1. It would be far better, and oft-times would relieve this Court from embarrassment, if it were always made distinctly to appear in the record on a motion for a new trial, that the grounds taken are or are not true. A motion is sometimes made and overruled, and it is impossible for this Court to say whether it was overruled because the Judge was satisfied there was no error in his ruling, or because he did not rule as stated. In this case we have had some difficulty in getting at the truth in this very particular. But, after much consideration, we have concluded that as this was a motion, not a rule nisi, and was overruled, 'it is fair to treat the judgment of the Court overruling the motion, as in the nature of a judgment sustaining a demurrer to the motion and assuming as true all the facts stated in the motion.
2. On looking into the cases upon this subject, we are satisfied that the rule in pari delicto applies to the condition of a defendant in a suit, even though he sets up his own fraud. He is in possession, and the Courts will not aid the other party to get possession under a fraudulent deed. They will even permit the defendant to say the deed, under which the plaintiff claims, is a fraud — the result of evil practices between him and me — and if this be made out by the proof, the plaintiff cannot recover: 16 Ga. R., 416; 20th, 600; 19th, 290; 22d, 431; 9th, 158; 11th, 547; 3d, 176, 182, 183; 2 Stewart’s Ala. R., 192. And this same rule applies *643as well to the parties as to those claiming under them, either as volunteers, or as purchasers with notice.
3. The deed, by Butler to the children of Harrison, though it expresses a money consideration of $5 00, is, yet, upon the very face of it, only a voluntary deed, and based on love and affection. The $5 00 is only nominal, and was introduced into such deeds to bring them within the statute of uses as deeds of bargain and sale, which imply a money consideration of some sort.
4. The declarations of Harrison, as to the character of his own possession, were properly admitted for the purpose of showing that he was holding adversely to the plaintiffs; not to show title, but merely to explain the nature of his possession : 18 Ga. R., 573; 19th, 167; Code, sec. 3721.
5. We are clear that the Judge erred in his charge, and in his refusals to charge, on the question of the right of the defendant to set up his own fraudulent conduct. As we have said before, (in second head note) as he was the defendant, and the plaintiffs were seeking the aid of the Courts to consummate the fraud, to make it effective, the defendant may defeat the action by showing the fraud. This was one of the principal issues in this case, and, though the verdict of the jury may, as we shall presently show, be sustained on other grounds, yet, as perhaps the jury would have found differently, had the law in this branch of the subject been properly given, we are compelled, under the rules of law, to grant a new trial.
As we have said, we think the verdict of the jury can be sustained, even though the rule be admitted in full, that Harrison may show his own fraud. The frequent admission by Harrison that it was his children’s land, and the deed from Butler to them, as well as Harrison’s acts in giving the land in for taxes, as the property of his children, are all facts of considerable weight, going to show that the deed from Butler to the children was by Harrison’s direction or acquiescence, and was done as a bounty to the children, and not as a part of the original fraud. It does not appear that the passing *644of the title to the children was part of the original plan, or that it was at all necessary to perfect it. If Harrison directed it, or acquiesced in it, as a compliance, by Butler, with the implied understanding between them, at the time of the original fraud ; that, when the storm blew over, he was again to have the land, and it was the free bounty of Harrison to his children, and not a mere additional device to keep it out of the way of his creditors, he is bound by it. There is evidence in the record to justify this, and had the Judge given the law correctly in the other points, we incline to think the verdiet of the jury sustainable on this ground. But, as it was not demanded and required by the evidence, we think a new trial ought to be granted, that the true merits of the case, in all its phases, may go to the jury and be passed upon.
6. Nothing is better settled than that a plaintiff is not, in the first instance, bound in an action of ejectment to show title further back than the defendant. He is estopped, by his deed, from denying that he had title. This rule made the refusal to non-suit proper, as, in any event, the plaintiff had a prima fade right to recover one of the lots, since he had Harrison’s deed to it.
7. The duties of the trustee are not fully performed until he turns the property of the trust over to the beneficiaries, dividing it among them as required by the deed of trust. Indeed, we incline to think that, as against everybody but the beneficiaries, he has a right to sue for any cause of action occurring during the existence of the trust.
Judgment reversed.