majority">COLLIER, C. J.

— The second section of the statute of frauds, among other things, enacts, that a deed conveying goods and chattels only, shall be acknowledged and proved by one or more witnesses in the Superior Court, or County Court wherein one of the parties lives, within twelve months after the execution thereof; or unless possession shall really and bona fide remain with the donee. And where any loan of goods and chattels shall be pretended to have been made to any person, with whom or those claiming under him, possession shall have remained for the space of three years, without demand made and *687pursued by course of law on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder or otherwise, in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken as to the creditors and purchasers of the persons so remaining in possession, to be fraudulent: and that the absolute property is with the possession; unless such loan, reservation or limitation of use, or property, were declared by will or deed in writing, proved and recorded as aforesaid.

It is very clear under this act, that the deed of gift from the defendant in error to W. T. Stubblefield should have been recorded, in order to protect the reservation in favor of the former against the creditors and purchasers of the latter ; or else the donor should not have acquiesced in the continued possession of the donee, out snould have asserted his right to the immediate enjoyment of the property. Myers v. Peek’s adm’rs. decided at the present term, is conclusive of this point. And Sewall v. Glidden, 1 Ala. Rep. N. S. 52, shows that the acknowledgement of such a deed, made before a justice of the peace, does not authorize its registration, so as to prevent the consequences which result in favor of creditors and purchasers, where the right to personal property vests in one person, and the possession' remains with another ior the space of three years — registration which is irregular, does not impart to the world a constructive notice of the contents of the deed. But the plaintiff in error could not be prejudiced, even if he had actual notice of the reservation to the defendant — the statute declaring the deed to be fraudulent, unless it is recorded upon such acknowledgement or proof, as it prescribes. [Myers v. Peek’s admr’rs.] The proof showing that the plaintiff was a purchaser from W. T. Stubblefield, with whom the possession remained from the time of the gift by the deféndant, for a period which added to the plaintiff’s possession, makes more than three years; it necessarily follows that the Conrt erred in the charge given in answer to the first instruction asked.

Second: It was argued for the plaintiff in error, that as some of the slaves in question had been levied on by executions *688against Ragland and W. T. Stubblefield, and bonds executed by him to try the right of property, the slaves were in the custody of the law, and the defendant could not maintain an action for their recovery ; unless the demand of the possession had been made and refused previous to the levies. (Wallace v. McConnell, 13 Peter’s Rep. 136.)

This argument we think cannot be maintained. It is needless to consider, whether a debt for the recovery of which an action is pending, can be attached; or whether property levied on, and claimed by a third person under the statute, can be again taken on execution while the trial of the right is pending : the present case is entirely unlike either of these. Plere a party asserts a title to property which, if well founded, vested previous to the issuance of the executions, is independent of them, and paramount to any lien which the law can give. Such being its character, its assertion cannot be prevented by the acts or proceedings of others, in which the party suing had no agency. This point seems to us too clear to require further illustration. Any other conclusion than that we have stated, might seriously interfere with private rights.

Third: It is unnecessary to inquire whether the jury in assessing the value of the slaves, should have limited their price to a sum equivalent to the defendant’s life estate ; or whether the defendant should not have adduced proof ofthevalue of his interest. The charge prayed was, that he loas not entitled to recover upon the proof of the value of an absolute estate. Now,if the evidence of title was satisfactory, but there was no proof of value, it would be competent for the jury to find nominal damages; and the plaintiff might have a judgment accordingly.

But it is difficult to conceive of any legal reas'on why the defendant in error should not, if entitled to the slaves, have had a verdict and judgment for their full value, so as to coerce their delivery. The action is detinue, and the primary object to be effected, the recovery of the specific property, and if damages were assessed at a sum less than the value, the remedy in all probability would fail of answering the end-proposed. Had the action been trover, there would be great force in the *689argument, that the recovery should be limited to the damages actually sustained by the conversion.

For the error in the instructions given in answer to the first charge prayed, the judgment of the Circuit Court is reversed, and the cause remanded.

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