Martin, J.,
delivered the opinion of this court.
By the act of Assembly, of 1763, ch. 13, it is declared, that no negro or other slave, whereof the donor shall retain the use and possession, shall be transferred to any donee unless the gift be by writing, under the hand and seal of the donor, and acknowledged and recorded, as therein prescribed ; with the proviso, that nothing contained in the act shall be construed to make void any parol gift of any negro or other slave, where there shall be an express delivery of such slave in pursuance of such gift, and where the sale, use and possession of the same shall be transferred to the donee.
In the case of Coale against Harrington, 7 H. & John. 156, the Court of Appeals held, that:
“By the act of 1763, ch. 13, a gift of negroes is only required to be by deed, acknowledged and recorded, where the donor retains possession; that solemnity not being authorized, or required by law, when the possession passes to the donee, by delivery, at the time, and in pursuance of the gift, an office copy in such case of a bill of sale, is not competent evidence to prove title in the donee.”
We have not been able to discover in this record any evidence even tending to prove that there was an express delivery of these slaves by James Shipley to his daughter at the time and in pursuance of the verbal gift alleged to have been made in the life-time of Mrs. Shipley; and we have referred to the act of 1763, and quoted the construction placed upon it, by the Court of Appeals, for the purpose of showing, that the parol gift asserted to have been made in this case, cannot be maintained ; and that the title of the appellee to the slaves in controversy, must depend entirely upon the validity of the bill of sale of the 3d August, 1841.
[456]*456It appears from the evidence in the cause, that this bill of sale was a voluntary conveyance of the two slaves mentioned in the proceedings by James Shipley to the appellee, who is his daughter. Although there is a monied consideration stated in the instrument, it is conceded that this was merely formal, and that the only consideration existing between the donor and donee, was that of love and affection. The debt of the appellant was created as early as the 22d November, 1839, and was therefore antecedent to the execution of the deed. And the question presented for our consideration, is, whether this conveyance is to be treated as fraudulent and void under the statute of 13 Eliz. ch. 5, with respect to this creditor upon the circumstances of the case as exhibited in the record.
It cannot be denied, that there has been some diversity of judicial opinion both in the English courts and in the tribunals of this country, with respect to the exposition of this statute, as applied to a voluntary conveyance from a father to his child, when attempted to be impeached by an antecedent creditor.
This subject was considered by the Supreme Court of Connecticut, in the case of Salmon against Bennett, decided in 1816, 1 Connec.: 525; and we refer to the opinion as enunciating, what we consider to be the true interpretation of the statute of 13 Eliz. ch. 5: a construction which is certainly in accordance with the doctrine upon this point, as it is now established, by an almost unbroken series of modern decisions in England, and in the United States.
At page 542—the court say:
“ Fraudulent and voluntary conveyances are void as to creditors ; but in the case of a voluntary conveyance, a distinction is made between the children of the grantor and strangers. Mere indebtedness at the time will not, in all cases, render a voluntary conveyance void as to creditors where it is a provision for a child in consideration of love and affection; for if all gifts by way of settlement to children, by men in affluent and prosperous circumstances, were to be rendered void upon a reverse of fortune, it would involve children in the ruin of their parents, and in many cases might produce a greater evil than [457]*457that intended to be remedied. Nor will all such conveyances be valid; for then it would be in the power of parents to provide for their children at the expense of their creditors. Nor is it necessary that an actual or express intent to defraud creditors should be proved; for this would be impracticable in many instances, where the conveyance ought not to be established. It may be collected from the circumstances of the case. But in all cases, where such intent can be shown the conveyance would be void, whether the grantor was indebted or not. In order to enable parents to make a suitable provision for their children, and to prevent them from defrauding creditors, these principles have been adopted, which appear to be founded in good policy, where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child according to his state and condition in life, comprehending but a small portion of his estate, and leaving ample funds unincumbered for the payment of the grantor’s debts, then such conveyance will be valid against debts existing at the time. But though there be no fraudulent intent, yet if the grantor were considerably indebted and embarrassed at the time, and on the eve of bankruptcy», or if the value of the gift be unreasonable, considering the condition in life of the grantor, disproportioned to his property, and leaving a scanty provision for the payment of his debts ; then such conveyance will be void as to creditors.”
This question came before the Supreme Court, in Hinde’s Lessee against Longworth, 11 Wheat. 213, in 1826. It was the case of a voluntary conveyance by a father to his son, and impeached by antecedent judgment creditors, as fraudulent under the statute of 13 Eliz. Upon this point, Mr. Justice Thompson, in delivering the opinion of the court, said
“ A deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against credilors. It may be so under certain circumstances; but the mere fact of being in debt to a small amount, would not make the deed [458]*458fraudulent, if it could be shown that the grantor was in prosperous circumstances, and unembarrassed, and that the gift to the child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side.”
The question with respect to the true construction of the statute of 13 Eliz. was considered by Lord Langdale, in 1840, as the master of the Rolls, in Townsend against Westacott, 2 Beavan Rep. 345. He said:
“ There has been a little exaggeration in the arguments on both sides as to the principle on which the Court acts in such cases as these: On the one side it has been assumed that the existence of any debts at the time of the execution of the deed would be such evidence of a fraudulent intention as to induce the Court to set aside a voluntary conveyance, and oblige the Court to do so under the statute of Elizabeth.
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Martin, J.,
delivered the opinion of this court.
By the act of Assembly, of 1763, ch. 13, it is declared, that no negro or other slave, whereof the donor shall retain the use and possession, shall be transferred to any donee unless the gift be by writing, under the hand and seal of the donor, and acknowledged and recorded, as therein prescribed ; with the proviso, that nothing contained in the act shall be construed to make void any parol gift of any negro or other slave, where there shall be an express delivery of such slave in pursuance of such gift, and where the sale, use and possession of the same shall be transferred to the donee.
In the case of Coale against Harrington, 7 H. & John. 156, the Court of Appeals held, that:
“By the act of 1763, ch. 13, a gift of negroes is only required to be by deed, acknowledged and recorded, where the donor retains possession; that solemnity not being authorized, or required by law, when the possession passes to the donee, by delivery, at the time, and in pursuance of the gift, an office copy in such case of a bill of sale, is not competent evidence to prove title in the donee.”
We have not been able to discover in this record any evidence even tending to prove that there was an express delivery of these slaves by James Shipley to his daughter at the time and in pursuance of the verbal gift alleged to have been made in the life-time of Mrs. Shipley; and we have referred to the act of 1763, and quoted the construction placed upon it, by the Court of Appeals, for the purpose of showing, that the parol gift asserted to have been made in this case, cannot be maintained ; and that the title of the appellee to the slaves in controversy, must depend entirely upon the validity of the bill of sale of the 3d August, 1841.
[456]*456It appears from the evidence in the cause, that this bill of sale was a voluntary conveyance of the two slaves mentioned in the proceedings by James Shipley to the appellee, who is his daughter. Although there is a monied consideration stated in the instrument, it is conceded that this was merely formal, and that the only consideration existing between the donor and donee, was that of love and affection. The debt of the appellant was created as early as the 22d November, 1839, and was therefore antecedent to the execution of the deed. And the question presented for our consideration, is, whether this conveyance is to be treated as fraudulent and void under the statute of 13 Eliz. ch. 5, with respect to this creditor upon the circumstances of the case as exhibited in the record.
It cannot be denied, that there has been some diversity of judicial opinion both in the English courts and in the tribunals of this country, with respect to the exposition of this statute, as applied to a voluntary conveyance from a father to his child, when attempted to be impeached by an antecedent creditor.
This subject was considered by the Supreme Court of Connecticut, in the case of Salmon against Bennett, decided in 1816, 1 Connec.: 525; and we refer to the opinion as enunciating, what we consider to be the true interpretation of the statute of 13 Eliz. ch. 5: a construction which is certainly in accordance with the doctrine upon this point, as it is now established, by an almost unbroken series of modern decisions in England, and in the United States.
At page 542—the court say:
“ Fraudulent and voluntary conveyances are void as to creditors ; but in the case of a voluntary conveyance, a distinction is made between the children of the grantor and strangers. Mere indebtedness at the time will not, in all cases, render a voluntary conveyance void as to creditors where it is a provision for a child in consideration of love and affection; for if all gifts by way of settlement to children, by men in affluent and prosperous circumstances, were to be rendered void upon a reverse of fortune, it would involve children in the ruin of their parents, and in many cases might produce a greater evil than [457]*457that intended to be remedied. Nor will all such conveyances be valid; for then it would be in the power of parents to provide for their children at the expense of their creditors. Nor is it necessary that an actual or express intent to defraud creditors should be proved; for this would be impracticable in many instances, where the conveyance ought not to be established. It may be collected from the circumstances of the case. But in all cases, where such intent can be shown the conveyance would be void, whether the grantor was indebted or not. In order to enable parents to make a suitable provision for their children, and to prevent them from defrauding creditors, these principles have been adopted, which appear to be founded in good policy, where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child according to his state and condition in life, comprehending but a small portion of his estate, and leaving ample funds unincumbered for the payment of the grantor’s debts, then such conveyance will be valid against debts existing at the time. But though there be no fraudulent intent, yet if the grantor were considerably indebted and embarrassed at the time, and on the eve of bankruptcy», or if the value of the gift be unreasonable, considering the condition in life of the grantor, disproportioned to his property, and leaving a scanty provision for the payment of his debts ; then such conveyance will be void as to creditors.”
This question came before the Supreme Court, in Hinde’s Lessee against Longworth, 11 Wheat. 213, in 1826. It was the case of a voluntary conveyance by a father to his son, and impeached by antecedent judgment creditors, as fraudulent under the statute of 13 Eliz. Upon this point, Mr. Justice Thompson, in delivering the opinion of the court, said
“ A deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against credilors. It may be so under certain circumstances; but the mere fact of being in debt to a small amount, would not make the deed [458]*458fraudulent, if it could be shown that the grantor was in prosperous circumstances, and unembarrassed, and that the gift to the child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive, and not conclusive evidence of it, and may be met and rebutted by evidence on the other side.”
The question with respect to the true construction of the statute of 13 Eliz. was considered by Lord Langdale, in 1840, as the master of the Rolls, in Townsend against Westacott, 2 Beavan Rep. 345. He said:
“ There has been a little exaggeration in the arguments on both sides as to the principle on which the Court acts in such cases as these: On the one side it has been assumed that the existence of any debts at the time of the execution of the deed would be such evidence of a fraudulent intention as to induce the Court to set aside a voluntary conveyance, and oblige the Court to do so under the statute of Elizabeth. I cannot think the real and just construction of the statute warrants that proposition, because there is scarcely any man who can avoid being in debt to some amount; he may intend to pay every debt as soon as it is contracted, and constantly use his best endeavors, and have ample means to do so, and yet may be frequently, if not always indebted in some small sum; there may be a withholding of claims, contrary to his intention, by which he is kept indebted in spite of himself; it would be idle to allege-this as the least foundation for assuming fraud, or any bad intention. . On the other hand, it is said that something amounting to insolvency must be proved to set aside a voluntary conveyance; this too is inconsistent with the principle of the act, and with the judgments of the most eminent judges.”
In the late case of Gale against Williamson, 8 Mees. & Wels, 409. The same doctrine was held in the Exchequer, by Lord Jlbinger Rolfe Baron.
Rolfe—B. at page 410, says:
“ It is a mistake to suppose that the statute, (13 Eliz.) makes [459]*459void as against creditors all voluntary deeds. All that it says, is, that a practice of making covinous and fraudulent deeds had prevailed, and, therefore, that all feoffments, gifts, &c., of any lands or goods, and chattels, as against the persons whose actions, debts, &c., by such covinous and fraudulent devices and practices shall be disturbed, hindered, delayed, or defrauded, shall be void. The Courts in construing the statute have held it to include deeds made without consideration, as being prima fade fraudulent; because necessarily tending to delay creditors. But the question in each case is, whether the deed is fraudulent or not; and to rebut the presumption of fraud, the party is surely at liberty to give in evidence all the circumstances of the transaction.”
The same proposition is declared by the Lord Chancellor and by Eyre Baron, in the case of Jones vs. Boulter, 1 Cox Rep. 288. 1 Story Eq. Sec. 364, (note) Lord Chancellor B. Skinner is reported to have used this language: H There is no mention in the act (Stat. 13 Eliz.) of voluntary conveyances; and the question has always been, whether in the transaction there has been fraud or covin. There were creditors at the time, and this is said always to have been a badge of fraud. It is true that this circumstance is always strong evidence of fraud. But if there be other circumstances in the case, that alone will not be sufficient.” And Lord Mansfield, in Cadogan vs. Kennett, decided in 1776, Comp. 434, held:
“ That a voluntary conveyance may be good against creditors, notwithstanding its being voluntary. The circumstances of a man being indebted at the time of his making a voluntary conveyance is an argument of fraud. The question in every case is, whether the act done is a bona fide transaction, or whether it is a trick and contrivance to defeat creditors.”
In considering this subject, it is to be remarked as already stated, that the word “voluntar]if is not to be found in the statute. Deeds founded upon a good consideration, if made bona fide, arc expressly excepted from its operation; and it is perfectly clear, from the preamble of the statute, that its provisions were pointed not at voluntary conveyances as such, but against transfers [460]*460concocted in fraud, and fabricated and devised by the debtor for the purpose of delaying and defrauding his creditor.
Yet the construction put on the statute, by those who held that an indebtedness at the time of the conveyance conclusively fastens upon the instrument a fraudulent character, as an inference of law, practically and necessarily plaGes voluntary conveyances and fraudulent conveyances, in the same predicament. Upon this construction, every voluntary conveyance' must be a fraudulent conveyance with respect to the antecedent creditor.
A proposition of this kind cannot be maintained, and with great respect for the judgment of the eminent Judge, who delivered the opinion, in Reade against Livingston, 3 John. Ch. Rep. 481, we think, he erred in the exposition which he has given to the statute of 13 Eliz.
We therefore consider it as now established, at least by a decided preponderance of authority, and upon principles alone consistent with a just and rational interpretation of the statute, that an indebtment at the time of the voluntary conveyance, is prima facie only, and not conclusive evidence of a fraudulent purpose, even with respect to a prior creditor; and that this presumption may be repelled by showing that the grantor or donor at the time of the gift was in prosperous circumstances, possessed of ample means to discharge all his pecuniary obligations, and that the settlement upon the child was a reasonable provision, according to his or her station and condition in life.
Testing the voluntary conveyance in this case, by the rule thus announced, there can be no doubt that it must be pronounced fraudulent and void. The donor at the period of its execution was literally loaded with debt; was involved in embarrassments approximating to insolvency, and the owner of an estate, so far as it was unincumbered, certainly not adequate to the payment of the claims against him.
It is clear upon all the cases, that a voluntary conveyance made under such circumstances cannot be upheld against a prior creditor’s seeking to impeach it.
As the appellee failed to establish a valid title to the slaves [461]*461taken in execution at the instance of the appellant, the Chancellor erred, we think, in making the injunction perpetual.
A decree will be signed reversing the decree of the Chancellor, and dismissing the complainant’s Bill.
decree reversed and bill dismissed.