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of the son, that the slave belongs to the father will not be received in opposition to the claim of the widow of the son.
4. Orr et al v. PICKETT et al. January T. 1830. 3 J. J Marshall's
Rep. 279.; KENNINGHAM y. M:LAUGHLIN, 3 Monroe's
Rep. 30. The rule as Per Cur. Underwood, J. Where there are many persons livto who shall be ing together, constituting one family, and there are slaves in the considered in posses service of the family subject to the occasional orders of each memsion.
ber of it, the possession in law should be considered and regarded as in those of the family who have the right to the property. In such case, if an infant be the real owner, and have title to a slave, the infant should be regarded as in possession, although the father controls the slave, and causes it to work as he pleases. So, also, if the title be not in the infant, but in another, who is bound to hold the title for the use of the infant; then we are of opinion the possession should still be considered with the infant, as cestui quie use, although the father directs and superintends the fabor of the slave. If parents and adult children live together, and slaves wait on the family promiscuously, as they may be ordered, and the father as the head of the fainily should superintend and direct the most important employment of the slaves, still possesssion should be regarded as being with those of the family who have title. Where many persons are in the enjoyment of the use of property, be they adults, or infants in part, those who trust upon the faith of the property are bound to discriminate, and to ascertain, at their peril, who has title among those using the property. When the title, whether it be legal or equitable, is found to be in one who, with others, seems to be enjoying the use in common, the possession in law is fixed with that one having title, and his creditors alone can reach the property.
5. MIDDLETON V. CARROL. June T. 1830.
4 J. J. Marshall's
The rule in Held by the court, Buckner, J., that an unconditional sale of Kentucky. slaves, where possession remains with the vendor, is, per se, fraud
ulent against creditors and purchasers.
6. VERDIER V. LEPRETE. May T. 1832. 4 Louisiana Rep. 41. Per Cur. Martin, J. A vendee who suffers personal property And Loui
siana. purchased to remain in possession of the vendor, and thus enables him to acquire credit, or deceive a subsequent purchaser, cannot resist the claim of his vendor's creditor, nor that of a subsequent bona fide purchaser.
7. HOBBS v. BIBB. July T. 1827. 1 Stewart's Alabama Rep. Possession
54.; S. P. AYRES V. MOORE, ibid. 336.; MARTIN v. WHITE,
in the venHobbs purchased slaves of J. & J. Estells for a debt they owed cor is prehim, and left them in their possession on hire, and while in their evidence of
ownership which may
be rebut* Fraud vitiates all contracts. Even a private act of the legislature may be avoided,
ted, * but it
is not eviif it was obtained by deception and fraud. Commonwealth v. Breed, 4 Pick. Rep. dence of 460. Parsons, Ch. J., observed, in Pliss v. Thompson, 4 Mass. Rep. 488., that, it fraud, per is generally true, that a man shall not be required to aver against his own deed. But se. the case of fraud is always excepted, which vitiates every contract. A vendor of goods is bound to disclose a latent defect, if known. Hugh v. Evans, 4 M'Cord's Rep. 169. ; yet the sale and delivery of goods will pass the title as between the parties, although obtained by fraud. Rowley v. Bigelow, 12 Pick. Rep. 307.; Somers v. Brewer, 2 Pick. Rep. 184. And whether there is fraud or not, must depend upon the peculiar circumstances of each case. In general, it is not a conclusion from a single fact, but from all the facts; and is, therefore, a proper subject for inquiry by a jury in a court of law. Watkin's v. Stockett's Ad'mr, 6 Har. & Johns. Rep. 435. 455. And there must be a fraudulent design. Young v. Covell, 8 Johns. Rep. 23. When matters are alleged to be fraudulent in a court of law, it is for the jury to find the facts, and determine their character. Gregg v. Lessee of Sayre and Wife, 8 Conn. Rep. 244. And it may be laid down as a general principle, that a conveyance of lands or goods liable to be set aside for fraud, will be good in the hands of a bona fide purchaser of the vendee without notice. Fletcher v. Peck, 6 Cranch's Rep. 133. ; Mowrey v. Walsh, 8 Cowen's Rep. 233 ; Hollingsworth v Napier, 3 Caines' Rep. 182. And it may also be laid down as a general principle, that on the absolute sale of goods possession must accompany the deed, and the want of change of possession is considered, per se, such a circumstance as to render the transaction fraudulent and void. Talcott v. Wilcox, 9 Conn. Rep. 134. ; Patten v. Smith, 4 Conn. Rep. 455 ; Burrows v. Stoddard, 3 Conn. Rep. 160. ; Chumar v. Wood, 1 Halst. Rep. 155.
The leading case in which this principle has been effected, and in which the ex. ceptions to the rule are stated, is in Bissell v. Hopkins, 3 Cowen's Rep. 166. It was held in that case, that possession of goods remaining in the hands of the vendor after sale, is but prima fiicie evidence of fraud as to creditors, and may be explained. Bis. sell v. Hopkins, 3 Cowen's Rep. 166. Numerous cases are cited in the note to the case, to show, that the English rule is incumbered with so many exceptions as to be no lon. ger of use in any practical application to the subject of frauds. Where the sale is absolute, however, there can be but little doubt that the interest of society would be
possession they were seized under an execution against Estells, by a judgment creditor, the defendant, whose judgment was entered about the time of the sale to Hobbs.
The court charged the jury, that although no fraud may have been intended by the parties, and although a fair price may have been actually paid by Hobbs, and although the contract of hire from Hobbs to Estells might be also bona fide, for a fair price, and without intentional fraud, yet that the possession of the property remaining with Estells was fraud of itself, as to creditors, and rendered the title of Hobbs inoperative. Hobbs excepted.
Per Cur. Lipscomb, Ch. J. After referring to Shepard's Touchstone, 66., Twyne's case, 3 Cooke's Rep. 87., Edwards v. Harben, 2 T. Rep. 587., Kid v. Rawlinson, 2 Bos. & Pul. 59., Lady Arundel v. Phips et al., 10 Vesey's Rep. 145., Stewart v. Lomb, 1 Broad. & Bing. 506., Watkins v. Burch, 4 Taunt. Rep. 823., Hamilton v. Russel, 1 Cranch's Rep. 399., Ludlow v. Hurd, 19 Johns. Rep. 221., and Bissel v. Hopkins, 3 Cowen's Rep, 166., decided, that personal property remaining with the vendor is presumptive evidence of ownership in him; but this presumption may be rebutted by proof : possession remaining with the vendor is ruled to be only prima facie evidence of fraud. And in Echols v. Derrick, 2 Stewart's Rep. 144., the court held, that where A. purchased at sheriff's sale, without notice, a slave which had been previously conveyed by deed in trust, but the deed not recorded in the manner required by the statute of frauds, and after the sheriff's sale, and before the expiration of twelve months from the date of the deed, the trustees sold the property, and executed the trust, the statute dispensing with the registry within twelve months, the adverse possession of A. under his purchase at the sheriff's sale, made no difference, and did not prevent the trustees from executing his trust. And see Astor v. Wills, 4 Wheat. Rep. 466.
best promoted to hold it evidence of fraud, where the property was not changed. But in qualified sales, mortgages, loans, &c. of property, it seems to be necessary in those complicated arrangements of which property is susceptible among families, that they should be open to explanation, and that the mere want of change of possession should not, per se, be evidence of fraud. And that is probably the true distinction which might be drawn from the cases. It is the principle laid down in Hamilton v. Russel, 1 Cranch’s Rep. 309., and is sustained by a great number of cases, English and American. It is obvious, however, the rule does not apply where the property is so situated it cannot be delivered. Conrad v. Atlantic Ins. Co., 1 Peter's Rep. 386.; Biosel v. Hopkin's, 3 Cowen's Rep. 166. ; Callen v. Thompson, 3 Yerger's
8. AYRES V. MOORE. January T. 1830. 2 Stewart's Rep. 336.
Trespass by Moore against the defendant, for taking away a ne- But it is for
the jury to gro boy Tom. Ayres pleaded, that he levied on the boy as sheriff,
whethe boy being the property of one James B. Moore, by virtue of ther it was an execution against him. The plaintiff relied on a bill of sale to hinder
delay crehim for the negro, by James B. Moore, in March, 1825, for the ditors, consideration of $225, to be paid at Christmas; and which was duly paid, and the bill of sale duly recorded. The sale took place at the house of James B. Moore, when the slave was delivered by putting his hands into the hands of the purchaser, who afterwards went home, leaving the slave in the possession of the vendor. About six weeks after the plaintiff took the boy home, but went backwards and forwards from the house of the purchaser and vendor, but was some time after, continually at the house of the purchaser. The defendant gave in evidence a mortgage of the boy, made after the sale to one Brittain, who forcibly took the boy, and retained him near twelve months, until J. B. Moore satisfied the debt, when the boy was returned, and again went into the possession of William Moore.
The counsel for the defendant requested the court to instruct the jury “that if they believed the possession did not accompany and follow the bill of sale from J. P. Moore to the plaintiff, William Moore, at the time of its execution, that then the said bill of sale was fraudulent in law, as against creditors ard subsequent purchasers.” But the court refused, and charged them, “ that if they believed that the consideration of the bill of sale was bona fide, and that it was duly recorded, it was good and valid in law, though the negro remained in possession of the vendor previous to that time."
The Court, Lipscomb, Ch. J., and Saffold, J., both gave opinions, and after referring to Hobb v. Bibb, supra ; Bissell v. Hopkins, 2 Cowen's Rep. 431., Barron v. Paxton, 5 Johns. Rep. 261., Dawes v. Cope, 5 Binney's Rep. 265., Brooks v. Powers, 15 Mass. Rep. 244., Howell v. Elliott, 1 Badger & Dev. Rep. 76., Clow v. Woods, 5 Serg. & Rawle's Rep. 275., held, that where the vendor remains in possession of personal property sold, it is not sufficient, as against creditors, that the consideration of the sale be bona fide, and the bill of sale recorded; it must appear that the sale was not made to
hinder or delay creditors; and whether it was made to hinder or delay creditors, is to be determined by the jury from all the circumstances.
9. GARTH's Ex’rs v. BARKSDALE. March T. 1816. 5 Munf.
Rep. 101. ; GAY v. MOSELY, 2 Munf. Rep. 543.; BEASLEY
v. OWEN, 3 Hen. & Munf. Rep. 449. Five years' Trespass brought by Barksdale against Garth, sheriff, for unpossession lawfully seizing two slaves. The plaintiff claimed the slaves, as
having been the original owner, and only having lent them to Barksunder a loan by pa- dale, who had married his daughter; the defendant undertook to rol agree
prove that the slaves had been in Barksdale's peaceable and unin
terrupted possession for five years from the time when they were loanee, first loaned him, and before the service of the execution. subject to his credit The court instructed the jury, that if the slaves loaned by the which can- plaintiff to Barksdale, had, before the expiration of the five years, not be de- been returned, by the consent of the lender and borrower, that vested by returning would interrupt the possession; and that even if the borrower, them after the expira- after five years' possession of the slaves, had surrendered the same tion of the
to the lender, the lender's right to the slaves became revested in him, so as that, in neither case could an execution, in behalf of a creditor against the borrower, which issued subsequent to the last return of the slaves into the borrower's possession, be levied on said slaves, although in the borrower's possession at the time of levying said execution, unless five years had again elapsed after the possession of said slaves was restored to the borrower. Verdict for plaintiff; and the defendants appealed.
Per Cur. The Court is of opinion, that the instruction of the superior court is erroneous in this, that the five years' possession of the negroes by Douglas Barksdale, if proved, vested a title in him, which enured in favor of his creditors, notwithstanding he might thereafter have returned the same to the plaintiff, from whom he had received them. Judgment reversed.
Judgment reversed. See Boyd et al. v. Stainback et al., 5 Munf. Rep. 305. Where the court declared, that a loan of slaves, though not declared by deed in writing, duly recorded, and therefore void as to creditors, (the loanee having continued in possession five years without such demand as would bar their right,) is nevertheless effectual between the parties and their representatives. If, therefore, the loanee die in possession, they are not to be considered as assets belonging to his estate, nor