#### THOMAS B. POWELL *against*SAMUEL M. COBB *and others.*

Where slaves were bequeathed to a trustee for the sole and separate use of a feme covert for her life, with a remainder to her children, money arising from tire hires and profits of such slaves in the life-time of the feme, if in the hands of a trustee, go to the wife’s representative, where it would, in the first place, be liable to any debt she might have contracted in anticipation of the fund, and then become the property of the husband, *jure mariti.*

Where an ignorant old man was induced to execute a deed, surrendering to his children a large fund to which he was entitled, by being informed by them of the opinion of a lawyer whom they had employed, and in whom he had great confidence, which opinion was, that he had no right, and by the false representation of one of his children as to what they had agreed to give him, and as to the purpose for which the deed was to be used, a court •of equity will disregard such conveyance as being against conscience, and decree the fund as if the conveyance did not exist.

Cause removed from the Court of Equity of Caswell county.

Joel Cannon, the father of Mrs. Annie Powell, the late wife of tire plaintiff, by deed, dated in 1829, conveyed a woman named Peggy, and her two children, Milly and John, to trustees for the *sole and sepa/rate*use of the said Annie during her life, with a remainder to her children. The trustees, named in the deed, having left the State before the trust was completed, the defendant Allen Gunn was, by an order of the Court of Equity of Caswell county, made in 1848, substituted in their place, and for many years received the hires and profits of the slaves, only a small portion of which was ever paid to Mrs. Powell. In 1855, Mrs. Powell died intestate, and the defendant Cobb became her administrator. The said Cobb, with tlie other sons-in-law of the plaintiff, consulted counsel as to their rights to the accrued fund in the hands of the trustee, and as to the proper mode of recovering the same; he gave it as his opinion that the profits and hires of the slaves arising to the said Annie Powell during her lifetime, and which were then in the hands of the trustee Gunn, went, not to the plaintiff, Powell, but to the administrator of Mrs. Powell for the benefit of her children ; but out of an *457abundant caution, and to facilitate their proceedings against the trustee, he advised that they should procuro a release from the plaintiff of his right to the fund in question, and to that end drew up a deed, of which the following is a copy of *the*material part thereof: “Whereas, Joel Cannon, late of Cas-well county, conveyed bj1, a deed of settlement, on 29th day of December, 1829, to Elijah Cannon and James Cannon, trustees, a negro woman by the name of Peggy, and her children, Milly and John, to hold to the exclusive and sole use of Annie Powell during her life-time, and after her death said slaves, with their increase, to be divided between her children; and whereas, Elijah Cannon and James Cannon left the State of North Carolina, and settled in some distant State, whereby it became necessary to appoint other trustee or trustees, and Doctor Allen Gunn having been appointed, who has had control of said slaves for many years, and the said Annie having died in the month of July last, and being willing to carry out to the full extent the wishes of my late father-in-law, Joel Cannon, in his provision for his daughter and her children: Now, therefore, this indenture witnesseth, that for and in consideration of one dollar to me in hand paid, 'x‘ * * I have bargained and sold, delivered, transferred, made over and assigned, and by these presents do bargain, sell, deliver, transfer, make over and assign, to Samuel Cobb and his wife Matilda, Jeremiah Rice and his wife Mary Anne, Andrew J. Cobb and his wife Jemima, and Josiali Powell, all the right, title and interest which I have, or may have, in the slaves Peggy, Milly and John.” Then follows a conveyance of the *'•'•profits, hires or issues of the said*slaves, *which accrued i/u the life-time of his wife?*This instrument was carried some ten miles distance from the court-house where it was prepared, to the residence of the subscribing witness, Haralson, where it was presented to the plaintiff by the defendant S. M. Cobb, and by him (pl’ff) executed, and witnessed by Haralson, though from the situation of the parties, it being night, and there being no light at hand, they *458were not able to read the paper, and it was never read to or by the plaintiff at all.

The bill charges that Cobb, having stated his errand and the opinion of the lawyer, whom the children had retained, told the plaintiff that they (the children) had agreed, if he would sign the deed, they would convey Peggy to him for his life; that this was untrue ; that no such agreement was made amongst these parties, and when called on that they refused to fulfill this promise. The plaintiff alleges, being ignorant of his rights, in this particular, confiding in the integrity and intelligence of the attorney whose opinion was made known to him, not supposing he had any right to these profits and hires, and believing it would facilitate the recovery of liis children and sons-in-law in their suit against the trustee, and also infinenced by the consideration that they would convey Peggy to him for his life, ho did execute the deed aforesaid, surrendering all his claim to these hires and profits to the defendant Cobb, and the other defendants, his associates ; but ho insists that it would be iniquitous in them to set up such deed against him, and ho prays that, notwithstanding such deed, the defendant Gunn may account and pay the fund in question to him. Gunn was made a party defendant. Samuel M. Cobb and his wife Matilda, Jeremiah Rice and his wife Mary Anne, Andrew J. Cobb and his wife Jemima, and Josiah Powell, children and sons-in-law of the said Annie, are also made parties defendant.

The answer of S. M. Cobb, which is the subject of a particular examination by the Court, contains t(iis language: “The defendant further answering, saith that the plaintiff has no right to any portion of the slaves, nor to the hires and profits, for reasons appearing on the face of the conveyance of Joel Cannon.” * * “ Joel Cannon attempted to provide for his daughter Annie Powell and her children, to the utter exclusion of the husband, which is apparent upon the deed, which contains the following language, (quoting from the deed): The defendants submit, from the conveyance, it is plain that the grantor intended entirely to exclude the plain*459tiff from any and all interest in the slaves; and they farther submit, that if any portion of the hire and profits of the slaves was in the hands of the trustee, unexpended at the death of Annie Powell, such profits were incidents growing out of the slaves, and must necessarily pass with the slaves over to those in remainder; the plaintiff cannot surely have a greater interest in the profits of the slaves after the death of his wife than he had during the coverture.” The part of the answer relating to the execution of the deed by the plaintiff, and to the negro Peggy as a consideration, and the concomitant circumstances and conversations, with the account of the same, as given by the subscribing witness, Haralson, in his deposition, are so fully noticed by his Honor in delivering the opinion of the Court, that it is not deemed necessary to state them here.

Replication and proofs. The cause being set for hearing on the pleadings, exhibits and the evidence, was sent to this Court.

Baileyr, *Ilill*and *Bowie,*for the plaintiff.

*Morehead,*for the defendants.

Pearson, J.

By the deed of Joel Cannon, a separate estate in the use of the slaves vested in the wife of the plaintiff for life, with a remainder to her children. The children had no more right or claim to the profits and hires of the slaves during her life-time than she had to the slaves after her death. Had the profits and hires been received by her, any part thereof remaining on hand at her death, would have belonged to the plaintiff as husband, *jwe mariti.*As they were not paid over, but remained in the hands of the .trustee, the administrator of the wife becamo entitled thereto, to pay such debts as she might have contracted in anticipation thereof, and the plaintiff was entitled to the surplus; *Molony*v. *Kenady,*10 Simons, 254; *Johnston*v. *Lumb,*15, Ibid, 308. Bell on Husband and Wife, 64, Law Lib. 493; McQueen, 285. The case put in the argument: — If a bond he given, any interest *460accrued at the time of the gift will pass as an incident, — is not applicable. A more apposite case is, a bond or bank-stock is given to A for life, remainder to B : Has B any pretext for setting up a claim to the interest or dividends which accrue during the life-time of A ?

The case turns upon the validity of the deed of transfer. ¥e are satisfied that it was obtained under such circumstances as make it against conscience for the defendants to set it up or seek to claim any benefit under it. The pleadings and proofs present this general view : An ignorant old man is entitled to a fund of some $1500, the accrued profits of slaves while they were held by a trustee for the separate use of his wife. His children and sons-in-law are entitled to the slaves. One of the sons-in-law administers upon the estate of the wife. Counsel is consulted by the latter in regard to their rights and the proper mode of proceeding in order to get the fund out of the hands of the trustee. They are advised that they are not only entitled to the slaves, but to the accrued profits, the counsel falling into error by this fallacious reasoning which is set out in the answer: “ The plaintiff cannot, surely, have a greater interest in the profits of the slaves after the death of his wife, than he had during the coverture, and by the terms of the deed the property is to be held to her *exclusive use.”*So, it is concluded that the old man had no right to the profits; but the counsel advised, “ out of abundant caution, the plaintiff had better release his interest, if any, in the hire and profits,” so as to relieve the children of all difficulty in bringing the trustee to account. Accordingly, the counsel draws up a formal deed, reciting the deed of settlement, the substitution of the defendant Gunn in the place of the original trustees, and that the plaintiff, *“*being willing to carry out, to the full extent, the will of his late father-in-law, Joel Cannon, in its provision for his daughter and her children, in consideration thereof, and in further consideration of one dollar, u doth bargain and sell, transfer, make over, and assign” to his children and sons-in-law, all the slaves and their increase, and also doth *“*hereby make *461over and assign all right, title and interest, which I have as husband, or may have as administrator of my wife, to the profits and hires of said slaves accrued in her life-time, &c.” This deed is handed to the defendant Cobb, who procures the old man to execute it; neither the old man, nor Cobb, nor the subscribing witness, being able to read it; but Cobb tells him that it gives up all right or claim to the slaves and'their profits, and informs him what lawyer drew it; the old man remarks, “ I do not believe he wrnuld do any thing to injure me,” and thereupon he executes it. So, it is manifest that it was executed by the plaintiff in ignorance of his rights; which ignorance was induced by an error of the counsel employed by the defendants, in whom the plaintiff had entire confidence, not only as a lawyer, but as a man ; and it is also manifest that it was executed by the plaintiff for the purpose of enabling his children and sons-in-law to prosecute successfully what he supposed were their rights against the trustee, who held the property and the accrued profits. A simple statement of the circumstances, under which the execution of the deed was procured, is enough to show that it is against conscience for the children and sons-in-law to turn upon the old man and use this deed, not for the purpose for which he executed it, but for the purpose of depriving him of what justly belongs to him.

The same conclusion follows from a particular view of the part acted by the defendant Cobb. He says he carried the deed to the plaintiff and *got hi/m to sign it.*He told him its contents' — did. not tell him he was to have *Peggy as the consideration of executing it;*“ lie might have said, and probably did say, that, when he went to house-keeping, old Peggy could work for him; but he never intended, nor did the plaintiff understand, that he was to have the use of Peggy as a matter of right.” This is the account he gives of the manner *in which he got the old ma/n to sign it.*Haralson, the subscribing witness, flatly contradicts him. “ Mr. Cobb told Mr. Powell, if he signed that paper he would sign away all of his interest in the estate finally and forever, and *we ham dll agreed to give*
      *462
      *you the olcl negro woman Peggy P*“ Mr. Powell replied, that is just as much as I wanted, as they are all my children, and as he only wanted her to cook and wash for him.” “Mr. Cobb told Mr. Powell, if he died, the negro must comeback to the children.” Mr. Powell replied, “he had no use for the negro after his death.” “ Mr. Powell then signed it and I witnessed it.” The witness says none of them could read the paper, and adds, “ I think he said something about his not believing that the counsel, who drew the paper, would do any thing io injure him.”

The other defendants say, they never did agree to let the plaintiff have Peggy as a consideration for executing the deed; on the contrary, they say they did not believe the plaintiff had any right to the slaves or the profits, and they still deny his right. So, the plaintiff was induced to execute the deed, not only in ignorance of his rights and *aliena*intentione, but by means of a direct falsehood in regard to the consideration, which was told to him by the defendant Cobb, acting for himself and as their agent. They repudiate his act. The consideration, being a parol agreement to transfer an interest in a slave, cannot be enforced, and as a matter of course, they cannot avail themselves of the iniquity of their agent.

The plaintiff is entitled to the relief prayed for.

Pee OueiaM, Decree accordingly.