#### *Caroline A. Bush, per pro amy,*v. *Saml. B. Bush et al.*

Columbia,

Nov. 1849.

Under an unrecorded deed from her father, the complainant was the equitable owner of certain slaves which had been levied on and sold by the sheriff under an execution against her husband, and purchased by defendant. Complainant’s trustee had recovered in trover a verdict against defendant, which verdict the defendant had never paid. The Court *held*that in any aspect of the case, the complainant was entitled to its aid for the recovery of her property ; and therefore ordered the specific delivery of the slaves to complainant, to be held subject to the provisions of the deed, and an account for their hire during the time she had been deprived of their possession; and also that the trustee be perpetually enjoined from enforcing his judgment in trover against the defendant.

The protection of a purchaser for valuable consideration stands on this; that he has, *bona, fide,*acquired the legal title and paid the purchase money before no-tiae of the complainant’s equity. If he has acquired the legal title bat has not paid the purchase money before notice, his plea fails. So, if he has paid the purchase money, but has acquired no legal title, and then receives notice of the compl ainant’s equity, he cannot defeat that prior equity by procuring the legal title.

*Before*Caldwell, Ch. *at*Barnwell, February, 1849.

The facts involving the points considered in this case, are sufficiently stated in the following Circuit decree:

Caldwell, Ch. Benjamin Foreman, on the 12th August, 1835, made a deed of trust of two negro women, Sophy and Sukey, and their future increase, to David Foreman, for the sole, separate and exclusive use of the donor’s daughter, Caroline, who afterwards, on the same day, intermarried with Samuel B. Bush. The sheriff, Wm. J. Harley, levied a *ji. fa.*of Stephen S. Bush v. Samuel B. Bush on the negroes Sophy and Bill her son, and sold them on the 6th November, 1843, to the defendant, Neilson, for $495, which he paid. David Foreman, the trustee, brought an action of trover in the Court of Common Pleas of Barnwell District, (without pursuing the provisions of the Act of 1827,) for these negroes against Neilson, and at Spring Term, 1846, recovered a verdict for $812 50. *After the judgment was entered up,*the sheriff, Wm. J. Harley, levied executions that were older than that of Foreman on the negroes, including Edward, an after born child of Sophy, as Neiison’s property. David Foreman, the trustee, then filed his bill against Neilson and the sheriff for an injunction, and for the specific delivery of the negroes, which was dismissed without prejudice; and the *cestui que trust*has filed this bill for an injunction, and for the specific delivery of the negroes, and for an account of their hire. To this bill the defendant, Neilson, pleaded in bar: 1st. The recovery at law; and 2nd. The dismissal of *132the bill in equity. These pleas were overruled, and leave was given to the defendants to file their answer.

*J*The defendant, Neilson, denies “most positively that he had, either before or at the time of the said sale, and payment of the said consideration money, and delivery to him of the said slaves, any notice whatever of the existence of the said deed.”

If Neilson’s defence had stood solely upon the ground of his obtaining a title to the negroes by the operation of law in the action of trover, he would be held subject to the same trusts that bound the trustee, whose proceedings against him brought home explicit notice of the deed of trust. But Neil-son sets up the defence of being a purchaser for valuable consideration without notice.

This plea would certainly be no sufficient bar to a legal title ; but it is equally well established that it is a good de-fence to a mere equitable title. The case then appears to depend upon the evidence; had the creditors of Samuel B. Bush or the defendant Neilson, notice of the trust deed before he purchased the negroes?

Neilson denies, in the most positive terms, any notice whatever of the deed, and the testimony of the auctioneer, Jeff-coat, corroborates to some extent that denial on the day of sale. The evidence does not establish explicit notice, either to the creditors of Bush or to Neilson. The purchasers at sheriff’s sale each had a right to buy whatsoever the creditors of Bush had a right to sell, and if they had no notice of the plaintiff’s equity, the purchaser would be protected, although express notice were given at the sale. But there was no proof of notice to either creditors or purchaser. If the *cestui que trust*will stand by and permit property to be sold, in which she had an equitable interest, without making any objection, this Court cannot set up her equity against the better equity of the purchaser, who paid a valuable and even an adequate consideration in market overt for the property. It is a hard case, on the part of the plaintiff, that she should lose her rights that might have been so easily established, but the trustee’s transmitting the legal title to the defendant Neilson, by the proceeding at law, cannot invalidate his equitable defence, which arose out of a previous, distinct and separate transaction, and Neilson’s defence must stand on the same footing against her claim as if the unsuccessful efforts of her trustee had never been made. The rumors about the trust deed in the neighborhood, and a knowledge of its existence by several persons, cannot affect creditors or purchasers who knew nothing of it: the notice necessary to neutralize such a defence is of a much more definite, distinct and explicit character; but here they have had no information whatever that would put the most prudent man on bis guard, and induce him to pause before he credited or purchased, and to *133enquire and ascertain in whom the title to the property was vested. It is peculiarly proper in this State that the Courts should require explicit notice to a purchaser in cases like this, where such a trust deed is not required by law to be recorded, and may exist for years without other persons, except the members of the family, knowing of it.

The case then stands stripped of the legal title, and rests solely upon the footing of the plaintiff’s equitable title in the negroes whom the defendant, Neilson, purchased for a valuable consideration without notice at the sheriff’s sale, at the suits of her husband’s creditors, who had no knowledge of this deed or notice of her claim, and he must therefore be protected.

It is ordered and decreed that the plaintiff’s bill be dismissed.

COPY OF DEED.

*The State of South Carolina:*

Know all men by these presents, that I, Benjamin Foreman, of Barnwell district, in the State aforesaid, in consideration of the natural love and affection which I have and bear to my daughter, Caroline Foreman, as well as in consideration of five dollars to me paid by David Foreman, of the district and State aforesaid, have given, granted, bargained and sold, and by these presents do give, grant, bargain and sell unto the said David Foreman, two female negro slaves, namely: Sophy and Suky, with their future issue and increase, to have and to hold the said negro slaves, and their future issue and increase, unto the said David Foreman, his executors, administrators, and assigns forever, for and upon these special trusts, that is to say, in trust for the sole, separate and exclusive use and benefit of my said daughter, Caroline Foreman, for and during the term of her life, not subject or in any way liable to the control, disposition,' or debts of her husband, should my said daughter hereafter marry, and upon the death of my said daughter, then in trust for the use and benefit of the child or children of my said daughter, who may be living at the time of her death, share and share alike, if more than one; but if my said daughter should depart this life, leaving no child or children or grand children living at the time of her death, or should the child or children of my said daughter, who may be living at the time of her death, depart this life under the age of twenty-one years and unmarried, then, in such case and from thence forward, the said David Foreman, his executors, administrators and assigns shall haye, hold and enjoy the said slaves and their future issue and increase, to and for his and their own proper use and benefit forever, freed of and discharged of all other uses and trusts whatever. In witness whereof, I, the said Benjamin Foreman, have hereunto set my hand and seal, this the 12th day of August, in the year our Lord *134one thousand eight hundred and thirty-five, and in the six-y tieth year of American Independence.

7 Pet. 271.

10 Peters, 177, 211.

Benjamin Foreman, [l. s.]

Signed, sealed and delivered in the presence of Thomas Morris, Grifiin Owens, and Jane Weathersbee.

Griffin Owens made an affidavit of the execution of the deed before John N. Foreman, 16th February, 1841.

The complainant moved to reverse or reform the decree of the Circuit Court, on the following grounds :

1st. Because, on the pleadings and evidence in the cause, the complainant is entitled to the relief for which she prays, viz : A decree for the specific delivery of the slaves in question to her, and an account for their hire.

2d. Because, on the trial of the suit at law, the same de-fence was set up by the defendant, Neilson, and upon the same evidence the jury found against him.

3d. Because the Circuit Court, having doubts on the subject, (it is respectfully submitted,) ought to have ordered an issue at law to try the fact whether Neilson or the creditors of Samuel B. Bush had notice or not of the complainant’s equity, at or before the time Neilson purchased the slaves in question.

Patterson, for the motion.

*Bellinger*& Hutson, contra.

*Curia, per*

Dunkin, Ch.

The leading facts of this case are set forth in the decree. The protection of a purchaser for valuable consideration stands on this; that he has, *bona fide,*acquired the legal title and paid the purchase money before notice of the plaintiff’s equity. If he has acquired the legal title but has not paid the purchase money before notice, his plea fails. So, if he has paid the purchase money, but has acquired no legal title, and then receives notice of the plaintiff’s equity, he cannot defeat that prior equity by procuring the legal title. These principles seem very well established by the authorities, to one or two of which only it is deemed necessary to advert. Ch. Justice Marshall, in *Vattier*v. *Hinde,*says *“*the rules respecting a purchaser without notice are framed for the protection of him who purchases a legal estate and pays the purchase money without knowledge of an outstanding equity. They apply fully only to the purchaser of the legal estate. Even the purchaser of an equity is bound to take notice of any prior equity.” And so, in *Boone*v. *Chiles, “*it is a general principle in Courts of Equity that, where both parties claim by an equitable title, the one who is prior in time, is deemed better in rightand when the. plaintiff has a prior equity this can be barred or avoided only by the union of the legal title with an equity arising from the payment of the money and the acquisition of the legal title, *135without notice of the plaintiff’s equity. In *Saunders v. De-hew*it was ruled that “a purchaser shall not protect himself( by taking a conveyance from a trustee after he had notice of the trust, for, by taking a conveyance after notice of the trust, he himself becomes the trustee, and must not, to get a plank to save himself, be guilty of a breach of trust.” This principle is fully recognised in *Willoughby*v. *Willoughby,*reported from the manuscript notes of Lord Hardwicke in 1 T. R. 762.

2 Tern. 271.

2Strob. Eq. 379.

Under the deed from her father, Benjamin Foreman, the complainant was the equitable owner of the slaves, the legal title being in her trustee. When they were levied on and sold under an execution against her husband in Novr. 1843, the defendant, Neilson, became the purchaser. He acquired the title of the husband, and all the rights which the creditors of the husband were authorized to dispose of, and no more. Whether he paid five dollars, or five hundred, the rights of the purchaser were the same. But the husband had no right whatever in the slaves. Under the trust deed any interest or right on his part was expressly excluded. Something was said in the argument about the fraudulent possession of the husband. But the possession was in strict accordance with the provisions of the deed; and it is not an instrument which the law requires to be recorded. But all these questions were open for discussion in the suit at law instituted. by the trustee, and were solved by the jury against the purchaser at sheriff’s sales. It seems then very clear that although the defendant (the purchaser) may have paid his money to the sheriff without any knowledge of the plaintff’s right, he had no more claim to the slaves than if he had, ignorantly, purchased the property of any other third person which had been levied on and sold under an execution against S. B. Bush.

But the plaintiff’s trustee brought an action of trover against the defendant, Neilson, and obtained a verdict for $812 50. On this trial all the interests of the plaintiff under the trust deed were, of course, developed. No part of the judgment has ever been realized. — But it has been determined that the recovery in trover, without satisfaction, vested the legal title of the trustee in the defendant, Neilson. Bui, as was said on a former hearing of this cause, Neilson can certainly be in no better situation by this misapprehension of the trustee than if he had, at the time of the rendition of the verdict, purchased from him his legal title and paid him the money. Having then full notice of the equitable interests of the plaintiff, he cannot be permitted to shelter himself under a legal title thus acquired. Obtaining the legal title with knowledge of the trust, he becomes himself the trustee. But the defendant has not paid the verdict in trover. Neither the *136plaintiff, nor her trustee, have ever received any value for the slaves which were taken from her possession ; and under the proceedings in trover the defendant is entitled to no more fa-voraye consideration than if he had received a bill of sale from the trustee, with full knowledge of the plaintiff’s equity, and had given to the trustee a bond for the purchase'money which was yet unpaid. In that case, or in any other view which the Court has been able to take, the rights of the plaintiff would not be divested, but she would be entitled to the aid of this Court either against the trustee, or his vendee, for the recovery of the property.

It is ordered and decreed that the decree of the Circuit Court be reformed — that the negroes described in the pleadings be delivered up to the complainant to be held subject to the provisions of the deed of the 12th August, 1835, and that the defendant, Neilson, account for the hire of the negroes while they were in his possession, and that his co-defendant, N. G. W. Walker, account for the hire since that time. It is further ordered and decreed that the defendant, David Foreman (the trustee) be perpetually enjoined from enforcing the judgment in trover against the defendant Joseph Neilson.

Johnston and Caldwell, CC. concurred.

*Decree reformed.*