#### Lacy and Others v. Wilson.

Argued Tuesday, March 29th, 1814.

1. Loan of Personalty — Retention of Possession by Loanor — Deed Improperly Admitted to Record — Effect. —A deed declaring a loan of a slave from a father to his daughter during her life, and a gift to her children after her death, (being admitted to record on proof by one witness only,) is not good against her husband’s creditors, or purchasers from him, without notice of such deed ; possession of such slave haying remained with the husband for five years without interruption.

See Beasley v. Owen, 3 H. & M. 449.

2. Purchaser with Notice.* — A purchaser with notice, who bought of a purchaser without notice, will not be affected by the deed.

See Sugden’s Law of Venders, p. 484.

3. Same — Case at Bar. — Quaere, whether a purchaser from the husband, with notice of the deed, would not have been protected by the five years possession, in this case f

See Gay v. Moseley, 2 Munf. 543.

Fanny Lacy, widow, and Lydia Lacy and others, children of Thomas B. Lacy, filed their bill in the County Court of Harrison, against Stephen B. Wilson and others; stating that, on the 8th day of December, 1794, William Hopkins, late of New Kent, father to Mrs. Lacy, executed a deed of gift, whereby he lent to her, for life, a mulatto girl, Helvia, and, after her death, to be equally divided among her children ; that the deed was recorded in the County Court of Harrison, in June, 1795, on the proof of George Jackson, one of the subscribing witnesses ; that, in July, 1799, Lacy, the husband, sold two of the children of Helvia to the defendant, Joseph Davidson, who had full notice of the deed ; that, in December, 1801, he sold Helvia and another of her children to Peter D’Everman, who sold to the defendant, Wilson, “both having notice of the deedthat Lacy, the husband, died in January, 1802. The prayer of the bill was, that the ^slaves be delivered up, or, if the conveyance by Lacy was good for the life of his wife, that an account be taken of the slaves and their increase, and security be given for their forthcoming on the death of Mrs. Lacy, as the defendants had removed, or were about to remove, some of them out of the country.

The defendants, Wilson and Davidson, answered severally, admitting full notice of the deed by each of them, at the time of his purchase ; but insisting that it was void as to them ; on the ground that Lacy, the husband, had been in possession before the execution of it, and so continued at its date: that Mrs. Lacy assented to the sales ; and that on the death of William Hopkins, her father, the slaves were brought into hotchpot, and divided with his estate.

The parties being at issue, several deposition were taken ; from which it appeared that, sometime after the marriage, William Hopkins, the father, (who was opposed to the match in consequence of Lacy’s being improvident,) was persuaded by a friend to lend his daughter a slave; giving that friend, by a letter, power over her as a trustee; that this giving dissatisfaction to Lacy, the deed was afterwards executed ; in which no trustee was mentioned ; that Lacy was in possession of the slaves in the year 1792, and also at the date of the deed; that, on one occasion prior to that date, Mr. Hopkins had directed George Jackson, the trustee aforesaid, to sell the girl Helvia, give a bill of sale for her, and pay him the money; that thereupon Lacy sent her to the house of the said George Jackson ; (in whose deposition, only, this incident was mentioned:) that, about the last of December, 1801, the sheriff of Harrison took Helvia and her child to satisfy an execution against Lacy, and sold them to Peter D’Everman, in consideration of his paying the debt, and a farther sum of money ; that Lacy consented, and agreed to that sale, but Mrs. Lacy opposed it, and warned the sheriff, (but it does not appear that D’Everman was present,) that her right and that of her children would be asserted at a future day. Several witnesses proved the notoriety of the *136transaction, and a general knowledge, *in the neighbourhood, of the title of the plaintiffs ; but there was no proof that D’Everman knew any thing of it. The division of Hopkins’s property after his death was proved; and that the woman Helvia, but not her children, was brought into hotchpot ; it being agreed among the distributees that Lacy should have Helvia, included in his wife’s share, and her children, as his own, in consideration of the expense of raising them.

The County Court, being of opinion that the defendants were entitled to the slaves during the life of Mrs. Lacy, and that her children would be entitled after her death, decreed that the defendants should give security to have the slaves forthcoming at the death of Mrs. Lacy.

The defendant, Wilson,* appealed to the Superior Court of Chancery for the Staunton District, which, as to him, reversed the decree, and dismissed the bill, with costs.

The plaintiffs appealed to this court.

Wickham for the appellant.

Although the deed was not legally recorded, Wilson had full notice, and therefore is bound by it. The words, “without notice,” must be understood in the act of assembly, though not expressed : for the deed cannot be a fraud upon persons having notice. So the act of 1748, was, that a deed, not recorded should be void as to creditors or purchasers : omitting the words, “without notice ;” yet that act was construed as operating only in favour of purchasers without notice.

When property is brought into hotchpot, the value of the subject at the time of the advancement, must be brought in : but this does not affect the title to the property itself.

No counsel appeared for the appellee.

Thursday, December 15th, 1814,

*

Fraud — Purchaser with Notice. — ft is well settled that a purchaser with notice who bought of a purchaser without notice will not be affected by a fraudulent deed. Thornburg v. Bowen, 37 W. Va. 551, 16 S. E. Rep. 829, citing the principal case.

JUDGE ROANE

delivered the following opinion of the court.

The slaves claimed by the appellee in this case, having been held by Thomas B. Lacy, under a loan from William Hopkins, for more than five years preceding the sale of them *by the said Lacy to D’Ever-man, under whom the appellee claims ; and the limitation of the said slaves, in favour of Mrs. Lacy and her children, not having been declared by a deed proved and recorded pursuant of the directions of the “Act to prevent frauds and perjuries ;” — the court is of opinion, that such limitation was void, as to the creditors and purchasers of said Lacy, under the provisions of the said act.,

The court is further of opinion, that, however the case might have been, in equity, had the said D’Everman, under whom the appellee claims, had notice of the deed in the proceedings mentioned, at the time of his purchase', that question does not necessarily arise in this case, (nor is it intended to be decided by the court,) because no such notice appears to have existed on the part of the said D’Everman, but rather the contrary.

On these grounds, the decree of the Chancellor in favour of the appellee is affirmed by the court.