#### *Davis v. Payne’s Administrator.

June, 1826.

Distress — What Liable — Property of Third Person.†— The property of a third person never was liable to distress, unless it were found upon the premises ; and even where it is found there, the distress is taken away by the Act of 1818, 1 Rev. Code, ch. 113, sec. 15.

Voluntary Conveyance — Personalty—When Valid.‡— A voluntary conveyance of personal property, by a party not indebted at the time, is good against subsequent creditors, if the deed be duly recorded, or the possession remain solely and bona fide with the donee. Otherwise, it is void by the Statute of Frauds.

Same-Same — Recordation.—Such a deed cannot be recorded in a Corporation Court.

Distress — Redress for — Equity Jurisdiction. — Even if the landlord should distrain property as being fraudulently removed from the premises, and should not shew that it was so fraudulently removed, nor that the distress was levied within the time allowed by law. nor that the property ever was on the demised premises, the tenant ought not to seek his redress in a Court of equity, but by damages at law.

This was an appeal from the Richmond Chancery Court, where Robert C. Davis, and James M. Davis, infant children of Isaac Davis, by Joseph Butler, their next friend, filed their bill, setting forth the following case: that their father Isaac Davis, became the tenant of a house and lot in the City of Richmond, which was held by Samuel Payne, in right of his wife, who had been the widow of Adam Craig, deceased, and who held the said property in right of dower: that the said Isaac Davis finding the said lot to be extremely unhealthy removed from it; and the said Payne claimed of him rent to the amount of S225, and levied a distress on a slave called Jenny Pin, the property of the complainants, to satisfy the said rent: that the officer has advertised the said slave to be sold in a few days, and the said Isaac Davis, from his embarrassed circumstances, is unable to give security in order to contest the claim of the said Payne, although he conceives that nothing is due on account of the rent; while the complainants, by reason of their non-age, cannot avail themselves of the benefit of the Act of Assembly, which would authorise others to interplead, because they would be unable to give the bond required by law in such cases: that the said slave is the property of the complainants, and not of their father: *’that she did not reside on the said lot, and of course not a proper subject of distress for rent due for it, &c. They therefore call upon Payne to answer the premises, and pray the Court to injoin the sale aforesaid, &c.

The injunction was awarded until the further order of the Court.

The plaintiffs exhibited with their bill, the copy of a deed, dated the 22d day of June, 1816, between Isaac Davis and Robert C. and James M. Davis, his infant children, by which Isaac Davis, in consideration of the natural love and affection he bears for his said sons, and of five dollars to him in hand paid, gives and grants to them seven slaves, among whom is the girl in question, Jenny Pin. This deed was recorded in the office of the Court of Hustings of the City of Richmond, on the 25th day of June, 1816.

Samuel Payne demurred to the bill, on the ground that the remedj' at law was complete, by action of replevin. He also answered, affirming that the rent for which the distress was made, was actually due: that the slave in question had been covertly removed from the premises, and he authorised her seizure wherever found, under the Act of Assembljr: that she had been generally on the leased tenement, and was part of the household of the said Isaac, and seldom if ever hired out: that he denies that the said slave is the property of the complainants, and if any conveyance exists, it is fraudulent and void, made for the purpose of covering the property of the said Isaac Davis, and defeating his just creditors, &c.

Depositions were filed by both parties, touching the fraudulent nature of the conveyance, and the residence of the slave in question on the rented lot; but there is no proof that Isaac Davis was indebted at the time of his conveyance to his sons.

The suit abated by the death of the defendant, and was revived in the name of his administrator.

On the hearing, the Chancellor dissolved the injunction, and dismissed the bill. The plaintiff's appealed.

*Nicholas, for the appellants.

Bacchus, for the appellee.

*

The President and Judge Cabell, absent.

†

See monographic *note*on “Landlord and Tenant” appended to Mason v. Moyers. 2 Rob. 606.

‡

See monographic *note*on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.

The principal case is cited in Southerlin v. March, Price & Co., 75 Va. 236.

*

The President and Judge Cabell absent.

June 5.

JUDGE GREEN.

In this case, the property was distrained, not on the demised premises, but as the property of the tenant fraudulently removed from them. The property of a third person never was liable to distress, unless it were found upon the premises. Therefore, *136the Act of 1818, 1 Rev. Code, ch. 113, § 15, exempting the property of strangers found upon the premises, from distress, provided the party asserted his title by replevin, has no application to this case. If the property in question belonged to the tenant, it was liable to distress; if not, it was not liable even before the Act of 1816.

A voluntary conveyance by a party not indebted at the time, is good against subsequent creditors, if the deed be duly recorded, or the possession remain really and bona fide with the donee; otherwise, it is void under our Statute of Frauds. In this case, it is neither alleged nor proved that Isaac Davis was at all indebted, when he made the deed in question- to his children ; and the only enquiry, in order to determine whether it is valid or void as against Payne, is whether it was duly recorded or not.

The Act to prevent frauds and perjuries, passed in 1785, 12 Stat. at Earge, 160, declared all convej'ances, not on consideration deemed valuable in law, to be fraudulent within that Act, unless the same be by will duly proved and recorded, or by deed in writing, acknowledged or proved, if the same deed include lands also, in such manner as conveyances of lands are directed by law to be acknowledged or proved; or if it be of goods and chattels only, then acknowledged or proved by two witnesses in the General Court, or the Court of the county wherein one of the parties lives, within eight months after the execution ^thereof, or unless possession shall really and bona fide remain with the donee.

The Act of 1792, regulating conveyances, authorised the conveyances therein mentioned to be recorded in the General Court, District Courts, or County or Corporation Courts. That Act does not embrace the case of absolute deeds of personal property, nor any description of conveyances of personal property, except marriage settlements and deeds of trust and mortgages.

The Act of 1813-14, directed that all deeds relating to personal property, should be recorded only in the Court of the county where the property was. This Act, whilst it took away the jurisdiction of the General and Superior Courts, to admit to record deeds of personal property, and even that of the Corporation Courts, in respect to the description of conveyances allowed to be recorded in them by the Act of 1792, cannot, by any possible construction, be considered as enlarging the provisions' of the Statute of Frauds, so as to authorise an absolute deed of personal property to be recorded in a Corporation Court. There never was a time until the last Revisal, when such a deed could be recorded in a Corporation Court. The deed, therefore, under which the appellants claim, being upon its face voluntary, and not recorded as the law required, and possession not having accompanied it, is void as to creditors under the Statute of Erauds.

It is insisted, that although it appears that Payne was a creditor, and had a right to distrain the property of the tenant fraudulently removed from the premises, within the time limited by law, yet it does not appear, that the property was so fraudulently removed, or that it had been on the premises, or that the distress was levied within the time allowed by law; and that the appellants are entitled to the protection of the Court, unless it appears, that Payne was a creditor legally entitled to distrain the property as he did.

*1 do not think that these considerations, ought to have any weight in a Court of Equity. Payne was a creditor, and had a just right to satisfaction out of the property in question, and could have subjected it at law, if not by distress, by judgment and execution. If he has proceeded illegally, he is responsible for damages at law, at the discretion of a jury, according to the circumstances as they may appear before them. As against Payne, the appellants have no equity.

The objection, that Mrs. Payne was dead before the distress was levied, need not be examined, as the fact does not appear in the record.

JUDGES CARR . and COAETER concurred, and the decree was affirmed.*