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divided into two classes. It provided that Mr. D. B. Ogden, for the appellant: among his old debts, out of the surplus of his The right and power of a debtor to givo a estate, which was expected to remain after the preference to some bona fide creditors over first and second class of preferred debts had others is not denied. But such preferences are been satisfied, that certain debts due by him in no favorites in a court of equity, in which 1814, the judgments in favor of the plaintiffs "equality is equity;" yet, inasmuch as such a not being among them, should be paid; and deed is good and valid at law, equity follows pot believing the effects assigned would extend the law, and will support it.

rond the payment of these debts, no others But a court of chancery will look narrowly were designated. The assignment then pro-into all the circumstances of the case, and if ceeds to assign and transfer all the property they find the deed tainted in the smallest deand effects to the creditors of the first and gree with fraud they will declare it void. A second class in trust to pay the debts according preference may be given to some creditors over to the preferences and classification on the same, others; but, in giving that preference, the debtor giving to the said creditors, or a majority of must act bona fide. Independent of the ques. them, power to nominate and appoint an agent, tions of law arising in this case, there are attorney, or trustee, to carry the purposes of strong circumstances to show that, in making the instrument into full effect.

this assignment the defendant, Wheeler, did not On the 15th of February, 1838, writs of fieri act with good faith towards the complainant. acias were issued on the judgments, which were He obtained from him an agreement to postreturned by the marshal nulla bona.

pone issuing any executions_upon his judg. The appellant filed a bill in the Circuit Court, ments until after the first of February; it was praying that the deed of assignment executed in bad faith for him to avail himself of this by Wheeler should be decreed fraudulent and postponement, thus obtained, to place all bis void, as it regards the complainant. The bill property out of the reach of an execution. It also alleged acts done by the defendant Wheeler is evident that this assignment was made to for the concealment of property, and also the defraud and injure the complainant, and to pre. nominal creation or increase of debts which vent his recovering his debt. were included in the preferences made by the Another strong circumstance against the fair. assignment, and other acts of fraudulent col-ness and good faith of this assignment, is the lusion: and also it alleged that the property as following: The assignment directs that an old signed had been left in the hands of the as- debt, due from him to F. & J. Sexton, of New signor, and the creditors had never appointed York, for the sum of three thousand one hun. an agent, or trustee, who had taken charge or dred and twenty dollars, with interest at the direction of the property assigned. In the rate of six per cent. from August, 1814, shall 108*] *opinion of the court, delivered by Mr. be paid; and it also recites that this debt has Justice Thompson, other facts are stated, which been assigned to Norman Porter, who now holds are taken notice of by the court.

the same. The Circuit Court made a decree dismissing Now, this Norman Porter, it appears throughthe bill, and the complainants prosecuted this out this record, "is one of the most ['109 appeal.

intimate friends of Wheeler, and one of those The case was submitted to the court on a favorites for whom he wished to provide in printed argument, by Mr. Ogden for the appel. preference to the complainant. Porter's answer lant, and by Mr. Crittenden, who presented to states that he paid three hundred and seven the court the printed argument of Mr. M. C. dollars and fifty cents, Kentucky money, for Johnson, for the appellee.

the debt of F. & J. Sexton, in January, 1838. Ch. 235 ; 2 Vern. 273; 1 Bro. C. C. 112 ; Naldred | lease of the premises from the son. But wishing V. Gilham, 1 P. Wms. 577 ; Boughton v. Bough to keep them from the public, be delivered them ton, 1 Atk. 625; Stirling v. Vaughn, 11 East. 623; to a third person, to keep them privately for the Shep. Touch. 67; Taw v. Bury, Dyer, 167, 6, 1; grantee. The third person afterwards falling sick, Anders. 4; Alford v. Lea, 2 Leon, i11'; Cro. Eliz. the father took back the papers. but, it appeared, 54; Butler & Baker's case, 3 Rep. 26, n.; Wankford only for safe keeping. After the father's death, V. Wankford, 1 Salk. 299, 301.

the deed was found among his papers by his son, A person made a deed of gift of all his real prop, and put on record. Held, that under the peculiar erty to his daughter. He signed and sealed it, and circumstances, and the transaction being between no one being present but the attesting witnesses, father and son, there was a good delivery of the he said, "I deliver this as my last act and deed." deed. Brown v. Brown, 1 Wood & M. 325. After this, he desired a third person to keep it, and If a deed is delivered to the party or his agent, not deliver it to his daughter till he was dead, it and not to a stranger, it is absolute, and parol erle being suggested to him that she might otherwise dence of conditions qualifying the delivery is ID take his property from him his lifetime. Held, admissible. Worrall 7. Munn, 1 Seld. 229; Gilbert that the delivery of the deed was complete ; but, 7. N. Am. F. Ins. Co. 23 Wend. 43 ; Cocks v. Bark. semble, that if the direction to keep it bad been er, 49 N. Y. 107. glven before he said "I dellver this," the deed 'An escrow signed, sealed and deposited upon • would not have operated as an escrow. Doe, d. valuable consideration is not revocable by the de Lloyd, v. Bennett, 8 Carr. & P. 124 : Graham v. positor, except according to the terms of tbe agreeGraham, 1 Ves. Jun. 278; Cecil v. Butcher, 2 Jac. ment and deposit. The depositary of an escrow, & W. 565.

made under such circumstances, is as much the A, having received moneys from B, privately and agent of the grantee as of the grantor, and he is as without any communication with B, prepared and much bound to deliver the deed op performance of executed a mortgage to him for the amount. A re- the condition as he is to withhold it until perform. tained the deed in his custody for twelve years, and ance, 3 Washb. on Real Prop. ch. 4, 2, pp. 371, then died insolvent. After his death the deed was 372, 373; Shirley v. Ayres, 14 Ohio, 307 ; Ruggles discovered in a chest containing his title-deeds. v. Lawson, 13 Johns. 285 ; Belden v. Carter, 4 Day, Held, that the deed was not an escrow, there being 66 ; Hatch v. Hatch, 9 Mass. 307 ; Jackson v. Rowno evidence to show that it was executed condi- land. 6 Wend. 666 ; Stanton v. Miller, 1 Thomp. & tionally, but that it took effect from its execution, I c. N. Y. 23. 35. and was good agalnst A's creditors. Exton v. Whether the deed can take effect without actual Scott, 6 Sim. 81.

delivery may be doubtful; but, when delivered, the A father made a deed of land to his son, in con- delivery relates back to the time of deposit. 1d.: 4 sideration of services and affection, taking a life' Kent's Com. 454 ; Stanton 1. Mller, above cited.

In

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He began to negotiate for it in December, 1837. ( alleged but not answered must be proven on
He purchased it without any arrangement with final trial. See Young v. Grundy, 6 Cranch,
or suggestion from Wheeler. He had heard of 52. If a more specific answer had been de.
the prosecution by Winter, and of Wheeler's sired, exceptions should have been taken. All
intention to assign his property for the benefit exceptions to insufficient answers are expressly
of his other creditors, to prevent Winter from waived by agreement.
recovering the amount of his judgments; and In regard to delivery, it is well settled that if
he therefore bought up this debt of the Sextons. a deed be delivered to a stranger for the use of
The amount of principal and interest on this the grantee, without any condition annexed
debt, calculating the interest at six per cent., making it an escrow, it is a delivery to the
from August, 1814, to November, 1837, is seven grantee. Sheppard's Touchstone, 58.
thousand four hundred and twenty-two dollars this case the deed was delivered to the clerk of
and forty cents; which this Mr. Porter receives, the Fayette County Court, for the use of the
and for which he paid but three hundred and grantees, to be recorded in his office. It has
seven dollars and fifty cents.

also been decided, that if a deed of feoffment The assignment purports to convey his prop. be made to four, but only delivered to three of erty directly to the creditors named in it. There them, and livery of seisin made to the three is no proof that it was delivered to any of them, for the use of all, without the assent of the and it is in proof that several of the creditors fourth, and when it comes to his knowledge, never knew of its existence.

he disagrees to it, still the freehold is in him, Wheeler continued in possession of the prop. and so remains, until disclaimer in court; and erty; it never was delivered over; this of itself so if a deed "be made of goods and ['111 is evidence of fraud. 1 Peters, 356; 4 Mason, chattels, and be delivered to a stranger for the 321; 3 Maule & Selw. 371; 15 Johns. 571; 4 use of donee, there the goods and chattels vest Bibb, 445, Kentucky Reports.

in donee before notice or agreement; but in The assignment gives the creditors power to this case donee may make refusal in pais, and name a trustee to take the property; no such by such refusal the interest is devested. See trustee has ever been appointed. The sale of Butler and Baker's case, 3 Coke's Reports, 26, some property to Putnam was evidently made 27. See, also, the case of Doe, on dem, Garnons, for the mere purpose of preventing the judg: v. Knight, 5 Barn. & Cress. 671, for a full ar. ment creditor from recovering his demand; and gument on the effect of delivery to a stranger, is therefore void. Cowp. 434; 1 Burr. 474; 1 and for a collation of all the authorities. Ac. Campbell, 333.

cording to these principles, so far as the vestThis assignment, the court will recollect, was ing of legal title is concerned, it matters not made but four or five days before the time dur whether the grantees were consulted or knew ing which execution was to be stayed expired, of the deed or not; the property embraced in it and the negotiation which brought about the was vested in them by force of the delivery to assignment of this debt of the Sextons was not the clerk for their use until their disagreement. entered upon by Porter until December, long In cases of deeds of trust, where the prop. after the judgments were entered, and Porter erty is conveyed to a stranger, for the benefit of himself admits that he knew of the intended creditors, and these creditors not parties to the assignment by Winter, and that their debt was deed, it has been decided by this court, in to be provided for. It appears that a more Marbury v. Brooks, 7 Wheat. 556; and Brooks fraudulent attempt than this to give a prefer. v. Marbury, 11 Wheat. 78; Brashear v. West, 110*) ence "over a bona fide creditor rarely 7 Peters, 608; also, in the cases of Halsey v. occurs. 7 Peters, 605; 2 Gallis. 557; Picker Whitney, 4 Mason's C. C. R. 206; and ing, 71.

Wheeler v. Sumner, 4 Mason's C. C. R. 183, Mr. Johnson, for the appellees:

that the assent of the creditors is not necessary The assignment of Wheeler to his creditors to the validity of such a deed; and in the caso is charged to be fraudulent, because it was of Marbury v. Brooks, supra, an assent after made by Wheeler without the knowledge or creditor had attached the goods was decided to assent of the creditors therein named, and was be sufficient to make the deed valid from its never delivered to, or accepted by them. execution.

It is contended that the fact is otherwise. The rule that in absolute sales of chattels None but F. L. Turner failed to give assent the possession remaining with the grantor is to it; and the mortgage funds can under no fraud, per se, has been fully recognized in Ken. contingency pay his debt; and his interest in tucky; but it is equally well settled that this them amounts to nothing. As to all who do rule has no application to mortgages and deeds not admit that they did not assent, the pre- of trust. See 5 Littell's Reports, 243; 1 J. J. sumption of law is, that they did assent, as Marshall, 282; 3 J. J. Marshall, 463. In the deed was beneficial and had no condition Snyder v. Hitt, 2 Dana, 204, the court say attached. See Halsey v. Whitney, 4 Mason that the possession of the mortgageor is not C. C. R. 206; Wheeler v. Sumner, 4 Mason fraudulent, and, in general, no evidence of C. C. R. 183.

fraud. This court, in the United States v. Hooe, This presumption particularly applies to all etc. 3 Cranch, 73, decide, that where the the non-residents, as to whom the suit is dis- deed provides for the grantor retaining possesmissed. All others have answered, or by sion, it is not fraudulent, and in 1 Peters, 449, agreement are considered as having answered; the rule is held only to apply where the posassenting to the mortgage, or stating that they session of the grantor is inconsistent with the were paid before process was served.

deed. It may not appear from the answers of some The reason of this distinction in Kentucky when the assent was given, but according to is twofold. 1. The possession of the mortthe practice in United States courts, a matter' gageor is not inconsistent with the deed; and,

L. All deeds of mortgage and of trust are re case of Halsey v. Whitney, 4 Mason C. C. R. quired to be recorded.

207, and the numerous authorities collated i12'] *The equity of redemption, or result- and ably commented on. ing trust of grantor, and his interest in freeing himself from debt, by making the property as available as possible for that purpose, are such Mr. Justice Thompson delivered the opinion actual and legal interests in the property as all of the court: courts will regard and protect, and are such in This is an appeal from the Circuit Court of terests as render it not only consistent with the the United States for the District of Kentucky. transaction, but highly beneficial to all parties, The bill filed in the court below was for the Inat the debtor, if honest and capable, should re- purpose of setting aside a certain deed of as. main in the possession of the encumbered prop signment, made and executed by the defend. erty. He is the person best acquainted with ant, Wheeler, for the purpose of securing to the property and its capabilities, and his inter certain enumerated creditors the avails of his est perfectly coincides with that of the cred. property, to the exclusion of the complainants; itors, in making it as valuable as possible. and that the complainant may be decreed to

There can be no doubt that the assignment have satisfaction of his judgments set out in the in question is not an absolute sale, but a mort. bill, out of the property conveyed by the deed. gage or deed of trust. The property is assigned The bill sets out that at the Noveniber Term for the purpose of paying the debts. Upon of the Circuit Court of the United States, in their payment, the property, by operation of Kentucky, in the year 1837, the complainant relaw, results to the grantor. But, by whatever covered two judgments against Leonard Wheel. name it may be called, it is, in substance ander; one for the sum of four thousand dollars, reality, a mortgage; and Wheeler has, in the with interest, from the 21st of February, 1814, property, all the interests which are above enu- and the other for eight hundred and ninety one merated as appertaining to the mortgageor: dollars and fifty-three cents, with interest for and there is, consequently, the same consis- the same time; upon which judgments executency of his possession with the deed that there tions were not to issue until the 1st of Februcould be were it a mortgage, in the most nicely ary, 1838, at which time executions were duly technical sense. In the deed it is provided, issued, and put into the hands of the marshal substantially, that he shall remain in posses of the district to be executed; upon which the sion, managing the fund, until the grantees, marshal returned that he found no property of by agent or otherwise, take possession. which to make the money on the executions.

In Kentucky all mortgages and deeds of The bill further states, that on the 27th of trust, whether of real or personal estate, on January, 1838, the said Leonard Wheeler, by legal or equitable interests, are required to be deed of trust or assignment, made a conveyance recorded in offices of the county courts. to certain of his preferred and specified credit. Brown and Morehead's Statute Law of Ken-ors (of "which the complainant was not (*114 tucky, Vol. I. pages 448, 449; also, see Session one) of certain property therein specified, to pay Acts of 1836, 1837, page 255; also, Session and discharge certain specified debts, which Acts of 1838, 1839, page 96. These statutes deed was duly acknowledged and recorded in would change the rule as to possession, even the proper county; and the bill charges, general. had it previously existed, by destroying the ly, that this deed ja fraudulent and void. It reason of it. In regard to chattels, the only particularly charges that the deed was made ownership the world can know is the contin- without the knowledge, privity, or assent of the ued possession. Being capable of transfer, by creditors named therein, and who are the parties the most secret contracts, without the least to whom the deed is given. That the deed was solemnity or notoriety, purchasers and credit never delivered to nor accepted by the grantees. on could be deceived and defrauded without That it was made with intent to deceive and de. limit did not the law provide for their security fraud his just creditors, who were not included some visible test of ownership. The continued in its provisions. That the possession of the possession is the test as to chattels, but it is property conveyed by said deed was retained not of real estate, the title deeds being the evil by the said Wheeler, and never delivered to the dence, and, accordingly, we find the rule does parties of the second part, or any one of them. not extend to real estate. In Kentucky, the That the deed was lodged in the clerk's office, notice of encumbrances is the record, and pur- for record after the rendition of the complainchasers and creditors are completely guarded ant's judgments, and but a short time before he 113') against being "defrauded by mort. was authorized to issue execution upon his gages, etc., by an easy reference to the office judgments. of the County Court.

It further charges that the sale of the goods The property is not, however, of the charac- to Joseph Putnam, one of the creditors named ter to which the rule applies. Consisting of in the deed of trust, was fraudulent, and with. choses in action, they are incapable of visible out any valuable consideration; and that the possession, and pass by assignment. So this business was afterwards conducted in the name court held in the case of Spring v. The South of the said Putnam, but for the use in whole or Carolina Insurance Company, 8 Wheat. 268. in part of the said Wheeler.

If a debtor gives up all he has, to bona fide It further charges that Joseph Swift, another creditors, and such all he has provided for are defendant, has for several years past been em. admitted to be, and he reserves no right, power ployed in carrying on the grocery business, in or benefit to himself, it is impossible that this which the said Wheeler was interested; and that can be fraudulent. The law not only does not the said Swift is now in possession of goods, or condemn, but approves and sanctions it. See other property, belonging to the said Wheeler, the luminous opinion of justice Story in the or is indebted to him for the same.

It also charges that Norman Porter, another material questions which arise upon the merito of the preferred creditors, had money in his of this case. hands belonging to the said Wheeler, and to be It is deemed unnecessary to notice the obused for his benefit; and that the note mentionedjections made to the jurisdiction of the court in the said deed of three thousand one hundred below, either on the ground that Elisha L and seventy dollars, was purchased by said Winter, the real party in interest, should havo Poster for Wheeler's benefit, and with his been made the party complainant in this suit; money.

or that there is a want of proper parties, deThe bill likewise prays that Abel Wheeler, fendants, to enable the court to make the decree one of the preferred creditors, may answer and upon the merits. The conclusion to which we state particularly whether he has at any time have arrived supersedes the necessity of considlent and advanced to Wheeler money or other ering these questions. property, and whether he now holds any note, Although the right and power of a debtor to or memorandum, or other evidence of debt give a preference to some of his bona fide credagainst him.

itors, to the exclusion of others, has not been The bill prays that the said Leonard Wheeler, denied on the part of the complainant; yet, it 115*) and the above mentioned *preferred has been urged, in argument, that such precreditors, may answer specially and particular. ferred creditors are no favorites in a court of chan. ly to the several interrogatories put in the bill, cery, where it is said equality is equity; and in reference to the transactions between them that a court of chancery will look narrowly into severally and respectively.

all the circumstances, and if is found that the The several answers of Leonard Wheeler, deed is tainted in the smallest degree with fraud, Porter, Putnam, Swift, and Abel Wheeler, it will be declared void. And it has been in. contain a full and explicit denial of all the sisted, that in the present case there are strong charges contained in the bill, tending in the circumstances to show that in making this deed least manner to sustain the allegations of fraud of trust, the defendant Wheeler did not act in or collusion, or any secret or unfair transactions good faith towards the complainant. That he between them, or either of them, with Leonard obtained from him an agreement to postpone Wheeler. And there is no proof offered to sus- issuing executions upon his judgments until tain these allegations; they may therefore be dis- after the first of February; and that a few days missed as wholly unsupported.

before that time he made the assignment in The bill calls upon the said Leonard Wheeler question, so as to put all his property out of the to state how and to whom he delivered the deed reach of the executions; and that this was in of trust; in answer to which he states, that every bad faith, which ought not to receive the sanc. creditor provided for by the deed, was a real tion of a court of equity. It may be observed, and bona fide creditor. That he consulted with in the first place, that there is no evidence of a number of his creditors, naming them, before any deception practiced by Wheeler to lull him making the deed; all of whom approved of it; to sleep, or procure any delay in issuing execuand that he knows of none who disapproved of tions on the judgments. It was done in the it, or rejected the benefit of its provisions; and ordinary course of judicial proceedings. And some of them have accepted of it in writing, if the principle be sound that a debtor may which appears by the exhibits annexed to the lawfully apply his property to the payment of answer. That, being satisfied with the pro- the debt of such creditors as he may choose to priety of the measure, he made and executed the prefer, he may certainly elect the time when it deed, and left it in the proper office, to be re- is to be done, so as to make it effectual. And corded for the use of his creditors. He admits such preference must necessarily operate to the that the funds, mentioned in the deed of trust, prejudice of creditors, not provided for, and remained in his possession; and that the credit cannot furnish any evidence of a fraudulent in. ors have never availed themselves of the privi- tention. But the circumstances of the present lege of appointing a trustee; having confidence, case are such as not only to remove all ground as he presumes, in the correctness of his man- for any charge of fraud, "but even of (*117 agement of the business. And he further states, injustice or unfairness in the conduct of Wheeler. that he has gone on in collecting the choses in Although it may be admitted that John Tompaction, and paying over the proceeds to the kins is properly made complainant, yet it is man creditors, according to the provisions of the ifest from the record that he is a mere nominal deed of trust.

party, and that Elisha I. Winter is the real party The answer of Wheeler with respect to the in interest. This is shown by the answer of delivery of the deed, and the possession and Wheeler, and proved by the testimony of Wil. management of the funds, is corroborated by liam Fellows, who swears that in the latter part the answers of a number of the creditors, who of 1836, or the beginning of 1837, Winter, are made parties, and called upon to answer on through his agent, applied to him, to purchase these points. They say that they were con the claim of Tompkins, which had been sent to sulted before the deed was executed, and ap- him for collection. That he offered one thou. proved of it then; and accepted it when made. sand dollars for it, which was not at that time That no trustee has been appointed, because accepted. That in the summer of 1837, Winter they had full confidence in Wheeler, and de. himself made the same offer which his agent sired him to continue in the management of has made; and again, in the fall of 1837, he rethe business.

newed the offer of one thousand dollars, and ex. There are several amended bills, with the an- pressed his opinion of Wheeler's condition, when, 116'] swers thereto, "bringing up some new with the opinion of some others, who he supmatters, but not of sufficient importance to posed knew Wheeler's circumstances, he, in the require any special notice. The above state-month of October, 1837, sold the claim to Win. ment of the bill and answers presents all the 'ter for one thousand dollars, believing that he

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was purchasing it for the benefit of Wheeler. I since that time have been paid their debts, in That, a few days after the sale, he received a full. And there is no evidence that anyone written request from Winter not to let it be dissented. F. S. Fuller says he was never con. known that he had the control over the claim. sulted with about making the deed, or informed Thus we see great anxiety in Winter to pur- of it before its execution, and that he has never chase a claim against a man embarrassed accepted of its provisions. But he does not and in failing circumstances; and the consid say that he has ever refused to accept of the eration paid for it shows that the claim must provisions in his favor; and he may not, there. have been considered almost desperate. Only fore, have precluded himself from still acceptone thousand dollars given for a claim which, ing. This deed is absolute upon its face, with by the judgments stated in the complainant's out any condition whatever attached to it; and bill, including interest, amounted to between being for the benefit of the grantees, the preeleven and twelve thousand dollars. These sumption *of law is, in the absence of (*119 circumstances, independent of the statements all evidence to the contrary, that the grantees in Wheeler's answer, are calculated to cast accepted the deed. In the case of Marbury v. some suspicion upon the conduct of Winter, Brooks, it is said by the court that an assign. and to justify the inquiry, whether he comes ment for the benefit of preferred creditors is into court with clean hands, and can justly re- valid, although their assent is not given at the proach Wheeler with bad faith and unfairness time of its execution, if they subsequently actowards him. Wheeler's circumstances were cept in terms, or by actually receiving the benextremely embarrassed, if not desperate, and he efit of it. Deeds of trust, say the court (11 found impending over him two judgments Wheat. 96), are often made for the benefit of amounting to nearly twelve thousand dollars, persons who are absent, and even for persons in the hands and under the control of Winter, who are not in being; whether they are for the who he had certainly no reason to believe was payment of money or for any other purpose, friendly to him; and which judgments, if they and no expression of the assent of the persons could have been enforced to their full amount, for whose benefit they are made has been rewould have swallowed up a great porportion of quired, as preliminary to the vesting of the his property. Was he not, under such circum- legal estate in the trustee; such trusts have stances, authorized, by every principle of justice always been executed on the idea that the deed and honesty, to secure as far forth as he could was complete when executed by the parties to 118*) his bona *fide creditors? That the debts it. The omission of creditors to assent to the of all the creditors preferred in the deed of trust deed, or to claim under it, may, under susare bona debts, is fully established, not only picious circumstances, afford some evidence of by the proofs, but is admitted on the record, by fraud. But real bona fide creditors are rarely an agreement which, among other things, states unwilling to receive their debts from any hand “that the genuineness of the debts provided that will pay them. It is not true that the deed for in Wheeler's assignment will not be con: remained in the possession of Wheeler; it was tested or called in question on the argument.” sent to the clerk's office to be recorded. It was,

That a debtor has a legal right to prefer one of course, placed in the hands of the clerk, to or more of his creditors over others, when the be recorded for the uses and purposes expressed transaction is bona fide, is not an open ques in the deed, and of course for the benefit of the tion in this court. That point was settled in creditors named in it. It was put out of the the case of Marbury v. Brooks, which came possession and control of the grantor. The twice before the court under circumstances grantees in the deed are numerous, and all somewhat different, and is reported in 7 Wheat. could not have the actual possession of it. It 556, and in 11 Wheat. 78. That this assign- is laid down in Sheppard's Touchstone, 58, ment was a bona fide transaction between that if a deed be delivered to a stranger for the Wheeler and his preferred creditors, is clearly use of the grantee, without any condition anestablished by the proofs. Every allegation in nexed, making it an escrow, it is a delivery to the bill, suggesting fraud or collusion, is fully the grantee. The delivery to the clerk to be met and denied by the several answers, and is recorded, may well be considered as falling wholly unsupported by any proofs.

within this rule. This principle is fully recog. But several objections have been taken to the nized in the case of Doe v. Knight, 5 Barn. & legal effect and operation of this deed, on other Cress. 692, that a delivery of a deed to a third grounds than that of fraud.

person, for the use of the party in whose favor That it was made by Wheeler without the it is made, where the grantor parts with all knowledge or consent of the creditors therein control over the deed, is effectual, and operates named; that it was never delivered to or ac. from the instant of such delivery. cepted by the creditors, that possession of the If the fund had remained in the possession of fund was retained by Wheeler, and no trustee Wheeler for his own benefit, it might have cast appointed according to the provisions of the a suspicion upon the fairness of the transaction; deed.

but there is no proof of any such object or de Some of these objections are not founded in sign, or of any fact from which an inference of fact. It is true that it does not appear that all mala fides can be drawn: but on the contrary the creditors had any knowledge of the deed the object of his continuing in the possession before it was executed. But it does appear of the property is satisfactorily accounted for from the answer of a number of the creditors by the circumstances of the case. It (*120 named in the deed, that they were advised of consisted principally of unsettled accounts, and the necessity of Wheeler's securing them, and choses in action, which he was much more informed of his intention to secure them before competent to settle than a stranger could have the deed was executed, and approved of it, and been. It was, therefore, for the benefit of the accepted the benefits of its provisions; and creditors that he continue to settle up these

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