¶1About the first of December, 1857, Woolsey and Nelson made a voluntary assignment of their property, fairly valued at about 2,600 dollars, to Horatio Q. Wheeler, in trust to pay certain preferred debts ¿mounting to about 2,500 dollars.
¶2About the middle of December, 1857, Gass & Co. recovered a judgment against Woolsey and Nelson, caused execution to be issued upon it, and the goods assigned to Wheeler to be seized, as the property of Woolsey and Nelson to satisfy it.
¶3Wheeler brought an action to recover possession of the *372goods. Issues were formed in the case, tried by a jury, and Wheeler recovered the goods.
¶4The appellants insist that the assignment was void upon its face, because it contained this clause:
¶5“4. To pay such other debts as we may hereafter specify, out of any surplus which may be left after paying all the claims and debts in this deed of assignment first described.”
¶6We do not think this provision made the assignment void per se. Ind. Dig. 144. See, as to voluntary assignments hereafter, Acts of 1859, p. 239.
¶7It is further insisted that the assignment was void, because the deed of assignment was not recorded, and possession of the property assigned delivered. The deed does not appear to have been recorded; but whether there was a bona fide delivery of possession or not, was a question properly left to the jury, and they found that there was such.
¶8There is some evidence tending to support the finding, and we cannot disturb the judgment of the Court below in refusing to set the finding aside.
¶9It was not necessary that there should be a removal of the goods from the building in which they were at the time of assignment, to constitute a delivery of possession. The delivery might be made in that building. Burr, on Assign. 327.
¶10So, it was not necessary that the assignors should be permanently excluded from the possession. They might be permitted to act as the agents of the assignee. The circumstance might excite suspicion, but not conclusively prove fraud. It would be a question of notoriety and good faith. Burr, on Assign., supra.
¶11The judgment is affirmed with costs.