#### John Fretwell and others *vs.*Alfred M. Neal and others.*

*Wills and Testaments*— Executors—Estate *for Life*— As*sent*— Evidence—Judgment—Sheriff’s *Sale*— Purch *user for valuable consideration without Notice*— Lapse *of Time.*

"Where the testator gives an estate for life in a slave, and directs that, after the death of the tenant for life, the slave be sold and equal distribution of the proceeds made among certain persons, an assent by the executor to the legacy to the tenant for life, does not divest him of the remainder — the estate in remainder, with power to sell and distribute, remains in the executor.

Where the testator gave his plantation and two slaves to his *wife for*life, and the wife and children remained upon the plantation for several years, but it was under the control and management of the executor, who disposed of the crops and paid the debts with the proceeds, held, that there was not sufficient evidence of an assent to the legacy to the wife.

A judgment in Georgia against an executor as executor, to be levied of the goods and chattels of the testator, founded on a debt contracted by the executor after the death of the testator, though irregular according to the course of procedure in this State, will, under the Constitution and Act of Congress, be respected by the Courts of this State, as a valid judgment; and a sale under it of the goods of the testator will be upheld.

A Sheriff’s sale of a negro, made in Georgia, in 1830, proved by parol, without production of the execution or the return of sale by the Sheriff.

Where there have been several successive sales of slaves subject to an equity, if any one of the purchases was made for valuable consideration and without notice, that, and all the subsequent purchases, will be good.

Great lapse of time, held, strongly to support a defence, not only in supplying lost papers, but also in raising the presumption that no wrong was committed.

BEFORE WARDLA.W, CH., AT ANDERSON, JUNE, 18f>8.

The facts of this case are stated in the circuit decree.

Wardlaw, Ch. John Fretweil filed the original bill in *560this case, January 23, 1856, in behalf of himself and his brother James, and his sisters (with their husbands) Nancy, wife of William H. Kelly, Julia, wife of Edward Cobb, Amanda, wife of John Burrow, Betsey or Elizabeth Mims, widow, and Sally, wife of Benjamin Scott, against the defendant Alfred M. Neal, claiming the specific delivery of the slaves Sarah and her issue, now numbering eight, for the purpose of partition among the legatees of William Fretwell, deceased. By amendment of the bill, James Fretwell, Cobb and wife, Burrow and wife, and Scott and wife, were made plaintiffs, and the heirs at law of Daniel Fretwell and William Fretwell, Jr., other legatees stated to be dead, as also Elizabeth Mims, were made defendants. Perhaps the representatives of Daniel and William are the proper parties, as these decedents may have left debts.

By another amendment John B. Watson was made a defendant, and charged as a confederate of Neal, but as the proof of confederacy failed, it is ordered and decreed that the bill be dismissed, as to the said John B. Watson.

The claim is made under the will of William Fretwell, lately of Green county, Georgia, bearing date August 22, 1822, and admitted to probate in said county on November 13, 1S22: of this will Anna Fretwell, wife, and James Fret-well, sou of said William, were appointed executors, and said James qualified as executor on said November 13, 1S22. By this will, in 2 clause, testator gave to his wife for life, the plantation whereon he resided and the slave Sarah, with a negro man Green; and in 3 clause, directed that at the death of his wife, the plantation and said negroes should be sold, and equal distribution made among his children, James, Nancy, William, John, Julia, Sally, Betsey, Amanda and Daniel ; and testator, by 4 clause, gave to his son Cullen, four negroes; by 5 clause, gave a negro woman Rachel and her youngest child, Marcus, to his daughter Nancy, whenever she should marry, provided that any increase of the negro woman before Nancy’s marriage should go to the benefit of the fam*561ily; by *6,7,8*and 9 clauses, he gave to his children William, John, Julia and Sally, each, two negroes; by 10 clause, directed that his children Be;sey, Amanda and Daniel, should each have two negroes from the increase of the negroes if sufficient, and if not, that the deficiency should be supplied by the sale of any property not otherwise disposed of, namely; Dob, Mary and Fanny, and their increase at the time of the children marrying off, or becoming of age; by 11 clause, directed that his wife “should keep Dob, Mary and Fanny, and all the stock of every description, and all the farming utensils on the plantation for the support of her and the children so long as they remain minors;’’ and by ,12 clause, he gave to his son James, a horse to be worth $100, a good saddle and bridle, and also $800, to be paid from the next crop. The chattels of testator were appraised February 8, 1823, at the valuation of $7,214, including Sarah, at the price of $450. No sale of the chattels was made by executor. On March 8, 1824, James Fretwell made a return to the Court of Ordinary for Green county, of his transactions on the estate, which, with some additions for subsequent years, was examined and approved at January term, 1830, and exhibited receipts to the sum of $2,700 67, (of which $1,974 02 was from the proceeds of the sale of cotton,) and payments to the sum of $2,659 47, of which, many were for the renewals of notes in bank.

It appears by exhibit D, of defendant Neal’s answer, which although not strictly proved, commits him at least as an admission, that James Fretwell, as executor, on February 27, 1824, executed a power of attorney to his brother Cullen, empowering him to transact and manage, in the absence of said James, all business pertaining to'the estate of testator and particularly to sell and transfer any property of the estate which executor could sell and transfer, to pay and extinguish all debts of the estate, and for this purpose to borrow or advance money.

On August 16, 1828, Cullen Fretwell commenced suit in the *562Superior Court for Green couuly, against said James Fretwell, as executor, counting for money advanced and employed for the use of said estate, and for the legacy to said James, sold and assigned to said Cullen. James, as executor, accepted service, and at March term, 1829, confessed judgment for $2,198 55 and costs; and on May 15, 1829, judgment was entered for said Cullen against said James, as executor, for the sum so confessed, and $10 25 cost, “to be levied of the goods and chattels, lands and tenements of William Fret-well, deceased, in the hands of his executor to be administered, if so much to be found, if not, then of the goods and chattels, lands and tenements of the defendant, James Fret-well.”

On December 23, 1828, James Fretwell, styling himself “executor of William Fretwell, deceased,” gave his promissory note to Culleu Fretwell, or order, for $633, “loaned money;” on January 2, 1829, Cullen sued out process, and declared on said note against James as executor; on January 7, 1829, James, as executor, accepted service of process; at September term, 1829, a verdict was given for the sum mentioned in said note, with interest and costs, and on November 5, 1829, a judgment was entered for $687 12, “to be levied of the goods and chattels, lands and tenements of William Fretwell, deceased, in the hands of the defendant as executor, if there be so much to be found, if not, then of the individual goods and chattels of the defendant.” It does not appear by record that executions *were*issued on these judgments, or that anything was done towards their satisfaction ; but there is *prima facie*proof of the existence and loss of the executions, and that under them, the sheriff sold Sarah and other property of testator’s estate to Cullen Fretwell, in the year .1830. Before this time Sarah, with the other chattels, had (remained on the plantation occupied by the widow and family, but it seems the executor controlled the crops of cotton. On May 3, 1831, Cullen Fretwell sold and transferred by bill .of sale to Alfred M. Neal, the slave Sarah, described as about *563thirty-five years old, with her two children, Mary, about two years old, and Rachel, four weeks old, for a sum paid of $465, a fair but rather low price. At the time of this transfer, and for fifteen years afterwards, Neal was a resident in Elbert county, Georgia, and before the sale for two or three years he had frequently visited the family of testator. For the last twelve years he has resided in Anderson district; he has been in possession ever since the purchase of these slaves, and they are now worth $3,000 or more. About the time the bill was filed, hearing of the claim set up, he secreted himself and the slaves for a few days, and actually sold the slaves to one Dooley, of Georgia, but, a few days afterwards, he bought the slaves again at an advance of $200, on the price paid to him, and gave the bond to the sheriff, which had been ordered on a special injunction granted by the commissioner. After the. death of testator, his widow remained for some years in Green, and then removed to Pike county, where (or in Carroll) she died in May, 1S52.

Defendant Neal, in his answer, professes to bo uninformed as to the material facts stated in the bill, and requires proof to be made of them; and pleads purchaser for value without notice of claim alleged, and also the statute of limitations.

I have stated the important facts in the cause as I understand the evidence, and for any omission or mistake, I refer for correction to the voluminous documents and testimony produced.

At the hearing, some doubt was suggested by me of the sufficiency of the proof of the will as an instrument of title, by mere exemplification of the foreign probate, without probate in this State; but this doubt has been removed by reflection. The case is within the Act of Congress of 1790, passed in pursuance of the 1 Sec., 4 Art. of the Constitution of the United States. Besides, a duly authenticated copy of an ancient record is good proof in itself. Moreover, the exemplification was probably admissible in evidence under *564our Act of 1823, 6 Staf., 209, as the requisite notice had been given.

Some doubt, too, was entertained as to the jurisdiction of the Court, even on the indulgent views suggested in *Sims vs.*Shelton, 2 Strob. Eq., 221, for from the number of claimants there could be no other delivery of the slaves than by distribution of the proceeds of sale, and the insolvency of the defendant is not alleged. But partition is an extensive field for equity, and as defendant may be considered as entitled to the share of James Fretwell, at least, relief may be afforded in that form, where specific delivery is sought. *Nix vs. Harley,*3 Rich. Eq., 379.

As to the plea of purchaser without notice, I think that defendant has established some of the elements of this plea. He has paid a fair price and received a conveyance from one in possession of the chattels, claiming them absolutely under a sale by the executor as legal owner. It may be that Cullen Fretwell, by merely giving credit on his execution, did not pay his money in that strict sense which is necessary to the integrity of the plea. *Williams vs. Hollingsworth,*1 Strob. Eq., 103; but that does not injuriously affect a purchaser from him who did pay money. Where plaintiffs claim by legal title, and seek no discovery from defendant imperiling his title, this plea is inapplicable. *Daniel vs. McCord,*Rice Eq., 330; and here it is questionable whether such discovery is sought. But, in my opinion, the title of the plaintiffs is merely equitable, and although equitable owners may sue in equity, *(Bush vs. Bush, 3*Strob. Eq., 131,) this plea is operative when proved to defeat their suits. The remainder in the slaves specifically after the life estate of the widow is not given to the children of testator, and nothing is given to them but shares in the proceeds of sales after the slaves shall be sold as directed. It has not been satisfactorily proved • that the executor assented to the legacy of Sarah and delivered her to the life tenant; but assuming that fact for the argument, the legal title of the executor would be suspended *565only during the subsistence of the life estate, and not extinguished, and at the termination of the interest for life would be revived to enable him to perform the important trust of making sale and distribution. The will here does not expressly charge the executor to make the sale, but wherever a will directs, a sale and fails to nominate the person to make it, the duty and power devolve on the executor. An executor’s assent to a legacy so as to vest title and possession in a life tenant inherently operates for the benefit of the remain-dermen. *Finley vs.*Hunter, 2 Strob. Eq., 20S; but it does not change the character of their.estate from equitable to legal. Still, the defendant Neal must fail in this plea, because he had notice of plaintiffs’ claim. I suppose that notice to the/ defendant is implied by law from the probate and record oP the will in the ordinary’s office of the State of-his domicil and purchase. *Ellis vs. Woods,*9 Rich. Eq., 19; and the circumstances go far to show notice in fact. Defendant was intimate in the family of testator, and familiar with the affairs of the estate before his purchase, and he purchased from one of the sons. On his bill of sale he indorsed an assignment to one Creswell Neal, on January 29, 1832, which is unexplained, and probably was merely colorable. Cotem-poraneously with the institution of the suit, he conceals himself and eloigns the slaves for a time. Possibly this course was taken from ignorance and timidity, but more naturally it exhibits distrust of his title from information long previously acquired. I suspect, yet I cannot safely conclude, that he had actual notice. This plea is overruled.

The effect of the lapse of time as a bar of the plaintiffs’ remedy remains to be considered. Defendant has been in adverse possession of the slaves for nearly twenty-five years, without any counter claim, and his vendor had been in possession for a year or more previously. The tenant for life, whose immediate interest was disturbed, lived for twenty-two years after dispossession without making complaint, and those claiming, upon the expiration of her interest, forbore *566clamor for nearly four years after her death. Under such circumstances, all reasonable presumptions should be made against a tardy claim.

It can hardly be contested that the executor of testator’s ■will, sold the slave Sarah to Cullen Fretwell. The sale, in form, was made by his agent, the sheriff, under executions against him. It is said, however, that the sale was made for the private debt of executor, and after his assent to the legacy of Sarah. If these particulars be assumed as true, it may be safely declared, that before his assent to a legacy, an executor has absolute power, at law, to alien the assets of a testator, in satisfaction of his private debt, and- that creditors, much less legatees, cannot follow the assets unless there be positive fraud in the creditor, in accepting such disposal; and that in equity an executor cannot make a valid sale of the assets in payment of his own debt, where the purchaser knows the assets to belong to the estate of testator, for the purchaser is necessarily involved by the transaction itself in participation in a breach of trust; and that in both Courts, after the assent of the executor to a legacy, the title vests in the legatee and the control of the executor ceases. So that not even creditors can pursue the.property bequeathed, by executions subsequently obtained against the executors. Wms. on Ex’ors, 673 — 4 and the cases there cited ; *Alexander vs. Williams, 2*Hill, 522 : *McMullen vs. Brown, 2*Hill Ch., 459.

There is no-doubt that Cullen Fretwell knew that Sarah and the other assets sold to him, belonged to the estate of testator; but that the sale was made for the private debt of executor, and after his assent to the legacy, require to be proved, and, in my judgment, neither particular is proved. As to the former, if I were now called upon to adjudge the matter as an open question, I should probably determine that at least to the extent of Cullen’s purchase from James of his legacy, and of the amount of James’ note signed as executor, without proof further, that the judgments were obtained for the private debts of James ; but the question is not open ; it *567has been solemnly considered and adjudged by a competent foreign Court of the doraicil of the parties, that the debts were those of testator, to be levied from the assets of the estate. This Court is not now at liberty to controvert this judgment; on the contrary, by the requirement of the Federal Constitution, is bound to give to it due faith and credit. Besides, the judgments are not in conflict with any statute or declared policy of South Carolina; indeed, here, debts in form those of the executor individually, may be declared in the proper forum to be debts entitled to satisfaction from the assets of his testator, upon proper suppletory averments and proof: as the Superior Court in Georgia possesses and exercises general jurisdiction, both in law and equity, it must be presumed, especially when the presumption is corroborated by great lapse of time, that the necessary suppletory proof was offered. Then I am not satisfied of the executor’s assent to the legacy of Sarah. There is no express proof of assent, and assent cannot be implied from the circumstances in evidence.

Sarah and all the chattels, none of them having been sold at any general sale by executor, remained after the death of testator on the plantation where he resided in his lifetime in the possession of his surviving family for seven or eight years perhaps, but the executor retained title and control the whole time, and actually appropriated the crops up to the year 1829 in payment of the debts of testator and expenses of the administration. This is the common course of representatives of an estate (where the property is directed to be kept together) until time shall fully develope the exigencies of the decedent’s affairs; it is rarely sufficient proof of an executor’s assent to a legacy to a member of a common family that may be in the enjoyment of the property. It may be that this estate was much mismanaged, and some of the witnesses express strongly their belief that the exigencies of the estate did not require the alienation of its tangible assets, but they state no fact compelling like conviction on the part of others.

From the great lapse of time, we are bound to presume, *568where the contrary is not proved, that Sarah was not delivered to the tenant for life for her own use and as trustee of the remaindermen ; and if so delivered, that the tenant surrendered her interest for life, and that with her assent and that of the remaindermen, the property was sold absolutely in satisfaction of the debts of the estate. *Riddlehover vs.*Kinard, 1 Hill Ch., 378. I conclude that defendant Neal is protected by the statute of limitations and the lapse of time.

It is ordered and decreed, that the bill be dismissed.

The complainants appealed, and now moved this Court to reverse or modify the decree, on the grounds:

1. Because, it is respectfully submitted, that his Honor erred in decreeing that the title of the complainants to the negro slaves, Sarah and her issue, (the subject-matter of this suit,) under the will of William’Fretwell, deceased, was an equitable instead of a legal title.

2. Because, it is respectfully submitted, that his Honor erred in decreeing that the proof was not sufficient to satisfy the Court, that the executor of William Fretwell, deceased, had assented to the legacy of the slave Sarah, to the life tenant, Mrs. Ann Fretwell, when it is submitted that the evidence on that point is full and conclusive.

3. Because, it is respectfully submitted, that his Honor erred in decreeing that the judgments obtained by *Cullen Jl. Fretwell vs. James*Fretwell, executor of Wm. Fretwell, were conclusive of all matters purporting to have been decided thereby, against these complainants, when it is submitted that the complainants were neither parties nor privies to the record, nor in any way affected by the said judgments.

4. Because, it is respectfully submitted, that the evidence was sufficient to satisfy the Court that the said judgments were collusive, fraudulent and void, founded altogether upon matters arising after the death of the testator, William Fret-well, and for the personal obligations of the executor.

5. Because, it is respectfully submitted, that there was uot *569sufficient proof that the said slave, Sarah, was ever sold by the sheriff, under and by virtue of executions against the executor of William Fretwell, and for the debts of the said testator.

6. Because, it is respectfully submitted, that his Honor erred in decreeing that lapse of time and the statute of limitations was a bar to the remedy sought by complainants, when the bill was filed within four years after the accmal of the rights of complainants, and when the defendant had constructive notice of their claim at the time, and before he came into possession of the said slaves.

7. Because, it is respectfully submitted, that the decree is, in other respects, contrary to equity and justice.

*Harrison,*for appellants.

*Reed,*contra.

*

This case was decided in the Court of Appeals, at May Term, 1859. It was mislaid when the cases of that Term were published or it would have appeared among them. It is too important to be omitted altogether, and is now inserted as an appendix.

The opinion of the Court was delivered by

Johnston, Ch.

For my own part, I regard it as of little consequence whether the executor did or did not assent to the legacy for life in favor of the widow. If he did assent, his assent could divest him of his title and control beyond the life estate, only in the event that the slaves were bequeathed in remainder. Without such ulterior disposition, they reverted to the executor, on the death of the life tenant, for administration, according to the powers conferred on him by the will. In this case, the testator has not given the slaves in remainder, but merely directed that they be sold, and the proceeds divided among his children. This did not give the slaves to the children, but merely imparted to them an equitable interest in the amount for which the executor might sell them, and a right to compel him to make such sale. The title remained in the executor, subject to the life estate of the widow.

But the Chancellor has concluded, and, as we think, is warranted by the evidence in his judgment, that there was *570no assent; and the consequence is that the slaves remained, in the hands of the executor, with a legal title on his part, and were liable to be dealt with by creditors as in common cases.

Then as to the judgment obtained in Georgia by Cullen Fretwell. The Constitution of the United States, (article iv, sec. 1, 1 Stat., 178,) provides that “full faith aud credit shall be given, in each State, to the public acts, records and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” Under the power thus conferred, the Congress, by Statute of 1790,(Brev. Dig., 317, 1 Laws of the United States, 115,) enacted, “that the Acts of the Legislatures of the several States shall be authenticated by having the seal of their respective States affixed thereto. That the records and judicial proceedings of the Courts of any State shall be proved, or admitted, in any other Court within the United States, by the attestation of the clerk, and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice, or presiding Magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have *such faith and credit*given to them in every Court within the United States, *as they*have, by law or usage, *in the Courts of the State from whence the said records are, or shall be takeii.”*

It is unnecessary to quote the numerous cases in this State in which our Courts have given conclusive credit to the authenticated judicial records of other States. The irregularities of such proceedings are no ground for disregarding them. If they have effect as evidence in the State where they took place, though they can have no direct operation here, we are bound to regard them as good judgments; to accept them as evidence, and to make them the basis of such *571further proceedings as the parties producing them may claim and be entitled to in our Courts.

We find before us a judgment, properly authenticated, rendered in Georgia against the executor of Wm. Fretwell, and expressly made leviable out of the goods and chattels of the testator. Slaves of the testator, of which the legal title was in the executor, were sold under it. But we are required to look into that judgment and declare that it had no efFect in Georgia to render these slaves liable. We cannot do it. We have no evidence to shew that by the laws of Georgia the judgment was either void or voidable. It is not enough to say that the proceeding may contain irregularities, or that upon the same premises, we should not have given such a judgment here. What a Court of Georgia *has adjudged,*we are to take as a good Georgia judgment, while that judgment remains unroversed. We suppose, in the absence of any proof to the contrary, that were the judgment under consideration produced in evidence in a Georgia Court, that Court would, also, regard it as a valid judgment; whatever it might do were it produced on an application, or proceeding, to reverse it, or set it aside. Were the bill before us a bill to reverse it, or set it aside, are we competent to do such an act? But were we competent, the bill seeks no such remedy; and we could not set aside one of our own judgments, much less a foreign judgment, collaterally.

But, it is objected that the parties seeking remedy in this Court were not parties to the Georgia proceeding, and, therefore, are not bound by it. They were not parties; but if there was a necessary privity between them and the executor, who was a party, they are concluded by the judgment rendered, while that remains. It would be au alarming doctrine that a purchaser of estate property, under a subsisting judgment against the executor, which judgment expressly makes that property liable, has not obtained a good title, simply because the creditor did not make the distributees or legatees parties to his suit, but sued the executor, (not being *572allowed by the forms of law to sue any other) for his debt. Every day furnishes us with instances in which the executor necessarily represents distributees and legatees in such suits; and if, under such proceedings, a *devastavit*is committed, the remedy must be against the executor, unless there has been some collusion with the cre'ditor, the purchaser, or some other person ; — in which case, though a bill will lie against all those implicated in the fraud, it must be (as this bill is not) framed for that purpose. The matter cannot be taken up collaterally.

But again, it is objected that the proof of the sale by the sheriff was not sufficient. The objection points to the non-production of the execution, and the return of sale. There was certainly no proof, from the record, of the sale. But there was ample proof by parol, that the sale was, in fact, made by the sheriff. Mr. Cone, one of the witnesses, says, that though by the law of Georgia there should be an execution and return of sale, there is, in fact, a general inattention by the officers to this requisition. Under these circumstances, and the fact of sale being made out, it would seem unreasonable that the interests of the purchaser should be sacrificed, by making him responsible for the non-production of the papers required; over which he never had any control, and which, though they may have been regularly filed, may have been lost in the lapse of years which has occurred since the sale was made.

The defendant having, according to the foregoing view, obtained the legal title, and without notice of any equity, must be protected in this Court. If Cullen Fretwell had notice, that does not affect this defendant; the well-recognized doctrine of equity being, that wherever, in a succession of purchasers, you reach one who is innocent, and purchases in ignorance, the title is thenceforth sanctified.

According to the view I have taken, the statute of limitations becomes an immaterial question. But it may be material to observe, that the great lapse of time which has *573occurred, tends very much to support the defendant’s case. This is true, not only in supplying lost papers, but in raising the presumption that there was no wrong committed. If the widow saw injustice in the transactions now complained of, it is singular that she should have remained silent through the many years that elapsed between these transactions and her death.

We see no sufficient ground for the appeal, and it is ordered, that the decree be affirmed and the appeal dismissed.

Dunkin and Wardlaw, CC., concurred.

*Decree affirmed.*