(dissenting). The facts developed at the trial, that the alleged consideration of the conveyance was an indebtedness arising out of the sale of the wife’s land ten years before, and the application of the moneys received therefor to the husband’s use; that he was on the eve of hopeless insolvency; that the deed was kept without disclosing the transfer of the property; that it was proved at a late hour of the night, under unusual circumstances; that specific values were not put upon each article; the continued possession and use of the personal property, with no indica- • tion of a change of title, sustaining the credit of the husband in making contracts upon the faith of it; the assent of the wife thereto, whereby he had the beneficial enjoyment as before; — these,in my opinion,raised a presumption of fraud between parties, husband and wife, thus dealing with each, which the appellant was entitled to have given as an instruction to the jury, requiring proof in rebuttal. If the agreement for the continued use of the property, after as before the making of the deed, had been part of the arrangement for the transfer, it would have rendered the deed ipso facto void, as securing an interest to the vendor. Rea v. Alexander, 5 Ired., (144.
The assent to such possession and use may authorize the inference of its being a prior condition, express or implied, which would avoid the deed, and certainly strengthens the presumption of the presence of this vitiating element in the transaction.
In Askew v. Reynolds, 1 D. and B.. 3(17, the following language is used by Gaston, J., quoted with approbation by Ruffin, C. J., in Foster v. Woodfin, 11 Ired., 339, in reference *376to a conveyance unattended with a change of possession: <! But such a repugnance between the transfer and the possession yet raises the presumption of a secret trust for the benefit of the grantor, which, while it admits, also requires an explanation, and which, unexplained or not satisfactorily explained, establishes the fraud.” Here there is none — the consent, to the use for his own benefit, of the vendee, his wife-The refusal to so charge is an error, in my opinion, entitling the appellant to a venire de novo.