— Although the paper by which James Peek proposed to transfer the slave Lucy to the intestate, recites a valuable consideration, yet it is competent for a creditor or purchaser to show, that the transfer was not induced by money, or any thing of value ; but that the true consideration was, the natural love and affection which the father cherished for his son; and as the proof shows such to have been the character of the transaction, we will consider it upon the hypothesis, that it was intended as a gift.
By the second section of the statute of frauds, it is enacted,, that if “ any conveyance of goods or chattels, and be not on consideration, deemed valuable in 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 and bona fide remain with the donee.” ' It is not pretended, that the deed of gift in question, Avas acknowledged or proved and recorded ,* for the bill of exceptions explicitly informs us, that no such proof was adduced. It does not appear, that the slave was ever delivered to the donee, or that the donor, for a single moment, relinquished the possession — the bill of exceptions merely reciting, that it was proved she was left with the donor, on account of her tender years, &c. The deed not being recorded as required by the act. it was insufficient in itself to pass the title; but could only “ be regarded as equivalent to a par-ol declaration of the donor’s wishes;” and in order to effectuate the object proposed, it is necessary to show, that the subject of the gift was actually delivered. [Seawell v. Glidden, 1 Ala. Rep. N. S. 52. is an authority very full to this point.]
Assuming the transaction between James Peek and the intestate, to have been intended as a gift, if the intention was. never consummated the right of property remained unchang-' ed, and the contract by which the father agreed to carry the slave to Missouri, was a mere gratuitous undertaking, imposing no legal obligation and conferring no legal right.
Let it however, be supposed, that the intestate acquired the slave by a purchase for a valuable consideration, or that all the constituents of a gift inter vivos were shown, and we will con*654sider whether the circumstances under which she was left with James Peek, constituted him a lóame. It was proved, that at the time of the transaction between the father and son, the latter was removing to the State of Missouri, and the former expected to remove thither the next year, and that the slave was left with him to be carried to his son ; but he abandoned the ■design of removing, and she continued in his possession for more than six years, and until within a few months of his death. The circumstances under which the slave was left with .James Peek, did not constitute a loan eo instanti, but the transaction was, what is technically called a mandate, viz.: a bailment of goods without reward, to be carried from place to place, or to have some act performed about them.
But although, such was the character of the bailment at the time it was made, yet the bailee cannot be considered a man-' (datory, as against his creditors and purchasers after the expiration of such a length of time as would warrant the inference, that James R. Peek, was advised of the abandonment of his intention to remove to Missouri. After that time, if no demand was made, or effort to recover the slave, the possession of the father would be regarded as permissive, and though, there was no contract for a loan, yet the law would consider him as a depository, holding for the benefit of the son, authorized to employ the slave in ordinary service, and bound to deliver her up when required. It may be well questioned whether James Peek incurred a legal obligation, to perform his engagement ; for it lias been repeatedly held, that where one party entrusts the performance of ,a business to another, who undertakes to do it gratuitously, but wholly omits it, no action will lie for the nonfeasance ; but if he enters upon its execution, and does it amiss, through the want of due care, by which damages ensue to the other, an action lies for the misfeasance. [Thorne et al., v. Deas, 4 Johns. Rep. 44; Rutgers v. Lucet, 2 Johns, cases, 92; Else v. Gatward, 5 T. Rep. 143.]
Taking it then, that the possession of Janies Peek, in a reasonable time after he declined removing, ivas tacitly, if not expressly permitted, especially in the absence of proof showing it to have been tortious, or in any manner objected to, we think the law will regard it as a loan, within .the last member of the *655second section of the statute of frauds, which enactment is decisive to show, that the rights of creditors and purchasers are paramount. That section, after providing for conveyances of goods and chattels, not founded on valuable consideration, 'proceeds as follows : “ And in like manner, where any loan of goods and chattels shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained by the space of three years, without demand made and pursued by due course of law, on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made, of a use or property, by way of condition, reversion, remainder, or otherwise, in goods or chattels, the possession whereof shall have remained in another, as aforesaid, the same shall be taken, as to the creditors and purchasers, of the person aforesaid, so remaining in possession, to be fraudulent within this act; and that the absolute property, is with the possession; unless such loan, reservation, or limitation of use, or property, were declared by will or deed, in writing, proved and recorded as aforesaid.” [Aik. Dig. 207.]
The provision which we have cited, does not form a part of the 29 Chas. 2, but is to be found in the statute of frauds, as enacted in Virginia, Kentucky and Tennessee; the only material difference being a limitation of five, instead of three years, as in this State. Several decisions have been made in the two former States, touching this part of the statute, which as they .may serve to aid us in its construction, we will briefly notice.
In Beasly v. Owen, 3 H. & M. Rep. 456, Judge Tucker thought, that the object of the statute of frauds and perjuries was to shut out all questions respecting property held in possession by a debtor or vendor, for the space of five years, as between a creditor of, or apurchaser from the person in whom suchyjossmiore had remained without demand for that length of time, and the person claiming such property as his own, by virtue of any loan, reservation, or limitation of a use thereof, or property therein, unless such loan, &e., were declared by will or deed in writing, proved and recorded, as by that act is required. The learned Judge was consequently, much inclined to doubt, whether parol evidence of the loan of a slave, or *656of the condition of such a loan, was admissible in a contest between a creditor or purchaser from the person in possession, after that possession shall have continued peaceably, and without demand, for five years. To sustain this view, the cases of Jordan v. Murray, 3 Call’s Rep. 85, and Turner v. Turner, 1 Wash. Rep. 139, were cited. And it was decided in the case of Beasley v. Owen, that the recording of a deed or will, any time before the expiration of five years, was a sufficient declaration within the statute, to protect the rights of the lender or person having the absolute property against the creditors of, or a purchaser from the possessor. To the same effect is Ferguson, &c., v. White, 1 Marsh. Rep. 7.
In Baylor v. Smither’s heirs, 1 Litt. Rep. 112, it appears, that an agreement was made between Shirley and the ancestor of the defendants, for the purchase and sale of a negro girl. By the agreement. Shirley was to pay four hundred dollars for the girl, part of which, was to be paid down, and the residue to be paid at some future period; but it was agreed, that if the residue, so thereafter to be paid, should, in fact, not be paid, the girl was to be returned to the ancestor, and the amount received by him refunded to Shirley. The Court said, “ if Shirley had remained in possession of the girl for five years, before the commencement of this suit, it is conceded, that as to his creditors and purchasers, the condition would have been void and inoperative; for, after the conditional sale to him, the right of Smithers was in the nature of a reservation, dependent on the performance of the condition by Shirley; and there is a provision in the statute of frauds, in this country, expressly declaring fraudulent, all such reservations, where the possession remains with another for the space of five years, without demand made and pursued by due process of law, unless the reservation, &c., be declared by will or deed in writing, regularly proved and recorded.”
The Court of appeals of Virginia, have decided, that five years uninterrupted possession of slaves, under a loan not evidenced by such a written declaration as the statute requires, vests a title in the loanee, which inures in favor of his creditors, and cannot be divested by his returning the same to the lender, after the expiration of that period. (Garth’s Ex’r. v. *657Barksdale, 4 Munf. Rep. 101.) And it was held by the same Court, that where the lender of slaves demands and receives them of the loanee, and thereupon immediately redelivers them to him to be held on the same terms as they were previously, such demand, receipt and redelivery being in private, shall not be sufficient to prevent the loanee’s possession,frombe-ing considered as continuing in favor'of creditors and purchasers. And although, a loan, or reservation be not declared in the manner prescribed by the statute; so that the property after the expiration of five 3rears, becomes subject to the loanee’s debt, yet it shall be effectual, as between the parties and their representatives. (Boyd and Swepson et al. v. Stainback et at. 5 Munf. Rep. 305.)
And in Kentucky it has been determined, that where a slave remains in the possession of a person for more than five years, without any evidence in writing, of a reservation, &c., he becomes liable for the debts of such person; and such a consequence will not be avoided, by showing that the possessor acquired the property in trust for another. (Craig v. Payne, 4 Bibb’s Rep. 337.)
In Gay v. Moseley, 2 Munf. Rep. 443, it was decided, that where the loanee of a slave retained possession of her for more than five years, without any written declaration thereof, being made and recorded, as required by the statute of frauds and perjuries, the creditors of, or a purchaser from such loanee, would have a better claim to the slave, than the lender ; although they had notice of the circumstances under which their debtor or vendor held the possession.
The cases cited, serve to show, that in order to bring, a case within the provision of the statute of frauds we are considering, it is not necessary to prove, that the possession of the debtor or seller should be under a contract of bailment, technically called commodatum, or a loan for use. They maintain, that where the owner of persona] property voluntarily parts with the possession to another person, either with or without an express contract, that there must be a “ will or deed,” declaring the “loan, reservation, or limitation of use, or property” proved and recorded as required by the statute ; or else the absolute property shall be taken to be with the possession in favor *658of creditors and purchasers. That the act was intended to suppress frauds and perjuries, we think, abundantly appears, both from the title and terms, in which it is expressed; and that it .should receive a liberal interpretation in advancement of the ends proposed, is what will not be disputed at this day. (Bank of the U. S. v. Lee et al. 13 Pet. Rep. 101; Cutter v. Hinton, 6 Rand. Rep. 509.)
The last member of the second section is not restricted to a “ loan” but extends to a case, “ where any reservation or limitation shall be pretended to Have been made, of a use of property, by way of condition, reservation, remainder, or otherwise, in goods and chattels, the possession whereof, shall have remained in another.” These words are of exceedingly extensive meaning, and in order to promote the intention of the legislature, may, with perfect propriety, embrace a “reservation or limitation,” not only expressed and stipulated by the parties, but one which the law implies from a given state of facts. The terms, “ or otherwise,” apply to every conceivable “reservation or limitation,” whether they are to' operate by way of “ condition, reservation, remainder,” or in any other manner known to the law.
The case of Gay v. Mosely, is a direct authority to show, that the limitation prescribed by the statute, vests a complete title in the posssessor, in favor of creditors and purchasers, and that the title of a purchaser from him, cannot be defeated by proof that such purchaser had notice that his possession was merely permitted by another, to whom the absolute property belonged; unless there was a “reservation or limitation,” declared, proved and recorded as the act directs. This decision, we think, is defensible not only upon a just construction of the act, but upon authority also. The. statute, in the particular in which we are ex'aming it, cannot be regarded as an ordinary registry act, intended to give notice of a writing, by authorizing its registration in an office designated for that purpose. It proposes to effect some thing more — it provides the manner in which one person shall retain his right to personal property, which he permits to go into the possession of another, and declares that if the directions of the act are not observed, the claims of creditors of, and purchasers from the possessor, *659shall prevail against the proprietor, after the possession shall have continued for three years. Such a possession does not create a mere presumption of fact, that the title has been relinquished, but it authorizes a, legal conclusion in favor of creditors and purchasers, which cannot be gain-sayed; it relieves them from the necessity of inquiring into the state of the title, and excludes all evidence tending to show that they were advised of it. Notice in such a case can have no more influence upon the rights of a purchaser, than if the subject of the sale had been real estate, to which a 'third person claimed title under a previous verbal contract, which was wholly unexecuted. Besides, the statute declares that, where there is no reservation or limitation by will, &c., proved and recorded in conformity to its provisions, after three years such pretended limitation or reservation, “ shall be taken as to the creditors and purchasers of the persons aforesaid, so remaining in possession, to be fraudulent within this act.-” Here is an unequivocal declaration, that a pretence of right by the lender, &c. shall be deemed a fraud on creditors and purchasers. And upon no correct principles of reasoning can notice to a purchaser expurgate the fraudulent act of the pretended owner of the property.
But we are not unaided in the construction of our statute; many decisions have been made upon a similar enactment, so far as the point before us is concerned, in accordance with the view we have taken. By the statute of the 27 Eliz. Ch. 4, all conveyances of land, &c. made with intent to defraud, &c. are declared tobe void against subsequent purchasers “for money or other good consideration.-” [Dane’s Ab. Ch. 109. Art. 9, Sec. 8; Roberts on Fraud. Con. 5, in note.] Under this statute it has been decided, that it is not material whether a subsequent purchaser has notice or not of a former fraudulent settlement ; for it has been determined at law, and therefore must stand, that a man’s having notice of a former settlement, which was fraudulent, shall not prevent his avoiding the same, as if he had been ignorant of it; because if he knew of the transaction, he knew it was void by law. (Dane’s Ab. Ch. 109, Art. 9, See. 6. and cases there cited; Roberts on Fraud. Con. 16—39—44. 233, and cases there cited; 1 Story’s Eq. 343, et post *660and cases there cited ; Cathcart et al. v. Robinson, 5 Peter’s Rep. 264.)
But admitting that the defendant had no title to the slave, because he received the mortgage with a knowledge of the intestate’s claim; yet if Abel at the time of his purchase had no notice of it, and practised no fraud on his vendor, his title was good, and the defendant having acquired all Abel’s right, may invoke it in- his defence.
The conclusions we have expressed upon the points considered, are opposed to several of the instructions given by the Circuit Judge to the jury, as will be readily seen by a reference to the statement of the case. Even supposing that the gift from James Peek to his son was complete, so as to vest a title in the latter, the possession of the father for more than three years without a reservation or limitation of use or projierty made, proved, and recorded as the statute prescribes, divests that title in favor of creditors and purchasers. Other questions are' raised upon the record, but those examined, it is supposed, will lead to a decision of the cause upon its merits. Under this impression we have only to say, that the judgment is reversed and the cause remanded.