The demandant in this action claims title to the land demanded, by virtue of a levy of execution thereon as the property of Benjamin B. Leeds, pursuant to an attachment, made April 10th, 1837. The tenants claim title from the same Benjamin B. Leeds, under a deed made prior to the demand-ant’s attachment. This deed the demandant attempts to defeat, on the ground that the said Leeds was at the time much in debt and subsequently proved insolvent; from which he attempts to establish the inference that the deed was made with an intent to defeat and defraud creditors, and so is void as against them.
In the first place, it.is obvious from the facts stated, that the deed in question was a mortgage from B. B. Leeds to the tenants. For though the deed and the bond given by them do not bear the same date, yet it is found as a fact, that the bond was executed and delivered to Leeds, at the same time that his deed was delivered to them ; and as a deed takes effect from its delivery, the deed and bond took effect at the same time; therefore the bond was strictly a bond of defeasance, and converted the abso lute deed into a mortgage. Harrison v. Trustess of Phillips Academy, 12 Mass. 456. The bond referred to the deed, and was conditioned to reconvey upon the payment of certain specified sums. It therefore had all the characteristics of a defeasance.
*104The only question here is, whether the case discloses any thing, which renders this conveyance fraudulent in point of law, against the creditors of Leeds. It has been argued that there was no consideration ; but being under seal and importing a valuable consideration, that is prima facie evidence of consideration sufficient to sustain the conveyance ; and if the demandant relies on the ground, that the consideration was inadequate or pretended, that is matter of fact to go to a jury, upon the question of fraudulent intent.
It was further contended, that it was an assignment in trust for creditors, and so void by Si. 1836, c. 238. But it has none of the qualities of an assignment in trust. It was a mortgage conditioned for the payment of notes, of which the mortgagor was indorser, but for which his son was first liable as promisor. Had these notes been paid by Joseph, by his own means, from other funds placed in the hands of the mortgagees, none of the mortgaged property would go to pay them, and by force of the defeasance the property would revest in the mortgagor.
It was contended that this was a voluntary conveyance, and so was fraudulent per se against the creditors of the grantor. But there seems to be a manifest distinction between a voluntary conveyance, or deed of gift, without adequate and valuable consideration, and a mortgage given to secure the debt of another. In the former case, the grantor finally parts with his property, and it is alienated as well from his creditors as from himself. In the latter, it is a pledge only, it may be to a small amount, and the estate of the grantor is not devested. But further; to avoid a conveyance as fraudulent against creditors, the intent to defraud, delay or defeat, must be known and entertained by both parties, In a voluntary absolute conveyance, the fact that no consideration is paid is of course known to both parties. If the grantor was in debt at the time, as such conveyance must necessarily tend to defeat the rights of creditors, and as all persons are presumed to contemplate and intend the natural and probable consequences of their own acts, the conclusion is irresistible, that such conveyance was intended to defeat creditors, and is *105therefore fraudulent. But a mortgage to secure the debt of another is not voluntary. Ex parte Hearn, 1 Buck’s Bankr. Cas. 165.
Most of the considerations, which have been urged upon the court, arise from alleged badges and indications of fraud; such as the relation between the parties; the fact that the mortgagor was in debt, and had signed a note to the demandant, as surety for another son, which was soon to fall due ; and that he soon after became insolvent and took the poor debtors’ oath. If the demandant relies on considerations of this kind, they go to the question of fact, whether this particular conveyance was made with a fraudulent intent; and upon this question, all the facts and circumstances, attending the negotiation and conveyance, are to be submitted to a jury, to decide the question as a question of fact. If the demandant can show sufficient ground to discharge the agreed statement of facts, and be allowed to go to a jury upon this question of fact, the case is open to a motion for that purpose. Otherwise a nonsuit will be entered, and judgment rendered thereon for the tenants.