#### ANTHONY BENTON vs. ROBERTSON SAUNDERS.

It makes no difference whether the witness to a bill of sale, for a slave, subscribes his name at the time of the execution of the deed, or subsequently, provided it is done bona fide, and before the rights of third parties have attached.

The question of bona fides, must be submitted to the jury.

(The case of Hardy v. Simpson, 13 Ire., 132, cited and approved.)

This was an action of trover for a slave, and to it (he defendant had pleaded — not guilty.

At the trial before his Honor, Judge Settle, at Rockingham, •during the last Spring Term, it appeared that the plaintiff claimed under a bill of sale, including several other slaves, made to him by one Bayloss Lynn, on the 23d of May, 1840, it being Saturday before Rockingham County Court. The consideration recited therein, was one thousand dollars, but no money passed at that time, the real consideration being debts due by Lynn to the plaintiff, and risks incurred by the plaintiff as surety *361for Lynn. No settlement of their accounts took place at that time between the parties, nor was anj^ credit given, as for money received, by the plaintiff to Lynn — the latter, as he testified, trusting to the plaintiff’s honor for a proper application of the money. The bill of sale was attested by only one witness, who proved that he had not subscribed his name as a witness until during May Court, 1844. It also appeared that at the time of making the bill of sale, Lynn was indebted to a larger amount than he was worth, and that several suits for debt were then pending against him. It was admitted that after receiving the bill of sale, the plaintiff had paid off debts due by Lynn — in which he himself was interested — to the full value of the slaves conveyed to him.

The defendant claimed by purchase under an execution issuing in a suit by himself against Lynn, upon a bond dated September 9th, 1839, on which judgment was obtained at May Term, 1840, of Rockingham County Court. Upon that judgment executions had issued regularly up to February Term, 1844. At August Term, 1846, judgment was had on a scire facias issued to revive the former judgment, and upon this executions issued regularly up to February Term, 1849. Under the last of these, this slave was sold, and bought by the defendant. The defendant further shewed in evidence a deed in trust, made by one Elizabeth Lynn, in 1842, conveying the slaves included in the bill of sale — she then owning a life estate in them — to Rayless Lynn as trustee to sell and pay certain debts ; and this deed was executed by the trustee. Elizabeth Lynn died in the year 1845.

The defendant asked the Court to charge, that the bill of sale from Lynn to the plaintiff was fraudulent as to all creditors of Lynn : 1 stly, for want of a subscribing witness at the time it was made, this defect not being helped by what took place in 1844 : 2ndly, from the testimony offered by the plaintiff, if believed by tire jury : 3rdly<¡ if they believed that Lynn, being deeply involved, conveyed the negro away, receiving nothing at the time, and estopping himself from collecting anything at law. He also insisted that if the plaintiff was entitled to recover anything) it was only the value of the negro at the time of conversion, without interest.

*362His Honor charged the jury that the bill of sale, as it stood until it was subscribed, although good as between the parties, was void as to creditors ; but that, if the jury believed that the plaintiff, before the subscription of the witness, and before the time at which defendant’s judgment was taken, had paid debts due by Bayless Lynn, to an amount equal to the consideration recited, and that the contract of 1840 was bona fide, the plaintiff would be entitled to recover, and that he was not estopped by the deed in trust executed in 1842. His Honor declined to give the instructions prayed for by the defendant, but told the jury that the circumstances detailed in the evidence were fit for their consideration, and if these shewed that the object of the bill of sale was the hindrance of Lynn’s creditors, or the securing of any ease to «himself, it was fraudulent and void, and then the plaintiff was not entitled to recover. The plaintiff had a verdict and judgment, and the defendant appealed.

J. H. Bryan, for the plaintiff,

Mar ahead and Miller, for the defendant.

Battle, J.

The main question presented on the bill of exceptions, arises from the refusal of his Honor to give the first instruction prayed by the defendant’s counsel. The bill of sale, executed by Bayless Lynn to the plaintiff for the slave in question, on the 23rd day of May, 1840, was admitted to be good between the parties to it, but invalid as to the creditors of Lynn, for the want of a subscribing witness. It may, perhaps, be doubted whether, it was good between the parties, since the 37th chapter, section 19th, of the Revised Statutes, has omitted the preamble to the act of 1784, (Rev. Code, ch. 225, sec. 7,) — see Bateman v. Bateman, 1 Murph. Rep. 97. But supposing that it was good between the parties, and void as to creditors, was it made good as to the latter by the plaintiff’s procuring it to be acknowledged and attested in May, 1844, before the creditors obtained a lien on the slave of the bargainor, and by his having it subsequently proved and registered ? The defendant’s counsel contends strenuously for the negative. He insists that the deed was fraudulent in its operation against creditors, and was therefore void as to *363them, and could not be made good by anything which the parties might do afterwards. He insists also, that having been once delivered, and being effectual between the parties, it was incapable of a second delivery ; and for these positions, he cites and relies on 2 Thomas’ Coke Lit., 235, in note m. ; Shep. Touch., 60, and the case of Halcombe v. Ray, 1 Ire. Rep., 340. These authorities may, at first view, seem to support the principles contended for by the counsel, and justify him in his application of them to the present case ; but we think that an attentive examination of them will show a marked difference between the cases to which they are applicable, and the one before us. The note in Thomas’ Coke states that a deed delivered by an infant cannot be redelivered, after he comes of age, but that the deed of a married woman may be delivered again, after she becomes discovert; and the reason assigned for the distinction is, that the deed of an infant, being only voidable, has had some effect, while that of the feme covert, being void, has had none. This explanation is incomplete. It does not state the full grounds of the difference in the operation of the two instruments. The deed of an infant, being voidable only, may be confirmed by him after he comes of age; and if so confirmed, its operation and effect will relate to the time of the original delivery. Were a second delivery requir* ed or admissible to give it effect, the bargainee might be injuriously affected thereby, on account of judgments and executions against the infant after he came of age, and before the second delivery. The deed of a married woman on the other hand is, because of her incapacity to make it, utterly null and void, and the first effect which it can have must be derived from its delivery after the death of her husband. It is not pretended that there is any analogy between the delivery of the deed of a feme covert during and after coverture, and this case ; and we cannot see much more in the case of the infant’s deed, unless it be that the confirmation of it, after he comes to his majority, may afford some plausibility to the plaintiff’s claim, of giving validity to his bill of sale by the attestation subsequently procured for it. The principle recognized by this Court in Halcombe v. Ray, affords a stronger argument for the defendant. It was the case of a deed for land, absolute on its face, but in*364tended by the parties to be only a mortgage. The Chief Justice, Ruffin, in delivering the opinion of the Court, declares that such an instrument is fraudulent and void as to creditors, because it was and must have been intended to deceive them. He then expresses a doubt, but does not decide, whether such a deed could be afterwards made good by a bona fide purchase of the full interest in the land, and a re-delivery of the deed, and ends by deciding that a mere payment of the price, on a bona fide purchase, could not avail to purge the original fraud, and make the deed good. But this principle cannot be applied to a deed, declared by statute to be invalid for the want of some ceremony, especially when the want of such ceremony must appear on the instrument itself. There is, in the very nature of things, a difference between the two instruments. A deed intended as a mortgage, but absolute in terms, if not expressly designed to defraud third persons, must necessarily have that effect. It is constantly uttering a falsehood, and falsehood under such circumstances is fraud. Ye* ry different is a bill of sale for a slave- without a subscribing witness. If not fraudulent for other reasons, the omission of such a witness cannot make it so. It carries its own weakness on its face. It can deceive nobody. It cannot hinder, delay or defraud creditors. The statute does not declare that it is fraudulent, nor that it shall be considered so, but says simply that it shall not be valid; for fear, perhaps, that without an attesting witness, it might be made an instrument of fraud. If fair and bona fide in its inception, why not permit a ceremony, not otherwise essential to its existence, but omitted by mistake, to be subsequently supplied, be-' fore the rights of creditors have intervened. We can see none, either in the nature of the instrument, of the policy of the law. As to the nature of the instrument, it is not a deed founded in fraud which can never, as is said in Halcombe v. Ray, be purified of its original taint; but is rather a defective or imperfect instrument, which becoines valid as soon as the defect or imperfection is supplied. As to the policy of the law, it certainly can make no difference whether 'the witness subscribes his name at the time of the execution of the deed, or subsequently, provided it is done bona fide, and before the rights of third persons have attached. The question of bonafides must be submitted to the *365jury, and we think it was fairly so done by his Honor upon this part of the case.

The instructions given upon the other questions of fraud were also correct, being fully supported by the principles declared in the recent case of Hardy v. Simpson, 13 Ire. Rep. 132, and the cases therein referred to.

The plaintiff was certainly not estopped as against the defendant, by the deed in trust executed by Elizabeth Lynn to him ; both because there could be no mutuality in it, and an interest, to wit, the bargainor’s life estate passed. But if the plaintiff had been estopped, the defendant would have been estopped also, and then the plaintiff might have recovered upon his legal title as trustee, without adverting to the other grounds of his claim.

The question in relation to damages has been properly abandoned in this Court. The judgment of the Gourt below was correct, and must be affirmed.

Pee. Curiam. Judgment affirmed.