#### *Smith’s Adm’r v. Betty & Others. Same v. Thurman & Others.

October Term, 1854,

Richmond,

i. Chancery Practice—Issue Out of Chancery—When Improper.*—In a chancery cause, if upon the state of the proofs at the time an issue is directed, the bill should be dismissed, it is error to direct it: And although the issue is found in favor of the plaintiff, the bill should, notwithstanding, be dismissed at the hearing'.

*4012. Same—No Evidence to Support Bill Denied by Answer-Issue Improper.†—When the allegations of the bill are positively denied by the answer, and the plaintiff has tathed to furnish two witnesses, or one witness and corroborating circumstances, in support of the bill, it is error to direct an issue. The *onus*must be shitted and the case rendered doubtful by the conflicting evidence of the opposing parties, before an issue should be ordered.

3. Deeds—Evidence.‡-Declarations of Agent.—Declarations ot a person who has been the agent in procuring a deed for another, made either before the negotiation for the deed was commenced, or after the execution of the deed is completed, are incompetent evidence against the grantee in the deed, to show that provisions which were intended to be inserted in the deed, have been fraudulently omitted.

4. Same—Same-Same.—But acts and declarations of such person, done or made whilst the negotiation was pending, or the deed was in process of execution. are competent evidence against the grantee to show the fraud.

5. Same—Same—Declarations of Grantor.—The declarations of the grantor in a voluntary deed, made after its execution, are not competent evidence against the grantee, to show that provisions which were intended to be inserted in the deed have been fraudulently omitted.

6. Same—Same—Same.—Nor are the declarations of the grantor made before the execution of the deed, competent evidence against the grantee in favor of the grantor’s heirs and next of kin, to show that the deed was fraudulently procured.

7. Conveyances—Slaves.§—A conveyance of land and slaves, upon a trust to permit the slaves to live upon the land and take the profits of the land and of their own labor to their own use, they still continuing to be slaves, is null and void, and passes nothing to the grantee or to the slaves.

The first of these cases was a suit in equity in the Circuit court of Hanover county, instituted by Betty and others suing in forma pauperis against William C. *Smith in his life time, and revived against his personal representative, to recover their freedom. The bill was filed in January 1835, and s.et out, that William Gooch, late of the county of Hanover, the father of several of the plaintiffs, the children of Betty, being an unmarried man, and being anxious to secure to the plaintiffs, to whom he stood in the relation of a master, but particularly to Betty and her children, the full enjoyment of that liberty which he had always permitted, and intended them always to enjoy, but being an extremely illiterate and uninformed man, applied to one William C. Smith to counsel and advise him as to the best mode of effecting this wish, and the further design which he entertained, of devoting the whole of his property to the plaintiffs; and it was determined to vest the whole legal title to the persons and property" aforesaid, in the said Smith, for the purposes aforesaid. That in pursuance of this purpose a deed was executed. That this was the sole consideration and purpose of the deed, though by the fraud of Smith this purpose is omitted to be expressed in the deed. That this fraud was perpetrated, as they believe, by falsely reading the deed to Gooch, who therefore did not know its contents and real character, but thought he had only made a will.

They further state that when the deed was first executed, Smith admitted, as he had since done, the true purpose for which it was made; but a short time afterwards, Gooch being informed that Smith would claim the subject of conveyance as his own, he executed another paper, which they exhibited, in which he declares the real intent and purpose of the conveyance aforesaid, which he calls his will, and directs *402that all control over the subject shall be taken from Smith, if he attempts to hire out or sell any of his negroes, or to sell his land.

They further state that Gooch died in the spring of *the year 1832, and that Smith permitted the plaintiffs to remain in possession of the land and other property left by Gooch, and employed Jesse Barker to superintend and manage the whole, until recently, when he had- set up a claim to the plaintiffs and the property, had sold that which was perishable, and had rented out the land; and had attempted to sell some of the plaintiffs; and threatened to sell the land and the plaintiffs, and would without doubt do so unless restrained by an order of the court.

The prayer of the bill was that Smith' might be enjoined from selling or hiring them out, or otherwise molesting them, until the matter could be heard; and that they might be protected in the enjoyment of the land until their rights were ascertained, and they were fully emancipated.

The deed from Gooch to Smith bears date the 21st of April 1831, and for the love and affection he has for Smith, and for divers acts of kindness and favor done by the said William C. Smith, and for the further consideration of one dollar, he conveys to him, with general warranty, his land, his slaves, and all his property of every description; but with a condition that Gooch shall keep possession, and have free use and enjoyment of all the property named in the deed, for his life; and at his death Smith shall have the land, slaves and their future increase, and all other property of every description, both real and personal, which Gooch may have or possess at the time of his death.

On this deed, was endorsed the certificate of the deputy clerk of the County court of Hanover, that it was acknowledged in his office by Gooch on the day of its date.

The other paper exhibited with the bill was executed by Gooch, and bears date the 10th of November 1831. In it he says, I, William Gooch, being willing that William Smith should hold all my people *and plantation, according to my will, which is recorded in Hanover office; but if he should attempt to hire out, sell or convey any of said negroes, or sell my land that I have for my said negroes, I wish it to be taken from him, and put in the hands of Jesse Barker immediately; that it never was my intention for any of my negroes to be sold or hired.

William C. Smith answered the bill. Referring to the deed of April 21st, 1831, he says, So far as the bill seeks to charge him with any fraudulent or unfair transaction either in the procurement or execution of the said deed, or in obtaining the property thereby conveyed, he denies the statement and charges of the bill, and avers that they are utterly false. That he was particularly acquainted with Gooch, and had rendered him many acts of kindness. Amongst other things done by him in that way, he permitted Gooch to retain in his service a negro man slave named Reuben for the space of five years; and that slave having fallen into bad health, at the request of Gooch, he took said slave home, and permitted Gooch to have in his place another slave named Aaron, who was retained by him until his death ; a period of four 3’’ears. That Gooch had the services of these slaves for nine years, and never paid to the defendant a cent for them. Gooch had also the use of a mare of the defendant for some length of time. That these facts might and probably did operate on Gooch in making the disposition of his property in said deed.

He further stated that the deed had been acknowledged by Gooch before the clerk in his office. That the defendant was not present either at the execution or acknowledgment of the deed, and had no participation in either; and that on the 25th of January 1830 Gooch had executed another deed in all its provisions like that exhibited with the bill. That this deed was also executed in the absence and without *the agency of the defendant, was attested by three witnesses, two of whom were yet living; and was found by the defendant amongst the papers of his father Charles Smith, one of the attesting witnesses.

He denied that Jesse Barker had held the property for the defendant up to the time of filing the bill; he was employed to do some work upon the farm, but never had permanent occupancy of it. He questions the right of the plaintiffs to impeach the provisions of the deed, as whether valid or not, they can have no right to freedom under or against it.

The deed of the 25th of January 1830 is as to its provisions a duplicate of that of February 21st, 1831; and it is attested by Charles Smith, Joseph Badd and William B. Dennett.

The second of, these suits was instituted in March 1837, in the same court, by Bittleberry Thurman and others, heirs and next of kin of William Gooch, against William C. Smith, for the purpose of setting aside the deed of April 21st, 1831, and recovering the property. They charge that the deed was fraudulently procured by misrepresenting its contents, and stating its purport to be altogether different from what it really was.

Smith in his answer averred that the .charge in the bill was altogether groundless and untrue. He says that he had nothing to do with the drawing and preparing the deed, and was not present when it was prepared and executed, or when it was placed on record. That Gooch was much attached to him, and had for many years before his death declared that he intended to give him all his property at his death. That he had determined that his relations, who had neglected him, should have none of it; and he voluntarily employed a highly respectable gentleman to prepare said deed for him. That there was no consideration moving Gooch to execute the deed but *403'x'his attachment to and friendship for the defendant for his many acts of friendship rendered to said Gooch for a series of years, unless he considered that the various sums of money lent him, amounting to six or seven hundred dollars, was a consideration in part.

On the 17th of April 1840 the court made a decree in both causes, that an issue be made up and tried by a jury at the bar of the court, to ascertain and determine: Hirst. Whether the deed of the 21st of April 1831, was acknowledged by William Gooch with a full knowledge of its contents and legal effect; and with intent to convey and pass to William C. Smith the negro slaves in the said deed mentioned, as his absolute property. Secondly. If the said deed was so executed and acknowledged by the said William Gooch, whether it was obtained by William C. Smith, or by any one acting for and on his behalf, by fraud and circumvention. Third. If the said deed was not executed and acknowledged by the said Gooch with intention to convey and pass the negro slaves therein mentioned, to the said William C. Smith, as his own absolute property, whether it was executed and acknowledged by the said Gooch as a deed to emancipate and set free the said negro slaves, and with intent that it should be a deed for that purpose.

At the time the issue was directed, the evidence in the record showed that the deed of April 21st, 1831, was written by Charles Smith, the father of William C. Smith, and that Charles Smith went with Gooch to the clerk’s office when it was acknowledged there by Gooch. That Gooch was very ignorant and illiterate, unable to write. And that Charles Smith had borrowed money from Gooch, and owed him five hundred and fifty dollars, for which he (Smith) had executed to Gooch his bond. A witness, George Turner, testified that he saw Charles Smith and Gooch, and Smith said he was going to carry a conveyance of Gooch’s property *and that he (Smith) was to stand master for the negroes, provided he should be the longest liver. And he further stated that Gooch was so drunk the witness could not understand anything that he said. Another witness, Wat. H. Tyler, stated that he met Charles Smith and Gooch on their return from the court house. That Gooch had been drinking ; and witness was told by Smith that Gooch had fallen out of the gig. That they both said that Gooch had been to the office, and Smith said he had been with him; and Gooch said he had fixed his business. These witnesses stated that before the execution of the deed they had heard Gooch say he never meant to make his people slaves; but meant to get a man to act for them; and that they were to remain on the place. Tyler says he named William C. Smith, but Turner says he never heard him mention William C. Smith as such agent, but Gooch often told him that his cousin Charles Smith was to act. Another witness, Kally Tucker, stated that on the night before Gooch died he told the witness that everything was given to William C. Smith, but he was not to carry the negroes oil the place. There were other witnesses, who testified as to Gooch’s declarations that he did not intend to make his negroes slaves, and that he intended to get some man to stand master for them. Some of these slaves, it was proved, he stated were his own children; and Turner stated that Gooch came to him and told him that he had understood that the conveyance he had made to Charles Smith was made to William C. Smith, and that he wanted if that was so, to make a conveyance to Jesse Barker to keep his people on the place, and not make slaves of them: And that at the request of Gooch, witness drew an instrument of writing to that effect.

There was also evidence as to the declarations of Charles Smith. Charles Barker testified that when ^Charles and William C. Smith were taking an inventory of the property after Gooch’s death, Charles told the plaintiff Betty to bring all the things; they were hers. Another witness stated that Charles Smith told him that he put a negro named Reuben into the possession of Gooch for the interest of five hundred dollars, which Smith had borrowed of Gooch, and that he being in bad health, he had taken him home and put Aaron in his place. And there was evidence of similar statements by Gooch. Nathaniel White testified that he proposed to buy Lucy, one of the slaves, from Charles Smith, and he replied that William C. Smith could not and should not sell her.

The declarations of Gooch and Charles Smith, made before and after the execution of the deed of April 21st, 1831, and also the paper filed with the bill, were excepted to by Smith as incompetent evidence. The other evidence in the cause is stated by Judge Daniel in his opinion.

The issues directed were tried in October 1848. The evidence excepted to as before stated was offered in evidence by the plaintiffs, and though objected to by the defendant, was admitted by the court.; and the defendant excepted. The jury found: Hirst. That the deed from Gooch to William C. Smith, dated 21st April 1831, was executed without a knowledge of its contents and legal effect, and that he did not intend to convey to said Smith an absolute title to the slaves mentioned therein. Secondly. That the said deed was procured for said Smith by his father Charles Smith, by fraud. Thirdly. That the said Gooch intended to emancipate the said slaves by the said deed.

There was a motion to the court for a new trial, which was overruled; the court being of opinion that it had no power, sitting as a court of law, to grant such a new trial. The defendant thereupon moved the court to certify to the court directing the issues in *these causes, along with the verdict of the jury, the facts proved upon the trial, and also the bill of exceptions filed by the defendant; but the court *404being of opinion that it was not competent to the court to make any such certificate, overruled the motion, and certified the verdict and bill of exceptions. There was then a motion on the equity side of the court, to set aside the verdict and award a new trial on the issues directed; which was overruled. And in June 1852, the court made a decree emancipating the plaintiffs in the first suit, and their descendants born since the institution of the suit; and that the deed of April 21st, 1831, be set aside and canceled, as having been obtained fraudulently by Charles Smith. The defendant thereupon applied to this court for an appeal, which was allowed.

Griswold and R. T. Daniel, for Smith’s adm’r.

Young and Lyons, for the paupers.

Crump, for the Thurmans.

*

Issue Out of Chancery—When Improper.—It, upon the state of proofs at the time an issue is directed, the bill should be dismissed, it is error to direct it; and although the issue is found in favor of the plaintiff, the bill should notwithstanding be dismissed at the hearing. This proposition of the principal case was approved in McFarland v. Doug*401lass, 11 W. Va. 645; Vangilder v. Hoffman, 22 W. Va. 8. See. in accord, Wise v. Lamb, 9 Gratt. 294; Jarrett v. Jarrett, 11 W. Va. 585. For other cases in point, see monographic *note*on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.

Same—Issue Improper—Appellate Practice.—In Jarrett v. Jarrett, 11 W. Va. 627, it is said: “It. is the duty of an appellate court, in reviewing a decree founded on the verdict of a jury, rendered on an issue out of chancery, to look to the state ot the proofs at the time the issue was ordered; and if satisfied that the chancellor had improperly exercised his discretion in directing the issue, to render a decree notwithstanding the verdict, according to the merits, as disclosed by the proofs, on the hearing when the issue was ordered. *Smith's Adm'r v. Betty et als., 11 Gratt 760,*and cases there cited.” See also, the principal case cited in Fant v. Miller, 17 Gratt. 205; Mahnke v. Neale, 23 W. Va. 82. See also, Vangilder v. Hoffman, 22 W. Va. 8; Pryor v. Adams, 1 Call 382; Wise v. Lamb, 9 Gratt. 294. See also, mono-graphic *note*on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.

Same—Questions of Sound Judicial Discretion.—On this subject, the principal case was cited in Crebs v. Jones, 79 Va. 386; *foot-note*to Hord v. Colbert, 28 Gratt. 49. See also, *foot-note,*to Mettert v. Hagan, 18 Gratt. 231; *foot-note*to Beverley v. Walden, 20 Gratt. 147. See generally, monographic *note*on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.

†

Same—No Evidence to Support Bill Denied by Answer —Issue Improper.—The proposition laid down in the second headnote was approved in Beverley v. Walden, 20 Gratt. 154, citing the principal case; Pryor v. Adams, 1 Call 882; Wise v. Lamb, 9 Gratt. 294; Grigsby v. Weaver, 5 Leigh 197. See also, *footnote to*Beverley v. Walden, 20 Gratt. 147, and cases there cited. For further information on this subject, see monographic *note on*“Answers, in Equity Pleading" appended to Tate v. Vance, 27 Gratt. 571; monographic *note*on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.

‡

Assignments—Evidence— Subsequent Declarations of Assignor.—The declarations of an assignor after assignment are inadmissible in evidence against his assignee. Daily v. Warren. 80 Va. 519; Brock v. Brock, 92 Va. 175, 23 S. E. Rep. 224, both citing the principal case, and Barbour v. Duncanson, 77 Va. 76-83.

§

 Slaves—Conferring Civil Capacities on.—See principal case cited in Bailey v. Poindexter, 14 Gratt. 193; Dunlop v. Harrison, 14 Gratt. 259 ; Williamson v. Coalter, 14 Gratt. 397; Wood v. Ward, 30 Fed. Cas. 482. See also, *foot-note*to Bailey v. Poindexter, 14 Gratt. 132.

DANIEL, J.

In the case of Pryor v. Adams, 1 Call 382, this court held, that it was its duty, in reviewing a decree founded on the verdict of a jury, rendered on an issue out of chancery, to look to the state of the proofs existing at the time when the issue was ordered; and, if satisfied that the chancellor had improperly exercised his discretion in directing the issue, to render a decree, notwithstanding the verdict, according to the merits, as disclosed by the proofs, on the hearing when the issue was ordered. The rule has been followed in several cases since, and in the recent case of Wise v. Lamb, 9 Gratt. 294, its propriety was fully recognized and vindicated in the opnion of the court delivered by Judge Lee: And the elaborate review there made of the precedents ascertaining the principles that should guide the discretion of a chancellor, in determining *on the propriety of ordering an issue, precludes the necessity of our entering on such a task here.

Upon the authority of the two cases just mentioned, and those cited in the opinion delivered in the latter, it may be considered as well settled, that in no case ought an issue to be ordered merely to enable a party to obtain evidence to make out his case; that when the allegations of the bill are positively denied by the answer, and the plaintiff has fathed to furnish two witnesses, or one witness and strong corroborating circumstances in support of the bill, it is error in the chancellor to order an issue; that no issue should be ordered until the plaintiff has shown enough to throw the burden of the proof on the defendant; that until the onus is shifted and the case rendered doubtful by the conflicting evidence of the opposing parties, the defendant cannot be deprived, by an order for an issue, of his right to a decision by the court on the case as made by the pleadings and proofs.

To apply these rules to the cases under consideration, is, in the view which I have taken of the state of the proofs when the issues were ordered, to decide their fate.

Much of the testimony offered in support of the bills is of a ’ character to forbid its being followed as a guide to judicial action in any case without the strictest scrutiny, consisting as it does mainly of supposed admissions and declarations, deposed to by ignorant and illiterate witnesses, many years after such admissions and declarations are said to have been made. And a portion of it is of a character to be excluded altogether, on the score of incompetency.

I cannot perceive on what ground declarations of Charles Smith, made long before the execution of the deed of the 21st April 1831, and before there was any treaty or negotiation in relation to the subject matter conveyed, can be received to impeach the deed, or to *affect injuriously, in any manner, the rights of William C. Smith, the grantee. Nor can I see why William C. Smith should be held responsible for any declarations of Charles Smith, made after the deed was executed and recorded, and the whole transaction in relation thereto perfected and ended.

In his answer to the bill in the first of these cases, William C. Smith denies expressly that he was guilty of any fraud in the procurement or execution of the deed, or in obtaining the property thereby conveyed ; and, in his answer to the bill in the second case, after again explicitly denying all fraud, he avers that he- had nothing to do with the drawing and preparing of the deed, and was not present when it was prepared and executed, or when it was placed on record. He further states that he is informed and expects to prove that Gooch the grantor was much attached to him, and had for many years before his death declared that he intended to give him all his property at his death; that he had determined that his relations, who had neglected him, should have none of it, and that he voluntarily employed a highly respectable gentleman to prepare the deed for him; and that as far as he (the respondent) knew, there was no other consideration moving Gooch to execute the deed but his attachment to and friendship for him (the respondent) for his many acts of friendship rendered said Gooch for a series of years, conducive to his comfort and convenience; unless he considered that various sums of money lent him, amounting to six or seven hundred dollars, was a consideration in part.

And there is an entire absence of any proof to show that William C. Smith had anything to do with the procuring, executing or l-ecording of the deed. If any improper inducement was held out, or false representation made, or art, device or fraud practiced, by Charles Smith in the procurement or execution of the *deed, there is nothing to show that William C. participated in it or had any knowledge of it. No concert, agreement or understanding in relation-to the transaction between the two Smiths is established. Charles is no party to the deed, and William C. claims no title through him. It is true, there is proof going to show that Charles advised and aided in the execution of the *405deed, and William C. is the grantee, and has accepted it and claimed under it.

In this state of facts, anything said or done by Charles Smith during the transaction, and in reference to it, may be properly treated as part of it; and William C. Smith is bound by it. It may be very properly said, that claiming the benefit of the transaction, he must take it as a whole. But there is no relation between the parties which justifies us in holding him bound by any acts or declarations of Charles, which were not strictly parts of the res gestas. Any act done by Charles Smith, before the transaction commenced, or after it was finished, tending to impeach, or cast suspicion on, its fairness, cannot be regarded otherwise than as res inter alios acta. And proof of any declarations made by him of a like tendency, at any time, except pending the transaction, is but hearsay.

Much of the testimony in relation to the declarations of Gooch the grantor, is liable to a like objection. His declarations, made after the execution of the deed, fall within the influence of the well established rule, that no admissions or declarations, in whatever form, of a party to a sale or transfer, made after such sale or transfer, and going to destroy and take away the vested rights of another, can ex post facto work that consequence, or be received as evidence against the vendee or assignee. 5 John. R. 426; Petit v. Jennings, 2 Rob. R. 681.

Whether his declarations made before the commencement of the transaction were properly received *in the first of these suits, I have not thought it necessary to examine with much particularity, for reasons which will hereafter appear: Though I am strongly inclined to the opinion that they were not. Be this as it may, I think it clear that such declarations are not evidence for the plaintiffs in the second suit. To receive them as evidence to vacate the deed, and to cast the property on the heirs and next of kin, would be equivalent to permitting a party to testify in his own behalf.

These rules necessarily exclude from the second case the whole of the depositions of Kalley Tucker, Anderson Tucker and George W. Barker, and a large portion of the several depositions of William E. Tyler, George Turner and Nathaniel White. The paper B ought also, I think, to be excluded from both cases, being nothing more than a subsequent written declaration of Gooch, by which he endeavors to destroy the legal force and effect of his deed executed some six months before.

Any further designation of the portions of the evidence in behalf of the paupers, which ought to be treated as incompetent, is, in the view which I have taken of it, unnecessary. For looking upon the testimony in support of their claim as a whole, it appears to me vague, conflicting and inconclusive, and as tending (so far as it points to one result rather than another) to make out a case which could be of no benefit to them. So far as it goes to establish any purpose on the part of Gooch, inconsistent with the deed, it tends to prove, not that he designed to confer on them a state of absolute freedom, but that he designed to leave them in a qualified condition intermediate between absolute slavery on the one hand and absolute freedom on the other; in which, whilst they might enjoy many of the rights and privtheges of freed men, the relation of master and slave between Smith and *them might be left subsisting, so far at least as to shield them from the penalties which would otherwise attach to their residence in the state as free negroes.

Such a purpose is in conflict with the policy of our laws, and this court has uniformly refused to recognize it, no matter how solemnly expressed, or clearly proved, as conferring any rights or benefits on the slave. Rucker’s adm’r v. Gilbert, 3 Leigh 8; Wynn v. Carrell, 2 Gratt. 227.

In the case last cited it was, however, also declared, that when by will slaves are bequeathed to a legatee to be held by him in such a qualified or intermediate condition, that the whole provision is void, and that the slaves (if there is no other disposition of them in the will,) stand as if the testator had died intestate in respect to them.

It becomes, therefore, important to look further into the state of the proofs in the second suit, and to see whether, as between the parties thereto, there was sufficient testimony to justify the chancellor in ordering an issue.

Throwing out of view the testimony which I have treated as incompetent, there remains proof to be found in the depositions of White and others, that Charles Smith borrowed of Gooch, some years before his death, money at different times, amounting in all probably to five hundred and fifty dollars, and that about the date of the last loan a negro man Reuben was placed by Charles Smith in the possession of Gooch, where he remained for some years, when being taken sick, his place was supplied by another negro man Aaron, who remained in the service of Gooch probably till his death. This testimony was no doubt offered, in connection with certain declarations of Gooch, (to the effect that these negroes were placed with him by Charles Smith, to discharge, by their services, the interest on the money loaned,) for the ^purpose of falsifying that portion of the answer of William C. Smith to the bill of the paupers, in which he states that he had permitted these slaves to remain in the possession of Gooch without compensation ; and suggests this act of kindness on his part towards Gooch, as one of the motives which probably induced the latter to make the deed in his favor. It is hardly necessary to say that this testimony, apart from the excluded declarations, whilst tending to establish the conclusions sought to be drawn from it, is yet wholly insufficient for the purpose. The fact that Charles Smith borrowed money of Gooch, and placed *406these slaves in his possession, is not inconsistent with the idea that they may have belonged to William C. and that he had, as an act of friendship, permitted Gooch to enjoy their services without compensation.

There yet also remains in the cause the deposition of Roster Higgins, who states that he was at the house of Gooch, and was called on by him and Charles' Smith to witness a will, as they said, the day before they went to Hanover clerk’s office to record the same; that Smith and Gooch said the negroes were to be kept on the land, and that Smith was to act as master for them. And that Gooch, some time after his return from the office, said that he had acknowledged the will that he (the witness) had witnessed.

There is also the deposition of Jesse Barker, who states that William C. Smith employed him to act as master for the .slaves, stating that the law required some person to do so; that he (Smith) lived too far off to attend to them; that he did not wish to be pestered with them; and that the slaves were to support themselves by their own labor.

There is also the testimony of George Turner, who states that he met Gooch and Charles Smith, as they were going to Hanover court-house, and that Smith said they were going to record a conveyance of Gooch’s ^property, and that he (Smith) was to stand master for the slaves, provided he should be the longest liver: And he also states that Gooch' was then very drunk.

Another witness, W. E. Tyler, states that he met Gooch and Smith as they were returning from the court-house; that he thought Gooch had been drinking, but did not think him drunk.

This, together with the fact, which is very fully established, that Gooch was an ignorant and illiterate man, constitutes (with the exception of the testimony excluded) substantially the evidence in behalf of the plaintiffs in the second cause.

It must be conceded that it does tend to excite the suspicion that all was not fair; that Gooch intended to leave to his negroes his land after his death; and to allow them to live upon it and enjoy the fruits of their own labor, under the supervision of Smith, who should stand as master for them, so as to prevent their being subjected to the operation of the laws with respect to the residence in the state, of free negroes; that he designed to express and effectuate his intentions by means of a will; and that Smith, whose aid and advice he sought, fraudulently palmed upon him the deed under consideration, by falsely representing and reading it to him as. a will expressing his intentions.

But when we come to examine the proofs on the other side: The fact that the deed was regularly acknowledged by the grantor before, the clerk of the county, whose position, in the absence of proof to the contrary, is a guaranty that he was an intelligent and honest man, who would not have taken the l acknowledgment, until first satisfied that Gooch was in a condition to understand what he was doing; that Gooch had, the year before, executed a deed containing exactly the same provisions, in the presence of witnesses, who attested it by his request; one of whom states that the grantor told him that the deed *was as he wanted it; that after consulting counsel as to whether the slaves, if emancipated, could remain in the state, and being informed by him that they could not, the grantor had declared that the slaves would prefer being servants to any good man, to being sent off to a free country; that he had declared that the plaintiffs should never have any of his property, and frequently said that he intended to give it to the grantee Smith; if any doubts or impressions, unfavorable to the fairness of the transaction, still remain, they ought, I think, to be treated as falling far short of that judicial doubt, as to the preponderance of conflicting proofs, which alone could justify a chancellor in calling in the aid of a jury.

Several grounds for reversing the decrees, taken here by the counsel of Smith, which might otherwise have been well worthy of consideration, have been passed over, in as much as the result of the views already presented is to terminate the controversy in his favor.

I see nothing in the character of the claim or nature of the controversy, in either case, calling for the application of rules in respect to the ordering of the issues different from those prevailing in other chancery causes: And I think that the decree should be reversed and the causes remanded, with instructions to the Circuit court, after taking the proper steps for ascertaining and collecting in the fund arising from the rents and hires, to decree its payment to Smith’s representatives and heirs or devisees, according to their respective rights, and to dismiss both bills.

LEE and SAMUELS, Js., concurred in the opinion of Daniel, J.

MONCURE, J., concurred in so much of the opinion as reverses the decree in favor of the paupers, and dismisses their bill, on the ground that they were not intended *to be free. But he thought that the deed was either obtained by fraud or on a secret trust in favor of the slaves: And there was sufficient evidence to authorize an issue in the second suit.

ALLEN, P., concurred with Judge Mon-cure. As to the heirs and next of kin, it was proper to direct an issue upon slight proof in analogy to the proceedings in the case of a will. But in fact the proof was strong.

The decree was as follows:

The court is of opinion, that the testimony offered to impeach the deed of the 21st day of April 1831, was insufficient for the purpose; and that the said deed should have been treated by the court below as a good and bona fide conveyance, investing the grantee William C. Smith, with a full *407and absolute title in and to the land, slaves and other property in said deed mentioned.

And the court is further of opinion, that the decree of the 17th day of April 1840, directing- certain issues therein mentioned, to be made up and tried, is erroneous; and that the chancellor, instead thereof, ought to have rendered a decree sustaining the said deeds and that after collecting in the fund arising from the rents and hires, and ordering the same to be paid to W. C. Smith, he should have proceeded to dismiss the bills in each case; the bill of the paupers without costs, and the bill of C. Thurman & als. at the costs of said last mentioned plaintiffs.

And the court is also of opinion, that the Circuit court erred in its decree of the 22nd of June 1852; and that instead of rendering such decree, the said court ought still, and notwithstanding the verdict on the issues, to have observed the course above indicated as proper for the chancellor when he made his decree *of the 17th April 1840. The court is also of opinion that the order of the 7th of October 1843, is erroneous. Said decrees in each case reversed; those in behalf of the paupers, without costs. Those in the second case, with costs to the representative of W. C. Smith, as the party substantially prevailing.

And the causes are remanded, with instructions to the Circuit court to take proper steps for calling in the fund arising from the rents of the land and the hires of the negroes; and to make a decree, directing the payment of so much thereof as has accrued from the hires, to W. C. Smith’s representative, after first deducting therefrom the expenses, if any, incurred in the maintenance of any of said paupers pending this suit; and apportioning so much thereof as has accrued from the rents, among the representatives and the heirs or devisees of said Smith, according to their respective rights. And then to dismiss both bills ; the bill of the paupers without costs, and the bill of Thurman, &c., with costs to Smith’s represen tati ve.