Simonton vs. Gandolfo.-Opinion of Court. simple; if so, it could only be conveyed by deed under seal, (2 Blackstone's Commentaries, 297,) and "a deed is a writing containing a contract, and signed, sealed and delivered by the party." 4 Comyn's Digest, 270. If it were only an estate for years, the statute 29th Charles II. requires the assignment to be at least in writing to be signed by the party. No estate, then, that Barcroft might have had could be conveyed, unless in the case of a freehold the conveyance was sealed, and, in the case of a chattel, interest was signed by Barcroft. In the case before us he does neither, and it does not appear that Simonton had any authority to convey for him, to seal for him or to sign for him. Whatever Simonton conveyed he surely did not convey the interest of Barcroft, and failing or omitting to do so, he did not perform his part of the contract with defendant. It is alleged by plaintiff's counsel that a cestui que trust may sell his interest, and that Simonton, therefore, though not technically conveying Barcroft's interest, conveyed an estate of more value. We do not deny that Simonton might have released his interest, but the proper questions aredid he do it? and, if he did, was it the release Gandolfo bargained for? His own deed and his own declaration furnish replies to both enqueries. In his deed he says, "I release all claims or demands which John Barcroft had or may have had"-there is no release of his own interest.In his declaration he says that he "agreed that he would make a release of all claims and demands which Barcroft had," but makes no agreement to release his own. These considerations afford also a response to the positions assumed by counsel, to the effect that a part performance of his contract will entitle him to recover. The deed seems to us a mere nullity-it conveys nothing; and what is supposed by counsel to be conveyed, to wit-the equitable interest of Simonton, forms no part of the agreement. We think, therefore, the court was right substantially in instructing the jury as asked in the fifth instruction of de Gibson vs. Love.-Points decided. fendant. We say substantially, because the part that relates to perfecting Gandolfo's title is, at best, unnecessary. But we overlook this and other defects, because we are satisfied that none of these errors misled the jury, and that they arrived at the proper adjustments of the respective rights of the parties. Let the judgment be affirmed. JAMES GIBSON, APPELLANT, V. DANIEL LOVE, APPELLEE. By the ancient common law the question of fraud was purely a question of fact. The statute 13th of Elizabeth,protecting creditors and others from fraudulent conveyances, is to be construed liberally in tavor of the class of persons designed to be protected from fraud. A surety is the creditor of a co-obligor and, as such, entitled to all the protection which the statute 13th Elizabeth extends to creditors and others. The statute 27th Elizabeth, though in its terms it applies only to land, yet being declaratory only of the common law, may be interpreted as defining the nature and effect of fraudulent conveyances generally. What is termed fraud in law is distinct from fraud in fact, and it is the duty of a judge to instruct the jury that their conclusions from facts must be regulated by the character and imports given to those facts by necessary legal implication. Some acts are proofs of fraudulent intent, and it is the duty of the court so to instruct the jury. Where a legal effect of a conveyance is to delay, hinder and defraud creditors, no matter what the actual intention may have been, it is a fraud in law, and the courts are bound so to declare it. Where the seller of a slave retains possession after the sale, fraud is to be inferred, unless there is evidence not of a general character negativing a fraudulent intent, but of a character to explain possession. The presumption of fraud in a case where the vendor remains in possession, is so strong as to outweigh positive testimony of an entire absence of all fraudulent intent, or even to establish a fraud, where the jury are satisfied that there was none actually intended. Gibson vs. Love.-Argument of Counsel. This case was brought up by appeal from a judgment of the Circuit Court for the county of Gadsden, given at the Spring Term, 1850. The opinion of the court contains a full statement of the case. Dupont, for Appellant. The record shows the following state of case in the court below: James Gibson had obtained a decree of foreclosure upon a mortgage of indemnity, executed by John C. Love, embracing amongst other things a certain slave named Henry. The decree directed the slave to be sold under direction of the master in chancery, and under this order the master took the slave into possession. Daniel Love thereupon interposed a "claim" to the slave, and the issue was to try the title to the slave. At the trial below, the claimant Daniel Love, proved that he was in possession of the slave at the date of the levy—he also exhibited a "bill of sale" absolute on its face, from John C. Love, for the slave Henry, dated December 9th, 1841, and recorded January 1st, 1842. He also proved that, at the time of the alleged sale, the vendor, John C. Love, was to retain the possession of the slave, paying an annual hire for him equivalent to the interest of the amount stipulated in the bill of sale as the purchase money. James Gibson, the plaintiff in execution, to support his title, exhibited a "deed of mortgage," dated on the 13th day of December, A. D., 1841, and recorded December 17th, 1841. He also proved that John C. Love, the mortgagor, was in actual possession of the slave at the date of the mortgage, and so continued for more than two years. Upon this state of case, the plaintiff in execution prayed the court to give the jury certain instructions, all of which were refused, and the court proceeded to give certain other instructions, all of which will more fully appear by reference to the "bill of exceptions" contained in the record. To sustain the title to the plaintiff in execution, we contend as follows: Gibson vs. Love.-Argument of Counsel. The court erred in refusing to grant the two first instructions prayed for by the appellant. We contend that these instructions were pertinent to the facts of the case, and were asked in view of the objects and policy of the "registration laws." It is true that "recording" is not essential to the validity of a conveyance of personal property, and neither is it so in regard to real property. In reference to the latter class, however, our statute in terms makes recording absolutely necessary, to protect it against the claims of creditors and subsequent purchasers "without notice." Vide Thompson's Digest, 180, section 1. They also permit and provide for, and make it obligatory on, the recording officers to record "all transfers of personal property, which may be offered for record." Thompson's Digest, 183, sections 4th and 3d. It may be proper to note the distinctions observed in the statute, in regard to the two species of property, and the reason for that distinction, in order to lead us to a correct application of the object of those statutes. Now, it will be observed that the only effect of recording conveyances of real property, is to protect it against the claim of "creditors and subsequent purchasers without notice." If the creditor or subsequent purchaser had actual notice of the conveyance, then he could claim no benefit under the statute. Why was the statute thus framed? Evidently to give notoriety to the transaction, in view of the fact that in the transfer of title to "real estate," actual possession, or “possessio pedis," is not essential at law to pass the estate. In the transfer of "personal property," how-. ever, (as a general rule,) the converse of this doctrine prevails-it being well established that, to make the conveyance good against creditors and subsequent purchasers, "possession must accompany and follow the deed." It would seem, however, that our Legislature, being well aware of the many exceptions and modifications to which this doctrine (as a general rule) had been subjected by the conflicting decisions of the courts, determined to place the two Gibson vs. Love.-Argument of Counsel. species of property upon the same footing, in regard to the "constructive notice," afforded by registration of the conveyance, and hence the provision in the statute for recording of conveyances of personal property. Vide Thompson's Digest, 183, sections 4th and 3d. Upon no other principle, and with no other object, can we rationally account for this provision of the statute. It certainly never could have been intended merely to subserve the convenience of individuals, as a means of perpetuating the evidence of their "title" to property, the mere possession of which, by operation of law, affords sufficient evidence of title, without the aid of any written transfer. But why, it may be asked, does the statute in the one case declare in terms the conveyance void, as against "creditors and subsequent purchasers," and omits to do so in the other? The reason is obvious:-In the case of the transfer of real property, the well established law is, that a want of actual possession raises no presumption of fraud; while in the transfer of personal property, the law is equally well established, that, unless actual possession (or such as the property is capable of) accompany the deed, the presumption of fraud is always raised. The object of the Legislature, therefore, was to provide a ready mode of rebutting this presumption by the notoriety of recording, operating in the nature of a "constructive notice." If this view of the statute law be deemed correct, then it only remains to refer to the evidence in this case, to determine the pertinency of the two instructions under consideration. The deed of mortgage under which the appellant claims is dated December 13th, A. D., 1841, and was recorded on the seventeenth day of the same month. The bill of sale under which the appellee claims title is dated December 9th, A. D., 1841, but was not offered for record until January 1st, 1842; thus showing that, although by its date it purported to have been executed four days before the date |