#### JOHN MORRISON v. NEILL McNEILL.

The act of 1806, Rev. Code, chapter 50, sec. 7, was never intended to bring in one who holds adversely to the debtor, and compel him to make a declaration of his title, in order to found an issue on it, to try whether it is his property, or that of the debtor.

In order to bring a party within the scope of the act of 1806, it must appear that he is connected with, or holds under the title of the fraudulent alienee and in secret trust.

Scire Facias, suggesting a fraudulent trust in property, tried before Heath, J., at the last Spring Term of Moore Superior Court.

In October, 1854, the plaintiff recovered judgment against Dugald McDugald, on a bond given in 1853 for $900, and, after making the affidavit required by the statute, the plaintiff, in March, 1855, sued out this scire facias against Neill Mc-Neill, to charge him with the debt, by reason of property held by him under conveyances made to him by McDugald, with intent to defeat the creditors of McDugald, or of property or effects held by him, MclSTeill, upon secret trust for McDu-gald.

McNeillappeared andanswered on oath, denyingthathothen, or at any time, held any property under a conveyance from Mc-Dugald, or any effects upon delivery from him, or otherwise upon any trust for him. The answer stated, among other things, that he, McNeill, in the year, 1854, purchased from Margaret McDugald, a certain negro woman and three children at the price of $2,400, paid in a certain mode stated.

Under the direction of the Court, an issue was made up: whether the defendant Neill McNeill has the sum of $3000, or any other sum, as the proceeds of a slave named Haney, and her three children, the property of Dugald McDugald, which he holds in secret trust, and for the use of the said Du-gald McDugald; and the jury found affirmatively thereon, and judgment was rendered against McNeill for the amount of the judgment against McDugald, and the defendant, Mc-Neill, appealed.

*451On the trial, evidence was .given on the part of tire plaintiff, that in 1844, McDugald was the owner of the slaves Nancy, &c., and that they remained in his possession up to the autumn of 1854, and that they were carried to South Carolina by one John McNeill, and left at the house of one Pegues, and that afterwards, but at what time, is not stated, the defendant, Neill McNeill, took the slaves and sold them.

The defendant then gave in evidence a bill of sale for Nam cy and a child, from McDugald to one John McNeill, dated September 25th, 1845, expressed to be for the consideration of $500, and also, a bill of sale for the same negroes on the same consideration from the said John McNeill to Rebecca McDu-gald, infant daughter of Dugald, dated September 25th, 1845. lie then produced the said Dugald McDugald as a witness, who deposed, that in September, 1845, he owed John McNeill a debt, and in payment thereof, he sold to him this family of negroes, and conveyed them by the bill of sale of that date; that, it was an absolute sale, but that nevertheless, his understanding was, that if he would pay the money to McNeill, who was his wife’s brother, he would reconvey the slaves to the witness; that two or three mouths afterwards, he paid NcNeiil the money, and, at his instance, McNeill then made the bill of sale to his daughter, Rebecca, and that neither at that time, or at any time after 1842, did he owe a debt in the world, except that to McNeill; that his reason for having the conveyance made to his daughter, was that the negroes came by his wife, and he wished them secured to her daughter; and that Rebecca had lived with him ever since the deed, and the ne-groes were regarded and held as her property.

The defendant also produced the said John McNeill as a witness, and he deposed that, in 1845, Dugald McDugald owed him, as the administrator of his father, a debt of $265 or 365, he could not recollect which — for equality, in the division of the estate, and as McDugald had once failed, he required payment in -money'or negroes; and that McDugald then sold him that family of negroes in payment of his debt; that the sale was absolute, and he was not, in any way, bound *452to reconvey the slaves. He did intend, however, that if Mc-Dugald should pay the amount allowed for the negroes, to convey them back, and he probably so mentioned to Mc-Dugald, but it formed no part of the consideration or contract, and lie could convey back or not as he pleased; that, about three months afterwards, MeDngald paid the price in money, and other property, and requested him to convey the slaves to his daughter, Rebecca, and he did so, dating the deed even with that made to himself, supposing, that to be right. It was intended that the title of Rebecca should be absolute, and without any condition whatever, and that he did not know, that at that time, McDugald owed any debt.

For the purpose of showing that the deed from McDugald to McNeill, was fraudulent, the plaintiff gave in evidence a bond for about $100, which McDugald gave to one Tyson in 1846, and paid in 1848.

There was no evidence that McDugald contracted or owed any other debt from 1842 to 1853, at which latter time he gave the bond on which this judgment was rendered.

The counsel for the defendant insisted, that, if the jury believed D. McDugald was not indebted when, he made the deed, in 1845, and that up to 1853, he had contracted but the one debt to Tyson, and paid that in 1848, his bill of sale to John McNeill, was not fraudulent as against his creditors, but was valid to convey the slaves; and that as the deed from McDugald to John McNeill, was absolute on its face, and was intended so to be, if the witnesses were believed, that also passed the slaves; and that, whether that deed were valid or not, yet the bill of sale from McNeill to Rebecca, being absolute in its terms, and there being no evidence of any intention that her title should not be absolute, would, with the possession by her under it, vest the title in her against the world.

His Honor instructed the j ury that the case turned upon the validity of the deed from McDugald to John McNeil. If that was intended as a security for the payment of money, and not as an absolute sale, then it passed no title, but the title would still be in McDugald; and if they should be of that *453opinion upon the evidence, then they should find that the defendant had in his hands effects with which to satisfy the plaintiff’s debt — -that being the issue they were empanelled to try.

Person, Strange and llaughton, for the plaintiff.

Kelly and Neill MoKa/y, for the defendant.

Eufetk, J.

The Court does not concur in the opinion held by his Honor, as to the point on which the controversy turns. We are not prepared to say that a purchaser for value from John McNeill, with the concurrence of McDugald, would not have a good title, although the deed between these persons was intended as a security for money, and that was not expressed in it, and so it could not be registered as a mortgage, which we suppose to be the ground of the position taken at the trial. If the purchaser would get the title, so would a do-nee, if the transaction were, in other respects, loonafide; for so far as McNeill was a trustee for McDugald, it was his duty to convey as ordered by his cestui que trust. But it is not deemed necessary to express an opinion on that point, either way, since the Court holds that in a proceeding of this kind, it is essential to charging the defendant, that the plaintiff should establish that the defendant holds under a fraudulent conveyance from the debtor in the judgment, or upon a delivery on a secret trust for him in particular. It cannot be that one who holds adversely to the debtor, can be brought in by a scire facias, to make a declaration of his title, in order to found an issue upon the question whether the property is in the holder, or in the debtor; or, that a debtor to the original defendant can be charged in that way with the payment of the judgment debt. The act of 1806 was passed for no such purpose. It is entitled “An Act to secure creditors against fraudulent and secret conveyances of property by insolvent debtors,” and recites the mischiefs to be frauds committed by persons making conveyances upon some secret trust, or by persons concealing the property of insolvent debtors, so as to enable them to avoid, or delay the payment of their just *454debts; and then it enacts, that, upon the affidavit prescribed, the plaintiff may have a scire facias against any person claiming' any estate under an alleged fraudulent conveyance by the debtor, of his property to avoid or delay the payment of his debts, or against- any person charged in the affidavit willi concealing any money or other estate, for the use of the debtor, or for the purpose of enabling him to avoid or delay the payment of liis- debts, and that upon the appearance of the party served} he shall declare on oath, whether he holds, or is in possession of' any money, goods or other estate under any conveyance made by the defendant upon any secret trust, or any secret delivery, to hold the same to the use of the defendant, or any other person, to enable him, the defendant, to avoid the payment of his just debts. It is then manifest upon the particular language, and the whole structure of the act, that the only case within its purview, is that of a secret trust between the debtor and the party brought in by scire facias, in respect to property claimed by the latter under a conveyance from the former, devised to defraud his creditors, or in respect to something deposited with him by the debtor, or some one for him, for the use and benefit of the debtor. The secret trust and fraud, are essential ingredients of the case for which the act provides a remedy. Supposing then, that in this case, the defendant, McNeill, were connected with the daughter Rebecca, still the fraudulent character of the conveyance to her would he material to the liability of this defendant; and as to the matter of fraud, the evidence was strong to sustain the case under the provisions of the act of 1840. But the defendant is not connected, either in the issue or the evidence, with the title of Rebecca, or indeed with Dngakl McDugald, as claiming under a conveyance from either, upon a secret trust, or as holding upon any delivery, for the use of the debtor, or to enable him to avoid the payment of his debts. The party states in his answer, that he holds upon a purchase from one Margaret McDugald, at the price of $2,400, to be applied to the payment of certain debts of Dugald McDugald and herself, com -tracted in 1854, for which be was bound as surety, and that it *455was all applied in that way, and on that statement the plaintiff asked for no issue, and one was not directed. So, that on the record and the evidence, there is nothing to connect the defendant with the debtor Dugald McDngald, showing that the former claimed the negroes under a fraudulent conveyance from the latter, or held the property, or- the proceeds, upon trust to his use, which are the only grounds upon which he can be charged in this action.

Per Curiam, Judgment reversed and a venire ele novo.