#### HUGH LAMB *against*EDWARD PIGFORD AND ISAAC LAMB.

Where landand negroes had been conveyed by deeds, absolute upon iheir face, toa brother-in-law of the bargainor, and to a bill, seeking to convert such conveyances into a trust, the defendant answers evasively and unsatisfactorily as to the mode of payment made by him, and it appears that he had recognized such trust by conveying a large portion of such property, according to the terms of the trust insisted on, and had taken receipts, and done other acts inconsistent with an absolute conveyance, and where it also appeared that the bargainor was weak in intellect, and subject to be controlled by the bargainee, and was deceived and imposed on by him as to the nature of the conveyances, a Court of Equity will declare the existence of the trust, gnd will hold the defendant to an account.

*196Where a part of this parol trust was alleged to be, that certain slaves were to be conveyed to the plaintifi’s daughters on their marriage, it was held, that the daughters had no such interest in the question, as to make it requisite or proper that they should be parties to the suit brought by their father : *EelcL,*further, that the daughters, and their husbands, were competent witnesses in the cause.

Cause removed from the Court of Equity of New Hanover county at the Spring Term, 1854.

The plaintiff, Hugh Lamb, a man of weak intellect, illiterate and easily imposed on by one in whom he had confidence, had become much dissatisfied with the conduct of his wife, who had given birth to a colored child, left his domicil and went to live with his brother, the defendant, Isaac Lamb, taking with him his two daughters, Rebecca Ann and Julia Maria, who were infants, Ms only children, where he resided for about five years. About the time of his removing’ *to the*house of his brother, he made an absolute conveyance of the tract of land he had been living on, also of Ms slaves, six in number, and some other property. These conveyances arc admitted by Isaac to have been without consideration, and he says that they were made to exclude his wife from any participation in the plaintiff’s property. The plaintiff in his bill alleges that these conveyances were upon certain trusts entered into and agreed on between the two brothers, viz: that Isaac should maintain Ms brother and two daughters during Ms, plaintiff’s life, and after his death should convey the property to the two daughters in equal shares. That these trusts were not inserted in the conveyance or at all expressed in writing, because he was ignorant and believed that they|conld be enforced without being so expressed.

In the year 1829, after having lived with his brother Isaac aome four or five years, the plaintiff removed with Ms two daughters to the house of the defendant Pigford, who bad married Ms sister : about the same time the conveyances which *197the plaintiff liad made of Ms land and negroes to Ms brother Isaac, -were surrendered to Mm and’ cancelled, (never having been rcgisted,) and conveyances *were made*at the same time to the defendant Pigford, of the property which he had conveyed to his brother Issaac, to wit: a tract of land of 350 acres and eight slaves, (naming them.) The consideration for the land as expressed in the deed was §350, and for the slaves §1500. The plaintiff and his daughters continued to reside with the defendant Pigford from 1829 until 1838, when Rebecca Ann married one John Watkins : the defendant Pigford at this time conveyed ’to her one of the negroes which her father had conveyed to him, and three others, the children of another woman, who had been thus conveyed. The plaintiff and his daughter Julia still continued their residence with Pigford until the year 1844, when Julia intermarried with one Josiah Johnson, and on 13th of October, in that year, the defendant Pigford, settled by deed, four slaves upon the said Julia and her children, which slaves were of the negroes conveyed by the plaintiff to him and their increase. Shortly after the marriage of his daughter, Julia, the plaintiffleft the house of Pigford, and resided with one or the other of his sons-in-law.

The bill alleges that these conveyances for the land and "slaves to Edward Pigford, were wholly without any consideration, paid or secured by him, but were made in trust and confidence, that the said Pigford would maintain and support the plaintiff at his house during his (plaintiff's) *life :*also support and educate Ms two daughters, until their marriage. On their marriage, the slaves were to be equally divided between them, excepting four, (which were named,) and on the death of the plaintiff, these four with the land, were to be conveyed by the said defendant to the said two daughters, or in case of *their*death, to their next of kin: that the rents of the land and the-services of the slaves, were to be received by the defendant as a compensation for maintaining the plaintiff and his two-*198daughters, and for educating the latter. The bill further alleges that this trust was not put in writing, for that the plaintiff was ignorant and illiterate, and was deceived-and raisin'formed by his brother-in-law, the defendant Pigford, in whom he had confidence, who advised and persuaded him to the course pursued, and that he verily believed these trusts were as valid as if they had been incorporated, and set forth in the conveyances themselves. The plaintiff in his bill further alleges, that the defendant has complied with the trust un-taken by him, so far as to give the slaves above mentioned to the two daughters upon their several marriages, but that he refuses to execute the same' any further, and denies that any such trust exists. That he has sold the tract of land to the other defendant Isaac, who had 'full notice of the plaintiff’s equity.

The prayer is for a re-conveyance of the land and slaves, and an account of the rents of the land, and hires of the slaves, and for general relief.

The defendant Pigford, in his answer, denies that there was any trust in his dealing for the land and slaves in question.— He alleges that this transaction was fair and well understood by the plaintiff, and that the sale was intended to be absolute: that the considerations expressed in the deeds were about the value of the property purchased by him, and that the same' was duly paid. He says that he paid sixty dollars of the money down, and gave his note for the residue of the purchase money, which he has long since paid off, and that the plaintiff owes him for board for himself and daughters, and for money lent, and for personal services and articles furnished to the amount of $1,500, or more. He denies that the plaintiff is a man of weak intellect: denies that he used any pur-suasion or any means to deceive the plaintiff, and insists upon the length of time as a bar to the plaintiff’s claim; also upon the statute requiring contracts of tins kind to be in writing. As to the conveyances of the negroes to the daughters on *199their respective marriages, he says that he did not mate the same out of any sense of trust, duty, or obligation, but was therein *moved entirely by benevolence and affection for the plaintiff and his family. ■*

Isaac Lamb, in his answer, admits that he bought the land from the defendant Pigford, at $450, but denies that he had any notice of the plaintiffs equity.

Beplieation to defendant’s answer: commissions and depositions filed in the cause, (the substance of which is set forth in the opinion of the Court.) Upon these, with the exhibits, and former orders, the cause was set down for hearing, and sent to this Court by consent.

*W.*A. *Wright*for plaintiff.

*Miller*for defendants.

Battle, J.

This case adds one more to the many, which have recently been before the Court, in which the plaintiff has sought by parol proof, to convert a deed absolute on its face, into a trust or security for money, upon the allegation that the clause of the declaration of trust or redemption, was omitted by reason of ignorance, mistake, fraud or undue advantage. The principles upon which relief is given, and the kind and amount of testimony which is 'required in such cases, are attempted tobe fully set forth, and explained in Clement v. Clement, decided at this Term, (ante 111,) and need not be again repeated. Before proceeding to the enquiry whether the plaintiff has supported his allegations, by the necessary proof, it is proper that we should dispose of the objection urged by the defendants against the bill, for the want of parties. It is contended that ás a part of the trust, which the plaintiff’s charges was intended to have been inserted in the deeds to the defendant, Pigford, and omitted by means of his fraudulent contrivance was for the two daughters of the plaintiff, they *200and their husbands ought to have been made parties, and that the bill cannot be sustained without them.

The objection raises the question, whether the plaintiffs daughters have such an interest in the land and slaves, by reason of the trust which he intended to declare for them, as can give them any right in their father’s lifetime to enforce it in Equity? Our opinion is, that they have not. It is a well settled rule in Equity, that a contract will not be specifically enforced if it be not founded on a valuable consideration. Adams Eq. 78, Woodall v. Prevatt, Busb. Eq. Rep. 199. Here was no contract between the defendant and the plaintiff’s daughters, and no consideration moving between them. As between the daughters and their father, there was indeed a meritorious consideration, but as his intended bounty to them was imperfectly executed, it could not be enforced against him in his lifetime, though it might be, if his intention remained' unaltered at his death, against any person claiming by operation of law without an equally meritorious claim : Adams Eq. 97. — Garner v. Garner, Busb. Eq. Rep. 1. The father’s title to the land and slaves conveyed to the defendant, so far as his daughters are concerned, remained therefore, unaffected by his intended disposition of them, in their favour, and he alone is entitled to call upon the defendant to execute the alleged trust. The daughters and their husbands have no direct and certain interest in the subject matter of the suit; nor Indeed, any other interest, except the possibility of succeeding to the estate of the father, as his heirs at law and next of kin, and of course, they would be improper parties -to the suit. If this view of the case be correct, and we think it is, it disposes also of the objection to the competency of these persons as witnesses for the plaintiff. It is not pretended but that children may be witnesses for their father, though they may ultimately be benefitted by the decision of the suit in his favor. Their relation to him may affect their credibility but not their competency.

*201We are prepared now to enter upon the examination of the testimony taken upon the issues made by the pleadings. The main issue, and that upon which the ease must principally turn, is whether the deeds executed by the plaintiff to the" defendant Pigford, were intended to be what they purport on their face, absolute deeds conveying, for a full and fair price paid to the plaintiff, the land and slaves therein mentioned, to the said defendant for his own use unaffected by the trusts set forth in the bill *%*The burden of proof is on the plaintiff, and wc have seen that he must show not merely declarations of the defendant acknowledging the trusts, but facts and circumstances *dehors the deed*inconsistent with the idea of an absolute purchase for himself. Before looking to the plaintiff’s proofs it is proper to remark that the statements of the answer in relation to the payment of the purchase money, are not so full, explicit and circumstantial as the case required. They deal so much in generalities as to give that part of the answer, the character of evasiveness, and thereby to induce a suspicion of its candor and truthfulness. But if it were otherwise, the plaintiffs testimony has fairly met, and completely overthrown it. That the plaintiff was an illiterate, simple minded man, and one easily imposed upon, by those in whom he had confidence, is clearly proved by many witnesses. That the defendant, Pigford, held the land and slaves mentioned in the deed, in some way for the use and benefit of the plaintiff and Ids daughters, he more than once acknowledged to John Watkins, and others. But throwing this testimony aside, and counting for nothing, too, the long period during which the defendant permitted the plaintiff and his infant daughters to live at Ids house, and furnished them with board and other necessaries, all of which was in accordance with the alleged trust, wc have abundant proof from the *acts*of the defendant, to show that he did not hold the property absolutely as ids own, bat upon the trusts alleged by the plaintiff. Upon the marriage of the daughters he gave to each of them four of *202the slaves and their increase, which be had obtained from the plaintiff. This is admitted by the defendant; but he alleges that they were mere gifts — pure gratuities induced by no legal, moral, or any other consideration than good will and benevolence toward the parties, who were necies of his wife, and inmates of his family. That may be so, but it is so contrary to our experience of the ordinary course of human conduct, that we hesitate to believe it; unless we find it corroborated by something more than the defendant’s assertions. Do we find any such corroborative testimony ? Not *so;*on the contrary we find a circumstance connected with the execution of the deed of gift for the four slaves from the defendant, Pigford, to the wife of John "Watkins, deposed to by the said Watkins and John Gideons, which is consistent enough with the idea of a transaction founded upon a valuable consideration, or the performance of a duty, totally at variance with that of a gift or voluntary bounty. The circumstance is thus stated by Gideons who was one of the subscribing witnesses:

*“*I was present and witnessed such with Hugh Sharpless— Mir. Pigford presented a receipt to Mr. Watkins to sign, which Watkins refused to sign. Pigford then asked him what he would do, and he said he would sign a receipt that he had received these four negroes. Mr. Pigford told him to sign that receipt, and not to come back there after any more property. Mr. Watkins then signed it. This was the second receipt as prepared.” The account of the transaction given by Watkins himself is much more full and circumstantial, stating among other things, that the receipt which he refused to sign, expressed that his wife, “should never expect to receive any more of Hugh Lamb’s property.” The enquiry occurs at once to every mind, why, if the gift of the slaves was free and voluntary, take a receipt at all ? Why permit the donee to hig-gle about the receipt ? Surely the records of benevolence might be searched in vain for such another instance of impertinence on the part of a donee, and forbearance on that of *203the donor! Strange as this conduct of the defendant Pigford may appear, we might perhaps believe it, were it consistent with other parts of his conduct as deposed to hy some of the other witnesses, whose character is stated by his own witness, John D. Powers, to he good. When the plaintiff or his agent, for that purpose, Thomas H. Tate, demanded the property in question of the defendant, he was rude, and according to the statement of Edward Pittman, vulgar and insulting. He denied the right of the plaintiff, and then insisted that the plaintiff owed him an account of $1500, according to one witness, and $2500 according to another; and, yet, though requested to do so, he never produced any account, nor proves any part of it; nor indeed the payment of the purchase money for the land and slaves, except by his son James B. Pigford. And the credibility of this witness, though his character is proved to be good, is much impaired by the fact, that a part of his testimony, to wit: that relating to the demand, is directly contradicted by the testimony of four others, whose character is also proved to be good. Without adverting to every minute circumstance appearing in the proofs, we feel ourselves bound to declare that the transfers of the eight slaves to the daughters of the plaintiff upon their respective marriages, and the circumstances which attended them, particularly that made to Mrs.' Watkins, are not shown by the defendant Pigford to have been pure gifts, and are therefore inconsistent with the idea that he purchased the slaves of the.plaintiff at a full and fair price *Iona fide*and absolutely for himself. We feel bound to declare further, that the trusts alledged by the plaintiff were assumed by the defendant Pigford, but were omitted in the deed by the fraud and imposition of the said defendant. The pretended purchase of the land was made of the same time, and formed a part of the same transaction with that of the. slaves, and was, in our opinion, agreed to be taken upon the same trusts. We are satisfied from the testimony of John Watkins, taken in connection with the fact, that the defendant Isaac Lamb, had *204taken similar conveyances from Ms brother, the plaintiff, upon similar trusts, that he very well knew the character of the deeds from his brother, to his co-defendant and brother-in-law, Pigford. The plaintiff is entitled to a decree declaring that the defendants hold the property mentioned in the pleadings (except such of the slaves as have been conveyed to his , daughters,) in trust for the plaintiff, and also that they shall account to him for the rent, hires and profits of such land and slaves. In taking the account the defendant will be allowed for all proper expenditures for the board, &c., of the plaintiff and his two daughters.