Saffold, J.
The contest arose on an issue to try the right of property in a slave, levied on as the property of John Killough by virtue of executions in favor of Steele the defendant in error, which slave was claimed by Allen Killough, pursuant to the statute, authorising this mode of proceeding, on the sheriff’s return.
On trial, the jury found the property subject to the execution; whereupon the Court gave judgment that the sheriff should expose the negro, to sale for the satisfaction of the executions against John Killough, besides the costs in that behalf expended.
At the next succeeding term, the record states, “ the plaintiff cáme and moved the Court so to amend the judgment rendered at the last term, as that it may [264]*264stand against A. Killough, the claimant in execution, for the costs; which motion was granted.”
The facts in evidence, are shewn by a bill of exceptions to have been, that J. Killough the defendant in execution, on the 16th March 1827, executed a mortgage of the slave to A. Killough, which mortgage had not been recorded.
On the 8th of August, 1828, the three executions in favour of Steele, issued bjr a justice of the peace, were levied on the slave. The debts thus sought to be satisfied, were contracted after the date of the mortgage, and within twelve months thereof.
The claimant relied on his mortgage, and on proof of possession under it, and on Steele’s having notice of its existence.
Itis further shewn by the exceptions that the Court charged the jury, that although there may have been no actual fraud — the contract entered into on a valuable and sufficient consideration, and fair, and bona fide — it was void as to Steele, unless- he bad actual notice of the existence of the mortgage, within one year from its date; or unless such a possession was given to the grantee within that time, as was calculated to give notice to the neighborhood; that though Steele had actual notice of the existence of the deed, before obtaining his judgment, yet if the notice was after twelve months from its date, and-not before, -the jury must find for the plaintiff in execution.
The Court charged further, that if such a possession was obtained before the expiration of twelve months as was not of a public nature, though a pos-séssion and control in fact, yet the jury were bound to find for the plaintiff, admitting the transaction ro [265]*265have been bona fide, and on a valuable and sufficient conchiovaiion.
At k aligned for error.
1st. That ¡ho Court erred in the several opinions, to the jury, as stated.
2d. The judgment original and as amended was un-authorised, uncertain and insufficient.
it ie contended on the part of the plaintiff in error, who was claimant below that the case is not within the statute of frauds so as to render the deed absolutely void, for want of possession, or of recording; that the statute does not embrace a case where the consideration is valuable and sufficient, and bona fide; that the instructions were inoperative, and can not be sustained, except on the ground, that want of possession is fraud per se j and 'that it is not necessary the possession should always be changed so as to be visible to the neighborhood.
On the contrary, it is argued, that both absolute and conditional sales, unaccompanied by possession, are to be governed by the same principles; that the want of possession in either case, is at least a circumstance from which fraud must be inferred, if unexplained ; that this 'explanation on the part of the vendee, must be proof that the sale was not only bona fide, and on a -valuable consideration, but also that the possession of the-vendor was in pursuance of some agreement not inconsistent with honesty in the transaction.
Our statute of frauds, so far as material to this ease, is substantially .the same with the statutes of 13 and 27 Eliz., the statute of frauds of Virginia, and of several, of the other States of the Union; all of. .which are declaratory, of the; principles of the:Oom-[266]*266mon Law. A material question raised in this case is, does it fall within the influence of the principles recognised by the statute ?
If any part of the statute can apply it can be no other, than the latter clause of the 2d, section, which declares, that where any reservation or limitation shall be pretended to have been made of a use, or property, by way of condition, reversion, or remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another three years, without demand made and pursued by due course of law; the same shall be taken as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent and void within the act: and that the absolute property is with the possession; unless such reservation, or limitation of use, or property, were declared by will, or by deed in writing, proved and recorded as directed in a previous part of the same section. The-parts of the section immediately preceeding the clause referred to treat of conveyances of goods and chattels only, or such as include lands also, and which are not on consideration deemed valuable in law; and of pretended' loans of goods and chattels to any person with whom, or those claiming under him, possession shall have remained by the space of three years <&c, and declares that unless all such conveyances, loans, &c., shall be duly proved and recorded as therein directed, they shall be taken to be fraudulent within the act. Hence it would appear that the reservations or limitations, by way of condition, reversion or remainder, referred to in the same section, were intended to apply to conveyance^ on consideration not deemed valuable in law. The third section [267]*267of the. same act, greatly strengthens this conclusion, if the expression, “ good consideration,” therein is to be understood to mean valuable, or good and valuable consideration. It directs that this act shall not extend to any estate, or interest in any lands, goods or chattels; or any rents, commons, or profits out of the same, which shall be , upon good, consideration, and bona fide, lawfully conveyed or assured to any person, &c.
In the case of Hodgeson vs. Butts,b is to be found an exposition of the views of the Supreme Court of the United States, in reference to the Virginia statute, of which ours is a literal transcript. There a mortgage of personal property was the subject of adjudication, and which had not. been recorded. Chief Justice Marshall in delivering the opinion of the Court, stated the substance of the concluding members of the 2d section to be, “ that deeds of persona] chattels, not upon valuable consideration, where the possession remains with the donor ; or a reservation of interest in the donor, when possession passes to the donee, shall be fraudulent and void, unless proved and recorded according to the directions of the act:” and further remarked “that a mortgage made on a valuable consideration, would be very clearly included from the second section, although the act contained nothing farther on the subject. But to remove the possibility of doubt, the Sd section declares, that the act shall not extend to any conveyance made upon good consideration and bona fide. The meaning of-the word good in the statute of frauds is settled to be the same with valuableHe also observed in reference to that deed, “it is perfectly clear that the case is altogether omitted, or is provided for m the [268]*268act concerning conveyances. In a country where mortgages of a,particular kind of personal property are frequent, it can hardly be supposed that no provision would be made for so important, and interesting a subject. The inconvenience resulting from the total want of such a provision would be certainly great; and the Court ought not to suppose the case entirely omitted, if there be any legislative act which may fairly be construed to comprehend it. The act concerning conveyances, although not penned with, the clearness which is to be wished, does yet contain terms, which are sufficient to embrace the case ; and the best judicial opinions of that State concur in this exposition of it.” The statute of Virginia re-fered to as embracing that case, and requiring mortgages to he recorded is — “ the act for regulating conveyances”- — -the 4th section of winch requires, among other enumerated conveyances, that “ all deeds of trust and mortgages whatsoever” shall be void as to creditors and subsequent purchasers,'if not acknowledged or -proved, and recorded according to the directions of that act. All the other provisions of the act except in the particular case of marriage settlements, were adapted to the conveyance of lands; and in that case the act provided expressly for recording á settlement of chattels. But it was under the above recited provision of the statute that “all deeds cf trust and mortgages whatsoever,” should be recorded, that the Court decided the mortgage then in question to have been embraced, the object of which was to indemnify an endorser of notes against his liability as such. No similar provision, or any, authorising the same construction, is to be found ia any of our statutes concérning'conveyances; unless it be the act of [269]*26911 th January 1828, more effectually to prevent frauds and fraudulent conveyances, and for other purposes” —which, having passed subsequent to the execution of this mortgage, can not affect it.
From a comparison of the statutes of 13 and 27 Eliz. with our statute of frauds, in relation to conveyances, it will clearly appear, that the phrase good consideration, in the 3d section of the latter, was derived from said English statutes, in which it frequently occurs in reference to valuable considerations, perhaps good also, in the ordinary acceptation of the word, or any consideration which 'is legal and sufficient, and bona fide. This term is used as a saving clause, in the nature of a proviso, to each .of the English statutes, by which the -various conveyances, made for the intent, or purpose to'defraud, or deceive, are denounced as void. As a proviso to the statute of 27 Eliz. which avoids all conditional conveyances, reservations, or limitations of lands, under circumstances therein described, it is declared “ that no' lawful mortgage, made or to be made 'bona fide, and without fraud .or covin, upon good consideration shall be impeached or impaired, by force of that act” &c. By a previous part of the same statutes the meaning of these words, as therein intended' and understood, is fully demonstrated. While treating of conveyances, and describing such as should be void, or valid, the phraseology is used, purchases for money or other good consideration, &c.
Our statute of frauds, it will be recollected, contains a clause in the -2d section, additional' to any thing expressed in the English statutes referred to. It is that, if any conveyance be cf goods and chattels, and be not on. consideration doemod valuable in [270]*270ills law, it shall be taken to be fraudulent within this act; unless the same- be by will, duly proved and recorded ; or by deed in writing, acknowledged or proved. If the same deed include lands, also in such manner as conveyances of lands are by law directed to be acknowledged or proved, or, if it be of goods and chattels only, then acknowledged or proved by one or more witnesses, in the Superior Court, or County Court, wherein one of the parties lives, within twelve months after the execution thereof; or unless possession shall really, and bona fide, remain with the donee. The Virginia statute contains substantially the same. Such is the time and manner of proving and recording conveyances, directed by the act, and to which reference is made in the succeeding part of the same, as already recited. I do not, howreve.r, concive that this member of the section can have any material influence on the decision of this case, either as respects the necessity of recording the mortgage, or the delivery of possession of the - slave within twelve months; nor in determining the effect of the works “ good consideration” as recognised in the subsequent section of the act. The member of the section; above quoted, refers expressly to donations or conveyances, on consideration of kindred or affection. It next treats of loans, and in the same general clause or sentence, describes the effect of any “ reservation or remainder,” as previously quoted; thereby ail the objects of the latter members of-the section, are placed on the same ground, on considerations “ not deemed valuable in the law,” in contradistinction to such as are.
Then, as the conveyance purports to be, and in point of fact, is assumed to have been, on a valuable [271]*271consideration — as the statute makes no distinction between mortgages and absolute deeds, as this convey-, anee is entitled to the benefit of any aid deriveable from the provisions of the third section of the statute referred to — a valuable being also a good consideration; and as the statute has recognised all conveyances as valid, “ which shall be upon good consideration, and bona fide, lawfully conveyed or assured,” the validity of the mortgage must depend upon the principles of the Common Law, as declared or re-cognised in the said 2d section of the statute of frauds and perjuiies. Independently of the authority referred to, for the construction of the statute, in reference to the words “ good consideration,” ' it would be evidently unreasonable, and. inconsistent with legal analogy, to give to conveyances, because founded on relationship or affection, greater validity than such as are for a valuable consideration, when in all other respects equal; and this in opposition to the rights of creditors, or subsequent purchasers.
The instructions of the Circuit Court having been, •given on the hypothesis, that this deed was on a valuable and sufficient consideration, and the transaction bona fide, it now only remains to be considered whether or not the mortgaged property was “ lawfully conveyed or assured.” The instructions to the jury were, in substance, that however sufficient the consideration, and bona fide the contract, the mortgage was void as to Steele, the creditor, unless he had actual notice of its existence within one year from its date ; or unless such possession was given to the mortgagee, within that time, as was calculated to give notice to the neighborhood — that neither notice at later period, or private or secret possession and con[272]*272trol, at an earlier day, would give validity to the contract. Thus the important doctrine of fraud per se, for the want of a chango of the possession of the property, or of notice to creditors of the conveyance, is involved, and mast determine this case.
The principles .maintained by many decisions, both in England and America, by Courts of the highest respectability, would be fatal to this mortgage in terms of the charge given by the Circuit Judge. These cases., or many of them, are referred to and commented on in decisions of this Court, in Hobbs v. Bibb,a and Ayres v. Moore,b in the former of which, however, this Court adopted a different doctrine, as a majority conceived, on sounder principle, rather than on weight of authority. In that case it was ruled, that an absolute bill of sale, by a. debtor in failing circumstances, and in a contest between the vendee and a creditor, was not fraudulent per se,'for the reason alone, that possession of the property did not accompany and follow the deed. That decision had influence on the case of Moore vs. Ayres, and led to one somewhat similar, but with some slight yet salutary qualifications. They both however, go the length to maintain, that the want of possession in the vendee, especially in absolute conveyances, importing such possession isa strong badge or indicium of fraud, constituting at least prima facie evidence of it; and that, this evidence should govern the result, unless the legal presumption should be rebutted to the satisfaction of the jury — yyeí that it was the province of the jury to determine, and if in fact, there was a valuable consideration, and no fraud, the conveyance should be sustained.
My own impressions respecting the authority for, [273]*273and the effect of this principle are fully stated in the case of Moore vs. Ayres: hence it is now for mc to say ita kx ser~pta est. It is moreover to ha obsarvad, that the leading cases on this subject, in both countries-Edwards vs. Harbin,a-and Hamilton vs. Russell,b recognise a material distinction, respecting the necessity of possession in the grantee, between absolute and conditional sales They maintain, that in the former, importing a change of possession, and use, when the contrary is found to be the fact, the possession does not accompany and follow the deed, and that the suspicious inconsistency, consti~utec fraud ~n i~se~f as against creditors and subsequent purchasers, who may be injured thereby. But that if the failure to change the possession be consi~tant with the object of the deed, as where the article contrasted is incapable of immediate delivery, or where the nature does not require it, or where the deed is c~nditional and the vend cc is not to have the possorsion until be has performed the condition, il-i such cases the sale is not fraudulent per Se, for there 587. the po~e~siou "accompanies the deed," within the meaning of the rule. See also the cases, Bucknal v. Roeslonc-Cadogan vs. Kennetd-Alexander vs. Denealee-Dawes vs. Cope.f
It is true that various other eases of like respectable authority, ba~e ruled different doctrines-some that the deed, whether absolute or conditional, was void unless the possession, where practicable, actually passed to the vendee, as in the case of Sturdevant v. Ballardg. In others, the rule has been, that.the failure of a change of possession, in either case, is but a badge, or presumption of fraud, which like all other presumptions should be left with all other cireum [274]*274stances of the case, under the instruction of the Court, to the jury who must decide whether there be fraud in fact.
The preponderance of authority in other Courts appears to sustain the distinction more favorable to mortgages, or other conditional sales, where there has been no change of possession ; and the decisions of this Court (to which reference has been made,) have gone far to preclude the idea of constructive fraud for want of possession : hence I necessarily arrive at the conclusion that the mortgage was not void on the ground, that the possession of the slave was not transferred to the mortgagee within twelve months from the date of the deed; provided the claimant could explain this prima facie evidence of it, so as to satisfy the jury of the existence of the valuable consideration, and that the contract was bonafde. Yet though there may have been a valuable and sufficient consideration, if the object of the contract was, and the mortgagee- united in the design, to defeat, hinder, or delay creditors, the deed was, in fact, fraudulent and void, • and such should have been the charge of the Court to the jury.
The branch of the instructions, that the possession must also have been of a public nature, I deem immaterial. ' The general instructions having been given, that unless such a possession was transferred to the mortgagee as was calculated to give notice to the neighborhood, the mortgage was void — its validity on the ground of a clandestine possession was consequently denied. Nor could I hesitate to believe, a private, secret or artificial change of possession, more exceptionable than ho change. With respect to the alternative of actual notice of the mortgage to the ere-[275]*275ditor, which was held material in the instructions to the jury, it is deemed sufficient to say, I can imagine no kind of conveyance, which the law does not require to be recorded, and in a contract that may be valid without changing the possession of the article, which the law renders constructively void for want of notice in any other form or manner.
It may be, and has often happened, that a subsequent conveyance, on a valuable and sufficient consideration, has been defeated in a conflict with a prior purchaser, who has failed or neglected to record his deed as required by law, on the ground alone of notice'otherwise acquired by the subsequent purchaser.' The law is thus established on the principle, that the latter purchaser had knowledge of the existence of the prior lien, and that he was contracting litigation, .and probably with a view to effect fraud, or at least injustice. To' tolerate such would violate the policy and spirit of the law.
Notice through the records, or from actual possession, when necessary, is the only description of notice which the law recognises in the determination, of questions of fraud per se, so far as actual notice, or any thing tantamount thereto is material. Doubtless, the publicity of contracts, or of. claims to property, as well as recording deeds, or changing the possession of property sold, which the law does not especially require to be done, may, in many cases, afford for the jury highly material evidence, on which to determine the faith of the contract, and the question of fraud in fact. But under the precedents referred to, by which this Courtis governed, Judges at nisiprius, can only charge, in relation to these indications of fairness, which the law does not imperiously require, [276]*276that the absence of any or all of them, constitutes badges or indicia of fraud, or is prima facie evidence of it; and that it is the duty of the jury to find accordingly, unless other circumstances, or all the facts taken in connection, sufficiently rebut the presumption. The fact of the solvency or insolvency of the mortgagor, which is not shewn of record, was (as is contended by the plaintiff’s counsel) entitled to its influence as evidence before the jury.
According to the views I have taken of the case, there was error in the instructions to the jury.
The other assignment need not be considered. In the conclusion to which I have ¿rrived, the Court are unanimous.
Let the judgment be reversed, and the cause be remanded.
Collier, J.
The material questions arise out of a bill of exceptions taken on the trial to the instructions of the Judge to the jury. From which it appears, that Allen Killough the claimant of property levied on, to satisfy an execution against John Kil-lough, in favour of the defendant in error, “relied on a bill of sale with condition of defeasance, or mortgage, made by the defendant in execution ' to the claimant, dated 16th March, 1827; and also relied on possession under said deed, and on notice to the plaintiff in execution of the existence of the deed or mortgage. The bill of sale was not recorded. It was proved that the debt to the plaintiff was contracted in less than one year aftér the date of the deed to the claimant.” „
The instructions of the Judge were substantially as follows: that if the conveyance from John to At [277]*277len Killoughwas made to delay or defraud creditors, as to such creditors it was void — and further, that though it was founded upon a valuable consideration, and bona fide, it was notwithstanding-void as to creditors, unless they had actual notice of its existence ; or unless the possession of the property conveyed was delivered to the grantee, or the grantee acquired a visible possession within twelve months after the date of the tranfer: and that a possession after the expiration of twelve months, though before the defen-, dant recovered his judgment, was not sufficient to give validity to the deed.
The judgment condemning the property to the defendant’s execution directs the costs- of this suit to be paid from its proceeds, hence.both the'claimant and defendant in execution, have joined in the prosecution of a writ of error.
The first branch of the instructions, which asserts the mortgage to he void if made to delay, hinder or defraud creditors, is sustained as well by the Common Law, as the statute of frauds; and in. accordance' with it, the law has been so frequently declared, as not now to allow of disputation.
The second branch is founded in the supposition that actual or constructive notice is essential to a conveyance of personal property as against creditors; and was doubtless the result of so construing the statute of frauds as to bring within the operation of the 2'd section of that act, transfers induced by a valuable consideration. Hence it becomes material to adjust the true interpretation of that provision of the act, so far as'it has been supposed to bear upon this case. So much as need be- noticed is as follows : “ and moreover if any conveyance be of goods and chat[278]*278tels, and be not on consideration deemed valuable in the law it shall be taken to be fraudulent within this act; unless the same be by will duly proved and recorded ; or by deed in writing acknowledged and proved &c., within twelve months after the execution thereof; or unless possession shall really bona fide remain with the donee.” These words indicate their own meaning so strikingly, as to leave but little room for the application of the rules of construction. Considerations are of two kinds, good and valuable; these are dissimilar in their nature, and the legal principles adduced from them are alike so. That, conveyances founded on considerations of the latter description -are not embraced by this provision, appears in express terms; but it is insisted, that the positive language employed, is countervailed by the 3d section, which is quite as explicit as the 2d; and is expressive of an intention by the legislature to exclude all conveyances, founded on a good consideration, from the influence of the act. The 3d section is in these words : “ this act shall not extend to any estate or interest in any lands, goods or chattels; or any rents common or profit out of the same; which shall be upon good consideration, and bona fide lawfully conveyed or assured to any person or persons bodies politic or corporate.” If this section receive a literal construction, the 2d section, so far as we have considered it, would be rendered nugatory; but by supposing “ good” to mean “ valuable” the whole act is made operative; and this construction is .authorised by the trite maxim ut res magis valeat quam pereai.
Again: statutes should be construed in reference to the analogies of the law. The obvious discrepancy between the 2d and 3d section is such, as to [279]*279forbid a literal interpretation from being placed on each; and as contracts founded on good considerations are less favoured than those founded on valuable considerations, the parts of the act under examination must be holden to apply to contracts of the former, in exclusion of those of the latter description.
In Hodgeson vs. Bulls,a a legislative act of Virginia analogous to our statute of frauds was brought to the view of the Court, in relation to which-the Chief Justice, delivering the opinion of the Court, observes, “ A mortgage made on a valuable consideration'would be Arery clearly excluded from the 2d section although the act contained nothing further on the subject. But to remove the possibility of doubt the 3d section declares that the act shall not extend to any conveyance made ‘upon good consideration and bona fide' The meaning of the word good in the statute of frauds is settled to be the same with valuable.” Here is an authority in point, upon both the provisions of the act, in which the interpretation we give them is considered as so manifestly just as not to require the aid of argument.
By the last section of the 13 Eliz. c. 5, (a statute enacted professedly for the security of creditors against fraudulent conveyances,) it is provided that, that act shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods or chattels, had made, conveyed, or assured, which estate or interest is or shall be upon good consideration, and bonajide, lawfully conveyed, &c.” In the decisions upon this act ‘ good- has been always held to mean ‘ valuable’ and our research does not furnish an authority whore it has been se[280]*280riously questioned. All transfers of property made in good faith and upon valuable consideration have been considered exempt from the operation of the act, while those upon good consideration are esteemed invalid as against the then existing creditors of the grantor—Cato’s adm’r. vs. Easley.a
Having ascertained that the mortgage does not come within the provisions of the 2d section of the statute of frauds, it is material in the next place to en-quire whether the charge of the Court can derive aid from any other enactment or from the Common Law. All of our registry acts previous to the date of the mortgage, apply in terms to conveyances of real estate, except the act of the 29th Dec. 1823 — “ to prevent fraudulent conveyances” which relates to mortgages when the property conveyed is taken from one county to another, &c.; but does not authorise their registration under other circumstances. Neither the common or statute law requires that the creditors of the mortgagor, should have actual notice, as essential to the validity of the mortgage, against them. The charge of the Court in supposing this to be necessary, in the absence of proof of registration, is therefore erroneous.
But. notwithstanding this error the judgment may be sustained, if the proposition be just, that possession must pass to the mortgagee in order to give effect to the mortgage as against the creditors of the mortgagor. This proposition would seem to be much freed from difficulty by the decision of this Court in Hobbs vs. Bibb,b in determining that the circumstance of the possession remaining with the vendor in the case of an absolute sale was only prima facie evidence of fraud' — sufaject fo explanation. The trans[281]*281fer in question is not absolute, but conditional; let ■us therefore enquire what are the decisions upon the point of possession, applicable to such a state of fact.
In Hudson vs. Warner et. al.a it was held, that the retention of personal property by a vendor will not prejudice its transfer, where bis deed showed that the sale was not to have its completion immediately, but was prospective to a future event: till that future time his possession is entirely consistent with his deed.
So in Conard vs. The Atlantic Insurance Company,b it was decided, where the sale is not absolute but conditional, the want of possession, if consistent with the stipulations of the parties, and a fortiori if flowing directly from them, has never been held to be per se a badge of fraud. To the same point, see Baylor vs. Smithers,c Craft vs. Arthur,d Trotter vs. Howard.e
The record does not discover whether the mortgage became forfeited prior to the levy of the defendants execution: before that time the retention of possession was compatible with the transfer, and not in itself a badge of fraud. But if a rnorgagor retain the possession after the forfeiture of the mortgage, for a time, within which the mortgagee might have acquired it, such continued possession, imprimafacieevidence of fraud, and the principles of decision in Hobbs vs. Bibb, would be applicable. In any point of view the charge is erroneous in supposing the retention of possession without actual notice of the mortgage to-the defendant, to avoid it perse.
This view of the case being decisive of its merits errors'- assigned need net be- considered other
[282]*282I concur with the Court in the conclusion that the judgment should he reversed and' the cause remanded.
Taylor, J. not sitting.
Aik. Dig. 245.