#### *James B. Richmond*v. *John L. Yongue.*

After the marriage of defendant’s daughter to plaintiff, defendant executed a deed, whereby he gave ceitain negroes to her sole and separate use for life, with remainder to her issue, and'if she should die without issue, to himself; the deed was delivered *to the*daughter, but the husband was not present, nor was there any proof that he knew of the deed; afterwards the negroes were sent by the defendant to the plaintiff. On the death of the daughter withou issue, defendant took the negroes *back*— held that the husband had no title to the negroes, other than that derived from the deed, and as the estate was beneficial to him, his assent might be presumed. And that the subsequent send-*47mg of the negroes was not a fact from which any intention to give absolutely to the husband, could be inferred; he was already entitled to the possession of them, independent of the delivery. The donor had then no right in the v negroes which he could transfer to the plaintiff by delivery.

*Before*Frost, J. *at Fairfield, Extra Term, July,*1849.

The plaintiff brought this action of trover for three negroes, claimed as a gift by the defendant, whose daughter the plaintiff had married. They were married the 8th January, 1846. About a month or six weeks after, a witness for the plaintiff saw the negroes going to the plaintiff’s in a wagon of defendant’s. They were taken away from the plaintiff’s residence on the night of the 26th February, 1848. The witness was asked if the plaintiff had not built negro houses, and subscribed to the Rail Road; and the evidence was excluded, because these and similar acts, even if done in the confidence of an absolute gift of the slaves, proved only the plaintiff’s impression, and not the fact of an unqualified gift, and his acts, no more than his declarations, can be evidence for himself. Another witness detailed the seizure of the negroes in the night time, and the pursuit of them by himself and the plaintiff and others. They were overtaken on the road in the charge of H. W. Yongue, defendant’s son, and of Craig, his overseer. What was said by Richmond to Yongue, or by Yongue to Richmond, to affect the issue of a gift by defendant to plaintiff, was excluded, because such declarations, even if Yongue and Craig were the defendant’s agents to seize the negroes, were not admissable, as *res gestee,*to charge the defendant in the matter of the gift.

The defendant offered in evidence, a deed of gift from himself to his daughter Caroline, the wife of the plaintiff, dated 31st January, 1846; which, in consideration of love and affection, limited the negroes to her, for her sole and separate use, during her life, and after her death, to any child or children she might leave, then living ; and in default of such issue, to the defendant, if he survived. The deed was drawn by an Attorney, and recorded in the office of the Register of Mesne Conveyance, for Fairfield District, the 27th March, succeeding. The two sons of the defendant witnessed the execution of the deed. They testified that it was formally delivered by the defendant to his daughter, and was redelivered by her to him, to be recorded. It did not appear that the deed was af-terwards given back to her. After her death, it was in defendant’s possession. The plaintiff was not present when the deed was delivered; and there was no evidence that he had notice of it. Two days after the delivery of the deed, the negroes were sent to plaintiff’s.

On the cross examination of the defendant’s witness, H. *48W. Yongue, the circumstances attending the seizure Of the negroes were brought out, with the altercation and threats between Yongue and Richmond. Evidence that the defendant had given to his three other married daughters, slaves of about equal value, absolutely, was rejected. So also, was evidence of the amount and value of the defendant’s property ; because such evidence was not pertinent to the only issue, whether the gift of the' defendant was unqualified or limited. In reply to the plaintiff’s evidence, designed to show circumstances of aggravation in the seizure of the negroes, the defendant was permitted to prove that he had expressed, in a conversation with Dr. Douglass, his unwillingness to do anything which might give pain to the plaintiff, and had declared his intention to permit the negroes to remain with the plaintiff till the crop, then commenced, was made. The declaration by defendant, of his reasons for having limited the gift to his daughter, was admitted. The wife of the plaintiff was of a delicate constitution, with a tendency to pulmonary disease, not sufficient, however, to induce Dr. Douglass to advise against the marriage. She died in March, 1847, not of pulmonary disease. She left no child. The negroes remained with the plaintiff till February, 1848.

The case having been argued to the jury, as if the gift were by parol, they were instructed that the delivery of ne-groes by a parent to a married daughter was a presumptive gift of them absolutely; but such gift might be limited and qualified in any manner; but that the donee must have notice of the limitation ; and that if this had been a parol gift, the case would have been submitted to them, on the evidence, whether the plaintiff did have notice that the gift was not absolute ; in which enquiry they might presume, that the wife had communicated to her husband the terms of the gift. But they were instructed that the gift took effect by the deed; that the delivery of the deed was, in legal effect, a delivery of the negroes to the plaintiff’s wife, and transferred the property to her, before they went into the possession of the plaintiff. That a wife is capable of accepting a gift, by delivery or by deed, qualified or unqualified ; and that such gift would be valid, unless the husband dissented. On the point of notice, they were told there was no evidence that the plaintiff was informed of the terms of the deed, and that the recording of it in the Register’s office, (which was not the proper place,) did not affect him with constructive notice. They were further instructed that the defendant’s daughter was the donee, and the plaintiff acquired by his marital rights, and not by immediate transfer, the interest which the defendant gave to his daughter in the negroes, so that he could claim no more than she acquired by the deed. Finally they were instructed that if the deed was executed and delivered by the defendant *49to his daughter, without notice to the plaintiff, with intent to defraud the plaintiff by imposing on him a contingent interest in the slaves under the form of an absolute gift; or if without any such corrupt motive,, the effect of the unqualified delivery to the plaintiff was to deceive and injure him, then the verdict should be for the plaintiff.

The jury found a verdict for the defendant.

The plaintiff moved the Court of Appeals foi a new trial, on the following grounds:

1. Because the court rejected the evidence offered on the part of plaintiff, to show that he had incurred large debts, made sundry expensive improvements, and had changed his whole plan of operations, on the faith and credit of the ne-groes now sued for being his absolute property, which he would otherwise certainly have avoided.

2. Because the court would not permit plaintiff to prove what he said to a son and overseer of the defendant, (who had gone to the house of the plaintiff in his absence, about midnight, and carried off the negroes in dispute,) when he overtook them on the road with the negroes, plaintiff having then showed that the negroes, when taken as above, went into defendant’s possession.

3. Because his Honor rejected the evidence offered by plaintiff, to prove that the defendant had given four negroes, unconditionally, to each of his other three sons-in-law.

4. Because the court would not permit the plaintiff to prove that the defendant was a man of great wealth and ability to give.

5. Because the court permitted the defendant to give in evidence his own declarations to Dr. Douglass after'the death of plaintiff’s wife, assigning his reasons for having made the deed under which he now holds the negroes, in the form in which it was made, in which he stated his reasons for having permitted the negroes to remain for so great a length of time in plaintiff’s possession after the death of his wife, which was clearly incompetent testimony.

6. Because the court ruled that the wife of plaintiff had the legal right *to*accept the deed from her father, securing to herself a separate estate in the negroes attempted to be conveyed, in fraud of his marital rights, without any notice to the plaintiff of the existence of that deed or its contents, he believing the gift was absolute, and so accepting and holding the negroes sued for.

7. Because it was admitted in argument and throughout the whole case, that the plaintiff had no notice whatsoever of the deed relied on in the defence, which deed was therefore a palpable fraud on the marital rights of the plaintiff.

8. Because his Honor should have charged the jury that the gift of the negroes, on the 2d February, 1846, when the *50defendant sent them to plaintiff unconditionally, was a good gift in law, and vested all the interest the defendant had in said negroes, in the plaintiff, and if the jury should find that the plaintiff held them as a gift to him, then plaintiff was entitled to recover, which was not done.

9. Because his honor stated in his charge to the jury that they might presume that the plaintiff’s wife had given him notice of the deed and its terms, although it had been admitted in argument that he had no notice of that deed.

10. Because his Honor charged the jury that it was the duty of the plaintiff to have dissented if he did not intend or consent to hold the. negroes according to the terms of the deed, when it was admitted he did not have notice of the deed until about 26th February, 1848, which was long after the death of his wife; in which it is submitted there was error.

11. Because marriage is a good and valuable consideration in law, and invests the plaintiff, in this case, with all the rights of a creditor, as to the negroes in dispute, in consequence of want of notice as to any conditions being annexed-to the gift; on which principle the jury should have been charged,'which was not done.

12. Because the verdict is in other respects contrary to law and the evidence.

*Boylston,*for the motion;

said that the delivery to the husband was *prima facie*a gift. That no notice being given to the husband, the deed did not qualify it. *White*v. *Palmer,*McMul. Eq. 117; *Edingsv. Whaley..*1 Rich. Eq. 310; *Watson*v.' Kennedy, 3 Strob. Eq.; *Byrd*v. *Ward,*4 McC. 231; *Teague*v. *Griffin, 2*N. <fc McC. 95. That a gift is a. contract, and that the delivery of the deed to plaintiff’s wife, and her acceptance, did not qualify the contract, because she was incompetent to contract without his assent. 2 Kent. Com. 437, et seq.; 2 Roper on Hus. and Wife, 106; Coke Lytt. 3 a.; 1 Toml. L. D. 210 ; 1 Com. on Con. 17, note m.; lb. 160 ; *Manly*v. *Scott,*1 Levins, 4; S. C. 1 Sid. 109. And that the assent of the husband could not be assumed in this case, but rather that he dissented as soon as he heard of it, which was after his wife’s death. Mr. B. said that the testimony of Dr. Douglass was clearly inadmissable, because it went to rebut the only ground submitted to the jury, viz: fraud. Or, if that was admitted, the plaintiff should have been allowed to prove circumstances which would have shown that a *legal fraud*had been

*Gregg,*contra, said:

In a gift, by deed, express notice to the son-in-law was not necessary. Such notice was not necessary as to pirol gifts ; how much less should it be when the gift was by .deed. *Dickinson*v. *Dickinson, 2*Grat. 493 ; *Moore*v. *Gwyn,*4 Iredell, 275 ; *Collier*v. *Poe,*1 Devereux *51Eq. 55; *Olds*v. *Powell, 7*Alabama Rep. 653; *Miller*v. Eastman, 11 Alabama Rep. 609 ; *Henson*v. Kinard, 3 Strob. Eq.; *Smith*v. *Smith,*6 Mumf. 581; 2 Roper on Hus. and Wife, 153, and authorities there cited.

A. TF. *Thomson,*in reply, said

the deed operated as a legal upon the rights son the delivery to the son-in-law was parol and conveyed to him the remainder which had been retained in and by the written deed. As to the evidence rejected, &c., he cited, 1 U. S. Dig. 468, sec. 4; 3 Hen. and Mum. 127; *Teague*v. *Griffin,*2 N. and McC. 95; *Davis*v. *Duncan,*1 McC. 213 ; *Avant*v. *Sweet, 2*Bay, 528; *Hill Sp Dill*v. *Dukes,*6 Alabama Rep. 259; *Moses*v. *Hogartie, 2*Hill. 335"; 1 Steph. N. P. 713 and 720; U. S. Dig. for 1840, p.'206, sec. 8 ; 1 Bright on Hus. and Wife, 221 and 223; lb. p. 40, sec. 15.

*Curia, per*Evans, J.

Much of the argument in this case has been directed to the question whether in cases of parol-gifts by a father to his daughter, after marriage, he can qual-ifyor annex conditions withoutthe consent of the son-in-law. We think with the Circuit Judge, that that question was not necessarily involved in the case, which depends on other principles. But as it is a question of some doubt, and different opinions are entertained on the subject, I will state, with much brevity, the reasons by which 1 suppose the question ought to be decided. To constitute a perfect gift, by parol, there must be an intention to give, consummated by delivery. The sending the negro to the son-in-law, is a delivery, and if there be no qualification annexed, ihis is evidence of an intention to give, but not a conclusive presumption which, coupled with the transmutation of possession, perfects the gift as absolute. But no such inference can be drawn when the delivery, or the act which amounts to delivery, is accompanied by a qualification showing an absence of intention to give. A delivery, accompanied with a declaration that only a loan is intended, can never be distorted to mean an absolute gift, any more than a delivery on a contract of hiring for a year shall be construed into a greater estate. The character and legal effect of an act is to be judged and determined by the intention of the actor, and if such intention be declared at the time, no inconsistent construction can be placed on the act. In cases like the present the donor is the actor, the donee is merely passive, and as his assent may always be inferred to what was of value to him, it does not seem to be essential that he should be informed of the terms on which the delivery was made. Cases might occur where, with the conditions annexed, the gift would be so valueless that an assent to accept, on the terms of the gift, could not be reasonably inferred ; but this is not such a case, and it will be time enough to decide when the case arises.

*52^ ^las a^so ^een sornetTMes supposed that because marriage is a valuable consideration, all conditions annexed to any advancement made by the wife’s father is a fraud on the marital rights of the husband, unless made known to him at or before the time. It is very true that the husband, as a purchaser of his wife’s fortune, may set aside any disposition of it made in fraud of his marital rights. But this principle is confined strictly to such fortune as the wife had at the time of the marriage. I do not see how it can be applied to anything which is given to her afterwards. A child has no legal right to his father’s estate. The father may give or withhold it. He may give absolutely or with limitations, and the donee must take it as given. We are accustomed to say that a parent is under a moral obligation to provide for his child according to his ability; but I do not perceive that it is any breach of this moral duty to annex conditions which will prevent the husband of his child from wasting it, or from spending it in profligacy or wild speculation; or in the event of the death of his child, without issue, that the 'property shall return to the donor or his family. It will be difficult to make out the proposition that the husband is the purchaser of all his wife’s present and future acquired estate, and that no one-can give her anything which the law will not vest in him, unless his assent be previously obtained.

This case, however, as I have before said, depends on other principles. The title of the plaintiff was not derived from any presumed gift arising from delivery merely. The ne-groes were conveyed to his wife by a deed, signed, sealed, and delivered. She accepted the deed, and her husband has no title except what he derives through her. When'the deed was delivered, the title of the negroes passed from Yongue, the defendant, to his daughter, and was, by operation of law, vested in the husband to the extent of his wife’s interest. When, therefore, Yongue afterwards sent the negroes home to his daughter and her husband, this was no delivery of them from which any inferences of an absolute gift to the husband can be drawn. The negroes were already his, and if Yongue had withheld the possession, trover would lie to recover them. To my mind it is so perfectly clear that Richmond had no title to the negroes, other than that derived from the deed, that I forbear any further discussion. If any one desires to see the argument carried out fully, he is referred to the cir-cup decree of the Chancellor in the case- of *Henson*v. *Kinard,*decided in the Equity Court of Appeals, in December last.

If this be correct, and the rights of the plaintiff depend on the deed, it follows, of course, that the facts stated in the 1st, 2d, 3d, and 4th grounds, in the .notice, were properly rejected as irrelevant to the issue. I think the facts stated by Dr. Douglass, referred to in the 5th ground, might, on the same *53ground, have been rejected ; but as we do not see that they could in any way have affected the decision on the grounds on which it was very properly submitted to the jury by the Circuit Court, their admission cannot constitute a ground for a new trial. The motion must therefore be dismissed on all the grounds, and it is so ordered.

Wardlaw, Frost, and Withers, JJ. concurred.

*Motion refused.*