#### JOHN W. FOSTER vs NICHOLAS W. WOODFIN.

Where a mao has conveyed a personal chattel, but still retains the posses* sion, his acts and declarations, even subsequent to such conveyance, while he continues in possession, are evidence against the vendee or grantee,.oa a question of fraud.

Where a man makes an absolute conveyance of a chattel, purporting to .be either a sale or a gift, and continues for a long time in the possession of the chattel, so purported- to be conveyed, this creates, in law, a strong presumption, on which the jury should find the conveyance fraudulent, as against creditors, unless opposing and explanatory circumstances should rebut the presumption.

Fraud is never, exclusively, a question of fact, that is, in the sense of leaving it to the uncertain judgment of jurors to give to the intent to convey upon a secret trust, or to the fact of credit being given to the grantor, upon his. continuing in possession, such effect as to them, in each case, may seem proper, but, on the contrary, the effect of such an intent or false credit, if in fact existing, depends upon the fixed principles of the law

The cases of Askew v. Reynolds,1 Dev. $-Bat. 367, and Gregory v. Perkins, 4 Dev. 50, cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at the Special Term in February 1850, his Honor Judge Caldwell presiding.

This is trover for a slave, Lucinda, and her children, and was tried on the general issue., Both parties claimed under one Benjamin Ratcliff: the defendant,as a purchaser at a sale under execution,and the plaintiff, under a conveyance to his wife, who was a daughter of Rat-cliff The question was, whether the deed to the daughter was bona fide, or fraudulent against the father’s creditors.

*340The plaintiff produced the bill of sale to his wife, dated in March 1835, and proved its execution by the subscribing witness, who was a, son of Benjamin Ratcliff.— It purported to have been made in consideration of $400 then paid, and was proved and registered in July 1847. The witness further deposed, that no money was paid, and that no person was present at the time, but the members of the family : rtnd that the father said, that he made the deed with a view to a division of his slaves among his children. Further to support the issue on his part, the plaintiff produced as a witness the said Benjamin Ratcliff; and he deposed, that he executed the said bill of sale at the time it bears daté, and then delivered it and the said slave,- Lucinda; ,to his daughter, who was then married to “ the plaintiff and lived about a mile from the witness '; that the said Lucinda was then about six years old, and was not sold by hini, bb’t '.vas intended as a gift to his daughter, and that sh'e was riot'taken away by the daughter, but, left by her to wait, upon her mother, the wife of the witness, who was then sickly : That, at that time he owned a negro man and three other negro girls, two of whom were older than Lu'cindá, and also owned a tract of land of the value of $2000, a wagon and team and other stock, and did not owe ás much as fifty dollars ; and that there was no fraud in his gilt to his daughter: That in 1S38 and 1839, he became involved in debt as surety for the subscribing witness to the deed and another son : That therefor the judgments were'obtained, under which the defendant purchased, and that in 1839. and in 1840, he conveyed all “his other property to his children : .that he.continued, in possession of said Lucinda up to 1843: and that, in that -year, the .plain* tiff hired her to James Ratcliff, a soil of the witness, who lived wi h him. and they worked tire plantdtión on which the witness...resided : and that, during that year, thé sheriff came to his house with executions -on *341the said judgment,.to levy on that slave and the others, and they were kept out of the way there about a week, and then Lucinda went into the possession of the plaintiff, who also-kept her out of the way of the sheriff, and held her until she wras taken uuder the executions in 1847, and that during that period she-had the two children.”

1 On the part of the defendant, the judgments and executions,'under which he purchased, were produced : and evidence was further given by several persons, that they had long resided near Ratcliff and the plaintiff, and. that Ratcliff paid the taxes on the said Lucinda and- claimed her as his own, until the sheriff endeavored to levy on her in 1843, and that they were in the habit of conversing with him about his property; and, before that tinie> had never heard,' from him nor from any other person, of a conveyance or transfer of Lucinda to the plaintiff’s wife. The defendant then offered to prove by a witness,: that in 1842,.a son of the said Ratcliff applied to the witness on behalf of his father to become his surety for ah appeal from the County to the Superior Court upon one of the said judgments, and informed the witness,that as a security to. him, his father said, he would execute a deed of trust for. his negroes: that he, the witness, declined doing so, but went with the son to-the said Ratcliff’s house, and ■there, the’father asked the son. “ whether he, the witness, had agreed to go into the arrangement,” and the son replied thereto, “he had not,” and that then the said Rat-cliff, the father, said to the witness, “ there is no danger.” The testimony, thus offered was objected to on the part of the plaintiff, but was admitted.

In summing up the case to the jury, the presiding Judge instructed them, that when a'person makes such a conveyance of a negro, as that made by Ratcliff in this case and then continues in possession for eight years, using and claiming the slave as his own, there is such a repugnance between the transfer and possession as raises *342a presumption of a secret trust for the donor, which is fraudulent, and also that, qnless such possession be accounted for satisfactorily to the jury, the impress of fraud remains on the transaction : and then left it to the jury to say how far that presumption of fraud was repelled in this case. The counsel for the plaintiff then moved the Court, further to instruct the jury, that, if the testimony of the witness. Benjamin Ratcliff, was believed by them, they ought to find for the plaintiff, and the instruction was given as asked.

The jury found for the defendant and the plaintiff appealed from the judgment.

Gaither and J. Baxter, for the plaintiff1.

J. G. Bynum and Avery, for the defendant.

Ruffin, C. J.

The objection to the evidence is not well founded. The acts and declarations of the father, while in possession of the slave, as to the nature of his possession and claim of title, are evidence on those points» though they occurred after his conveyance toh'isdaughter Askew v. Reynolds, 1 Dev. & Bat. 367. Whether the statement of the son to the witness was competent or not, depends upon the question, whether the son was the father’s agent to enter into the arrangement, as it was called, with the witness, or induce the witness to become the surety for the appeal upon the security of the negro Lucinda, and the other negroes Upon that point it is very clear from the father’s language to his son and the witness, upon seeing them, that the son had been sent by the father to the witness upon some agency or with some proposal ; and, although not constituting direct or full proof of any agency, to the extent of engaging for the convey, anee of these slaves by the father, yet it is equally clear that those acts and declarations of the son and father were evidence tending to shew such an authority in the son.— *343They were, therefore, fit to be received and submitted to the jury for their consideration on that point. Indeed coupled with the other evidence, that the father claimed and used the negroes as his own for so long a period, both before and after that date, the evidence raised a strong presumption that the son had authority from the father, to make to the witness the proposal he did ; for, to what else did he allude, when he spoke of “the arrangement’» and said “there was no danger in it ?’’

Of the instructions to the jury, the plaintiff, in the opinion of the Court, has no cause to complain. They are, of course, to be understood in reference to the facts of the case. They are, that a conveyance of a negro child of six years of age, supposing its date to be true, was made by a father to a daughter living within a mile of him-, without any valuable consideration, though purporting to be for the large price of $400, and was followed by the continued possession of the father for . eight years after-wards, and by his contracting large debts and making voluntary conveyances to his children of all his other property, in three or four years after its execution, the father during that period, using and claiming and offering to convey the negro as his own, and the conveyance to the daughter being, for the whole eight years, not only unreg. istered, but concealed, so as to be unknown to the nearest neighbors and most intimate friends. Certainly, under those facts, the transaction is presented to our consideration in a most questionable shape, and a strong presumption of fact arises, that it was not fair but merely colour, able, and, therefore, ought not to stand in prejudice to the debts contracted by the father on the faith of that property. That was not seriously resisted in the argument, but it was said that the presumption was purely one of iactf and therefore that it was the province of the jury, exclusively, to consider of its weight and it was erroneous in his Honor to make any observations on it. But that is *344not .the' law,- as.'it seems to the 'Court. ’There háve_ been so. many cases!n • this-State,, involving this -doctrine,., and it has been-so frequentiy- and.so --fully discussed Here,-as to make; it unnecessary how-to Uoók: beyond our own de - visions ;for authority-on 'it.- As - was-said ’in-Gregory v. Pevkins, 4 Dev. 50, fraud isnever, exclusively, a question of fact,- tbatfis,- in the sens.e of -leaving; it to-the-uncertain judgment--of'jurors to- give- to the intent-to -con vey(upon a secret trust, or to the fact of credit being given to a grantor, upon his continuing in -possession, such effect as to them in each .case may-seem proper,- butt-hat, on the'contrary, the effect of.such a-n-intent or-false credit, -if in-fact-'existing, depends upon the feed-principles of- the law. '-It is true, that, in respect to the consequences ,pf a grantor continuing -in -possession of a chattel,-it -was observed in that case, that,-contrary-to the rule as-once-laid down in England, we held,; that-it-did riot, per se, conclusively establish covin in the conveyance;-but was to be left to the jury as matter of-evidence. Net it .was further observed, that it was-to be left to them ‘-‘as a ground of presumption,” that there was a secret-trust or that (he parties had-a view to a. false credit of.the vendor,' which would be more or less strong under all the circumstances of the parties, the subject; length of possession, and the notoriety, of the title of the vendee and- of-i-t3 acquisition.” ' And it was explicitly sfat.ed,:that a conveyance by an owner in trust for himself or bis possession after an absolute conveyance, with a viéwto contract-debts,- on t’he credit of the property, of -which such possession is-‘-‘a ground of presumption,” is in law Fraudulent. Tn-the subsequent case of Askew v. Reynolds already cited, the opinionof the Court is again given 'Nery-distinctiy to the same effect. After noticing the old • rule, that- the 'possession-of. a donor, after an absolute transfer'-bf a chattel,- established- the- fraudulent intent, go as- to-render- any-'further--enquiry as- to-its existence -unavailing, the judgment of.the-'Court proceeds to set *345forth how far it had been modified. It states, that the doctrine had been so far overruled, as to* allow explanations to be made to repel the inference of the unlawful intent. Still it was declared, that the repugnance between the transfer - and the possession was such, as yet raised 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 exr plained, establishes the.- fraud. And, in applying the principle to the case then under consideration, the Couit said, that a possession for eight, or nine months, after making the conveyance, was sufficient to impress upon the transaction the character of a-fraudulent transfer,-unless from other facts and circumstances, another character could be clearly assigned to it. It is useless to quote other cases, as what fell from the Court in -those refe rred to plainly shews, that in-such a-Case, it is deemed a reasonable and legal presumption, upon the'grounds mentioned, that the conveyance and possession by the donor were fraudulent, open, indeed, to proof, or to inferences from other circumstances to the contrary. The, very ground of admitting the evidence of such possession, as relevant to the -question of fraud, is, that ittends to estaba lish and raises a presumption, that .the.conveyance was not bona fide, according to its purport, and that the possession was calculated to deceive those who dealt with the possessor; and it would seem impossible,.that it can "be wrong to lay such ground before the jury, so as to enable them to perceive the moro clearly the reasonable force of the presumption and the effect properly to be allowed to opposing and explanatory evidence. The. in*% structions in the present case did nothing more than that. In truth they stated the presumption under, consideration, its force and effect and its susceptibility of being rebutted, substantially as laid down and ; much ; in the same.language used by this Court,in Askew v. Reynolds. It was, *346however, contended at the bar, that, since that]|case, the law had been altered by the 4th section of the Act of 1840, ch. 28. But that is clearly a mistake ; the only provision of that section is, that a gift by one indebted at the time is not absolutely void as against his creditors, by reason merely of such indebtedness, without regard to the sufficiency of the property reserved by the donor for the satisfaction of his debts ; the affirmative of which had before been held to be law (whether the donor or do-nee had the possession) upon the ground that the donor could not honestly give away his property to the defeating of his creditors. But that is, altogether, a different species of fraud from that here imputed and depends upon different facts and considerations ; and the law touching this case is entirely unaffected by the statute. His Honor, therefore, was fully authorised by previous adjudications to lay the principle down to the jury as he did. Indeed, he went further on behalf of the plaintiff, than was strictly proper, in saying that the testimony of Ratcliff, the father, repelled the presumption of fraud, and, if believed, entitled the plaintiff to recover. It is true, that the witness denied there was a trust for himself, simply by say» ing, that a gift to his daughter was intended and that there was no fraud in the gift. But he failed entirely to account for the secrecy of the conveyance and its concealment for eight years, for the falsehood in setting forth the consideration in the deed, and for his long subsequent possession and apparent ownership of the other property, which, he admitted, he conveyed to his other children, whereby he was able to get credit to the value of all of it and perhaps more. Upon all those material points, he deposed to nothing, saving only, that he kept the negro — then six years old — to wait on his wife, who was sickly at that time. But that circumstance does not remove those grave grounds of suspicion and presumption of fraud, since he did not state, that his wife continued to *347need or to have the girl as a nurse — a very poor one truly — or even that she lived through those eight years or any considerable portion of them. For the probable, and, in this case, the actual, deception of the persons, with whom he contracted debts, arising from his possession of the slave, and not only the apparent, but the claimed, property in her for such a length of time and from the omission of the plaintiff, for that period, to assert a title under the conveyance to his wife or to let its existence be known, the witness furnishes no reason or excuse whatever, but leaves the presumption raised by such deception to operate unimpeded. It is quite certain, therefore, that the plaintiff had all the advantage in the charge, which he could claim, and the judgment must be affirmed.

Pea Cukiam. Judgment affirmed.