execution. Rhodes v. Cousins, 6 Rand. 188; Mohawk Bank v. Atwater, 2 Paige, 54; Coleman v. Cocke, 6 Rand. 618.

A creditor at large not having obtained judgment or decree against his debtor, cannot resort to equity to set aside a fraudulent conveyance of his debtor, though interference of the court be also prayed to prevent a sale or removal of the subject, and though the subject be equitable estate not liable to execution. Tate v. Ligget &c. 2 Leigh, 84, 99, 100; Kelso v. Blackburn, 3 Leigh, 299.

Several judgment creditors may unite in a bill of discovery, and to remove impediments at law, created by the fraud of their common debtor. Bailey v. Burton et al. 8 Wend. 339; Brinkerhoof v. Brown, 6 Johns. Ch. R. 139.

A bill in chancery may be filed to remove a fraudulent or inequitable obstruction or embarrassment to the satisfaction of a judgment by execution, but the bill must distinctly and specifically allege that there is real estate which is subject to the judgment, or personal property liable to the execution. M'Elwain v. Willis et al. 9 Wend. 548, (in err.)

A judgment creditor, who has exhausted his remedy at law, may file a bill in chancery to obtain satisfaction out of the equitable interest of the debtor, for his own benefit only, without making other creditors standing in the same situation, parties. Where a bill is filed by a creditor to carry into effect an assignment of debtor's property, the other creditors provided for in the assignment should be made parties, or the bill should be filed in behalf of the complainant, and all others who may choose to come in under the decree. But where a judgment creditor is acting in hostility to the assignment, it is not necessary for him to make the creditors whose claims are provided for in the assignment parties. Wakeman v. Grover et al. 4 Paige, 23; 11 Wend. 187.

A valuable consideration will not protect a deed, executed with a fraudulent intent, to delay, hinder or defraud creditors. Briscoe et al. v. Clarke, 1 Randolph, 213.

(4) Where a debtor makes a fraudulent conveyance of his property, to protect it from his creditors; the fraudulent grantee may enforce such conveyance in a court of law, the conveyance being effectual against the debtor, who will not be permitted to defeat it on account of the fraud. Starke's

ex'rs v. Littlepage, 4 Rand. 368; Hawes v. Leader, Cro. Jac. 270, 5th pt.; Osborne v. Moss, 7 Johns. R. 161; Reichard v. Castor et al. 5 Binney, 109; Jackson v. Guernsey, 16 Johns. R. 189; Roberts v. Roberts, 1 Taunt. 143. See remarks of Brockenbrough and Carr, J.'s in case of Jones's adm'r v. Comers's ex'r, 5 Leigh, 353, 357, and Starke's ex'r v. Littlepage, 4 Rand, 375. See Talford v. Adams, 6 Watts, 429; Stewart v. Kearney, 6 Watts, 453.

A party who, to hinder and delay his creditors, fraudulently conveys his property to another, cannot, except under peculiar circumstances, maintain a bill to rescind the contract. The grantor and grantee being in general in pari delicto neither is entitled to come into equity. James v. Bird's adm'r, 8 Leigh, 510.

(2) Chamberlayne et al. v. Temple, 2 Rand. 394, 395; Osborne v. Moss, 7 Johns. R. 161. See Haden v. Spader, (in error,) 20 Johns. R. 554; Mackie et al. v. Cairns et al. 1 Hopk. Ch. R. 373; 5 Cowen, 547; Bailey v. Burton et al. 8 Wend. 339. See Jackson ex dem. Hooker v. Mather, 7 Cowen, 301; Coleman v. Cocke, 6 Rand. 618; Jackson v. Peck, 4 Wend. 300; Jackson ex dem. Bigelow v. Timmerman, 7 Wend. 436; Chambers v. Spencer, 5 Watts, 494.

A debtor conveys the whole of his property to trustees, with the exception of $350 out of debts due him, which he reserves to his individual use and disposition for the purpose of paying some smaller debts, on trust to sell the same and out of the nett proceeds to pay, in the first place, certain creditors, and then disburse the residue, in paying pro rata all the just debts due from him to any other creditors who should, within four months, release the debtor from farther claim: Held, notwithstanding the release clause and the reservation, the deed is valid, and those embraced by its terms, will have the benefit of the property, in preference to a just creditor. But said creditor has a right to an account of the trust fund, and to the payment of his debt out of the surplus, if any, after satisfying the preferred creditors and those who acceded to the composition. Skipwith's ex'r v. Cunningham et al. 8 Leigh, 271.

The statute to prevent fraudulent conveyances, applies to no conveyance made bona fide, for valuable consideration, and does not prevent a debtor, in failing circumstances, preferring one class of creditors to another. Ibid. See Wakeman v. Grover et al. 4 Paige,

23; 11 Wend. 187, and J. Southerland's opinion, in which the cases, involving the validity of the release clause, are reviewed p. 197-200, 11 Wend.

A large majority of the court of errors, (including all the judges of the supreme court,) 15 to 5, affirmed the judgment of the chancellor, holding that the assignment is void, because it makes the preference given to assignors in class No. 2 of deed, to depend on the condition, that the preferred creditors shall give the assignors an absolute discharge of their debts. Dec. T. 1833. See post. tit. EXECUTIONS, No. 9, note (j). (c) This act does not comprehend absolute bills of sale, among those where the title may be separated from the possession, and yet the conveyance be a valid one if recorded within eight months. Hamilton v. Russel, 1 Cranch, 316; Alexander V. Deneale, 2 Munf. 341; and 5 Munf. 28; Ben et al. v. Peete, 2 Rand. 543.

An absolute conveyance of personal property, the possession of which remains with the vendor, is fraudulent, per se, as to creditors. Edwards v. Harben, 2 T. R. 587; Hamilton v. Russel, 1 Cranch, 310; Fitzhugh v. Anderson, 2 H. & M. 303; Alexander v. Deneale, 2 Munf. 341; as well as to subsequent purchasers. Robertson v. Ewell, 3 Munf. 1; Williamson v. Farley, 1 Gil. R. 15; Glasscock et al. v. Batton, 6 Rand. 78.

It seems, that in the case of an absolute sale and delivery of chattels, and an immediate re-delivery thereof by vendee to vendor, on bailment, for a limited time, on valuable consideration, both transactions being in fact fair, such bailment of vendee to vendor is not inconsistent with the sale, so as to make the sale fraudulent per se, within the rule of Edwards v. Harben, 2 T. R. 587; Sydnor v. Gee, shff., &c. 4 Leigh, 535. But such conveyance is good between the parties and their representatives. Thomas v. Soper, 5 Munf. 28; Steel v. Brown et al. 1 Taunt. 381.

See farther on this subject, Kidd v. Rawlingson, 2 B. & P. 59; Watkins v. Birch et al. 4 Taunt. 823; Leonard v. Baker, 1 Mau. & Selw. 251; Reed v. Blades et al. 5 Taunt. 212; Benton v. Thornhill, 7 Taunt. 149; Latimer v. Batson, 4 Barn. & Cress. 652; Eastwood v. Brown, B. & M. 312; Sturtevant v. Ballard, 9 Johns. R. 337; Meeker et al. v. Wilson, 1 Gallison, 419, 422; Clow et al. v. Woods, 5 Serg. and Raw. 275; Brooks v. Powers, 15 Mass. R. 244; Bartlett v. Williams, 1 Pick. 288; Badlam v. Tucker et al. Ib. 389; Armstrong et al. v. Baldock, 1 Gow. 33; Bissell v. Hopkins, 3 Cowen, 166; see Lang v. Lee et al. 3 Rand. 410; Babb v. Clemson, 10 Serg. & Raw. 419.

Where the grantor of personal property remains in possession after an absolute conveyance, such conveyance will be deemed prima facie fraudulent. Such possession is not conclusive evidence of fraud, but is open to explanation. Therefore it was decided, that where a woman, about to be married, makes a conveyance of her personal property to a third person, with the privity and approbation of her intended husband, and the marriage takes place a few minutes after the conveyance, and the husband takes possession of the property after the marriage; the property thus conveyed will not be subject to the husband's creditors, as his possession after marriage was not that of his wife, (she not being sui juris,) and her short possession between the time of the convey. ance and that of the marriage, not being sufficient, or of a nature to render the deed utice fraudulent. Land v. Jeffries & al. 5 Rand. 211; and see Claytor v. Anthony, 6 Rand. 293-7, 301-4, 315; Jennings v. Carter, 2 Wend. 446; Shields, adm'r v. Anderson, adm'r, 3 Leigh, 729; Hall v. Tuttle, 8 Wend. 376.

In this case, decided by S. C. N. Y. Jan. 1832, it was held that possession by a vendor of personal property, after a transfer by bill of sale or assignment, tho' the conveyance be absolute in its terms, or possession by a mortgagor after forfeiture, is only prima facie evidence of fraud, and not conclusive; the possession may be explained, and if the transaction be shewn to have been on sufficient consideration, and bona fide, that is, without any intent to delay, hinder or defraud creditors or others, the conveyance is valid.

But if unexplained by the vendor, the possession is prima facie fraudulent against a subsequent judgm't creditor of the vendor. Collins v. Brush, 9 Wend. 189.

Continuance in possession of goods and chattels by a vendor, after the execution of a bill of sale, is a badge and evidence of fraud, as against creditors, but it does not, ut semble, constitute fraud. Martindale et al. v. Booth et al. 3 Barn. & Adolp. 498, 23 C. L. R. 130.

An absolute bill of sale of slaves is executed by B. to C. for valuable consideration, and they are delivered by V. to the vendee; and then vendee hires the slaves to vendor, for their victuals and clothes, taxes and levies, till the end of the ensuing year; the sale and the hiring are both bona fide transactions; at the end of the year, vendee takes possession of the slaves, holds them for several years, and then dies; a creditor of vendor recovers judgment against him, after vendee has taken possession of the

4. Gat.

possession. Under the true construction of this act, the lapse of five years possession, as aforesaid, was intended to shut up and conclude all enquiries as to such notice, and to avoid the perjuries arising therefrom, in relation to controversies between persons claiming the property loaned as aforesaid under the lender, and the creditors of, and purchasers under, the persons so remaining in possession. Gay v. Moseley, 2 Munf. 543, 546.

Five years adverse possession of a slave, gives a good title on which trespass may be maintained. Brent v. Chapman, 5 Cran. 358. Five years peaceable and uninterrupted possession of slaves, under a loan not evidenced by conveyance duly recorded, vests a title in the loanee, which enures in favour of his creditors, notwithstanding he might thereafter have returned the same to the lender. Garth's ex'rs v. Barksdale, 5 Munf. 101.

If the owner of a slave permit her to remain in the possession of A. for four years, and A. then, without the assent of the owner, delivers her to B., who keeps her four years more, the possession of B. cannot be so connected with that of A. as to make it a fraudulent loan within this act. Auld v. Norwood, 5 Cran. 361.

After a loan to a person with whom, or with those claiming under him, possession has remained five years, a deed is made by the lender, declaring the original loan, and continuing it, which deed is never admitted to record: Held, the deed cannot affect a creditor of the person in possession, and is no evidence against him. Where possession, &c. See Pate v. Baker et al. 8 Leigh, 80.

See ante, tit. CONV. and LOANS. No. 1, note (c).

(3) A deed of gift duly recorded is valid, tho' the donor retain the possession of the property. See Green, J. in Chamberlayne v. Temple, 2 Rand. 399; and post. title SLAVES, &c. No. 37, (32.)

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 this act. Anterior to the Rev. 1819, [see tit. Conv. No. 18,] such deed could not be recorded in a corporation court. Davis v. Payne's adm'r, 4 Rand. 332.

(e) A demand of slaves by the lender, who thereupon receives, and immediately re-delivers them to the loanee, to be held on the same terms as before such demand, the repossession and re-delivery being in private, or only in the presence of relations; is not such a demand thereof by the lender, as is contemplated by this act, in order to bar the rights of creditors. Boyd et al. v. Stainback et al. 5 Munf. 305-7.

(f) A loan not evidenced according to this act, and therefore, after the lapse of five years, void as to the creditors and purchasers of, and from, the loanee is nevertheless effectual between the parties and their representatives. If, therefore, the loanee die in possession of the subject of the loan, it is not to be considered assets, of said loanee, nor can it be recovered as such, being only liable to creditors, so far as their debts remain unsatisfied by the assets in the hands of his executor or administrator. To that extent a court of equity will give the creditors relief against the lender and the executor or administrator of the loanee; subjecting the assets, in the first place; and then, the lender, if he choose to pay the balance; and on his refusal, the property itself. Boyd et al. v. Stainback et al. 5 Munf. 305, 7.

(g) The making and recording the conveyance, need not be coeral with the date of the loan. If it is recorded at any time within five years of the date of the loan, the title of the lender and those claiming under him, will be protected against the creditors of the loanee. Beasley v. Owen, 3 H. & M. 449, 458-9.