Sanders vs. Pepoon and Olcott.-Opinion of Court. might be considered as a purchase of the promissory note with the goods so delivered, or the note was received by the appellant in discharge of a precedent debt due him for goods sold and delivered to the said parties, is equally immaterial, for as to either character of subsequent purchaser for value or creditor, the conveyance was null and void, because the possession of Ashley and Hovey was inconsistent with the conveyance. These considerations show most clearly that the respondents, by the conveyance exhibited, acquired no right to, or lien upon, the promissory note in question, or the debt which it was given in liquidation of, and therefore the respondents were not entitled to recover; and the court below should have so ruled. We do not deem it necessary to examine particularly the propriety of the refusal by the court below to give to the jury the instructions prayed by the appellant, or those which the court did give, as the view we have taken covers the whole merits of the case. Some considerations have suggested themselves to us springing out of the form of the conveyance, and the vague and uncertain description of the property in esse intended to be conveyed, as well as to its peculiar and transitory character; and also the propriety of giving effect to transfers and mortgages of property, and of rights or things in action subsequently to be acquired by the mortgagor, but as the examination of the points is not necessary to a disposition of the cause, we forbear to notice them. The judgment of the court below must be reversed, with costs; and inasmuch as it appears by the record that the amount of the judgment and costs has been paid by the appellant, let a writ of restitution of the amount so paid issue from this court, upon the application of the appellant or his counsel. TERM AT MARIANNA. WESTERN DIVISION. REUBEN KENT, PLAINTIFF IN ERROR, vs. R. F. LYON, GUARDIAN OF A. M. LOTT, DEFENDANT IN ERROR. Where a man makes a deed of gift of slaves or other property which as against creditors is conceded to be void, and dies in possession of the property granted,it is assets in the hands of his administrator, and the deed of gift, in reference to the creditors, is to be considered as if it had never been made. If the fraudulent donee has gone into possession of the property in the life time of the donor, he is not liable to the donor's representative either for the property or its value, but is responsible to the creditors for the value. Error to the Circuit Court for Jackson county. A sufficient statement of the case will be found in the opinion of the court. Yonge for Plaintiff in Error. Campbell for Defendant in Error. ANDERSON, Chief Justice, delivered the opinion of the Court. This was a case of a claim interposed under the statute, by the defendant in error, to a negro slave called Jenny, who had been levied on to satisfy an execution in favor of the plaintiff in error against George R. Williams, administrator of Jesse Lott, deceased. The cause was tried at the Fall Term, 1850, of the Circuit Court for Jackson county. The slave was in the possession of Lott at the time of his Kent vs. Lyon, Guardian.-Opinion of Court. death, and passed with other personal property into the hands of Williams, the administrator, and passed from him to the possession of the Sheriff. At the trial of the claim, the claimant relied upon a deed executed by Jesse Lott in his life time, by which he had conveyed to A. M. Lott, his daughter, the negro in question, and also upon a judgment which the claimant, in behalf of his ward, had obtained in trover against Williams for the value of the same slave. The deed from Lott to his daughter seems to have been conceded on all hands to have been fraudulent as to creditors. At all events there is sufficient evidence on the record to show it was so. But the defendant in error alleging that it was good between the parties to it, and their representatives, contended that therefore the property was not assets in the hands of the administrator, and as a consequence not liable to satisfy the execution. His Honor in the court below sustained this position of the defendant in error, and charged the jury as follows :"If you are of opinion that Jenny is embraced in the deed. executed by Jesse Lott to his daughter, and is the one upon whom the execution in this case is levied, you will "find her not subject to the execution." A verdict was rendered for the claimant, in accordance with this instruction. 66 The plaintiff in error excepted to the charge, and the case is thus presented to our consideration, involving this inquiry: If a donor, after having made a conveyance of his personal property, which is fraudulent as to his creditors, dies in possession of the property, and it goes into the hands of his administrator, is it assets for the payment of his debts ? There is some apparent conflict among the authorities upon this question, but we think they are easily recon Kent vs. Lyon, Guardian.-Opinion of Court. ciled by adverting to the principles of law which regulate and adjust the respective rights of the parties to this suit, and of the administrator of Jesse Lott. Our statute of January 28th, 1823, which is a re-enactment of the statute of the 13th Elizabeth, provides, that all conveyances executed with intent to delay and defraud creditors, shall be "deemed, held and adjudged and taken to "be utterly void, frustrate and of none effect," as against such creditors. Th. Dig., 215. On the other hand, the principle is clear that a fraudulent conveyance is good between the parties and their representatives. Hawes vs. Leader Cro. Jac., 270. In that case the intestate made a grant of his goods to B., by fraud between him and B., to cheat the creditors, and he kept possession of the goods. and died. B. then sued the administrator for the goods, and he pleaded this covin and fraud, and the statute of 13 Eliz., but on demurrer the plea was held bad, and judgment was rendered for the plaintiff, on the ground among others, that the deed was void only as against creditors, but that it remained good as against the party himself and his representatives. These two principles are illustrated by the effect given to the fraudulent conveyance when tendered as evidence on the trial respectively of the two classes of conflicting claims to which we have referred. When the contest is between a creditor and the fraudulent donee or grantee, the conveyance upon which the latter relies, if tendered as evidence, is, under the statute, "deemed, held, adjudged and taken to be utterly void, 66 frustrate and of none effect" as to the creditor. The title of the donee necessarily fails, for want of evidence to support it, and the creditor prevails, after having shown pre-existing title. But where the contest is between the donee and the representatives of the donor, and the donee Kent vs. Lyon, Guardian.-Opinion of Court. tenders his fraudulent conveyance, the representative is estopped from impeaching the deed of his testator or intestate there is no party to the suit against whom the deed is "frustrate and of none effect," and the donee in his action at law must necessarily prevail. The case now before the court is precisely the one first supposed. Kent having obtained judgment and execution against Williams, the administrator of Lott, levies his execution upon a negro woman of which Lott had died possessed, and which was found in the possession of the administrator. A claim is interposed, under the statute, by the guardian of the fraudulent donee, and to support this claim he relies mainly upon the fraudulent conveyance from Lott to his daughter. The statute having declared in effect that this deed, as against Kent, should be adjudged utterly void, the court erred in instructing the jury that it was conclusive evidence of Anna Maria Lott's title. In regard to Kent's claim, it was a nullity, and it should have been so adjudged. It will be found, we think, that the point decided, in every case referred to in the argument, turns upon the distinction we have here made as to the effect of the fraudulent conveyance, when tendered as evidence in the two classes of controversy. Before we proceed to the examination of the several cases, we will advert to one of the general rules deduced from them, as a further illustration of our meaning. The fraudulent donee who goes into possession during the lifetime of the donor, when he attempts to repel the effect of this evidence by the exhibition of his fraudulent deed, he is at once arrested by the exclusion of this deed as being a nullity, in regard to the party with whom he is contending. He is without evidence of his authority to |