dissenting. In this case, having come to a conclusion different from a majority of the court, I take this occasion to state my own views, and those of my brethren who concur with me, in as few words as practicable. The contest is, whether the judgment confessed by Henning to McBee is fraudulent, as against his (Henning’s) creditors. If it be founded on no valuable consideration, I think it will hardly be pretended that it can stand in any other way than “ to defeat, hinder or delay” the creditors, and will therefore be a clear fraud upon them.

To arrive at a proper conclusion about this matter, we must go back to the 30th of December, 1824; at that time, Henning owed McBee $5,000, and, in the language of the report, in consideration of the said sum, Henning conveyed to McBee, in fee simple, a tan-yard and some lots, in the *205village of Greenville, on which was a house used as a tavern, and some stables.” After the execution of that deed, did any debt remain 'l Unquestionably not, for it was paid. The deed extinguished the antecedent debt. But it is said that deed was not, although absolute on its face, intended for any thing else than a mortgage, and testimony was offered and received to establish that point. The first enquiry to be disposed of is, was such evidence admissible'? In a law court, it is clear that it was not. In Stinson & Alexander, administrators of Wm. Anderson, deceased, vs. McKeown & Ferguson, 1 Hill, 387, that very point was decided; for in it, the Judge delivering the opinion said, “ I agree with the Judge below, that parol evidence cannot be received in a suit between the parties to a bill of sale absolute on its face, in a court of law, to shew that it was intended as a mortgage.” If this be the settled rule between the parties, much less can such evidence be resorted to for the purpose of setting up such a matter against'the rights of creditors. In equity, the rule is generally as it is at law. In Ryan vs. Goodwin, McMull. Eq. 451, it was held that a deed absolute on its face could not be so varied by parol proof, as to create a separate estate in favor of a married woman against the rights of her husband’s creditors. That case reaches the one now under consideration: for if it was incompetent to change that deed by parol proof, so as to protect the wife’s interest, according to the true intent of the parties, against the rights of the creditors, it must be equally so here, where the same evidence is resorted to, to make an absolute deed, inconsistent with the possession under it, a mortgage; which might be consistent with it. So far, then, as the verbal proof is concerned, there is no doubt that the deed cannot be changed by it.

But it is said the endorsement on the deed, made after Henning’s insolvency, will have the effect of turning the deed into a mortgage. That, however, cannot help McBee; he may be concluded by it, if any one chooses to use it against him. But when he undertakes to use it against others, it is only his declaration, which can have no effect to benefit him. Indeed, it is nothing against the rights of others. The deed of further assurance is only a confirmation of the deed of 1824 ; and if the two together can stand *206as an absolute bona fide, conveyance to McBee, it will be very well, and they will then fully avail the defendants. But that does not support the confession; for in that point of view, the debt was paid, and the title good.

It is, however, said, admit all which has been urged, still the parties might rescind all which has been done, by McBee restoring the real estate to Henning, and Henning securing the old debt to McBee. This is susceptible of two legal answers: 1st: there has been no rescission, for McBee still has the legal title; he has made no conveyance to Henning, and therefore Henning has received nothing for the confession. This makes it fraudulent as against creditors. 2d: admit that as between Henning and McBee, the confession is good, for, in law, I have no doubt it is so ; still, however, is it good against the creditors 1 Let it be remembered, that in 1824, Henning legally paid the debt of $5,000, by his conveyance. If that deed, by the act of McBee, became inoperative against creditors, it would be monstrous to suppose that he can, in point of fact, make it good against them by obtaining a confession of judgment from Henning for its consideration. That that deed never could prevail against creditors, may be demonstrated by authority. McBee was Henning’s creditor, and, in payment of his debt, took the deed, and suffered him to remain in possession for fifteen years, without recording his deed, or any public exhibition of his claim as owner. In personalty, since Smith vs. Henry, 1 Hill, 16, there cannot be a doubt that such facts would defeat the purchaser’s title. In such a case, the possession of the vendor would be a fraud per se. The same rule has been extended to land. In Anderson vs. Fuller et al. McMull. Eq. 27, where the vendor, after an absolute conveyance, was permitted to retain possession of a part of the land sold, designated by specific boundaries, it was held by the court of Chancery, that the rule of Smith vs. Henry applied to it, and that as to that land, the possession of the vendor was a fraud per se, and that, therefore, his title, so far as his creditors were concerned, remained undivested. The rule being then settled, that in land, as well as personalty, the possession of the vendor, after a sale and conveyance to a creditor, is a fraud per se, it must apply to Henning’s conveyance to McBee, *207and must defeat it entirely. Hence there is nothing in that argument which supposes that the confession benefits the creditors, by enabling them to get so much of the proceeds of the tan-yard and lots as may exceed $5,000. Without it, they would get the whole. Loss, not benefit, is therefore the result of the confession to them. If the deed is avoided by fraud, it follows that, as against the creditors, the debt which it paid cannot be regarded as bona fide due and owing by Henning, to support the confession in favor of McBee, which is therefore not founded on a real but a fictitious debt, and is fraudulent and ought to be set aside. I think, for these reasons, a new trial should be granted.

Curia, per

To the proper understanding of the views which I propose to submit on this case, it will be necessary to bear in mind that the question between these parties is, whether a certain judgment, confessed by Henning to McBee, be without consideration and fraudulent, as to these plaintiffs, who are junior creditors. If a stranger had heard the argument, without having read the brief, he would have supposed the sole question was as to the validity of a certain deed, absolute originally, but afterwards converted into a mortgage, by a defeasance on the back of it: whereas, the validity of this paper is no otherwise important than as it goes to shew the consideration of the judgment, and to rebut any argument of fraud arising out of the facts of the case. Such a stranger, if he were familiar with legal principles, might have been startled at the idea, that a deed absolute on its face had been converted into and set up as a mortgage by parol evidence in a court of law; whereas, the change in the instrument had been in writing, by the parties themselves, and the evidence was admitted for no other purpose .than to shew that, in so doing, they had acted bona fide, and in pursuance of a contract (by parol) between the parties, made fourteen years before, when Henning, so far as appeared, was free from debt, and when there could not have existed any design to defraud these plaintiffs, whose debts had all been contracted within 4 years. The plaintiffs, in order to attack the consideration of the judgment, served McBee with a notice to produce his deed. It was accordingly produced, and offered in evidence by them. It was dated in 1824, with a defea*201sanee endorsed in 1839, declaring it to be a mortgage to secure the payment of money. As a deed, it was liable to exceptions, which it was supposed would not apply to it as a mortgage ; among others, that Henning had remained in possession, which, to a deed, being inconsistent with the title, and unexplained, might be a fatal objection ; but if it was a mortgage, this objection could not apply, as by our law the mortgagor is the owner of the land, and the possession of Henning would not have been inconsistent with the title. Hence the inference that this was an attempt to give effect to the paper as a mortgage, which might be void as a deed absolute ; and hence the necessity the defendant McBee was under to shew that this was bona fide, being in pursuance of the original understanding, and not a new-hatched scheme to defraud Henning’s creditors. In this point of view, it seems to me, the evidence was wholly unexceptionable.

Having thus disposed of this preliminary question, I will proceed to consider the questions made in the brief and the argument. Before doing this, I take occasion to say, that until this deed was changed into a mortgage,- (which I shall hereafter attempt to shew the parties might do, bona fide,) it was liable to all the exceptions which usually apply to deeds. It would, if not recorded, be postponed, according to the Act of 1785, in favor of purchasers and such creditors as come within the provisions of that Act. 2d. If there was any fraudulent design to cheat, hinder or delay creditors, of which the secrecy observed in relation to the deed, and Henning’s remaining in possession, if unexplained, are evidences, it would be wholly void; and if void for fraud, it was wholly vitiated, and could not be the consideration of any new act of the parties, to give it effect. With this admission, I proceed now to enquire what are the facts, as settled by the verdict of the jury, and what are the legal principles upon which the judgment of the court is to be pronounced. From the brief, I think it clear the jury have decided these two facts: lrt, that the debt of $5,000, which was the consideration of the deed, was bona fide due by Henning to McBee, when the deed was executed in 1824. 2d, that no conclusion of fraudulent intent' is to be drawn from Henning’s remaining in possession, or from the secre *202cy of the transaction. The case, then, stands thus: In 1824, Henning owed McBee $5,000. To secure the payment, or in satisfaction of it, he executed an absolute deed for certain lands. This deed, I assume, because the jury have so found, is unimpeachable on the ground of fraud. In 1839, McBee, in pursuance of an agreement cotempoxaneous with the deed, executed a defeasance on the back of it, declaring it to be a mortgage to secure the payment of $5,000, the consideration expressed in the deed; and at or about the same time, Henning-gave McBee a bond for $5,000, and confessed a judgment for that sum. Now, is there any thing in the law of the land which will vacate the judgment in favor of the plaintiffs ? I suppose it will hardly be questioned, that parties may vacate, alter or modify their contracts at pleasure, and that such rescission, alteration or modification would be binding upon themselves, if done according to the forms of law. Nor do I suppose it will be doubted, that if it was the. understanding of the parties that the deed was a security for the payment of money, they might carry out that intention by an endorsement upon it to that effect. If Henning had filed his bill, alleging that fact, and McBee’s answer had confessed it, would it not have been decreed in equity? And why may not the parties do that by their own act which equity would have decreed to be done? Indeed, this is so obvious, that it was conceded by one of the counsel, that as between themselves, Henning and McBee might change the instrument as they have done. Who, then, has a right to complain? The plaintiffs, unquestionably, if there was fraud, or they had been hindered or delayed by it. But the question of fraudrdent intent has been settled by the jury, and it is very manifest from the evidence, that the converting of this absolute deed into a mortgage, increased the general fund of Henning’s assets liable to his creditors, and the plaintiffs among them.

But there is another objection, which is not so free from difficulty, which I proceed to consider: it is that this deed, being absolute oh the face of it, extinguished the debt. This, according to the view which I take of the case, may be conceded. The debt was extinguished, but what was there to prevent the revival of it ? Why could not Hen*203ning buy back the land, and give a confession of judgment for the price, or McBee consent, in consideration of a bond and confession of judgment, to convert a deed absolute into a deed conditional or mortgage ? Such contract would be good between themselves, and the creditors could not impeach it for fraud, where none is intended or effected. A debt is extinguished in law when it is paid, or some equivalent has been accepted in satisfaction; but if that which has been accepted in satisfaction should fail, may .not the parties revive the debt'? Suppose the deed had been void for the want of two witnesses, the purchaser might not be able to recover his money back in a court of law, although equity might compel the execution of a sufficient deed; but could not the parties rescind the contract, and would not the confession of a judgment be binding on all 1 Suppose a purchaser, by inadvertence or ignorance, should omit to record his deed, and thereby it should become void as to a subsequent purchaser or creditor, and he has received ‘no equivalent for the money he paid, or the debt he cancelled. In such case, if set aside on account of a subsequent purchaser, the seller has received the price twice, and ought to refund ; if set aside in favor of creditors, he may also have the benefit of it again, by the application of it to his debts. In such case, there would be no legal obligation on the seller to pay; neither is there any obligation on the part of an infant to pay his bond, or a feme sole to pay a debt contracted whilst she was covert, or of a debtor to pay a debt barred by the statute of limitations; yet, if the infant, after he is of age, or the woman, after she is sole, or the debtor whose debt is barred, confess a judgment for what they owe in conscience, can another creditor come in and set aside the judgment, on the ground that the debt is not one of legal, but only of moral, obligation 1 Such a distinction, I am sure, is no where to be found.

It will be perceived, that in the course of this discussion, I have treated the question of fraud as one belonging to, and as having been decided by, the jury. By the common law, fraud was a thing to be proved, and by the statutes of Elizabeth it is made a question of intention. The intent with which an act is done, is to be gathered from all the circumstances and facts, by the jury. I very well know *204that there are cases where the courts have said that the existence of certain facts, when proved, make a case of fraud which cannot be explained away; but those cases are few in number, and it is not the inclination of the courts at this day to enlarge them. So far as they go, I subscribe to them, but am not disposed to go beyond them. It may be that the prominent facts in this case, presented as they are in the last ground in the brief, and presented in strong relief as they were at the argument, are calculated to excite a suspicion that the existence and nature of Henning’s deed to McBee had been kept secret for the purpose of giving to Henning a more extensive credit, and that some of these plaintiffs may have been seduced into a credit of Henning on the faith of this property: yet when these prominent facts were connected with the other circumstances of the case, as proved on the trial, they made no such impression on my mind. I am, therefore, satisfied with the verdict on the facts, and I do not perceive, on a careiul review, any error in my first impressions of the law as applicable to the case. I am of opinion the verdict should stand ; and a majority of the court concurring in this opinion, the motion is dismissed.