#### George Williams and Garrison Williams *v.*John Howard.

From Rowan.

A. conveyed to his son B. in absolute property, certain negro slaves: and B. being about to jbin the army, conveyed the slaves to his brother C„ for five years, for the' support of his father. Executions issued against the father and were levied upon these slaves. He and Ins son C. applied to I), to befriend them. D. agreed to advance the money due on the executions, and bid off the slaves when sold by tire Sheriff: and A. and C. were to have until a certain day thereafter, to redeem the slaves. The money was tendered to D. by the day, and he refused to receive, it. A. and C. filed their bill to redeem; and the five year's having expired, a decree was obj ected to on the ground that the ab solute interest in the slaves was in B. and he was not a party to the hill — Objection disallowed.

This is a contract of agency, in which the agent is called on to transfer and surrender up property acquired for his principal in execution of an express contract: Por as between these parties, complainants are to be considered the owners of the slaves, and the Defendant is concluded from contesting’ their title.

He who bargains with another, placing confidence in him, is bound to shew that a reasonable use has been made of that confidence.

A decree was also objected to, upon the ground, that Equity will not decree the specific execution of a contract relative to negro slaves— Objection disallowed — For all the principles which induce a Court of Equity to compel the specific execution of a contract for the sale of lands or some favorite personal chattel, apply with equal force to the case of slaves.

George Williams and Garrison Williams his son, filed their bill of complaint in the Court of Equity for Rowan county against John Howard, and therein charged, that some time in the month of September, A. D. 1806, two executions were issued against the property of George-Williams, which were levied by the Sheriif of Rowan on two negro slaves, viz. a woman named Sylvia and her child named Hannah, which .negroes were then, and had long been in the possession of Complainants : that although they did not claim the negroes in absolute property, yet they, claimed an interest in them. That the negroes had been *75conveyed by the complainant, George Williams, to his son Henry Williams, by deed of gift, in March, 1801 : That Henry having enlisted as a soldier in the army of the United States, transferred the negroes to his brother Garrison Williams, for the term of five years, for the support of his father, George Williams : and George, the father, and Garrison, the son, were in possession of the negroes, under this conveyance at the time the Sheriff of Rowan levied the two executions aforesaid.

The Complainants applied to John Howard to befriend them, by advancing the money due on the executions; and proposed to him, that if the money which he should advance were not paid to him by the 25th December, 1806, he should have the negro woman Sylvia to' work for the use of the money, until it should be paid. To this proposition Howard did not *assent;*but professed himself willing to be their friend, and advised them to let the negroes be sold, saying that he would become the purchaser and restore the property to the Complainants upon the terms of their first proposition ; assigning as a reason for this course of proceeding, that the negroes could not tnereafter be taken to satisfy other demands against George Williams. Complainants agreed that this course should be taken, and thereupon it was further agreed, that after the sale, the Complainants should have the possession óf the negroes until the' 25th December next *following;*and if the money which Howard should advance on the executions, were not paid to him by that time, he should take the negro woman Sylvia into his possession, and have the benefit of her labor for the interest of the money, until the money should be paid.

On the day of sale, notice was given by Howard to the Sheriff, that he was to purchase the negroes as the friend of Complainants ; and they were purchased accordingly at a price little exceeding one half of their real value. The negroes remained in the possession of the Complainants until the 19th day of November. On the 18th of th at month, Garrison Williams, one of the Complainants, went to How*76ard’s house for the purpose of paying* to him the money. Howard was not at home. Williams made known his business to Howard’s wife, and requested her to receive the money. He remained in the neighborhood, intending to go to Howard’s house again on the next day and pay to him the money. Howard finding that Williams had raised the money, went early in the morning of the next day to Williams’s house and took away the negroes. On the 21st November, Williams tendered the money to Howard, and demanded the negroes. Howard refused to receive the money or deliver up the negroes, and then claimed them as his absolute property.

The bill then prayed that an account might be taken of the hire of the negroes since they came to the possession of Howard, and also an account of the money advanced by-Howard for the complainants at the time of the sale : That Howard might be decreed to surrender up to the Complainants the said negroes, upon his receiving such sum of money as might be found to be due to him upon the taking of the accounts, &c.

Howard filed his answer, and denied the agreement charged in the bill, and denied that any agreement had been entered into between Complainants and him for the purchase and redemption of the negroes.

The bill was filed early in the year *1807";*and at April term, 1818, the case came on to be *heard;*when the following issue was submitted to a jury, viz. “ Was it agreed *“*between the Complainants, or either of them, and the “ Defendant, that the Defendant should bid olf the negroes “ Sylvia and Hannah, named in the bill, at the sale about *“*to be made of them by the Sheriff of Rowan county, and *“*that Complainants, or either of them, should have a rea- *“*sonable time thereafter to repay the money to Defend- *“*ant: and the Defendant upon receiving the money, relin- *“*quish his title to the negroes to the Complainants, or “ either of them ?”■ — The jury found this issue in favor of the Complainants, and the counsel for Complainants moved. *77for a decree according to tbe prayer of the bill. This motion was opposed upon two grounds.

1. That it appeared by the bill, that Henry Williams was the absolute owner of the *negroes,*and that he ought to be a party to the bill before any decree could be pronounced.

2. That the bill sought to enforce the specific execution of an agreement relative to a personal chattel. That Equity would not enforce such agreements, except in a few peculiar cases, none of which were like the present, but would leave parties to their redress at law.

The case was sent to *this Court, where it*was argued by *Norwood*for the Complainants, and by *A. Henderson*for the Defendant.

Taylor, Chief-Justice.

The material allegations of the bill are, that two executions were issued against the Complainant, George Williams, which were levied upon two negro slaves, Sylvia and her child, then in his, possession, and that of his son Garrison, the other Complainant. These slaves had been conveyed by George Williams to his son Henry, who, at the time of levy, was a soldier and absent with the army. Henry had conveyed the slaves to Garrison for five years, for the use and benefit of their father, George. With a view of paying off the executions, the Complainants applied to the Defendant for a loan of money, and proposed as the consideration of his advancing it, that if it were not repaid by the 25th December next following, he might have the use of Sylvia until the money could be paid. The Defendant did not assent to this *proposition;*hut professing to be friendly to the Complainants, advised them to submit to a sale, and agreed to become the purchaser and restore the property, upon the terms of the first *proposition;*alleging, as a reason for this course, that the property would thereby be put out of the reach of any subsequent demand against George Williams.

The Complainants agreed that the sale should take place, and the Defendant agreed to become the purchaser and *78restore the slaves to the Complainant’s possession, whore they were to remain until the 25th December,' at which time, if the money were not paid to the Defendant, Sylvia Ayas *^*pasg jn^.() ¡jig possession, and continue there until it should he paid.

The Defendant became the purchaser, at a price something1 more than half of the value of the slaves, occasioned by its being generally known that he purchased for the Complainants. The negroes remained in the Complainants’ possession until the 19th November, when the Defendant took them away. A tender of the money was made on the 21st November to the Defendant, which he refused to accept, claiming’ an absolute title in the negroes.

The jury have established the agreement stated in the bill, and the only question is, Whether the Court can decree a re-conveyance under the circumstances of this case ?

The Equity of the Complainants’ arises out of the contract of the Defendant, who, by promising to befriend them and pointing out the way in which he could do it most effectually, occasioned a suspension of their endeavors to resort to other means of raising the money; and who, by informing the Sheriff that he was to purchase for them, and allowing the same thing to be understood generally by the persons attending the sale, prevented them from bidding, and thus acquired the property to himself at an under value. The Defendant, by his own agreement, became a trustee for the Complainants : shall he, in violation of every principle of rectitude ana good faith, be permitted to set up a title in himself, bottomed upon a palpable breach of that trust ? Shall lie be allowed to gain a considerable benefit, at the expense of those whom he *probably*prevented from procuring the money by other means, and whom he *certainly*inspired with confidence in his proffered friendship ? There is no maxim of justice recognised in this Court, which will lend its sanction to such a defence.*

*79The jurisdiction of the Court, under circumstances similar to the present, is affirmed by many cases in the books $ and notwithstanding the limited view of contracts respecting lands, which the statute of frauds and perjuries compels the English Judges to take, yet, in cases of fraud, it has been held that no writing is necessary. The case of Thynn *v.*Thynn,* involves both fraud and trust, and shews that the former makes an exception to the statute. In Lamas *v.*Baily,† relief seems to have been intercepted solely by the *statute;*and it is therefore an authority for the Complainants.

The sale under the executions was made on the suggestions and advice of the Defendant, avowedly to protect the property from subsequent demands : he has no right, therefore, to pervert the sale to any other purposes, more especially to that of becoming the equitable owner of the property. Such a transaction will not bear the scrutiny of bilis Court.‡

The rule is extensively applicable, that he who bargains with another, placing confidence in him, is bound to shew that a reasonable use has been made of that confidence :§ And it is an inference deducible from the same maxim of justice, that he who acquires a legal title by breach of trust, and by taking advantage of another’s necessities, which he was instrumental in producing, shall not, in this Court, setup the title against him from whom he obtained it. It is a fair presumption, that the Complainants could have exerted themselves with the same success to get the money upon the levy of the execution, that they did in November when the tender was made, if they had not been hilled into a fancied security by the assurances of the Defendant.

Though the Complainants were not the absolute owners of these Slaves, and so it appears from the bill, yet they had a fiduciary possession, which they were bound to protect for the benefit of their absent relation. He, upon his *80return from the army, would have a rig-lit to call upon them, at least upon *Garrison,*for a restoration of the property : and it is fit that the Defendant should be compelled to replace things in the state and condition from which his fraudulent conduct removed them. In relation to the Defendant, the Complainants are the owners of the slaves ; for his conduct has concluded him from contesting their title.

It is not certain that the question arises in thi^ case, as to the power of the Court to decree the specific execution of a contract relating to chattels : but if it be presented, I have no hesitation in giving it as my decided opinion, that the reason of the rule does not apply to slaves : That they form an exception, for reasons equally cogent, or more so, than those applicable to land. With respect to other chattel property, justice may be done at law by damages for non-performance, and therefore equity will not interpose r But for a faithful or family slave, endeared by a long course of service or early association, no damages can compensate *;*for there is no standard by which the price of aífection can ho adjusted, and no scale to gi*aduate the feelings of the heart.

Henderson, Judge.

Upon a simple contract of agency, much extraneous matter is introduced by the bill and the Defendant’s argument as to the claim which the Complainants had to the slaves before the Defendant purchased them, as their agent. To me, it appears entirely immaterial what motives induced the deed of gift to Henry Williams, what wore the terms or conditions thereof, or whether there was any gift at all. And the transfer from Henry to the Complainants, or to one of them, is of the same character. As well might a man charged with horse-stealing, avert the punishment of his offence, by shewing that the prosecutor had defrauded the former owner of the horse by getting him at half price. In this case, the agent is called on to transfer and surrender up property acquired for his principal in execution of an express contract of *81agency, -where be bad used tbe Complainants’ money. For the Defendant by agreeing to advance tbe money for his principal, made the money his principal’s, and gave to himself a right to call on him for so much loaned or advanced to his use : and no reason can be assigned why he should not transfer that legal title with which he clothed himself, either witli a view of honestly performing his contract of agency, or with a dishonest intent of avoiding it. In either case he has no defence. When the question shall bo brought before the Court, it will be time to consider whether these Complainants are trustees for Henry Williams, either from the manner in which he left the property with them, or from any new engagement. It would be a disgrace to our. law, if such subterfuges were to prevail.

Upon the other question raised in this case, that is, as to the power of this Court to decree a specific execution of a contract for the sale of slaves, I think it is not presented: For it is only required of the agent to fulfil his trust, and disrobe himself of that legal title with which he has iniquitously clothed himself. But if the question were presented, I have no doubt upon *it;*for all the principles which induce a Court of Equity to compel the specific execution of a contract for the sale of lands, or some favorite personal chattel, apply with equal, if not stronger force, to the case of slaves.

The Master will therefore take an account of the annual hire or value of the slaves, since the Defendant took them into possession, with interest from the expiration of each year : also of the money advanced by the Defendant in their purchase, with interest to the time of the offer to pay to the wife of the Defendant; and upon Complainants’ paying the difference, if there be any, the Defendant will transfer, by a quit claim bill of sale, to be approved by the Master, the slaves in question, with their increase since he had possession of them, with covenants against his incumbrances, and the claims of all persons derived under Mm, and immediately thereafter deliver to Complainants the said slaves, with their said increase: and the Defendant will pay the *82costs of tliis suit, including tlie Master’s fee for performing the services hereby directed, and all expences of carrying this decree into execution.

Ham, Judge, concurred.

*

 3 Ves. 170,

*

 1 Ver. 296.

†

 2 Ver. 627.

‡

 Wilkinson *v.*Brayfield 2 Ver. 307.,

§

 Young *v.*Peachy, 2 Atk. 254.