#### Gaines *vs*Wiggs.

Error to the Bath Circuit.

*Practice. Loans of slaves. Purchaser. Notice.*

Detinue. *Case*66.

*January*31.

Exceptions being overruled lo depositions, and no exception being taken to the opinion of the co'irt, does not raise the question on the propriety of the decision of the cirtinit court in overruling the "exceptions— so far then admissibility depends upon extraneous facts, such as notice, &c.

*A*purchaser of a slave held by an unrecorded loan by the vendor for more than live years w 11 be pr< - tected, though he had notice that his vendor held by a loan only. (I *Mar.,*210.)

Chief Justice Marshall

delivered the opinion of the Court.

Although the defendant, Gaines, excepted to several depositions, he did not except to the opinion of the Court overruling the exceptions, nor did he, in any manner, reserve the question as to the admissibility of the depositions. So far as that question depends upon extraneous facts, such as notice, inability to attend, &c. ■in the absence of the testimony on the subject, the presumption is, of course, in favor of the opinion of the Circuit Court. And although the matter of one of the depositions which, in assailing the character of the witness, J. B. Gaines, details a particular transaction, is subject to objection, yet as the opinion of the Court overruling the exceptions, was not excepted to nor even referred to as one of the grounds for a new trial, it must be considered as having been waived.

The correctness of the opinions of the Court in overruling the instructions asked for by the defendant, and in giving such as were given, depends essentially upon the question whether if there be an unrecorded loan of slaves, and the loanee remain in possession five years, a subsequent purchaser from the loanee for a valuable consideration, is affected by the fact of notice of the title of the lender, or whether he can hold against that title, notwithstanding his having had notice before his purchase, that his vendor was a mere loanee.

This question as arising under the statute against fraudulent conveyances, is decided in favor of the purchaser, by the case of *Baker and wife*vs *Mason, &c.,*(1 *Marshall,*210.) The decision in that case relates, it is true, to.a conveyance made expressly with intent to hinder, delay or defraud creditors, &c., and coming expressly within the denunciation of the first clause of *283the second section of the act, which declares such conveyances void. But the subsequent clause 'declares- as emphatically, that where there is an unrecorded loan and possession is -held by the loanee for five yéars, without demand, &c., the same shall be taken, as to creditors and purchasers of the person so'in possession, tobe fraudulent within the act, which would of itself suffice to bring' the loan within the denunciation previously-made against conveyances made with intent to hinder, delay or defraud. But the statute goes on to declare expressly,' that the absolute property shall be taken to be with the possession, unless the loan be recorded, fee. The statute then makes the reservation of right to the lender, fraudulent and void as to creditors and purchasers of the loanee, if.there has be’en five years possession, and it makes no distinction founded upon there being or not being notice-, but declares that as to creditors and purchasers from the person so remaining in possession, the same, that is, the loan and reservation shall be deemed fraudulent, and the absolute property to be with the possession.

Hat if a contract is conditional, and the purchaser is to pay only in case he can hold against the lender, the purchaser is in no* *284better condition, than the loanee, and will not’ be' protected.

*283We are of opinion, therefore, that the- principle of the case referred to applies fully to the present question, and that according to the construction-there given to the statute, the purchaser from a loanee or from the alienee of a loanee, after five-years possession under an unrecorded loan, may hold against the claim of the. lender whether he had notice of it before his purchase or not. Whether such notice might, in the consideration of a Court of- equity, so affect the' conscience of'the purchaser as to preclude him from claiming the aid of that ■Court, we need not decide. The effect of the statute is ■to pass the legal title to him by virtue of. his purchase •from the loanee,'without regard to any other circumstances but the-length of possession and the want of re- • cord of the loan. . -

But the person claiming this benefit under the statute, must be a purchaser. If his contract is. conditional, that is, if he is not to pay the consideration unless the claim of the lender shall be defeated, he stands in no better condition under the statute, than his vendor him*284self would occupy,- and is noty in reality,- a purchrser;But if his purchase is absolute and he pays or binds himself to pay the price, trusting either to the apparent ownership of his vendor as evidenced by long possession,-or trusting to the statutory title baséd upon im* puted fraud in the loan, he is ©purchaser- in view of the statute,- which intends to avoid in favor of creditors and-purchasers,- without discrimination-as to their merit or demerit, the unrecorded reservation of title after five-years’ possession by the loanee.- Its effect- is to enable theToanee, after that time,- to vest an-absolute title in-his vendee.

*Apperson*for plaintiff; *Cates and Peters*for defendant.

The instructions given- by the Court- accord substantially with these principles.- The first makes the distinction between an absolute and a- conditional purchase by the plaintiff,- the turning point in the case. And the instruction subsequently given on request of the jury, although it states-the law in case they should find the purchase absolute,-without saying expressly what it would-be in case of a conditional purchase,-did not overrule or' withdraw the previous instruction,- in- which the law in that alternative is stated, and moreover implies if it had-been the only instruction,- that if the purchase were conditional the law would be different. And we must suppose that the jury understood that if the purchase,though from- a loanee,- were absolute after five years’ possession, they were to find for the plain-tiff, but that if it was conditional,- they should-find for the defendant.

And as we cannot say that the jury was bound to find' the facts which would have authorized a verdict for the-defendant,-who had taken the slaves in contest'from the possession of the plaintiff,- under a claim derived from-the alleged lender,-- there is no sufficient ground for directing- a new trial after its refusal by the Circuit Court,

Wherefore,- the judgment is affirmed.