#### Timothy Walton v. Whitmel Stallings.

When the plaintiff prays proper instruction as to the title of the defendant, which are refused, a now trial will he granted, although if the defendant had prayed proper instruction as to the title of the plaintiff, the judgment would have been correct.

The case of Gregory v. Perkins, (ante p. 50,) approved.

Detinue for a female slave and her child, tried before Norwood, Judge, at Gates, on the last Spring Circuit.

Pie a — non detinet.

The plaintiff claimed title under one Elisha Walton by a purchase made in consideration of the sum of. $250, which was evidenced by a bill of sale, dated in February, 1832.

The defendant claimed under the same person, and it appeared that Elisha Walton had purchased the slaves of him at public sale, and to secure the purchase money, *57 {$ 304,) had executed a bond with one Baker, as his surety — that Baker being doubtful of Elisha Walton’s solvency, applied to the defendant to take some steps to compel th e payment of tlie bond, and that in September 1831, when there wás abalance of $204 due on the bond the defendant took an absolute bill of sale for the slaves, reciting that sum as the purchase money, and. surrendered up the bond to which Baker was surety. At this time the slaves were worth 325 dollars.

The bill of sale to the defendant was not registered until more than a year after its date. The slaves were permitted both by the plaintiff and defendant to remain in Elisha Walton’s possession for some time after their respective purchases — but the defendant produced a note of his for three dollars, and proved that it was given to . secure the hire of the slaves from the time of the sale to him, until the ensuing Christmas.

For the plaintiff it was insisted that as the bill of sale to the defendant was not registered until more than a year after its date, it was void as to him. Also, that if from the evidence the jury should infer that the bill of sale to the defendant was taken as a mere security for the debt §§204, it was void because not registered within six months. And further that if there was a parol agreement between Elisha Walton and the defendant, that the negroes should be surrendered upon the payment of the balance of §§204, the bill of sale was thereby rendered fraudulent and void.

His Honor left the question of fraud to the jury, and upon the other points ruled that the bill of sale as an absolute conveyance was well registered, and that as to its registration within six months, the act of 1820, {Rev. c. 1037,) applied only to deeds which were upon their faces mortgages.

A verdict was returned for the defendant and the plaintiff appealed.

Kinney, for the plaintiff.

Iredell, contra.

RuettN, Chief-Justice.

The points in this case are the same as those in Gregory v. Perkins, (ante p. 50,) *58which has been before the court at the present term ; and the decision in that case must, of course, govern this. The only difference consists in the strength of the evidence tending to establish the supposed trust or agreement, that the deed to the defendant should bo a security only. Upon that evidence the court neither feels the liberty nor the inclination to comment, further than merely to say a presumption of fact might be drawn from it, upon which the plaintiff had a right to ask the instruction of the court as to its legal effect, if the jury should draw it. There was testimony to some inadequacy of price, and to the possession remaining at a small hire with the vendor. The sufficiency of that evidence is with the jury ; it being proper for the court to say only, that the jury ought to be fully satisfied, that it does prove the trusts and if they arc so satisfied, that the trust makes the deed, in point of law, fraudulent.

It is however to be remarked, that the title of the plaintiff is in this case, exposed to the same animadversions, which are applicable to that of the defendant. He gave but little more than the defendant gave; and also, notwithstanding his absolute deed, left the possession with the vendor. Admit the deed to the defendant to be fraudulent, yet none but a bona Jide purchaser can impeach it; and that character the plaintiff must establish in himself.

But as it seems to us, that proper instructions were refused by the court, and none were prayed for by the •defendant respecting the title of the plaintiff, we think there should be a new trial.

Per Curiam:- — Judgment reverses..