#### THOMAS G. McLEAN, ADM’R v. MARY B. NELSON.

A grantee is not a necessary party to a bill of sale for slaves.

Where a deed, conveying slaves upon certain trusts, was duly executed, by a woman and her intended husband, in contemplation of marriage, and was duly proven and recorded, it is valid, although the draftsman may have added an extra seal, intended for the signature oi the trustee, and although the same was not signed by such trustee.

Where a deed is delivered to a third person, in the absence of the grantee, the latter is presumed to accept it, and it forthwith becomes effectual to pass the property included in it.

*397Whether a trustee has undertaken the burden of executing the trust, is not a question that concerns the valid execution of the deed in this ease, but can only be raised in a Court of Equity by the *cestui qui trust,*after its due execution is established.

Tins was an action of Detinue, for eight slaves, tried before his Honor Judge SaunbeRS, at Spring Term, 1854, of Ala-mance Superior Court.

Tbo plaintiff claimed title as the administrator of William A» Nelson, who, it was alleged, acquired the slaves in question *by*his intermarriage with the defendant, in the county of Cumberland, State of Virginia, in the year 1845. From the time of this marriage, up to the 'death of the husband, in July 1852, Nelson and his wife, the present defendant, resided in the counties of Orange and Alamance. The negrees had been brought from Virginia, to their late place of residence in this State, in the year 1851, -and plaintiff’s intestate, Nelson, had treated them as his own, by putting some of them to work for him, and by hiring out others, up to the period of his decease. After Nelson’s death, his widow, the defendant, took possession of the negroes, and held them as her own property, up to the time of bringing this suit. A demand and refusal was admitted by the parties.

The defendant claimed the negro slaves in question, *by*virtue of a deed which was produced in evidence, hearing date the 8th day of November, 1845, by which these slaves were conveyed to John W. Wilson, of the county of Cumberland, in the State of Virginia, to he held by him “in trust for her own benefit until the contemplated marriage should take place, and then for the joint use and benefit of herself and the said William A. Nelson during their joint lives, and after the death of either of them, for the benefit of the survivor, and for the support and education and maintenance of the issue of such marriage for and during the life of such survivor, and, after the death of such survivor, in trust, to convey the same to the issue of such marriage.” The deed was duly executed by the plaintiff’s inestate and by “ Mary J3. Williams,” the present defendant, and a third seal had been affixed, which the reciting part of the deed indicated *398as being intended for the signature of the trustee. This deed appeared to the Court below to have been duly proved and recorded, according to the statute law of Virginia, of which law there was evidence (not excepted to) before the Court.

The plaintiff’s counsel insisted that the deed did not operate as a conveyance to pass the title of the slaves from Mary B. Williams to the trustee: first, because it was obvious, from the form of the instrument, and from a blank seal being left, that it was intended Wilson should sign the deed as a party to it, which he had failed to do; and, secondly, because there was no evidence that he had ever accepted the trust or the title to the slaves under such deed; and the Court was requested so to charge the jury.

His Honor declined giving the instructions prayed, and the jury found a verdict for the defendant.

Buie for a *venire, de novo,*for misdirection in the Court. Buie discharged and appeal.

*J. II. Bryan,*for the plaintiff.

Norwood, for the defendant.

PEARSON, J.

Is the grantee a necessary party to a bill of sale for slaves, or will the due execution of the deed by the grantor suffice ? This is the first point made in the case sent, and is really too plain to talk about.

2d. “From the form of the instrument, and a blank seal being left, it is obvious that it was intended that the bargainee should execute it as a party, which he failed to doand the inference is, that it was left incomplete, and was therefore void and of no effect.

It is stated in the case sent, that the defendant, before her marriage, and with the consent of her intended husband, executed a deed conveying the slaves to one Wilson, upon certain trusts, and that this deed was duly proven and recorded in Virginia, where the parties resided, and had the property. It is difficult to conceive, how a deed, duly executed, can be nullified *399and made void, by tbe fact, that one, who is not a necessary party, omits to sign it, even although the draftsman may have added an extra seal! The case is not at all like that where one signs a bond as surety, and delivers it as an *escrow*to become his deed, provided it is also executed by certain other persons as Co* sure ties.

3d. “ There is no evidence that Wilson ever accepted the .trust, or the title under said deed.”

When one delivers a deed to a third person, in the absence of the grantee, the latter is presumed to accept it; so that, it forthwith becomes a deed, and the legal effect is to pass the property. This presumption may of course be rebutted by proving that the party refused to accept it; but, until he refuses, his assent is presumed, for the purpose of giving effect to the instrument as a deed: *11 ut res magis valeat, quam per eat.”*

The plaintiff’s counsel admits this to fee the general rule, but insists it is founded upon the presumption that a deed is for the benefit of the grantee, and that in this case the presumption is rebutted; for, it appears upon the face of the deed, that the grantee is not to be benefitted by it; but, on the contrary, is to be burdened with a trust.

Without stopping to enquire, whether the rule rests upon the ground of a personal benefit to the grantee, or whether it does not lay deeper, and rest on the maxim, *“ ut res valeat,”*&c., the presumption being necessary to give effect to a solemn act of the maker, it is sufficient to say that, in a Court of law, .a trust is not taken notice of. So the legal effect of the deed is to make the grantee the owner of the property; and, taking the plaintiff upon his own ground, there is a presumption of a benefit to the grantee, and nothing to rebut it in this Court, where the question, deed or no deed, is to be decided.

The position taken by the counsel is true to this extent: there is no presumption that one accepts and undertakes the burden of executing a trust; and, if this presumption was necessary, in order to give legal effect to the conveyance, the ¿plaintiff would have some ground to stand on; but this pre*400sumption is not necessary; for, as soon as the instrument becomes a deed by the acceptance of delivery, which is presumed, the title passes; and this, in our ease, puts the plaintiff out of Court.

Whether, after the legal title is vested in him, the grantee accepts or refuses to accept the burden of executing the trust, is another question, and one with whieh the plaintiff has no concern. It is, then, for a Court of Equity, in behalf of the *cestui qui trust,*to see that the trust does not fail for the want of a trustee. There is no. error.

Judgment affirmed.