#### W. W. Belcher *vs.*Hugh McKelvey, Administrator. Peter Tucker and others *vs.*W. W. Belcher and others.

*Evidence*— Answer—Emancipation—Gift.

Bill by the next of kin of donor to set aside a bill of sale of a slave, expressed to have been made in consideration of $1,000 paid, on the ground that the sale was made in contravention of the Act of 1841 against emancipation, and alleging that the money paid was the donor’s own money, being the earnings of the slave, and that there was a secret trust that the slave should be emancipated j *Held,*That the answer of defendant denying the trust, and averring that the money paid was his own money and not the earnings of the slave, was responsive and self-proving; and, the evidence being insufficient to overthrow the answer, the validity of the bill of sale was sustained.

Where a gift of slaves is made by the donor, in contravention of the Act of 1841 against emancipation, the gift is void whether the purpose of the donor is communicated to the donee or not.

BEFORE WARDLAW, CH., AT LAURENS, JUNE, 1858.

This case will be understood from the circuit decree, and the opinion delivered in the Court of Appeals.

The circuit decree is as follows:

Wardlaw, Ch. Robert Tucker, late of Laurens district, died April 19, 1855, leaving, as his next of kin, a brother, Peter Tucker, of Alabama, and many nephews and nieces, most of whom are absent from the State. On April 24,1854, said R. Tucker executed a bill of sale of one of his slaves named George, to W. W. Belcher, of Abbeville, reciting a consideration of $ 1,000, and warranting the title and soundness of the chattel; and, on June IS, 1854, he executed a paper, purporting to be his last will and testament, whereby he attempted to bestow his whole estate, real and personal, *10upon the said Belcher; and, on the day last mentioned, he also executed a bill of sale of all the slaves remaining in his possession, namely: Ben, Bird, Nancy, Jenny, Letty, Jane and her infant child, absolutely to said Belcher, after reserving to himself the use for life, for the consideration professed of love, good will and affection towards his friend Belcher, and of $50 received from him. After the death of Tucker, an attempt was made to prove his will and testament in due form of law; but it was set aside as a testament by the ordinary, and, on appeal to the Common Pleas, by the verdict of a jury, affirmed by the Law Court of Appeals. Hugh Mc-Kelvey became administrator of the goods and credits of said deceased, and was proceeding to sell the slaves named in the bill of sale of June 13, 1854, under the order of the ordinary, when, on December 14, 1855, the former bill in the caption was filed for injunction of the sale and for general relief; and, on the *ex parte*application of the plaintiff, an injunction was granted by a Chancellor at Chambers. Afterwards, the second bill in the caption was filed by some of the next of kin of the deceased against the other next of kin and Belcher, for partition of some real estate of which R. Tucker was seized at his death, and for having declared void both of the bills of sale aforesaid, as executed through undue influence, and in violation of the provisions of the Act of 1841 to prevent emancipation, &c. 11 Stat., 154.

Defendant Belcher objects to the second bill on the score of multifariousness, as he is impleaded concerning the partition of the laud, in which, on the showing of the plaintiffs, he has no interest; but plaintiffs were right in impleading him as to this matter, to ascertain, in disembarrassment of their title, whether he set up any claim as devisee. He does so claim ; and it is plain that an issue in the Court of Law must be ordered to determine this controversy, which has not been determined by the refusal of the ordinary to admit the testament to probate, although affirmed by the Court of Law, and which cannot be adjudged in this Court. *Crosland, vs. Mur-*
      *11
      *dock,*4 McC., 217 ; *Tygart, vs. Peeples,*9 Rich. Eq., 46. As this point must remain open, it is desirable, on the points which are within the cognizance of this Court, dependent on a common state of facts, to avoid comments, so far as practicable, which may be prejudicial to either party.

Certain facts of the case are proved to my satisfaction, and generally are undisputed. When the bills of sale were executed, Robert Tucker was about eighty years of age, altogether unlettered, and of a mind, originally feeble, impaired by age and disease. He labored under the delusion of being bewitched; and, when he led conversation, he commonly talked of bugs and lizzards running under the skin of his legs, asking his companions if they did not see the vermin. His neighbors dealt with him in small matters of trade, hut usually through the agency and under the supervision of some of his slaves. He spoke rationally about the weather and the like topics, but was incapable of extended reasoning. He usually asked high prices when he wished to sell, and offered low prices when he tvished to buy; and, in his small purchases from merchants, he asked for' the articles of merchandise, but one of his slaves, generally George, would make the selection. He was unmarried, and excessively fond of his slaves and indulgent to them ; indeed, they fared better than he did himself. Some of his relations, as Mrs. McKelvey and John T. Beaufort, were kind to him, and were treated affectionately by him, but he supposed he could give shares of his estate to these only in common with the rest of his kin; and from most of the latter he was estranged,supposing that they envied his pecuniary condition, and waited greedily for his death. His slaves, especially George,- had great influence over him, and he anxiously desired their emancipation at his death. Of defendant Belcher, he knew nothing whatever by personal intercourse — although he designates him as his friend — except from the representations of George, in these particulars apparently truthful, that Belcher was a bachelor, a clever man, and the kind master of many slaves.

*12George was a cabinet-maker, and had worked at his trade for some years in the neighborhood of defendant, Belcher, and had there taken as a wife a woman, Rachel, belonging to Williamson Norwood in his lifetime. George was shrewd and intelligent, had been taught to read well, and he enjoyed the confidence of his master, Tucker. On April 24, 1854, he drove his master in a carryall to the house of W. Blakely, Jr., and producing the bill of sale of that date, in Belcher’s handwriting, and $900 in bank bills, and Tucker acknowledging the previous payment of $100 to him by George, Blakely attested as a witness the mark of Tucker to the bill of sale, and then delivered it to George. At the time, George said that $700 of the money belonged to himself, and that he had borrowed $200 from Belcher, and thereupon Tucker returned $200 to be repaid to Belcher, and Blakely, as Tucker’s agent, took possession of $700. About a week after-wards, John Johnson also attested the bill of sale on the acknowledgment of Tucker and Blakely; and George then, in their presence, said he had paid $1,000 for himself, and Belcher was to befriend him. It is supposed that Belcher in his answer means to aver the payment of $1,000 as the price of George, yet the averment is in terms somewhat equivocal. He says “ he sent by George the sum of $1,000 ” and a bill of sale in defendant’s handwriting, and told him to pay the money to Tucker and take a bill of sale in the presence of witnesses — and “ that all the money paid for George was his own money, a.nd that no part was the earnings of George.” It is not directly inconsistent with this statement, that all the money sent was furnished by .George, nor that the money paid was much less than the nominal consideration. He further avers, however, that “ when George disappeared, his earnings were not enough by about $300 to replace the sum this defendant paid for him,” (is it meant in his purchase?) “which this defendant has never received.” At all events, it is considered that defendant was bound to prove his *13averment of payment, and that in the absence of proof, he is committed by the admissions of his agent, George.

Johnson further testifies that two or three days after he had attested the bill of sale, he was sent for to Tucker’s house, when Tucker said, in the presence of George, I wish you to draw a bill of sale to Belcher for my other-slaves. I wisl;>-,my negroes to be free at my death, and not to serve another; and George has told me that Belcher would befriend him and the other negroes by takiug them to a free State. Witness said to George, you are Belcher’s property, and George replied, I am not afraid; Belcfier is too good a man not to do what he has said, and he will contrive a way for my escape. On this occasion, witness did draw up a deed of gift from Tucker to Belcher of the former’s land and negroes, and George, from his own money, paid $1 50 for the service; but the matter was not then consummated. George then seemed more interested than Tucker in having the deed drawn, and although witness advised it would do no good, said he wanted it done. Afterwards, in June, the bill of sale and the will were drawn by Mr. Henderson at Laurens C. H., and George was present in the village and near Mr. H.’s office, but probably notnvithiu its doors.

*Oswald Richardson,*an attesting witness of the deed, testifies to little conversation at the time of the execution, except that Tucker, on being asked by Atwood, why he gave his property to one he had never seen, replied, that Belcher was a bachelor and a clever man — and afterwards remarked, that the matter was arranged by the papers, just as he wanted it.

*Joseph Creius*testifies, that sometime before the deed was executed, George, in Tucker’s presence, frequently said the old man (meaning T.) wished his negroes to be free, and carried to a free State after his death, and that his land should be used to defray expenses; and offered to have such a will drawn in the name of the witness, as legatee; but witness, *14on reflection, declined. Both Tucker and George counselled with him about Act concerning negroes hiring their time. He further testified, that he saw George at Mr. H.’s office on the day when the deed was prepared; and that on same day Tucker bought his burial clothes at store of witness, which were selected by George.

It appears by the admissions of the answer and the testimony of M. 0. McCaslan, that George is now in a free Slate, probably in Pennsylvania. I do not understand it to be contested that George left this State with the consent of Belcher, after Tucker’s death. _,The answer of this defendant states: “ George, whilst in this (Abbeville) district, had, as already stated, become the husband of a woman,” Rachel, “and had become much attached to her. There were reasons which induced those having the ownership or control of this wo than to give their active or tacit consent to her leaving the State. This defendant has no doubt she did so about April, A. D. 1856, and that George went with her. This was not in pursuance of any understanding, agreement or trust, with Robert Tucker, deceased, but arose solely in consequence of George’s relation with the woman alluded to.” The defendant elsewhere denies that either of said bills of sale was made under any trust or confidence, express or implied, that the slaves named therein were to be held in nominal servitude in this State, or to be emancipated without its limits on removal. For further details of the pleadings and evidence, I refer to the pleadings themselves, to the depositions of witnesses, taken by commission, and to my notes of testimony.

The evidence is not sufficient, in my opinion, to demonstrate the absolute incompetence of Robert Tucker, in April or June, 1854, to make contracts, but clearly establishes such imbecility on his part as to render him an easy subject of imposition and undue influence. Those dealing with him should be held to proof of the fairness of their transactions. There is no pretence of valuable consideration for the deed of June, and although the answer alleges the payment of *15money for George, no evidence of the payment is made, and the bill of sale of April must be treated like the other, as a mere voluntary conveyance. The answer on this point is not responsive, so as to be self-proving.

In a recent circuit opinion, in the case of *Cloud vs. Calhoun,*I expressed my views as to the effect of answers, Suggesting matters of independent defence or avoidance. I 'suppose that a sale on the unlawful trusts mentioned in the second and third .sections of the Act of 1841, particularly the latter section, is no less liable to be declared void than a voluntary donation ; although there is more influence in a mere gift than a sale in aiding the implication of the trust itself. It is not clear, where the donee is a mere volunteer, that it is not enough to bring the gift within the scope of the Act, that the donor certainly intends an unlawful trust, although the donee may not be fully cognizant of it. If the trust be not executed, the donor is defrauded; and whether it be or not, there is an attempt to defeat the policy declared by the Legislature in the enactment. It is difficult to convert one into a trustee without his consent, and the trust under the Act must always be in the donee, and merely the creation, or attempt at creation, of the trust on the part of the donor; still, a donee, or other person, should not be allowed to take advantage from the fraud of another, and one may naturally suspect fraud, or purpose to create a trust, when unreasonable and extravagant bounty is conferred on him by a stranger.

The conclusion in the present case, however, does not rest on such doubtful propositions. The proof satisfies me that George had very great influence with his master, Tucker, .which he exercised to produce a violation of the provisions of the Act. George, at least, had full knowledge of the design of his master to create the unlawful trust of removing the slaves from the State, with the purpose of emancipation, and actively co-operated in its creation; and he must be regarded as the agent of defendant, Belcher, in accepting *16such trust as to both bills of sale. This principal is as much responsible for the acts and declarations of his agent, as if done or uttered by himself personally. Evasion of the Act would be as easy as progress in a smooth and broad highway, if the donee be held committed only by his individual acts.

McKelvey, the administrator of Tucker, is one of the n^xt of kin of his intestate, and one of the plaintiffs in the causey' and it was faintly suggested that the case is within the principle of *Vose vs. Hannahan,*10 Rich., 465. But McKelvey is a necessary party, and sues as one of the next of kin, in conjunction with others, and not in his representative character.

It is also said that the Act applies only to cases where the slaves abide within the jurisdiction of the Court. But George was converted to the use of Belcher after the death of intestate, and having been permitted to escape from the State, this defendant must be held to account for his value.

It is adjudged and decreed, that the gifts of the slaves, in the bills of sale of April and June, 1854, are void and of no effect, and that defendant, Belcher, be held to account for the value of George, for the benefit of R. Tucker’s distributees— it being understood that the other slaves, or their proceeds, are within the control of some of these distributees.

It is also ordered and decreed, that the bill of Belcher vs. McKelvey, the first in the caption, be dismissed.

It is also ordered that an issue be made up forthwith between the parties, in which W. W. Belcher shall be the actor, to be tried in the Court of Common Pleas for Laurens district, to test the validity of the devise of land to him by the supposed will of June, 1854; and that, in the meantime, so much of the second bill, as relates to the partition of land, be retained.

W. W. Belcher appealed on the grounds :

1. Because there was no trust or confidence tending to *17emancipation of the slaves, in contravention of the Act of the General Assembly.

*2.*Because in no event should he be held to account for the value of the slave George, who was *dona fide*sold by the intestate in his lifetime.

3. Because the decree, if sustained by the testimony, is basócjl upon the declarations of the slave George, which were whofly incompetent.

4. Because the decree was contrary to the testimony and the equities of the parties.

*Thomson, Henderson,*for appellant.

*Young, Simpson,*contra.

The opinion of the Court was delivered by

Dunkin, Ch.

It is proposed first to consider the imputed error of the decree in rendering the appellant accountable for the value of the slave, George. It appears that, on 24th April, 1854, the intestate executed a bill of sale of George to the defendant for the consideration of $1,000. The bill of sale was in the handwriting of the defendant, who resided in Abbeville district, — contained a warranty of title and soundness, and was executed by the intestate under his hand and seal, in presence of attesting witnesses. George passed immediately into the possession of the defendant, with whom he remained for about two years thereafter; and dis-' appeared, to wit: about April, 1856, in the manner stated in the evidence. These proceedings'on the part of the next of kin of the intestate were instituted-1858, and it is, among other things, substantially and directly charged, that, although the bill of sale of April, 1854, was for an apparent valuable consideration, yet the money on that occasion paid to the intestate, was, in fact, his own money, being the earnings of his slave George placed in the hands of the defendant for that purposp; and that a secret trust existed, that George *18was to be emancipated by the defendant, or held by him in nominal servitude. The bill calls upon the defendant to answer upon oath, all and singular the matters charged. Thus interrogated, the defendant answered that he did purchase George at the time mentioned — that he made the purchase at the request of George, who desired that the defendant might be his master, because he, George, would be near/his wife who lived in that neighborhood — that he, the defendant, sent the bill of sale, drawn by himself, with the sum of one thousand dollars, to be paid to the intestate by whom the bill of sale was to be executed — the defendant avers that all the money paid for George was his own money, and that no part was the earnings of George — that, from the time of the execution of the bill of sale, George remained with the defendant as his master, and that there was no trust, or confidence, when the defendant became the owner of George, that he should be held in nominal servitude, or should be emancipated. By the decree of the Circuit Court, it is held that this answer of the defendant in relation to the payment of the consideration, is “somewhat equivocal.” “But that, at all'events, the defendant was bound to prove his averment of payment.” And again, it is held that, “although the answer alleges the payment of money for George, no evidence of the payment is made. The answer on this point is not responsive, so as to be self-proving; and the bill of sale of April must be treated as a mere voluntary conveyance.”

The existence and the exigency of the general rule of this Court is not called in question, to wit: that the answer of a defendant responsive to the charges of the bill, should, in general, be taken as true unless contradicted by two witnesses, or one witness, and strong corroborating circumstances. But the Chancellor rests his decision on the distinction, recognized by the Court in *Cloud vs. Calhoun,*10 Rich. Eq., 358, that the answer has not this effect when “ suggesting matters of independent defence or avoidance.” The distinction, though not so familiar as the rule, is certain*19ly well established as well in reason as by authority. A defendant, charged with the receipt of a sum of money, and by his answer admitting the receipt, cannot exonerate himself by an averment that he had paid it to the plaintiff’s use. But to a majority of this Court, it seems a misapprehension to hold, in this case, that “the defendant was bound to prove the payment of the consideration money.” As against the intestate and all claiming as volunteers under him, the bill of sale of 24th April, 1854, under the hand and seal of the intestate, stands for proof, until successfully assailed. The *onus*of proof is on those who maintain that the deed speaks other than the truth. To establish this, the plaintiffs, by their bill, undertake to purge the conscience of the defendant, and require him to answer the charge that the money paid was not, as the bill of sale purports, his (defendant’s) money, but was the earnings of the slave of the intestate, and consequently, in law, the intestate’s own money. When the defendant replies to this, that “all the money paid for George was his own money,” and, not content with this, adds, “ and that no part was the earnings of George,” it appears to the Court a direct and categorical response to the charge of the bill in that behalf, and entitles the defendant to the full benefit of the effect of an answer in such cases. Giving to the defendant the advantage of this rule, he stands as a purchaser for valuable consideration under the bill of sale, 24th April, 1854. The intestate received, in his lifetime, the value of his property. The defendant explicitly denies any fiduciary relation, express or secret — and the Court is not aware of any principle by which the defendant, under these circumstances, can be held responsible for the value of George to the next of kin of the intestate.

The deed, 13th June, 1854, by which the intestate transferred seven slaves (by name) to the defendant, stands on a different footing. It was manifestly voluntary — made to a perfect stranger — and a life estate was reserved to the donor. It was executed on the same day that he attempted to make *20a testamentary disposition of his whole estate, real and personal, in favor of the same donee. The testimony abundantly establishes that the object of the donor was to contravene the provisions and defeat the policy of the Act of 1841. By the terms of that Act all such efforts are made to enure to the benefit of the next of kin of the donor, but the object of the Act is the protection of the public. And I share in the apprehension of the circuit Chancellor, that the purposes of the Act might easily be frustrated if it were necessary to bring home to the knowledge of the voluntary donee the unlawful designs of the donor. In the analogous case of a voluntary deed in fraud of creditors, it is not necessary to establish the *scienter*on the part of the donee. In Story’s Eq., § 351, the authority of Pothier and other civil law writers is cited for the doctrine applicable to this class of cases. It was the rule of the civil law to avoid all alien-ations or other dispositions of their property made by debtors to defraud their creditors. Hence all such dispositions were annulled, whether the donee knew of the prejudice intended to the creditors or not. In the language of Pothier, the inquiry is not whether he, to whom the gift was made, knew of the intention of the donor, but only whether the creditor was defrauded. The voluntary donee has no cause of complaint except that he is not permitted to enjoy that which the donor had no right to give away. But it is difficult to infer a want of knowledge on the part of the defendant. The design of the intestate is clearly established. Shortly prior to June, 1854, he had executed a deed of the same character to another person (Johnson), which was after-wards returned to him, declaring, at the time, that his wish was *“*to have his negroes free and not serve after his death.” And, again, the witness, Crews, says that, some time before the deed, George, in presence of intestate, said “ the old man wished the negroes free, and carried to a free State after his death, and land to pay expensesand George offered to have a will made in his (witness’) name. That he (the wit*21ness) had some idea of accepting the offer at first, but, on reflection, declined. Then, on the same day, the intestate executed a will, by which he devised and bequeathed his land and slaves to the defendant, and executed this deed by Avhich he transferred to him the slaves only. The defendant was an entire stranger to him. He had heard that “ he was a bachelor and a clever man.” All this proves the purpose, as well as the expectation, of the intestate in executing the papers. Can it be doubted that the defendant, hearing of this unexpected bounty on the part of a perfect stranger, was put on the inquiry, and that his inquiries were satisfied? It does not clearly appear, from the evidence, to whom the deed Avas delivered for the defendant, nor from whom he received it. It probably came to him through the hands of George. But the answer of the defendant in relation to the will, which was a part of the same transaction, is a clear admission of the defendant’s fiduciary relation in some way. *“*This defendant was impressed with the idea that a confidence was reposed in him by the said Robert Tucker, deceased — that there was a duty incumbent upon him which it would be sheer weakness to decline — that it Avould be equivalent to a betrayal of a trust.” And that, under this impression, he had taken the necessary steps to test the validity of the will, which had, as to the personalty, terminated unsuccessfully. On the face of the Avill, as well as of the deed, the gift of the property to the defendant Avas equally absolute and unconditional. It was the secret “ confidence” which the defendant “ had an idea was reposed in him” by the donor, and “ which it would be equivalent to a betrayal of trust to decline,” against which the various provisions of the Act of 1841 Avere directed, and Avhich rendered the deed void.

If the conduct of the intestate had been entirely spontaneous, such would be the conclusion in relation to the validity of this instrument. But he was about eighty years of age— exceedingly feeble in mind and body — very much under the influence of his slaves, especially of George, who was shrewd *22and intelligent. Without recapitulating the evidence detailed in the decree of the Chancellor, his conclusion is well sustained, that “ it clearly established such imbecility on his part as to render him an easy subject of imposition and undue influence,” and the inference is strong, from many parts of the testimony, that the influence of his slaves was manifested in the concoction of the instrument providing for their benefit.

For the reasons hereinbefore stated, we are of opinion that the defendant was not accountable to the distributees of Robert Tucker, deceased, for the value of the slave, George; and that, in this respect, the decretal order of the Circuit Court should be reformed, and it is so ordered accordingly. In all other respects the decree of the Circuit Court is affirmed and the appeal dismissed.

Johnston, Ch., concurred.

Wardlaw, Ch.,

said: I doubt as to the effect given to the answer, and as to the bill of sale for George; I concur in other respects.

*Decree modified.*