#### SAMUEL T. HAUSER et. al. v. CHRISTIAN LASH, Adm’r. of GEORGE HAUSER.

A pretended absolute purchase of slaves, *held,*upon the proofs, to have been a conveyance to the defendant, as a security for the moneys by him advanced, and the liabilities by him incurred, in removing- the in-cumbrance of an execution, which had been levied upon them; — and it was held further, that a pretended sale of the slaves by the defendant, as his own, after the death of the alleged vendor, and a purchase of them for him by his agent, did not, in any manner, affect the rights of the next of kin of the intestate vendor, in the equitable interest which he, the intestate, had therein at his death.

It was charged by the plaintiffs, that on the 6th of March, 1818, a few months before the death of the defendant’s intestate, he being sorely pressed to raise the sum of $818, to meet an immediate emergency, applied to the defendant, his brother-in-law, for aid in procuring the money; that the defendant advanced part of this sum, and, by his guaranty, enabled his intestate to procure the residue; and that, for the purpose of securing to the defendant the re-payment of the advancement so made, and indemnity against the liability so incurred, the intestate executed to the defendant a bill of sale for five negroes, Will, Chrissey, Lessy, Milly and'Wesley. They charged that the value of the slaves, at the time of this transaction, was $2,000; that the slaves remained in the possession of the intestate until his death, and in the possession of-his family, until the 8th of January, 1819, when the defendant, having taken possession of them, as the administrator of his intestate, caused them to be set up for sale as a part of the property of the said intestate; that the said sale, .or pretended sale, was conducted fraudulently; for that it was *213hurried on at an unusually early hour, before the company expected had fully assembled; and for that all the negroes were put up in one lot,, and to be sold for cash, and not on credit, as by law directed; and that the said'pretended sale was null, for that all the negroes were bid off for the defendant by one Jacob Conrad, as his agent. The plaintiffs, therefore, claimed that the said slaves and their increase, and the hires, and profits thereof, should be declared to be a part of the personal estate of the intestate in the hands of the defendant; and, after reimbursement of the defendant’s advances and exoneration of his liabilities, be delivered over for distribution to the plaintiffs.

The defendants denied that the conveyance of the negroes aforesaid was made as a security, but insisted that the same was made truly for the purpose it expressed, of conveying to. the defendant the absolute ownership of said slaves, sold by the intestate and purchased by the defendant, at the price of $818, actually paid therefor. The defendant said that his intestate had been nearly stripped by his creditors of all his property, except the said negroes; that an execution had been levied on them to raise the sum of $818; that his intestate, from motives of humanity, was anxious to prevent a sale of them under execution, and propósed to sell them all to the defendant; that the defendant had no immediate use for the slaves, and no desire to hold that species of property, and communicated these facts to the intestate — but, nevertheless, offered to pay the sum of $818, the amount of the execution, to the sheriff, and take his intestate’s conveyance.of the slaves; that this being assented to, the defendant paid the said sum to the sheriff, (three hundred dollars whereof he borrowed from John Shore,) and took the bill of sale in question; that during the whole of this transaction, not one word passed between the parties that the bill of sale should operate as a security; but, that on the day after the.business was concluded, the defendant, knowing that the intestate expected, or had expresséd an expectation, that an important equity suit, instituted by him in Rowan Superior Court, would be speedily decided in his favour, told the intestate, that on refunding within three weeks the money paid by the defendant *214as the price of the negroes, the same should be re-conveyed to the intestate; and defendant declared that this was a pure- . r iy gratuitous offer on his part, and not the consequence of any previous agreement or arrangement between him and the intestate. The defendant admitted that he permitted the said slaves, as he had no immediate use for them, to remain with the intestate; but averred that he took possession of them, after his intestate’s death, as his own: and that at the time of selling the effects of his intestate, he set up these also for sale, but that he offered them for sale as his property, and not as the property of his intestate; that the sale was for cash, and at a time when he thought he could obtain a full price for them, because he wanted to turn them into money; that they were ran up beyond their value by Henry Hauser, one of the intestate’s children; and that, knowing the said Henry had not the cash *to*pay *for*them, he had them bid *off for*himself by Jacob Conrad, at a price between $1,500 and $1,700; and that ever since he firsttook possession of theslaves, he had continued to'hold them, and yet held them as his absolute proply, under the sale so made to him by his intestate.

*J. T. Morehead*for the plaintiffs.

*Badger*and *Boyden*for the defendant.

Gaston, Judge.

The plaintiffs, the next of kin of George Hauser, deceased, seek, by this bill, from the defendant, the administrator of the said George, an account of his administration of the estate of his intestate. Their right to an account is not resisted, and a reference to a commissioner for that purpose, follows of course, according to the usages of this Court. But, there is one matter which has been distinctly put in issue by the pleadings, proper to be decided before the account is taken, and upon which the parties have brought the cause to a hearing. (His Honor here stated the allegations of the pleadings as above set forth, and then proceeded as follows:) Upon the proofs, we hold it clear that the transfer of the slaves was not made as an absolute sale to the defendant, but that it was made upon an understanding between him and his intestate, that the same should be a security for the money ad vanced and the liability incurred by him in raising the sum of $818 to pay off the incumbrance of *215the execution then levied upon them. All the eircumstan-stances oí the transaction are inconsistent with the idea of an absolute sale. A specific sum was wanted by a needy and hard pressed man for a special emergency, and this precise sum was raised through the agency of his friend and near connection. Now, it is most extraordinary, if the object of the defendant was a purchase, that his *offer*should be regulated, not by any reference to the value of the property to be bought, but exclusively by the amount of the incumbrance from which it was to be relieved. In the next place, the price alleged to have been paid was *’grossly*inadequate to the value of the slaves. The pretended sale by the defendant, on the 8th of January, 1819, is certainly not a fair criterion of their value; for that was marked by many circumstances clearly intended and well calculated to prevent their bringing a full price. They were set up for sale all in oüe lot, and for cash, without any notice *antecedent*to the day of sale that they would be thus sold — and they were bid off at an unusually early hour of the day, before the arrival of several persons, who went for the express purpose of purchasing some of them. Yet, even at this pretended auction, they were bid off by the defendant’s agent, not, as he loosely alleges in his answer, át á sum between $1,500 and $ 1,700, but for the sum of $1;705 — more than twice the price which he alleges to have paid for them; and not a witness has been examined to shew they were not worth this sum. Now, making every allowance for the alleged solicitude of the intestate to sell the slaves himself, rather than permit them to be sold at execution, where is to be found the motive for selling them to the defendant for less than half the money which might be obtained for them from others? Besides, the transactions at the pretended sale in January, 1819, are utterly inexplicable, upon the supposition that the defendant *alone*was interested therein. We have already seen that it was purposely so managed as to prevent competition. There is no doubt but that the negroes were p'ut up as defendant’s property, and not as the property of his intestate, and for cash; and that these matters were declared in a written notice, affixed to a public place,- *at the day*of said — but if the object had been to eom-*216mand the highest price, why were they sold for cash, instead of the usual credit — or, if to be so sold, why was no *previous notice given of the*terms, so that purchasers should come prepared? Several witnesses, who have been examined, de_ dared that they attended with the design of buying — that they attended under the expectation that the property would be sold on the usual credit — and that when they arrived, at an early hour, they were surprised to find that the sale was over, that it had been made for cash, and all the negroes bid in by Conrad. Moreover, the defendant declares that his object in the alleged sale was, to turn this species of property, to the holding of which he has so strong a repugnance, into cash — and yet, we not only find him employing an agent to purchase the property apparently for the agent and in truth for himself, but actually holding the property as his own down to this day. But the case does not rest on these circumstances, strong as they undoubtedly are. There is unquestionable testimony, as we think, furnished by the defendant himself, as to the character of *his*alleged purchase in March, 1818, and the purposes of the pretended sale in January, 1819. On the second of February, 1819, the defendant addresses a letter to Samuel Thomas .Hauser, one of the plaintiffs, in relation to the family and concerns of his late father, in which he says, respecting the latter, “ In my *last*I mentioned to you that I had purchased the plantation at sheriff’s sale for $12,210. I have *taken possession*of Will and his family, and *keep*them on the place for the sum of $51705— *■this*being the *highest bid,*and *ivas the only way to establish the value of them”*It is manifest, therefore, that he held himself accountable, if he kept the negroes, for their *actual value*— and that the stratagems resorted to in order to prevent competition at the- bidding, were to enable him to claim them at a price short of their actual value.

But this is not all. The defendant avers in his answer that the sum of $>300, part of the price which he actually paid for the purchase of the negroes, was borrowed by him at the time from John Shore. Shore has been examined as a witness, and declares that application was made to him for the loan of this money, first by George Hauser, in person, *217and afterwards by John Henry Hauser, in behalf of his father, George; that when this second application was made, Henry produced a letter from the defendant, which the witness exhibits, and which is dated on the 6th of March, 1818, and is in these words:

> “ Mr. John Shore: If you can oblige the bearer, J. H. Hau-ser, with 200 or 300 dollars. *I will be his security*for the payment against the time he promises:”

That thereupon the witness lent the money, and took the note of J. H. Hauser and the defendant, the said Hauser signing first. The witness further adds that this note remained unpaid, except the interest thereon, until 1832 or 1833, when the defendant took it up and gave his own bond for the amount. ■ It is not, therefore, true that at the time of the alleged purchase of the negroes, in March, 1818, the defendant had paid the price. Three hundred dollars, part of the sum of $818 wanted to relieve the negroes from the execution, were borrowed by the intestate himself, or by his son on ac-. count of the intestate, and the defendant had only made himself liable therefor as a surety of the borrower.

Upon-the whole view of the allegations and proofs, the Court declares that the slaves in question were conveyed to the defendant only as a security for the moneys by him advanced and the liabilities by him incurred,un removing the incumbrance of the execution then levied upon them — and that the pretended sale of them by the defendant, in January, 1819, has in no manner affected the rights of the next of kin of the intestate, in the equitable interest which the intestate had therein at his death.

Per Curiam. Decree accordingly.