The question of fraud calls for and justifies great latitude in the admission of evidence. The proof made by Benning, when attacking the bona fides of the deed in trust made in favor of Mrs. Nelson, that two deeds were made at the same time, by the same grantor, to the same trustee, that the grantor was the father of the trustee who was a minor at the time, and that the two deeds embraced all the property of the grantor in this State at the time, and that he was then embarrassed with debt, was properly admitted as relevant to the issue touching the bona fides of the trust deed upon which the claimant relied. These things of themselves might be easi*805ly rebutted, and might deserve but little weight as tending to prove fraud in the deed in favor of Mrs. Nelson, the consideration for which was fully shown. Still the evidence was relevant, and its weight was for the jury to decido. We cannot, therefore, say that there was no evidence in the ease, tending to show that the trust deed in favor of Mrs. Nelson was made “to hinder, delay and defraud creditors.”
The determination of this point settles the main question in the case, that raised by the refusal of the court to instruct the jury as requested by the counsel for Benning, the plaintiff in execution.
No doubt the principle contended for by the counsel for the claimant, is true: that the deed in trust in favor of Mrs. Nelson, wife of the defendant in execution, being evidently for the benefit of that lady, her assent to its provisions is and ought to be presumed. Numerous eases in our court and elsewhere go to establish this doctrine.—Lockwood v. Nelson, 16 Ala. 294; Kinnard v. Thompson, 12 Ala. 487; 11 Wheaton 73; 16 Peters 139.
But that principle will not avail in such a- case as the one presented by the charge requested by the counsel for plaintiff in execution and refused. That case is this : If you (the jury) believe from the evidence that this deed in trust, made in favor of Mrs. Nelson, was made “to hinder, delay and defraud creditors j” that both the grantor and trustee concurred in that design, and that no actual assent was made to it, or benefit claimed or taken under it, by the cestui que trust, Mrs. Nelson, until after the lien of the plaintiff’s execution had attached upon the property, then you must find for plaintiff in execution.
The principle of law here involved was fully considered and settled in the case of Townsend v. Harwell, 18 Ala. 301. None of the precedents met the case, but the argument of the present Chief Justice we consider sound, and that case will be followed in this instance. The argument in brief may be stated thus : The statute declares positively, that a deed “ made to hinder, delay and defraud creditors,” shall be void, except as against bona fide purchasers for a valuable consideration. To this it is replied, that the beneficiary of a trust deed plainly beneficial to him, where he is a creditor of the grantor, is a bona fide purchaser for a valuable consideration, and as the law presumes the *806assent of such an one, the deed becomes perfect in law on its execution, and no other creditor can attach or levy successfully after that time. The answer is: No ; the law will presume such an assent, all things being fair and bona fide on the part of the grantor ; and to show that the cestui que trust is an honest creditor to the full amount of the debt secured by the deed, and the security not more than reasonable, is to repel, by the strongest and most convincing proof, the imputation of any design on the part of the grantor “ to hinder, delay and defraud creditors,” at the time he made the deed. Still, if there is any proof tending to show fraud on the part of the grantor, it is for the jury alone to settle the question of fact, and determine the motive by which he was actuated. Ordinarily, where the facts of a case leave room to refer an action equally either to a good motive or a bad one, the jury are bound, by a due regard to their common human nature and the rule of law, to give the good the preference. But, if, even in the face of the prooUthat a man had devoted his property to the payment of a just debt, the jury should still find reason to believe that a deed was made to “ hinder, delay and defraud,” they have the power to do so.
It comes then to this : If a jury should find the fact to be, that a deed was made by the grantor with intent “to hinder, delay and defraud creditors, the law will not presume the assent of a beneficiary to such a deed, however much it might really be for his benefit, because this would be to put it in the power of the grantor, by the aid of a legal presumption, to make valid his own fraudulent deed- Such a deed can only become valid by the actual assent of the beneficiary in some form. Until such actual assent, any creditor may levy or attach, and hold in defiance of the deed. The charge which was asked only embodies this principle, and should have been given.
The charge which was given, as we construe it, only asserts the proposition, that, if the deed oí trust in favor of Mrs. Nelson was bona fide,, and upon good consideration, it could not be affected by fraud in the other deed, if the jury should even believe the other deed to be fraudulent. There was no error in this. The wording of the charge may leave room to object that the court was assuming the facts, but it will not fairly bear that construction.
*807The evidence offered by the plaintiff and rejected, we conceive to have been irrelevant. That some of the negroes embraced in the deed in trust offered by the plaintiff, “were worked and used in making the crop in 1848 and 1849,” of itself, proves nothing. JVon constat but they had been hired or purchased of the beneficiaries in that deed. If the possession of them had not been changed, since the making of the deed, there was a plainer way to come at that.
For the error in refusing to charge as requested, the judgment is reversed, and the cause remanded.