delivered the opinion of the Court.
It does not seem necessary in this case to consider whether an absolute deed of conveyance, of personal property, the possession of which remains in the vendor, is fraudulent per se.
From the face of the deed in question, it was not intended and could not be understood as an absolute deed of conveyance, but was obviously in the nature of a mortgage, to secure and indemnify the Tombeckbee Bank against a future contingency. The estate and power vested in the trustees were to be defeated, if the instalments of the debts intended to be secured should be punctually paid. (Coke Litt. 201.) It is true the deed does not state in so many words, that until a failure of payment possession shall fe-mam in Smoot; nor is any power expressly given to the trustees to take possession immediately, and apply the hire and profits to the satisfaction of the debts ; their powers are *289restricted to the purpose of satisfying the debts or ínstal-ments thereof, as they should become due by public sale of the property in the manner prescribed. A part of the debts were not to fall due until 90 days after the making of the deed. The trustees were not entitled to take possession sooner than it should be necessary in order to carry the purposes of the trust into effect; and the separation of the possession from the title, under such circumstances, was evidently not incompatible, but perfectly consistent, with the deed. 1 Cra. 309. Powell on Mortgages, 43, 44, 49. 2 Term, 594—9. 9 John. 344. 1 Atkins, 167. 3 Cra. 73. 10 Vezy jr. 146.
From the provision of the deed, that the surplus, after satisfying the debts and expenses, shall be paid to Smoot, it is not necessarily to be inferred that the conveyance was made with intent to delay, hinder, or defraud creditors. If this had not been expressed, it would have been clearly implied. In either case the trustees would have been bound to pay the surplus to Smoot, unless his creditors interposed ; and in the one case as in the other, they must, it would seem, have pursued their remedy in the same way, by resorting to equity to compel the trustees to sell and account for the surplus, or by attaching the surplus in their hands as Garnishees. 3 Cra. 73. 1 Burrow, 478, 480. 5 Mass. 51. Laws Ala. 316.
It is the unanimous opinion of the Court that the judgment of the Circuit Court must bp reversed, and the cause be remanded.