#### *Briscoe and Others v. Clarke.

November, 1822.

Deeds — Valuable Consideration — Fraudulent Intent-Effect, † — A deed may be fraudulent, if executed with a fraudulent intent, although founded upon a valuable consideration.

Same — Admission to Probate — Evidence—Witnesses.— Quaere, if a deed be re-acknowledged after its execution, and the record of probate merely states In general terms, that it was proved by the oaths of the subscribing witnesses, the witnesses to the acknowledgment can be received to prove that it was admitted to probate on their evidence, and not on the evidence of the witnesses to the original execution.

This was an action of detinue, brought in the superior court of law for Pittsylvania county, by Notley W. Briscoe, George Briscoe, and William Ware, against William Clarke, for two slaves, named Stephen and Milly._ Issue was joined on the plea of non detinet; and at the trial, the defendant filed two bills of exception. The first states, that the plaintiffs offered in evidence a deed from David Rice, and Charity, his wife, to the plaintiffs, as trustees, for the purposes therein mentioned, dated the 27th day of February, 1813; by which *84deed, the slaves mentioned in the declaration, are, among other things, conveyed. This deed was. re-acknowledged on the 21st of November, 1813, in the presence of three subscribing witnesses. The bill of exceptions further states, that the plaintiffs also offered in evidence, a. certificate of its admission to record, stating, that, on the 20th day of December, 1813, the deed above-mentioned, was proved “by the oath of one witness thereto subscribed;” that, on the 21st day of February, 1814, it was proved “by the oath of one other witness thereto subscribed;” and, that on the 16th day of May, 1814, it was further proved, “by the oath of one other witness subscribed thereto.” The plaintiffs further introduced the witnesses to the re-acknowledgment, to prove that the deed was admitted to record on the oaths of the witnesses to the re-acknowledgment. To the introduction of this evidence, the defendant objected, upon the ground, that it appears, from .the certificate aforesaid, that it was admitted *to_ record upon the oaths of the witnesses thereto subscribed, without stating that the re-acknowledgment was proved, or that it was admitted to> record upon the oaths of the witnesses whose names were subscribed to the said re-acknowledgment. Whereupon the court decided, that the said witnesses ought to be admitted to prove that the deed was recorded upon their testimony, and not upon that of the other witnesses, whose names are subscribed to the said deed.

The second bill of exceptions filed by the defendant, states, that he moved the court to instruct the jury that the trust deed before-mentioned, was void, as to creditors and subsequent purchasers; it not having been recorded within eight months from the date of the deed, although recorded within eight months from the time of the re-acknowledgment. But, this motion was overruled, and the instruction was not given; and the jury_ were _ instructed that the recording within eight months from the re-acknowledgment, was a sufficient recording, within the meaning of the act of assembly.

The jury rendered a verdict for the defendant; which, upon motion of the plaintiff, was set aside, and a new trial awarded. To this opinion, the defendant filed a bill of exceptions, setting forth all the evidence in the cause, which was, in substance, as follows: on the part of the plaintiff, 1. The indenture before-mentioned. It was dated on the 27th day of February, 1813, re-acknowledged on the 21st day of November, 1813, and recorded on the 16th day of May, 1814. It conveyed the entire property of the granto'r, _ even down to his geese. It reserved a life estate to the grantor and his wife, and the creditors were postponed until their deaths. 2 It was admitted, that David Rice, the grantor, had been the administrator of the estate of John Briscoe, deceased, and guardian of his children, and one George Adams had become his surety; who, being dissatisfied, moved the court for counter-security; in consequence of which, William Ware became his ^surety. 3. The administration accounts of the said David Rice, shewing a considerable balance due to' the estate of his intestate. 4. It was admitted, that the defendant was in possession of the slaves in the declaration mentioned, being two of the slaves conveyed by the deed of trust, and which he purchased under an execution which issued in favor of Henry Perkins. 5. The execution of the said Perkins, dated the 22d day of November, 1813; and levied on the 5th of December, of the same year. 6. It was admitted, that George Briscoe and Notley W. Briscoe are two of the heirs and distributees of John Briscoe, deceased, and two of the wards of the said David Rice; and that the sale of the slaves, under the execution aforesaid, was-forbid. On the part of the defendant, 1. A writ of capias ad respondendum sued out by Henry Perkins, dated the 22d day of December, 1812, and a copy of the judgment thereupon, dated the 19th day of November, 1813. 2. It was admitted, that the said deed of trust comprehended all the personal property of which the said David Ri.ce was possessed.

On the second trial, the same evidence was offered by the plaintiffs, to prove that the deed aforesaid was recorded on the testimony of the witnesses to the re-acknowledgment, and not on that of the witnesses to the original execution. (See the 1st bill of exceptions.) But the court decided, that the evidence was inadmissible, because it would contradict the record. To this opinion of the court, the plaintiffs excepted.

The defendant moved the court to instruct the jury, that this action could not be maintained during the life of Mrs. Rice, the wife of David Rice, the grantor; which instruction was accordingly given, and the plaintiffs excepted to the opinion of the court.

The jury rendered a verdict for the defendant, and the plaintiffs appealed to this court.

*W. Hay, jr. for rhe appellants,

relied upon the following points: I. That the court below properly awarded a' new trial. The evidence to impeach the deed, was wholly documentary; and *85whether it was fraudulent or not, was a question of law, which the court correctly decided in favor of the appellants.

It was executed upon a valuable consideration, and before any lien had attached in favor of any creditor.

A deed may be fraudulent, notwithstanding it is supported by such a consideration; but, where there is no positive proof of a fraudulent intention, and it is to be inferred from circumstances alone, the evidence to impeach it, must be very strong. In Estwick v. Cailland,(a) it was determined, that a conveyance of chattels, by which an interest was reserved to the bargainor, was not fraudulent, which was a much stronger case than the present.

II. Upon the new trial, the court erred in both instructions to the jury.

1. The evidence of the witnesses to the re-acknowledgment, ought to have been received, to shew that the deed was recorded upon their testimony. It has been repeatedly decided, (and very recently, in the case of Beverley v. Ellis & Allan,) (b) that the admission of a deed to record, is ■a mere ministerial act, and that where the person offering it complies with the law, he shall not be prejudiced by any misprision of the clerk. The evidence also, in this case, was perfectly consistent with the certificate of the clerk, which does not state by which set of witnesses the deed was proved; and an averment, which stands with the record, may be received.(c) And, if the evidence had even contradicted the certificate, it was admissible upon the authority of Jackson v. Ingraham, (d) which was a similar case.

2. The legal interest in the property was, by the deed, vested in the appellants, notwithstanding that a right to *the profits was reserved to the grantor and his wife, during their lives. The deed certainly gvies them some interest; and it can only be the legal interest, because the beneficial interest is in the cestui que trusts. The doctrine of uses executed, is not applicable to conveyances of chattels, (e)

Wickham, for the appellee,

contended, ,1. That the court erred in granting a new trial. The question was, whether the deed was fraudulent or not. The statute of frauds avoids all gifts or grants, fraudulently made, with intent to delay, hinder or defraud creditors, (f) This fraudulent intent, is a matter of fact, to be found by the jury, in cases at common law, and not to be inferred by the court. The only exception to this rule is, that of cases fraudulent per se, as that of the vendor’s retaining possession of the property sold. The jury, upon the first trial of the issue in this case, necessarily found the conveyance to have been made with fraudulent intent, to delay, &c. the creditors of the grantor, by finding a general verdict for the defendant; and, unless such finding was clearly against evidence, it was not competent to the court to sec it aside. In this case, there was abundant evidence of the fraudulent intent; or, at least, the finding of the jury to that effect, cannot be said to'be manifestly wrong. The features of fraud are too palpable to be mistaken. The deed wms made very shortly after the institution of the suit in which the execution issued, under which the slaves in question were sold to the defendant. It was not recorded before the judgment was rendered. It was re-acknowledged two days after the judgment was rendered. It conveyed the entire property of the grantor, even to his geese; an article of property which no creditor, merely seeking to secure a debt, would have taken a lien upon, to take effect after the lives of two persons. It reserved *a life estate in the whole property, to the grantor and his wife; and the creditors provided for in the deed, and the surety to be indemnified, were in no event to have the benefit of the deed during the lives of the tenants for life; a provision wholly unnecessary, and indeed, repugnant to the professed object of securing their creditors and indemnifying the surety. This clause could have been inserted for no other object, than to hinder and delay their other creditors. All these circumstances, connected as they are in- the same transaction, are striking badges of fraud. A deed made upon a valuable consideration, but with an intent to defraud creditors, is void as to such _ creditors. The consequence is, that the judgment on the last verdict being such as ought to have given on the first, is right, and ought to be affirmed.

2. The trustees had no estate, legal or equitable, in the property conveyed, and therefore were not competent to maintain an action. By the deed, Rice and his wife were to have the full and free use of the property, during their lives; and the trustees had no control over it during that period. Their powers were entirely dormant until the expiration of the life estate: If the subject had been real estate, it would have been an use executed by the statute. But no statute was necessary, to execute an use of personal estate, as the doctrine of uses never did apply to that species of property. The complete separation of the legal estate from the equitable, in which the former is a mere ideal existence, without power or interest, was an attribute of real estate before the statute of uses, but never belonged, at any time, to personal estate.

3. The opinion of the court, admitting parol evidence of the re-acknowledgment, was erroneous.

W. Hay, jun. replied.

†

Deeds — Valuable Consideration — Fraudulent Intent— Effect. — If a conveyance be actually fraudulent and the intent concurred in by the grantee as well as the grantor, it will be void as to the creditors of the grantor, however valuable may have been the consideration paid by, or secured to, the grantee, or beneficiary. Harden v. Wagner, 22 W. Va. 365, citing the principal case: Garland v. Rives, 4 Rand. 282, and Goshorn v. Snodgrass, 17 W. Va. 717, as authority.

And, in Livesay v. Beard, 22 W. Va. 593, it is said: “Although a deed be made for a valuable and adequate consideration, yet if the intent with which the grantor made be fraudulent, the deed will be void, if the grantee had notice of such intent. Lockhard v. Beckley, 10 W. Va. 87; Hunter v. Hunter, 10 W. Va. 321; Rose v. Brown, 11 W. Va. 134; Martin v. Rexroad, 15 W. Va. 512; Goshorn v. Snodgrass, 17 W. Va. 717; Harden v. Wagner, 22 W. Va. 365; Claflin v. Foley, 22 W. Va. 434; Hudgins v. Kemp, 20 How. 45; Wright v. Hencock, 3 Munf. 521; Briscoe v. Clark, 1 Rand. 213: Spence v. Bagwell, 6 Gratt. 444.” See monographic *note*on “Hraudulent and Voluntary Conveyances” appended to Cochran V. Paris, 11 Gratt. 348.

Appellate Practice — Two Trials — Rule of Decision When First Verdict Set Aside. — It is well settled that when a case is tried and a verdict is rendered, which is set aside by the court, and a new trial is granted, and on the second trial the verdict is for the other party, and judgment is rendered thereon, to which a writ of error is obtained, the appellate court will look to the proceedings on both trials, and if the court below erred in setting aside the first verdict, the appellate court without considering the subsequent proceedings in the case will reverse the judgment and enter final judgment on the first verdict. Johnson v. McClung, 26 W. Va. 661, citing principal case as authority. And in Tyler v. Taylor, 21 Gratt. 702, the principal case was cited to sustain the proposition that where there *84have been two trials in tie lower court, the appellate court will look to the record of the proceedings in both trials, and if the lower court erred in setting aside the verdict of the jury, that is an error for which the appellate court, without considering the subsequent proceedings in the case, will reverse th'e judgment rendered upon the second trial and enter final judgment upon the verdict of the jury at the first trial. To the same effect, the principal case is cited in Jones v. Old Dominion Cotton Mills, 82 Va. 149, 151, 154. See also, Pollard’s Supp. 1898, § 3484; monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

Same — Granting or Refusing New Trials — Review.— As an appellate court will review an order of an inferior court overruling a motion for a new trial, and reverse the proceedings of a new trial improperly refused, so it will review an order granting a new trial and reverse proceedings if improperly granted. Pleasants v. Clements. 2 Leigh 481, citing principal case as authority for the proposition. It is well settled in Virginia and West Virginia that the court of appeals may review the action of a lower court in either granting or refusing a new trial in a common law suit. Tompkins v. Stephens, 10 W. Va. 167, citing principal case.

See further, monographic *note*on ‘Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

(a)

 5 T. E. 480.

(b)

*Ante,*p. *102.*

(c)

 Trials per pals. 588.

(d)

 4 Johnson's Eep. 161.

(e)

 Haslinton v. Gill, 3 T. R. 620, n.; Scott, &c. v. Lorraine, 6 M. 177.

(f)

 Eev. Code, p, 15.

JUDGE BROOKE

November 27. delivered the opinion of the court.

*The court is of opinion, that on the matter stated in the third bill of exceptions, the superior court erred in setting aside the verdict, and granting a. new trial. Without noticing any other objection, the court affirms the judgment.