The first question presented for our consideration is, whether the deed executed by the defendant in execution to the claimant, was properly admitted in evidence upon the certificate of its acknowledgment and probate, without calling the subscribing witnesses.
In Bradford v. Dawson & Campbell, [2 Ala. Rep. 203,] we held that the purpose of the act of 1828, requiring the registration of conveyances, made in trust to secui’e the payment of debts, was to give notice merely, and that when a deed so recorded was offered in evidence, it must-be proved as any other written instrument. It is true the decision in that case was upon a deed conveying personal property only, but we are unable to perceive that that makes any difference. In all cases of this kind, the question of fraud is involved in the enquiry before the jury, and it is clearly the right of the creditor, not only to have the fact of the execution of the deed proved, but also the time when it was made, and all the circumstances attending its execution. It would be exceedingly difficult,-and frequently impossible, for the creditor to unravel a fraudulent transaction, consummated by deed, if the ex parte proof of witnesses, or the ex parte acknowledgment of the grantor were prima facie evidence of these facts.
The counsel for the defendant in error relies on the act of 1803, [Aik. Dig. 88,] which makes the probate of the deed conveying *301land, evidence of the execution of the deed, without further proof. The two acts are essentially distinct — the first provides for the registration of absolute conveyances — the second, for deeds conveying land on condition. The object of the act of 1828 is to prevent frauds, whilst the first was desigued for notice merely. But the principal reason for the distinction we are making is, that the act of 1803 expressly declares that the probate certified by the proper officer, shall be received in evidence in any court, as if the deed were then produced and proved, whilst the act of 1828 is entirely silent on this subject, and in our opinion it would be going great lengths for this court to interpolate such an important alteration in the law of evidence, unless the objects on which the statutes were to operate, as well as the purpose to be accomplished by them, were identical. So far is that from being the case in this instance, that the manifest design of the Legislature, in the last enactment, would be frustrated /by such a decision.— We are therefore clearly of opinion, that the 'deed was improperly admitted in evidence without proof of its execution, as well as proof of its registration, as the statute requires.
Although this point must reverse the case, as it has been argued on all the points presented on the record, it is proper that a decision should be made on them, that the case may be finally decided below.
The introduction of the deed was further objected to, because of interlineations and erasures apparent on its face. This objection cannot prevail. A deed is not necessarily void, though a material alteration may have been made in it after its execution, as it may have-been done by consent of the parties, or may have been made before delivery. The effect, therefore, of an alteration or erasure upon the deed, depends on the proof of extrinsic facts, and cannot be determined by the court, on a motion to exclude the deed. Anciently, it appears, this matter was tried by the judges on a view of the deed, but now it is only triable by the jury. [1 vol. Shep. Touch. 69.] But in this case the parties to the deed make no objection to it, but admit its validity, and it is not. easy to perceive on what principle a third' person could object to it for that cause, unless indeed the erasures and interlinea-tions were evidence of a fraud between the parties, to the injury of creditors.
It is further maintained by the counsel for the plaintiff in error, *302that the deed is void, because it secures a substantial benefit to the grantor. It is very clear that a debtor in failing circumstances, cannot place his property, by an assignment or deed of trust, beyond the reach of his creditors, and yet reserve a portion of the property or an interest in the proceeds to himself. But such is not the fact here. The deed to be sure, provides, that if after paying the debts, to secure which the deed was made, there should be a residue, it should be paid to the maker of the deed. This provision is merely what would have been the legal effect of the conveyance, if no such stipulation had been made. The deed is not a general assignment for the benefit of all the creditors, but special for the benefit of a few, and after satisfying the purposes of the deed, the surplus, if any, would revert to the grantor by operation of law. A stipulation to that effect cannot, therefore, be fraudulent. [Johnson v. Cunningham, 1 Ala. Rep. 258.]
It-is also contended, that as a portion of the property conveyed by the deed was perishable in its nature, such as corn, fodder, bacon, «fee., and would be destroyed in its use, and as the possession of it was secured to the grantor for one year, and consequently the right to use it — that such a provision was fraudulent as against creditors, and vitiated the entire deed.
We do not doubt that a stipulation in a deed of trust, reserving property for the,use of the grantor, which must be exhausted in such use, is fraudulent and void, and we agree entirely in the views taken by the Supreme Court of Tennessee, in the case of Somerville v. Horton, [4 Yerger, 550.] In that case, the articles attempted to be placed beyond the reach of creditors, and secured for the use of the grantor who kept a tavern, were whiskey, brandy, flour, wine, sugar, coffee, candles, wood, hay, &c. The court say, “ the circumstances in this case, that the debtor must necessarily have used, and of course consumed the articles mortgaged, stamps this deed with a character not to be mistaken, as intended to cover the articles in a course of daily and rapid consumption from seizure by execution, until he. could convert them to his own use, in supplying his house of entertainment.”
It is only necessary to contrast that case with the present to perceive the difference between them. The property conveyed by this deed, consisted of land, slaves, mules, horses, plantation utensils, &c., with the right to sell and dispose of the crop to be grown during the current year, to pay the debts secured by *303the deed. The corn, fodder, bacon, &c.,were necessary to provision the plantation,' and to the making of the crop, for which purpose, and not for the use of the grantor, they are reserved in the deed. It may also be remarked, that unlike the case cited from4Yerger, these articles although destroyed by the'use, during the year, would not be converted into money, but would be reproduced by the cultivation of the plantation. How far it might be allowable to extend assignments of this character, or whether they could continue beyond a single crop, it. is not necessary now to determine, but within that limit, and with the power given by statute to every creditor to pay the debt secured by the deed, and substitute himself to the condition of the prefer-ed creditor, it does not appear to be liable to abuse.
The principle of the case of Cunningham v. Freeborn, [11 Wend. 240,] affords countenance to the view here taken. In that case, the conveyance was of work-shops, furnaces, &c., with the raw material, with power to the trustee to work up the raw materials, and sell the, articles to be thus manufactured, to pay the debts secured by the deed, and the Supreme Court ofNew York, sustained the deed of assignment.
It is not a badge of fraud that the grantor remained in possession after the execution of the deed, as such possession was consistent with its terms, and the debts, or a considerable portion of them, to secure whichit was made were not due. After default and when the property, by the terms of the deed, was subject to sale, such an inference would arise, but even then would be open to explanation.
Nor was it a circumstance from which fraud could be inferred, that the son and son-in-law of the grantor, who became the purchasers of the trust property at the sale, and who were the principal beneficiaries under the deed, permitted their aged parent, to remain on the premises, after such purchase. If the sale was fair and the purchase bona fide, the facts supposed, instead of being a badge of fraud, entitle the parties to commendation.
For the error of the court, in permitting the deed to be read in evidence without proof of its execution, the judgment must be reversed, and the cause remanded.