#### Fordham *v*. Miller’s administrators.

From Lenoir.

A father, by deed, cave a negro to his daughter, and provided in it, that if she should die without children the slave should return to his family. The deed was put into the father’s possession to be recorded, and afterwards, before it was recorded, the daughter, by parol, relinquished all claim under the deed, and exonerated her father from all obligation to have it registered, and authorized him to destroy it. 'She afterwards married and died. Her husband hied this bill to set up the conveyance; *Held,*that after the daughter’s voluntary renunciation, she would not have been entitled to the aid of the Court to se* up the conveyance: and that the husband, succeeding to her rights, Could claim nothing more than she could.

Independent of this objection, whether the Court would set up this conveyance for the husband’s benefit, thus giving it a different operation from what the parties intended, *quere?*

The bill alleged that *Philip Miller,*the defendant’s intestate, some years before the filing of this bill, partly in consideration of value, and partly of natural love and affection, conveyed, by an instrument of writing under his hand and seal, a negro woman slave Judith, and a negro hoy slave Essex, to his daughter *Nancy Miller;*that in pursuance of the conveyance, *Nancy*took possession of the slaves and kept them for many years notoriously as her property, with the consent of *Philip Miller;*that *Philip Miller*afterwards prevailed on *Nancy*to put the writing into his possession for the purpose of carrying it to Court and acknowledging it for registration, but that he never did carry or acknowledge it in Court, nor returned it to his daughter, but fraudulently kept or destroyed it; that afterwards *Nancy Miller*intermarried with Ford-*220
      *ham,*the complainant, she then liyingat the house of her brother *William Miller,*and haying in her possession Eg-sex and Judith with her increase; that Essex came imme-^iately into the possession of *Fordham,*and Judith and her children were permitted to remain a short time after the marriage at the house of *William,*until *Philip Milla**took them into his possion and claimed them as his; that *Nancy,*wife of the complainant, was dead, and that her husband was her administrator, and as such had demanded the woman Judith and her increase, and had also applied for the instrument of conveyance, but that *Philip Miller*peremptorily refused to giye up the negroes or instrument.

The answer of *Philip Miller*stated, that *Nancy Miller,*having attained the age of 32 years without marrying, and with no particular prospect of marriage in view, requested the defendant’s intestate *Philip Miller*to make some provision for her in such way that she should have a maintainance for her life, and that in case of her marrying and leaving issue, the property then settled should go to her children; but in case she did not marry or leave issue, then that the property should return to the family of *Philip Miller;*that deeming the request reasonable, *Philip Miller*made and subscribed an unsealed paper writing, the purport of which was, that *Nancy*should have Essex and Judith and her increase during the natural life of *Nancy,*and then the property to be disposed of according to the contingencies mentioned above; that this paper was witnessed and delivered to the witness with a distinct understanding between all parties concerned that it was only made to secure the provision for *Nancy*in the event of her father’s suddenly dying without a will, but that it should be subject to any alteration he might think proper to make by will; that the only consideration was the affection which he felt for his daughter, nor was any consideration of any kind mentioned in the paper. Some time afterwards, in a conversation be* *221tween *Philip Miller, Nancy,*and her brother *William Miller,*it was suggested, that to prevent accidents from death, it would be well to have the paper recorded, and it was delivered to *Philip Miller*for that purpose. It happened, however, that he did not attend the next term of the Court which occurred, and before another term occurred, *Nancy*went to the house of *Philip Miller,*and told him, that as it was not recorded, it might as well be let alone altogether; that she was willing her father should take back the right; and that what she was to have, *Philip Miller*might give her by his will; and this being acceded to, no farther care was taken of the paper, which, is now lost or mislaid.

Tayior, Chief Justice. —

-The allegations in. the hill, as to the deed of gift of the female slave, are sufficiently made out by proof, and there seems to be little doubt of the deed of gift having been placed in the hands of *Miller*for the purpose of being registered. But the objection made to setting up the deed is, that, after the defendant had it in his possession, his daughter agreed to waive all claim under it, and trusted to her father making a provision for her by his will. Her declarations to this effect were frequent a very few days before her marriage, and in point of fact it is established. This seems to be one of the cases where a written agreement may be so far waived by parol, that it may be a defence to a bill for a specific execution; for it was here an entire abandonment and dissolution of all claim by virtue of the deed, and restoring the parties to the situation they were in before it was made. But it may be well questioned, whether, if this were not a solid ground of defence, this Court would feel justified in setting up the agreement so as to give it a different operation from what the parties intended. That was, that if the daughter died without children, the slave should return to the family. The husband made no settlement, and was apprised of the circumstances of Ms wife *222before marriage; his equity is at best doubtful. The bill must be dismissed.

Hall, Judge. —

This is a bill brought by the surviving husband, who has taken out letters of administration on the estate of his deceased wife, for negro Judith and her increase, which he alleges belonged to her. If she had any title to the property in question, she derived it from the deed which it is admitted by both parties the defendant her father executed to her, and which it is also admitted was returned to the father for the purpose of being registered. If the matter rested here, although the father may have mislaid or destroyed the deed, the rights of the daughter would not be impaired, provided the contents of the deed could be established. But the evidence shows that afterwards, before the marriage of the daughter with the complainant, she released her father from any obligations which he was under to have the deed registered, and restored to him all right which he had to the negro before, it was executed, by authorizing him to destroy it, and saying, if she lived and should have children, she had rather rely on the provision which he should make for her by will. If she herself was living, she could not claim the interposition of this Court, to set up this deed against her own voluntary consent given for its destruction, when she was a free agent, and where it does not appear that any fraud was practised upon her to procure that consent. As the complainant cannot be in a better situation than she would be if living and single, as to the property in question, I concur in the opinion that the bill should be dismissed.

Henderson, Judge, concurring also,

Bit,i, dismissed.