#### *Ira Arnold, adm'r. of Robert Brownlee,*vs. *George Mattison.*

If an instrument absolute on its face, can be converted, by parol, into a defeasible instrument, except where the omission to reduce the defeasance to writing was occasioned by fraud or mistake, the evidence must be very clear and convincing; and where the allegations of the bill are denied by the answer, there must be more than the testimony of one witness.

Where a grantor executes an absolute conveyance of his property to protect it against the claim of his creditor, reserving, by secret agreement, an interest in himself, neither he, nor his administrator, can come into Court to be relieved of the fraud.

*Before*JohnstoN, Ch., *at Abbeville, June,*1850.

The following is the decree of his Honor, the Circuit Chancellor :

JohnstoN, Ch. This is a bill for the surrender of certain slaves conveyed to the defendant by Robert Brownlee, the intestate of the plaintiff, by an instrument purporting upon its face to be an absolute bill of sale. It is alleged to have been intended as a mortgage ; and proof was introduced of a parol stipulation, that it was to become defeasible by the re-payment of the money within seven years from its date.

I deem it sufficient to remark, that if an instrument, absolute on its face, can be converted, by parol, into a defeasible instrument, except where the omission to reduce the defeasance to writing was occasioned by fraud or mistake, the evidence must be very clear and convincing ; and where, as in this case, the allegations of the bill are denied by the answer, there must be more than the testimony of one witness. (4 Kent, 143 ; part 6, sec. 58.) Neither of these conditions is fulfilled in this case. There is no circumstance in the case tending to show, that if this was a *bona fide*transaction, as between the parties, any defeasible conveyance, or anything else than an absolute conveyance, .was or could have been contemplated.

The defendant Mattison, already held the oldest lien in his judgment, for the money already due him ; and the advances which he was to make on Brownlee’s account, (which, together *154with what was already due him, were the consideration of the conveyance,) were to be paid on another judgment. These gave him all the lien he needed. Why, then, under the circumstances, convert the general lien of the judgments into the specific lien of a mortgage *1*What motive could there be for such a procedure ? And, if no motive for a lien could exist, is not the inference natural and irresistible, that an absolute conveyance was designed ? I can draw no other conclusion, if the transaction was not fraudulent. If fraudulent, however, the plaintiff is not entitled to a decree.

There are only two conceivable modes in which fraud could have entered into the transaction:

1. It may have been intended to convey the property to Mat-tison, as a cover against the debt of Robertson, drawing nigh to judgment, as testified by George W. Brownlee, coupled with a secret agreement, reserving an interest in Robert Brownlee, the grantor. With this view, several circumstances in the case may harmonize. But if this was the nature of the transaction, neither Robert Brownlee, who was *particeps criminis,*nor his administrator, who stands in his shoes, can come to be relieved of his own fraud. It would be an encouragement to fraud, to allow a party to it to stand in the same condition of safety as if no fraud were intended, and in an equal condition, whether his fraud were successful or not. Equity will execute no corrupt agreement, but leave the parties in the condition they have prepared for themselves.

2. If, however, the fraud was of another character; if Matti-son imposed an absolute bill of sale on Brownlee, who supposed it contained a defeasance — this is not the case made by the bill— and, therefore, no decree can be given on the evidence. But, as I have said, it is altogether improbable that these parties could have stipulated for a defeasible instrument with any other view than to defraud third persons, and upon that, I have stated my conclusions.

It is ordered that the bill be dismissed.

*155The complainant appealed, on the following grounds :

1. Because the circumstances inherent in the transaction, and the other evidence of the case, were sufficient to establish the fact, that the bill of sale in question was executed subject to a defeasance, to become void on the payment of defendant’s judgment, and the amount paid by him on a judgment in favor of S. L. Maddox against the complainant’s intestate, and Geo. W. Brownlee, and was intended by the parties as a mortgage only.

2. Because it is respectfully submitted, that it was not necessary to allege in the bill that the defeasance was omitted by fraud or mistake, but that the general allegation, that it was agreed that the bill of sale should only operate as a mortgage or pledge, was sufficient to entitle the complainant to the benefit of evidence showing either fraud or mistake.

3. Because, even if the bill of sale was executed upon a corrupt agreement to defraud creditors, it is respectfully submitted that the defendant could not avail himself of his own tort, in taking possession of the slaves after Robert Brownlee’s death, who died seized of them, and the Court should not have protected him in such tortious possession.

4. Because the decree is in other respects contrary to the evidence and equity of the case.

Sullivan, for appellant.

*Perrin*& *McGowen,*contra.

*Per Curiam.*

This Court concurs in the decree of the Chancellor ; and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin and DaRgan, CC., concurring.

*Decree affirmed.*