#### AARON O. ASKEW *v.*HEUSTED REYNOLDS.

If, in answer to *Hie prima facie*evidence of fraud arising from the possession retained *by*a debtor after a conveyance of his slaves, his assignee produces proof tending to show that the debtor’s possession was *bona fide,*as his bailee or agent, the creditor may give in evidence to rebut such proof, the acts and declarations of the debtor showing that he claimed the slaves as his own after his conveyance.

Where a person alleging himself to be the agent of another, sold a note payable to his principal for the benefit of his principal, what he said to the purchaser at the time of the sale, as to the notes belonging to his principal, and his being merely an agent, is admissible evidence.

This was an action of trover, for two slaves, tried *368at Bertie, on the Fall Circuit, of 1834, before his Honor Judge Strange.

The plaintiff, in support of his title, proved, that the slaves once belonged to Holt Hotchkiss; that Hotchkiss, by a deed, bearing date the seventh day of October, 1828, conveyed them to Abram Hoadley; and that Hoadley subsequently conveyed them to him, the plaintiff. The defendant claimed title under a judgment and execution against Hotchkiss, and showed a judgment against him, obtained at May Term, 1829, of Bertie County Court, on which a *fi.fa.*issued, returnable to the ensuing August Term, which was in part satisfied,and another/i./a. issued from that term; upon which the slaves were taken and sold, and the defendant became the purchaser. The defendant then alleged, that the deed from Hotchkiss to Hoadley was fraudulent; and in support of the allegation, proved that Hotchkiss retained possession of the slaves, after the date of the deed, until June or July, 1829, when the sheriff went to levy the execution upon them. To rebut this testimony, the plaintiff offered evidence to account for the possession of Hotchkiss, which was left to the jury. The defendant then offered to prove, that subsequent to the deed from Hotchkiss, he, Hotchkiss, claimed the slaves as his own, and offered to mortgage them to secure a sum of' money, which he wished to borrow. This evidence was rejected by the Court. The plaintiff then, to show that Hotchkiss was indebted to Hoadley, proved that Hoadley was the holder of a note made payable to him by one Wilson: that Hotchkiss brought the note' to one Josiah Holley, a few months before the conveyance of the slaves was made to Hoadley, and sold it to him, saying, at the same time, that he claimed no interest in it himself, but was acting merely as the agent of Hoadley: that the note was payable to Hoadley, and without indorsement; and that Holley paid to Hotchkiss the value of the note. The declarations of Hotchkiss to Holley when the note was sold, were objected to as inadmissible evidence, but were received by the Court. The plaintiff had a verdict, and the defendant moved for a new trial, upon the ground, that the declarations of Hotchkiss subsequent to his deed *369to Hoadley, were improperly rejected, and that what he said to Holley, was improperly received. The motion for a new trial being refused, the defendant appealed.

*Badger,*for the defendant.

*Iredell, contra.*

Gaston, Judge.

— This was a controversy between a purchaser at execution sale, representing a judgment creditor, and a purchaser from an assignee of the debtor, whether the transfer of the debtor was fraudulent and void, as against the creditor. There are cases, in which the legal conclusion of fraud is inferred directly from certain acts, but there are many others, in which it cannot be inferred, without an inquiry into the purposes for which those acts were committed. It was once supposed, that when a debtor made an absolute transfer of chattels, and retained the possession, the intent to hinder and delay creditors appeared so conclusively upon the face of the transaction, that an inquiry into the actual intention of the parties, was unnecessary and unavailing. It was held, that in judgment of law, it was a fraud in the parties to pass the apparent title from the debtor, while he was permitted to have the use and enjoyment of the subject-matter of the pretended transfer. This doctrine has been so far overruled, as to allow explanations to be made to repel this inference of unlawful interest. But such a repugnance between the transfer and the possession, yet raises the presumption of a secret trust for the benefit of the grantor, which, while it admits, also requires an explanation, and which, unexplained, or not satisfactorily explained, establishes the fraud. The possession of the slaves, having in this case, been retained by the debtor, for eight or nine months after the execution of his bill of sale, was sufficient to impress upon the transaction the character of a fraudulent transfer, unless, from other facts and circumstances, another character could clearly be assigned to it. The plaintiff offered evidence, tending to remove the legal presumption, and to establish an actual *Iona fide*intention, which was properly submitted to the jury. The evidence is not set forth in the *case*made, but *370it must have tended to show, that the debtor retained the possession, as the agent or bailee of ■ the purchaser. The *nature*of that possession *then*became an important inquiry. Was it *in truth*a possession as the agent or the bailee of the purchaser, or *colourahhj*only as such, and actually as the beneficial temporary or permanent owner? If the first, the apparent repugnance between the title and the possesion might be explained, and honestly accounted for; but if the second, then such colourable possession was but part of the machinery of the fraud.

This court is of opinion that, upon this inquiry, the evidence offered by the defendant, and rejected below, was competent and proper. Generally the acts or declarations * 11 ^ of a grantor, after the conveyance made, are not to be receiyed to impeach his grant. The rights of the grantee ought not to be prejudiced by the conduct of one who at the time is a stranger to him and to the subject-matter of those rights. But the acts and declarations rejected in this case were those of the possessor of the property,— were connected with that possession, and formed a part of its attendant circumstances. They were collateral indications of the nature, extent, and purposes of that possession, They were to be admitted, not because of any credit due * “ to him by whom they were done or uttered, but because qualified and characterised, or tended to qualify and characterise, the very fact to be investigated. Their admissibility, and their effect when admitted, were very different questions. They seem to us to come within the principle which permits the declarations of a trader, at the time of leaving his place of residence, to be admitted as ^ A evidence of the purposes of his departure; and which, on a questi°n °f adverse possession, receives the acts and declarations of the occupant as indicative of the dominion claimed and exercised over the property. The very point before us occurred in the case of *Willies*v. *Farley,*14 Eng. C. L. Rep. 366, and was there determined in con-' fonnity with this opinion.

, . , , - , . . The exception taken by the defendant to the evidence rece've<^» >n relation to the sale of the note to Holley, and the circumstances accompanying it, is considered by the Court as unfounded.

*371For the first error assigned, the judgment is reversed, and a new trial ordered.

Judgment reversed. Per Curiam..