¶1By the Court.
Lumpkin, J.¶2delivering the opinion.
¶3The fundamental fact which lies at the bottom of this case, *436and which is worth more than all others in such cases is, that there was, ex coneesso, a consideration for this transaction. It is not pretended but that the annuity of $287 50 was owing by William B. Scott to his mother ; and there is no proof or attempt at proof that it has ever been paid.
¶4If the negroes — bought of her son to extinguish this annuity — were more than it was worth, let the creditors stipulate for its payment, take the property or obtain a decree in Equity to re-sell the negroes for these, purposes.
¶5And then, that she should have permitted them to remain in her son’s possession, under the parol agreement that they could continue there so long as he discharged the annuity, is there anything wrong in this ?
¶6Suppose this verbal understanding be not a valid and binding contract, is it not sufficient to explain the possession,, and thereby rebut the inference of fraud ?
¶7Upon the whole, we think the verdict was decidedly contrary to the evidence and the weight thereof, especially as to the damages.
¶8[2.] That the Court erred in charging the Jury “ that the ■sale of the whole of one’s property is a badge of fraud, as ■against creditors,” the evidence showing that Scott had not ¡sold the whole of his property at the time he made the bill ■of sale to his mother; and that the claimant had only bought ■a comparatively small portion of it.
¶9[3.] In charging the Jury that they “ might believe, from the circumstances that the bill of sale purporting to have been made from the defendant to the claimant, was not executed ■on the 22d day of June, 1853, when it bears date, but at some subsequent time, even after the plaintiff obtained his judgment,” there being not only no proof to authorize the charge, but the testimony being strongly the other way.
¶10[4.] In charging the Jury, that unless there -were other circumstances than those relied on in the sixth request of defendant’s Counsel, that the Jury were “ obliged to find the transaction fraudulent and the property subject.” Whereas, the Jury should have been left to form their own independ*437ent judgment upon the proof; and in the opinion of this Court, so far from being hound to condemn the property upon the facts assumed in the request, the Jury would have been fully justified in returning a verdict for the claimant.
¶11£5.] In- refusing to charge the Jury that if they believed claimant paid a valuable consideration for the negroes levied on, this rebuts the presumption of fraud arising from the continued possession of William B. Scott. Will it be pretended that if Mrs. Scott paid to her son a valuable consideration for the property in dispute, that her permitting it to remain with her son, would subject it to antecedent or pre-existing debts ? Such is not our understanding of the law. And the day is distant, we hope, when humanity and all the holiest feelings of maternity should be outraged by the establishment of such a rule !
¶12[6.J The charge, as given in the 7th request, varies materially, though unintentionally, no doubt, the instructions asked. The instructions asked were as to a verbal understanding between the parties; the charge, as given, has reference to a private understanding.
¶13[7.] Whether the failure on the part of William B. Scott to comply with the verbal understanding between him and his mother abrogated the defeasance and converted the bill of sale into an absolute conveyance or not, we insist that it was competent evidence to explain the possession and rebut the presumption of fraud arising therefrom.
¶14[8.] That William B. Scott may have attempted to have run off these negroes, or a portion of them, with a view to cheat either his mother or creditors, or both, is quite possible ; but unless his mother knew of it and connived at it, it cannot prejudice her title or cast supicion upon the bonafides of the sale from her son to her. One thing is certain, there stands her annuity unpaid and unprotected, except by this sale.
