#### BRYAN GRIMES, EX’R., *against*JAMES E. HOYT.

A Court of Equity will not interfere to rescind an executed contract, upon the ground that it is illegal and against the policy of the State, where the parties are in *pari delicto ;■*the maxim in such case being *melior est conditio defendentis,*(with the exception of eases under statutes to protect the citizens of the State against oppression; as for instance, usury) :

A bill, therefore, alleging that the owner of a slave conveyed him by a deed absolute on its face, upon a secret trust that the slave should go at large, and act as á free-man without leaving the State, and asking the rescission of the contract and the restoration of the slave, with an account, &c., will not be entertained.

Cause removed into this Court from the Court of Equity of Beaufort County.

In 1845, the Rev. Mr. Singletary conveyed to the defendant, by ail absolute bill of sale, a slave by the name of Guilford, reciting therein as a consideration, the receipt of $850, with a general warranty of title. The defendant did not pay this sum in money, but in lieu thereof, gave to Mr. Singletary five sever* al sealed notes for $111,62, payable on credits of one, two, three, four, and five years, with a provision in each- of said notes, that if the said negro should die, or become permanently disabled before such note became due, payment was only to be-made, *pro*rata, up to the time of such event. Mr. Sin-gletary died in less than- a1 year thereafter, having made his last will and testament, wherein the plaintiff, Bryan Grimes, was appointed his executor. The plaintiff proved the will, and qualified as executor.’

The bill alleges that plaintiff’s testator, being about to remove from the County of Beaufort whore he then resided, and being much attached to the slave Guilford, who was an *272excellent servant in- all respects, for the purpose of enabling him to remain in Beaufort county, where his wife and children lived, and for the purpose of enabling him to purchase himself and be free without leaving the State, with the concurrence of the slave Guilford, and in pursuance of a promise made him, entered into an agreement with the defendant, that he (defendant) *“*was to have for his own use all the annual profits of the labor of the said slave for five years, and at the end of that time he (Guilford) was either to remain nominally tiie slave of the defendant, being permitted to have the use of his time and to go at large as a free-man, or defendant was to convey him to his (Guilford’s) wife, who was a free woman of color, (at the option of the slave,) for the same purpose ; the intention being substantially to emancipate him without his leaving the State. The bill alleges that Guilford was worth a great deal more than $850; and that the object of giving this bill of sale, was to disguise the transaction and evade the laws of the State in relation to the emancipation of slaves. The bill further alleges, that the defendant, having received the profits of the labor of Guilford* who is a carpenter, for five years, by which he has realised $250 a year, or in the whole, $1200, has permitted the said Guilford ever since, and still permits him, to go at large as a free man, and now only holds him in nominal servitude. Nevertheless, he alleges that the defendant has offered to sell the said slave for the sum of $650, with an understanding and agreement, that when the purchaser shall have received that sum, ($650), the slave is to go at large, and enjoy his freedom as he is now doing.- The bill further alleges, that some small payments have been made on the notes taken from the defendant, but the same have been renewed by the substitution of two other notes amounting to about $683, which have been on interest for six or eight years.

The plaintiff averring that the said sale to the defendant was merely colorable, and against the policy of the State, offers to surrender the notes now held on the defendant, and the money paid him on the same account; and he prays that the *273bill of sale may be declared void, and be surrendered for cancellation ; and that the defendant account with him for the hire of the slave since he went into the defendant’s possession.

The answer of the defendant denies that he made any such contract or agreement with the plaintiff’s testator; but says, after the trade with Mr. Singletary, which was *tona fide,*as evidenced in the'bill of sale and the notes, and not upon any illegal trust or understanding, as 'is pretended by the plaintiff, and after this transfer to him, it is true, he did agree with the slave Guilford himself, that if he would serve him for five years, and would make, by working at his trade, the sum of $1250, that is, $250 per year, for that time, that he would liberate him; but denies that this emancipation was to be done in any other mode than that permitted by .the law of the State.

There was replication to the answer, and the cause set for hearing upon the bill and answer.

*Rodman*and *Donnell,*for the plaintiff.

*Sjpcm'ow,*for the defendant.

Masti, C. J.

The bill is filed to rescind a contract. It states that the testator, Mr. Singletary, who was the- owner of a slave by the name of Guilford, to whom he was much attached, and being about to remove out of the county of Beaufort, where he then resided, “ agreed with said slave, to convey him to any person whom the said slave should select, who would agree to pay said Singletary, a certain sum in annual payments, for a certain time, out of the profits of the labor of the said slave ; and after the expiration of that time, to permit the said slave to go at -large, and act as a free-man, and who should, nominally only, be his master. This arrangementwas considered by the said Singletary as an act of bounty to the said slave, and the object was to emancipate him, &c., and still leave him to reside in the State.” The bill states that a contract was made between plaintiff’s testator and the defend*274ant, to cany out this intention. Hoyt gave to the testator liis bonds for the stipulated price, to wit: $850, divided into five annual payments, and the latter conveyed the slave to the former by a deed, absolute on its face.

The answer denies that the contract was such as is set forth in the bill, but claims Guilford by án absolutepurchase. The answer, however, contains statements which strongly corroborate the allegations in the bill, and are inconsistent with any other. The enquiry is, does the bill state such a case as au-thorises the inteference of a Court of Equity? Wo think it does not. The object of the testator was a benevolent one; but the mode resorted to, is contrary to the well-known policy of the State. There are three -ways in which slaves can be emancipated, viz ; by the judgment of a Court of record, Rev. Stat. ch. 111, sec. 57; or by tlie owner taking, or sending them out of this, to a free State ; or by the Legislature. . In neither of the two first cases can the slaves remain 'in the State, and only by a legislative act can that *privilége be*obtained. It is in direct violation of the policy of the State, to suffer a slave, upon his emancipation, to remain in the State ; and this Court, in various cases, have declared that secret trusts, such as the bill -sets forth, are null and void. See *Thompson*v. Newlin, 3 Ire. Eq. 338; *Huckaby*v. *Jones,*2 Hawks 120; *Stevens*v. *Ely, 1 Dev.*Eq. 493; *Lemmond*v. Peoples, 6 Ire. Eq. 137. These cases .establish the general principle, that a secret trust for the emancipation of a slave, whether by voluntary deed or will, is void, and a trust results in the latter case to the next of kin of the testator, and in the others, to the grantors. Those cases, however, do not control this; in each of them the conveyance v'as a voluntary donation. Here, it is a conveyance upon a full and valuable consideration, to wit, $850, for a slave forty-five years old. Huckaby’s case was under a will, in which the Court say,, the legatees *to*whom the property was willed, were trustees only, and the purpose of the trust, the emancipation of the slaves. This was an illegal trust, as the slaves were to remain in *the*State, and the legacy, a mere donation. In Ely’s case the conveyance of the *275slaves was a donation, two slaves being conveyed for £5. The trust was expressed upon tlie face of the deed, and for a *quasi*emancipation. The trust in the case of Peoples also arose under a voluntary conveyance for the same secret purpose. Tiie-error of the parties consisted in not attending to the difference between a secret trust, of the nature we are discussing, accompanying a Aroluntary conveyance where the trustee has no interest in the slaves conveyed, and one where the conveyance is for a valuable consideration, conferring an interest in the trustee. In the latter case, where the object and purpose is to secure to the slave, what is termed a *quasi*emancipation, the parties are *in pari*delicto, and Equity stands neuter between them; it being a maxim of equity, *in pari*delicto, *potior est conditio defmdentis.*Equity will lend its aid, neither to enforce, nor to cancel, the contract, but'leave the parties to contest their legal rights, if any they have, in a Court of Law. It is a maxim of law, *ex turpi causa non oritur*actio; if, therefore, a contract be made, so tainted, while it remains executory, Equity will not interfere where its invalidity appears upon its face; because a Court of law is competent to take notice of it; but if its invalidity does not so appear, it will give relief. But the Court will not interfere to rescind, where the contract is executed, by reason of the maxim *in pari*delicto, &c. Here, the contract ivas executed ; the -testator had conveyed the slave Guilford to the defendant, Hoyt, who took possession of him and executed his bonds for the price agreed on. This rule, however, does not apply to contracts made in violation of a statute to protect the citizen from oppression, and the oppressed party is asking relief, as in the case of usury; for, in such a case, though the complainant has joined in violating the law, he is not considered *in pari delicto.*Adams’ Eq. 349; 2 Story’s Eq. sec. 700; 1 Story’s Eq. sec. 298.

A contract made in violation of the public policy is considered a constructive fraud, as not originating in any actual or positive evil design. 1 Story 258. It is not intended to cast upon the parties the slightest charge of any moral delinquent *276cy. The vendor here was actuated by a pure and benevolent motive; he resorted to a mode not sanctioned by the law. In the language of Judge Henderson in Ely’s case, “ the act is foi'bidden only by the stern policy of the State, necessary to support our institutions in regard to slaves; but there is nothing *malum in se*in the act.”

The Court cannot grant the relief asked, and the bill is dismissed.

Per Curiam. Decree accordingly.