The bill of exceptions in this case does not assume to set out all the evidence. It does not inform us whether the deed of trust was delivered, or whether the trust deed was ever recorded. Perhaps, if either of these essentials were shown to have been omitted, it would be fatal to the claim interposed in this case.
The affirmative charge, however, does not rest on either of the grounds above stated. It pronounced the deed fraudulent in law, and void on its face, as against creditors of the graator, to whom he was indebted when he executed the trust deed. The debts sought to be collected in this proceeding had been incurred before the deed was executed; and under the charge, the jury had no discretion, but were bound to find the property subject, although the deed may have been duly delivered and recorded. It will be observed that the deed in this case was executed in 1841, and hence it is not governed by the Code, § 1550.
In Riggs v. Murray, 2d Johns. Ch. 565, insolvent debtors conveyed all their property in trust, to pay, 1st, the expenses of the trust; 2d, a sum not excceeding $2000 per annum for each of the grantors, (four in number,) towards their support, until they should be respectively discharged from their debts, &c.; 3d, to pay certain creditors named; 4th, to pay .themselves (the trustees) certain specified debts; and, 5th, to pay other debts,” &c. Chancellor Kent, in considering that part of this assignment which reserves a part of the fund to the support of the grantors, said: “A reservation of a part of the interest to himself, does not destroy the provision in respect to the residue; though, if the part unreserved be deficient, the creditors might, perhaps, apply to a court of equity for the l’esidue.”
This case was taken to the court of errors ; and the opinion of the chancellor, expressed above, was affirmed. 15 John. 571.
In Anderson v. Hooks, 9 Ala. 704, this court said,— “ Although a deed may be void in part, by a statute, yet it will be valid'for the residue, unless the statute avoids it for all purposes. The statute of frauds merely declares, *647that the gift, grant or conveyance, if made with the intent or purpose to defraud creditors, is clearly and utterly void. Now, a single deed may evidence a gift, grant or conveyance to different individuals, and of distinct objects, and may be invalid as to one of the grantors, without affecting the others.” See, also, Mackie v. Cairns, 5 Cowen, 547 ; Estwick v. Cailland, 5 T. R. 420; Tarbock v. Marbury, 2 Verm. 510; Taylor v. Branch Bank at Huntsville, 21 Ala. 581.
The above authorities, it seems to us, are conclusive to show, that the provision in the deed for the payment of all the grantor’s just debts, is not necessarily avoided by the other provision for the support of the grantor’s family.
It results from what we have said, that the court erred in the affirmative charge given.
Each of the charges asked by the claimant, and refused by the court, is essentially defective in this, that each ignores the bonafides of the trust deed. If these charges are in other respects unexceptionable, they were rightly refused, because they do not refer to the jury the question of the good faith of the deed of trust.
If it shall be shown that the deed was executed and delivered, and was recorded as required by law; and the jury, under appropriate charges, shall not find that the deed was executed to delay, hinder or defraud creditors, then the law does not pronounce it fraudulent.
For the single error in giving the affirmative charge, the judgment of the circuit court is reversed, and the cause remanded.