majority">Willie, J.

The statute of March 16, 1840, to prevent frauds and fraudulent conveyances, provides, that when any loan of goods and chattels or slaves shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained by the space of three years, without demand made and pursued by due process of law, on the part of the pretended lender, * * the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless-such loan, &c., of pro*16perty was declared by will or by deed in writing, proved and recorded. „

This case presents precisely the state of facts contemplated by the statute, under which possession for three years by the loanee of property should be deemed fraudulent as to creditors and purchasers, and the absolute title as to them should be held to be with the possession. It was proved by the defendant in execution himself that the loan was made to him, that possession of the slave was delivered to him, and that he continued in such possession for more than three years previous to the day of the execution. There is no proof that the loan was declared by any instrument of writing, but, on the contrary, that it was a mere verbal understanding between the claimant and the defendant in execution. It is said in argument, that the negro was loaned to the said defendant for the use and benefit of his wife, and was therefore a loan to her, and not to the husband. The facts of the case do not sustain this position. It is true, that the girl was to wait on Mrs. Beene, but this was a service that any servant in his possession would be expected to perform. The mere fact that- a wife is to enjoy some of the benefits of property loaned to her husband is not sufficient to render him a trustee of the same for her sole use and benefit: much less is it sufficient to relieve the lender from a compliance "with that provision of the statute, which requires him to reduce his agreement with the loanee to writing, and have the same duly proved and recorded.

To place such a construction upon a transaction of this character would be to allow too easy an evasion of the clause of our statute above cited; for a mere verbal understanding with the husband, that the wife should receive some personal benefit from‘the labor of the property loaned, would enable him to hold the same for an indefinite number of years against the claims of his creditors, and to perpetrate frauds upon purchasers by selling them property *17apparently his own by more than three years’ possession, but which could he recovered from them by a loaner, who had failed to comply with the express provisions of the statute above cited.

Without attempting to decide what would have been the law of the case had the loan been to the husband, for the sole use and benefit of the wife, and had the issue been between her creditors and the loaner, we think that as between the latter and the husband, under the facts proved upon this trial, judgment should have been rendered for the creditor. The judgment is reversed, and the cause

Remanded.

Citation profile

How this case has been treated — in progress