves levied on were in the possession of Gilliam, on the place where they had been before and after the sale, under the deed of trust, in December, 1842, until levied on. Edward Pegram was managing the slaves and place, as overseer for Gilliam, and lived on it since the sale under the deed of trust, until and after the slaves were levied on.
    The plaintiff then read the deed of trust by Pegram to Mathews, containing the stock, &c. and crop of cotton, in trust, with power of sale, to secure Gilliam against liability on about $4000 of debt, for which he was surety for Pegram. Here the plaintiff’s case closed.
    The defendant then read the deed of trust to Winfield, to secure Gilliam in about the sum of $9000 of other liabilities as surety for Pegram and money paid for Pegram to different persons. He proved also the advertisements of sale of the property under the deeds of trust, in accordance with their provisions; and the bill of sale of the slaves in controversy, from the trustee to him; and proved by A. C. Blair that the sale was a public and a fair one; many persons present, and Gilliam urging persons to bid; the amount bid was credited on the deed of trust.
    E. B. Smith proved that Gilliam had paid $3600 to the Planters Bank of Tennessee, being one of the debts named in the deed of trust to Winfield; but whether wit,h his own or Pegram’s money, he did not know.
    C. Loffland proved the same with reference to another debt for upwards of $2000, secured by the same deed of trust.
    This being all the testimony, the court, at the instance of the claimant, instructed the jury,
    1. That if they believed, from the evidence, that the deed, under which the claimant derived title, was executed in good faith to secure a bona fide debt, and that no fraud was practised by the parties to delay or hinder creditors, it was a valid deed; the title under it was good, and the property not subject to execution.
    
      2. That an indebted party has the right to prefer, in good faith, one creditor to another, and his sureties to others.
    3. That the parties to a deed of trust may legally provide for the grantor to remain in possession of the property conveyed, until the last debt is due on the deed legally closed; and his so remaining in possession is not fraudulent.
    4. That the burden of proof is on the plaintiff in execution, and fraud is not to be presumed, but must be proved.
    5. That the deed of trust to Winfield on its face, is prima facie good and valid.
    6. That an equitable interest is not the subject of law by a common law execution.
    7. That a deed of trust, valid when executed, cannot be made void by after circumstances; and that if a fair deed of trust be bona fide made to secure a debt really due, an after deed of trust between the same parties, although fraudulent, can in nowise impair or make void the first deed.
    
      Various other instructions were also asked by the claimant, and given, which it is not deemed necessary to set out.
    The court then, at the instance of the plaintiff in execution, gave these instructions:
    1. A deed made to hinder and delay creditors of the grantor, is fraudulent and void.
    2. It rests upon Gilliam, the claimant, to prove the consideration, moving to the execution of the deed of trust under which he claims, fair and bona fide ; showing he was clearly liable, as security of Pegram, for the payment of the debts, provided for in the deed of trust.
    3. A deed, colorable and fraudulent as to part, is fraudulent and void as to the whole.
    4. The possession of personal property by the grantor, in a deed of trust, after the period in which, by the terms of the deed of trust the money is to be paid, to secure which the deed of trust was given, may be ■prima facie evidence of fraud. Creditors, or those bound as security for other persons, cannot be permitted to secure their honest debts on the debtor’s property, and at the same time to cover his property from every other creditor, with intent to let the debtor use and exhaust his means of payment, secretly reserving the property intended to be applied in satisfaction of the debts to be secured.
    5. A deed of trust, valid in its inception, and which vested the title of the property in the grantee then, could not by after circumstances be rendered void; yet after circumstances could be evidence of the original intent of the parties, to hinder and delay creditors of the grantor, not provided for by the deed.
    6. If, from the evidence, the jury believe Pegram paid the money which was raised by sale, then the circumstance that the negroes were bid oif by Gilliam, is a fact which may be weighed by the jury.
    7. In cases of fraud the jury must weigh all the circumstances given in evidence, and draw a fair and reasonable conclusion from them.
    The jury retired with these charges, but afterwards returned and asked for further instructions, when the court instructed the jury as follows, viz.:
    
      1. A deed of trust, providing that the property conveyed shall remain in possession of the grantor is not, for that reason alone, fraudulent or void; but circumstances may be weighed by the jury, in connection with other testimony, to ascertain whether a fraudulent intent existed; the jury must look to all the testimony, written and verbal, and consider it all together.
    2. That the deed in trust from Pegram to Winfield, for the benefit of Gilliam, is not of itself evidence that Gilliam had paid debts for Pegram, or that he was bound as surety for Pegram, or that Pegram was indebted to him, but that the jury must look to the other proof in the case to ascertain whether Pegram was indebted to Gilliam, or was bound as surety for Pegram.
    To these instructions the claimant excepted. The jury found that four of the slaves levied on were subject to the execution of Moore, and assessed their respective values, but took no notice in .their verdict of the other two slaves. Gilliam moved for a new trial, which being refused, he prosecuted this writ of error.
    
      Word, for plaintiff in error,
    commented on the testimony, and made these points:
    1. That the testimony was insufficient to uphold the verdict.
    2. That the court misdirected the jury. Buckner v. Hundley, 6 S. & M. 70.
    3. That the verdict and judgment thereon were insufficient. McCoy v. Rives, 1 S. & M. 592 ; H. & H. 591, § 13; Ibid. 654, <§>§ 75, 77, 78,79; 7 Bac. Abridg. Tit. Stat. 454, 456, 458; 1 How. (Mi.) R. 227.
    
      Walter, on the same side,
    relied on the same points.
    
      M. A. Watson, for defendant in error.
    1. The testimony sustains the verdict; on this point the testimony was reviewed, and it was insisted that a case of fraud was made out. Bogará v. Gardley, 4 S. & M. 302 ; 11 Mass. 421; 2 Pick. 411; 2 Kent, 441; 4 Yerg. 450 ; 1 S. & M. 381; 4 Ibid. 193, 257; 5 How. (Mi.) 495; 7 Ibid. 340 ; 5 Wend. 48 ; 12 Ibid. 340.
    
      2. The omission in the verdict is cured by the statutes regulating the action of detinue, and trials of the right of property, and the verdict is correct. How. & Hutch. 591, 'J 13; Ibid. 654, § 75 ; Penrice v. Cocks, 1 How. (Mi.) R. 227 ; McCoy v. Rives, 1 S. & M. 592; 2 Wheat. 221; 1 Bibb, 248, 257; 2 Ibid. 178; 429; 1 Alab. 212; 2 S. & M. 439.
    3. It is manifest that justice has been done; the law and facts sustain the verdict; error therefore in the charges will not avail to set it aside. Perry v. Clarke, 5 How. (Mi.) R. 495 ; 7 Ibid. 328; 1 S. & M. 22, 400 ; 4 Ibid. 193.
    4. The charges complained of, under the facts were not erroneous. Rogers v. Hall, 4 Watts Rep. 359; Jones v. Reid, 1 Humph. 335, 345; Darwin v. Handley, 3 Yerg. 502, 503, 504; Hundley v. Buckner, 6 S. & M. 70 ; 4 Ibid. 302; 5 Lit. 239; Hundley v. Weld, 3 J. J. Marsh. 643.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was a trial of the right of property. The jury were, called to pass upon the right of property in six slaves. They found as to four, but found no verdict as to the remaining" two. This, under the statute, was tantamount to a finding, that the slaves omitted were not subject to the plaintiff’s execution. In 1820, an act was passed (H. & H. 591, § 13,) providing that, if in detinue, the verdict shall omit'price or value, the court may, at any time, award a writ of inquiry to ascertain the same; and, if on an issue concerning several things in one count, in detinue, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted; and, in 1830, an act was passed, (H. & H. 654, § 75,) providing that issues for the trial of the right of any property, should be tried and governed by the same rules which regulate and govern the trial of issues in actions of detinue. The common law action of detinue having been thus modified by statute in 1820, whenever the action is mentioned in subsequent acts, by obvious rules of interpretation, the statutory action and not the common law action must be intended. This view seems already to have been entertained by the court, in Pritchard v. Myers, 3 S. & M. 42, where, in a case in which the jury omitted to assess the separate value of each specific thing in issue, it intimates strongly that a writ of inquiry, in accordance with the law of 1820, miglit have been awarded for the purpose. In the case of McCoy v. Rives, 1 S. & M. 592, the statutory provision was not put in question; and, besides, that was a case of a finding by the jury upon an article of property not in issue, as well as of an omission of a finding upon property in issue. The question being now fully presented, is therefore met and settled.

But upon the trial, the court gave instructions which were too broad and prejudicial in their tendency to the rights of the claimant. He relied, in his defence, upon a deed of trust for his benefit and purchase under a deed of trust. The court charged, that it rested with the claimant to prove the consideration moving to the execution of the deed of trust under which he claimed, fair and bona fide, showing he was clearly liable as security of the defendant in execution, for the payment of the •debts provided for in the deed of trust. The court having previously instructed the jury, that the deed of trust under which the claimant claimed title, was prima facie good and valid, it follows that the charge first mentioned went to the extent of instructing the jury, that the evidence of the plaintiff in execution had established at least a prima facie case of fraud in the claimant’s title, which it made incumbent on the claimant to rebut. Now, this was purely a consideration for the jury, whose peculiar province it is to pass upon questions of fraud in fact; and therefore the charge first mentioned should have contained a provision, depending upon the conviction of the jury as to the fact of prima facie fraud having been established. It 'will not do to say that the record shows that such a state of case really existed, because neither this court nor the court below can, in circumstances like these, presume to weigh the evidence. The first part'of the following charge is obnoxious to the same objection, because it takes for granted what was a matter in issue to the jury alone. The court charged — that the deed in trust from the defendant in execution to Winfield, for the benefit of the claimant, is not of itself evidence ,that the claimant had paid debts for the defendant in execution, or that he was bound as surety for him, or that the defendant in execution was indebted to the claimant, but that the jury must look to the other proof in the case, to ascertain whether the defendant in execution was indebted to the claimant, or whether the claimant was bound as surety for the defendant in execution. When we bear in mind, that in these cases, the burden of proof rests with the plaintiff in execution, these charges display a plain and unqualified ruling upon the evidence against the claimant, which was in opposition to the statute controlling the charges of courts.

Judgment reversed, and new trial to be awarded below.  