#### *Knibb’s Executor v. Dixon’s Executor.

December, 1822.

Chancery Practice — Fraud—Hust Be Pleaded.* — In a suit in Chancery, where fraud is not put in issue by the pleadings, it cannot be introduced by the depositions.

Same — Bill of Sale — Issue.—On a question whether an absolute bill of sale was intended only asa security, the evidence being contradictory, a Court of Chancery ought to direct an issue to try that point.

This was an appeal from the chancery-court of Williamsburg, where Knibb filed his bill of complaint against Tyler, executor of Dixon.

The case stated in the bill was this:

Knibb being reduced in his circumstances, and much pressed by his creditors, and most of his personal property taken under execution, executed a bill of sale purporting to be an absolute deed to Dixon, for a negro woman and her daughter. The said bill of sale, though absolute on its face, was intended by the parties to be a trust; the said Dixon engaging, that if any more debts should come against the complainant, he would discharge them, and rely on the property so conveyed, for his indemnification. Dixon took the negro woman home, but left her daughter in the possession of the complainant. The deed was acknowledged and recorded in Charles City county. After the complainant had liberated himself from his difficulties, Dixon frequently pressed him to take back his woman and her increase. But they were suffered to remain with the said Dixon, with his permission, until his death. The said Dixon never paid any consideration for the said slaves, nor paid any debt for the -complainant. The executor of Dixon refuses to deliver the said property to the complainant, and has even brought a suit at law for the girl who had been left in the possession of the complainant. He therefore prays that the said executor may be compelled to deliver up the said slaves to *the complainant; that he may account for the value of their services from the death of the said Dixon; and annul, cancel and destroy the said bill of sale.

The executor of Dixon relies upon the bill of sale, as evidence of an absolute transfer of property to* 1 his testator, and denies all knowledge of any secret trust between the parties: that it is *not*lawful for the complainant to avail himself of any fraudulent act to deceive his creditors: that Dixon almost supported the complainant’s family, and the respondent has paid many accounts for the said Knibb, since the death of Dixon, out of his estate: that he believes that five times the value of the said slaves, has been advanced at various times, by the said Dixon to the said Knibb, to relieve him from distress and misery: that he has always understood that Dixon left the slaves in possession of Knibb, for the use of his wife, on loan: that Knibb falling out with her, as the respondent is informed, sent the slaves home to Dixon, saying he would not raise young negroes for Dixon; but again got possession of the girl Chloe, &c.

Depositions were taken on both sides to prove the trust; the advances made by Dixon for Knibb, and the value of the negroes.

Knibb having died, the suit was revived in the name of his executor.

The chancellor dismissed the bill upon a hearing, and Knibb’s executor obtained a supersedeas.

W. F. Wickham, for the appellant.

Stanard, for the appellee.

It was said for the appellant, that the deed in question was intended as a trust, and not as an absolute sale; as is proved by all the depositions, and the declarations of Dixon himself. There was nothing fraudulent in the transaction. The creditors of Knibb could not suffer, because Dixon became bound to pay his debts. Besides, fraud *is not put in issue by the pleadings. Both plaintiff and defendant rest their case on grounds quite distinct from that of fraud. If money was paid by Dixon for Knibb after the conveyance, the chancellor should have directed an account of the sums so paid, and permitted Knibb to redeem the property, upon re-imbursing Dixon.

For the appellee it was said, that the witnesses who proved the trust were near connexions of Knibb, who were probably under his influence; while the subscribing witnesses to the bill of sale, who had the best opportunity of knowing the real nature of the transaction, are not produced. If the conveyance was fraudulent, Knibb cannot avail himself of it, even although the question of fraud is not put in issue by the pleadings, but comes out in the evidence. In this case, fraud could not *97have been charged either in the bill or answer. Knibb would certainly not have charged it, because it would have been fatal to his claim; and the executor of Dixon could not have alledged it, because he was ignorant of the transaction. This case is similar to that of Bishop v. Estes,(a) in this court, where a conveyance of the same sort was set aside. The court below, upon weighing the evidence, were of opinion, that the conveyance was an absolute one, as it purported to be upon its face; and, therefore, there was no necessity to direct an account.

*

Chancery Practice — Fraud—Must Be Pleaded.— Where fraud is not put in issue by the pleadings, it cannot be introduced by depositions. Welfley v. Shenandoah, etc., Mining Co., 83 Va. 771, 3 S. E. Rep. 376; Goldsmith v. Goldsmith, 46 W. Va. 426, 33 S. E. Rep. 268. both citing principal case as authority. And in Southall v. Farish, 85 Va. 410. 7 S. E. Rep. 534, it is said: “Anotherpoint made by the appellants is, that Thomas L. Parish was not informed that the president of the bank had required the appellee to pay the judgments out of his deposits, and as knowledge of that fact was kept from him, the agreement is void, on the ground of fraud. A sufficient answer to this position is, that no such charge is made in the bill, and cannot, therefore, be properly considered now; for‘nothing — and least of all fraud-can be the subj ect of trial, until it is put in issue.’ Koger v. Kane, 5 Leigh 606. Nor will a mere general charge of fraud suffice. When relied upon, the bill must show, specifically and in detail, in what the fraud consists, and how it was effected, so that the defendant may have the opportunity of shaping his defense accordingly. And if not alleged, evidence upon the point, however strong a case it may show, is irrelevant, and will be suppressed as improperly taken, otherwise, 'the pleadings, instead of being a shield to protect parties from surprise, would be a snare to entrap them.’ Thompson v. Jackson, 3 Rand. 504; *Knibb v. Dixon,*1 Rand. 249; Gregory v. Peoples, 80 Va. 355; Welfley v. Shen. Iron, etc., Co., 83 Va. 768, 3 S. E. Rep. 376; Redd v. Dyer, 83 Va. 331, 2 S. E. Rep. 283; Hickman v. Trout, 83 Va. 478, 3 S. E. Rep. 131; Voorhees v. Bonesteel, 16 Wall. 16, and cases cited.”

See principal case cited in Smith v. Nicholas, 8 Leigh 354; Edichal Bullion Co. v. Columbia Gold Mining Co., 87 Va. 653, 13 S. E. Rep. 100.

See generally, monographic *note*on “Fraud” appended to Mongomery v. Rose, 1 Pat. and H. 5.

(a)

 Not reported. Decided Oct. 20. 1820.

JUDGE BROOKE,

December 13.- — delivered the opinion of the court.*

The court excluding the evidence in relation to the supposed fraud of the appellant, it not being put in issue by any thing in the pleadings, is of opinion, that the conflicting evidence touching the question, whether the bill of sale from Knibb to Dixon, was intended by the parties as a security to Dixon, for payments to be made by him in behalf of Knibb, or as an absolute and unconditional *transfer of the property, ought to have been submitted to a jury, by an issue to be made up between the parties; on the trial of which, the weight of that evidence would be more correctly ascertained than by the chancellor. The decree dismissing the bill, is therefore reversed, and the cause remanded to be further proceeded in, according to the principles of this decree.