JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BALDWIN, Judge
This was a contest, before a jury of six men, on the ground of fraud.
We think this Court has jurisdiction of this case, on appeal, it being one of the special cases provided for by the 336th section of the Practice Act. We have thought it best expressly to decide this question of practice, in limine, though by taking jurisdiction of, and deciding many cases of this sort, we have given a practical recognition of the principle heretofore.
The case was tried on the issue of fraud, and facts having been introduced tending to show that the insolvent had made and caused to be recorded a sham deed for property shortly before his application, which property was not included in his schedule. The Court instructed the jury, " That, to find the charge of fraud sustained, they must believe the deed made with intent to defeat, hinder or delay creditors, and to have been actually delivered to the grantees; that proof of record was no proof of delivery," etc. In this the Court clearly erred. There may be a delivery without recording the deed, and a recording without any delivery. But as the record can only be made after acknowledgment, by the grantor, of execution and delivery, this is certainly some proof of the delivery. But the fraud was as complete without the actual delivery as with it; if the grantor made a sham deed, and had it recorded, and reserved from his schedule the property in the deed, and this with the view of defrauding his creditors, the proof of fraud would be complete.
The judgment is reversed, and the cause remanded.