#### Joseph Cummings and Nancy, his wife, and Priscilla Boyd, *vs.*James B. Coleman.

At an administrator’s sale, one of the administrators bid off three slaves, and immediately made a parol gift of *them:*— Meld, that the administrator had sufficient title to make the gift, and that his subsequent formal consummation of the title enured to the benefit of the donees.

A mother made a parol gift of slaves to her infant children, who lived with her. She afterwards married, and the husband mortgaged the slaves. The gift *held*valid against the mortgagee.

The question reserved, whether by marriage a husband becomes purchaser for valuable consideration of the wife’s chattels in possession, in the sense id which the term purchaser is used in the Act of 1832 in relation to parol gifts.

Purchaser in the Act means one who buys for money or other valuable consideration.

A subsequent purchaser *with notice,*cannot avoid, under the Act of 1832, a parol gift of a chattel.

Where one defends on the ground that he is a purchaser for valuable consideration without notice, he must set forth in his plea or answer, with convenient certainty, the various requisites of the defence: amongst other things, he must deny notice and allege payment of the purchase-money.

BEFORE WARDLA-W, CH., AT FAIRFIELD, JULY, 1851.-

Waedlaw, Ch. The principal matter of litigation in this case is as to an alleged parol gift of slaves.

*510Malinda Keith is the mother of the plaintiffs, Nancy and Priscilla, the widow of Samuel Boyd, and sister of the defendant, J. B. Coleman. She and the defendant administered upon the estate of Samuel Boyd, the defendant taking the principal management. John Boyd and Nancy, his wife, testify, that, at the administrators’ sale of Samuel Boyd’s estate, on February 2, 1836, Malinda Boyd having bid off three slaves, *Nelson, Jim*and Harriet,-for the aggregate sum of eighteen hundred and sixty-four dollars, led the slaves into the house, where her children, were, Nancy, then about two years old, standing by the side of the witness Nancy Boyd, and Priscilla, being about one month old, in witness’s lap, and formally gave *Nelson*to Nancy, *Jim*to Priscilla, and *Harriet*to Nancy and Priscilla jointly.

The first question in the case is, whether these witnesses .deserve credit. John Boyd is assailed for defect of understanding, and Nancy Boyd for defect of character. The attack upon the former failed signally. The evidence showed that he' possessed a mind not strong, but quite sufficient to remember and to state facts accurately, and that he was of a very truthful nature. In relation to the latter it was proved, that she was formerly lewd, but that for the last three or four years she 'had seemed to be continent, and that her character for veracity had not at any time seriously suffered. I must adopt the testimony of these two witnesses as proof. Circumstances corroborating their testimony will hereafter appear.

. It is next objected, that, at the time of the supposed gift, Malinda Boyd had no legal estate in the slaves, as there had been no delivery of them to her. But she had taken possession of them after her bid, without committing a trespass; and that amounts to delivery. Again, as administratrix, she had the legal estate in the slaves, and was not bound to give further security beyond her administration bond for her purchases at the sale. Further, by the return of the sale bill, and her subsequent possession of the slaves, her title to them was after-*511■wards consummated formally; and this would accrue, by way of estoppel, to perfect the title of her donees.

The points mainly pressed in the defence are: 1. That the gift is void on account of the indebtedness of Malinda Boyd at the time, which indebtedness, it is said, was only discharged by the sale of the negroes. 2. That the gift is void under the Act of 1832 (6 Stat. 483). “ No parol gift of any chattel shall be valid against subsequent creditors, or purchasers, or mortgagees, except where the donee shall live separate from the donor, and actual possession shall, at the time of the gift, be delivered to and remain and continue in the donee, his or her executors administrators or assigns.” These points require a full statement of the facts.

The whole amount of Malinda Boyd’s purchases at the sale of her husband, Samuel Boyd’s estate, was about two thousand one hundred and twenty-two dollars and fifty-eight cents. In his accounts current to the Ordinary, the defendant acknowledges the receipt from her of seven hundred and four dollars, on December 16, 1837, and of nineteen hundred and fifteen dollars and fifty-three cents, in full of the balance, on April 1, 1841.

At July sitting in 1887, the defendant was appointed guardian of the plaintiffs, Nancy and Priscilla. In his returns to the Commissioner as guardian, he charges himself with the hire of negroes belonging to them, whether of the specific negroes in dispute did not distinctly appear, and he credits himself with sums paid to their mother, with whom they resided, for board of the children.

On the 10-12 October, 1838, Malinda Boyd and John Keith intermarried. At that time Keith was indebted about six hundred and eighty dollars for land, but he became indebted to insolvency before his death on November 7, 1842. On December 22, 1838, Keith, with John Taylor as surety, gave a note to defendant for sixteen hundred and sixty-seven dollars, with interest from date, payable twelve months after date. The *512consideration of this note did not appear, and the note itself is produced, crossed or erased. Keith gave a receipt to defendant, May 8, 1841, for one thousand and six dollars and twenty-six cents, in full of his wife’s share of the estate of her former husband, Samuel Boyd.

In the spring of 1842, Charles Coleman, father of Mrs. Keith and of defendant, died ; and from his estate Keith and his wife received two negroes, and money to the amount of five hundred and sixty-five dollars, delivered and paid through defendant, as executor of Charles Coleman. On February 24, 1842, Keith being indebted to defendant in the sum of two thousand and twenty-three dollars and fifty-four cents, as defendant says in his answer, “for cash lent and otherwise,” executed to him, in security for this debt, a mortgage for the three slaves, *Nelson, Jim*and *Harriet,*also of the slaves received from Charles Coleman’s estate, and other property. The defendant further says, in his answer, “ that the purchases made by the said Malinda Keith, at the sale of the estate of her first husband, the said Samuel Boyd, were not *entirely*paid to this defendant, as administrator of said estate, as aforesaid, until after the marriage of the said Malinda to the said John Keith; and that a considerable amount of her said purchases, at said sale, was included in the mortgage of the said John Keith, given to this defendant as aforesaid, and was not fully paid until the said mortgaged property was sold by the Commissioner in Equity.”

After Keith’s death, Coleman, the defendant, administered upon his estate, and in February, 1843, sold the estate, including what was mortgaged to defendant, excepting the negroes, *Nelson, Jim*and *Harriet.*Some two or three weeks before this sale, John Boyd, as he testifies, met defendant, at defendant’s request, in a lawyer’s office at Winnsboro’, with a view of making affidavit of the circumstances of the gift of these slaves by Malinda Boyd to her children, and then stated all the circumstances attending the gift; but it happening that *513no magistrate was present in the town at the time, John Boyd •was requested to attend on the day of sale, for the purpose of making the affidavit. On the day of sale, John Boyd and one Jackson Coleman, a brother of defendant, did make affidavit of the gift before Josiah Hinnant, a magistrate, in the presence and hearing of defendant Coleman. After this affidavit, on the same day, the negroes were offered for sale by defendant, as administrator of Keith, when the sale was forbidden by Mrs. Keith in behalf of her children, and the defendant said, as L. J. Vaughn testifies, he knew that these three negroes were the property of the children, but *this*would satisfy the creditors of Keith. John Taylor proves the same declarations of the defendant on the day of sale, and further testifies that, in April or May, after the sale, defendant said, at witness’s house, these three negroes could not be touched' for Keith’s debts — that Keith had mortgaged them to him with his own negroes, but that they belonged to the children of Sam Boyd. The defendant swears in his answer, that he never heard of the claim of the plaintiffs until after the death of Keith, when it was ascertained that Keith’s estate was insolvent, and that the defendant never knew nor recognized these slaves as the property of plaintiffs. In this round averment, he seems to be contradicted by John Boyd, Hinnant, Vaughn and Taylor — by John and Haney ’ Boyd, who think, but with no great positiveness of recollection, that he was present when the gift was made — and by his own return of the appraisement of Keith’s estate, in which at the end, in different ink and writing from the former part of the appraisement, the three slaves, with their valuation, are set down, and it is remarked in the margin, “in dispute — the same are in dispute.” Afterwards the defendant, as administrator of Keith, filed his bill in this Court to marshall the assets of Keith, and to foreclose his own mortgage, and under the order of the Court, the three slaves were sold by the Commissioner on January 6,1845, and *Nelson*and *Harriet*were purchased by defendant, and *Jim*by one R. B. Hughes. The defendant *514received the purchase money. It is in proof that the children, Nancy and Priscilla, always lived with the donor, their mother, and that the slaves in question remained in her possession until the slaves were sold by the Commissioner.

I consider it unnecessary to decide, whether notice of the gift, to a subsequent creditor, purchaser or mortgagee, before the extension of the credit, or the purchase or the mortgage, would deprive him of the benefit of the Act of 1832; for although I may have some suspicion, I cannot say I have belief, that defendant knew of the gift before his mortgage was taken. If defendant had proved that Malinda Keith had not paid for her purchase of the slaves except through the mortgage of Keith to him, I think defendant’s liability for her *devastavit*subsequently accruing, or at the least manifested, notwithstanding the date of the administration bond was anterior to the gift, might have been well held as constituting the defendant a creditor or mortgagee subsequent to the gift. But the fatal defect of the defendant’s evidence, is, that he has not shown clearly that any portion of his sister’s debt for the purchase was included in the mortgage, or that she owed any debt whatsoever; so as to make the doctrine of either of his objections applicable. The statements of the., answer, as appear by the abstracts I have given, are not distinct as to the amount of the wife’s debt which was carried into Keith’s mortgage; and the, evidence does not establish that the minutest portion of her liability then remained unsatisfied. Mr. Leggo, who made the calculation for the parties when Keith’s mortgage was executed, could not say that any part of the debt was on the wife’s account. It is certain that nearly the whole was Keith’s individual debt, for *‘*cash lent to him and otherwise and by no collation of the papers, can it be demonstrated, that anything beyond his private debt was secured. The date of the acquittance in full, in the defendant’s accounts as administrator, of his sister’s liability for her purchases, is nearly eleven months anterior to the mortgage. *515Upon the most favorable construction of the evidence for the defendant, we cannot say more than that, it' is not unlikely that Keith’s mortgage was partly for the debt of his wife; hut considering that the defendant occupied the confidential relation of guardian to the plaintiffs, he could- not destroy their interests, except by precise proof. Not a particle of evidence is offered of any other debt of Malinda Keith, besides that arising from her purchases at the sale of her former husband’s estate. I think the defence fails in evidence.

It is ordered and decreed, that the defendant deliver to the plaintiffs, Cummings and wife, or to the trustee of the wife, the slave *Nelson,*and account for his hire, and one half of the hire of *Harriet,*and for the transactions generally of the defendant as guardian of the plaintiff, Nancy. It is also ordered that the defendant charge himself in his returns as guardian of. the plaintiff, Priscilla, with the price of the slave *Jim,*sold by the Commissioner, and interest thereon, and with one half of the hire of *Harriet.*The parties may apply at the foot of this decree *for*a partition of *Harriet,*or other order to carry into effect the opinions herein expressed. The matters of account are referred to the Commissioner. The defendant must pay his own costs ; the costs of the plaintiffs to he paid from their funds in the defendant’s hands.

The defendant appealed, and moved the Court of Appeals in Equity to reverse the Circuit decree on the grounds:

1. That the evidence was not sufficient to establish a gift of the negroes in question from Malinda Boyd, now Keith, the mother, to complainants, Nancy Boyd (now Nancy Cummings,)' and Priscilla Boyd.

2. That the evidence did not show a sufficient right or title to the property in the donor to authorize her to make a gift.

3.That if the testimony had established a gift, it was parol *516and void, under the Act of 1882, (6 Stat. 488,) inasmuch as the donees, the complainants, *lived with*their mother the donor, and not separate from her, as required by the Act, and the slaves never were in the possession of the donees, but remained in the possession of the donor until she married John Keith, into whose possession they then passed; whilst the defendant was a large creditor of the donor, and claims as subsequent mortgagee, and under subsequent purchasers.

4. That the pecuniary condition and circumstances of the donor when she made the gift, made it a fraud on creditors, and therefore void as against the defendant claiming as creditor.

5. That there was evidence to show that more than one thousand dollars, with interest from the time when the sale of Samuel Boyd’s personal property became due (in 1837), being the difference between the purchases of Malinda Boyd, (now Keith,) at the sale amounting to two thousand one hundred and twenty-two dollars and fifty-six cents, and her distributive share of the same amounting with interest, May 3, 1841, to one thousand and six dollars and twenty-six and one-third cents, must have been assumed by John Keith after his intermarriage, October, 1838, and included in his mortgage for two thousand and twenty-three 'dollars and fifty-four cents, February 24, 1842, to defendant; as said Malinda, until one year after her father’s death, in March, 1842, had no funds or resources excepting this distributive share for payment; and her husband, John Keith, was bound in law to pay the balance due.

6. That the Court should have directed an issue at law, to try the fact whether a gift was made; and also whether any portion of the debt due by Malinda Keith to the defendant, and what portion, was included in the mortgage of John Keith to defendant; for reason, that the testimony was complicated, *517contradictory and doubtful, and its credibility in part seriously impeached.

After argument the case was ordered to this Court, where it was now heard.

Hammond, *Buchanan,*for appellant.

*Boylston,*contra.

The opinion of the Court was delivered by

WaRDLAW, Ch.

Upon examination of the answer in this case, it appears that the defences pleaded are, that no gift was made to the female plaintiffs by Malinda Boyd, afterwards the wife of John Keith — that the donor had no legal 'estate in the chattels at the time of the gift — that the gift is void from the indebtedness of the donor at the time of gift — that the gift is void under the Act of 1832, (6 Stat. 483,) as to the defendant, a subsequent creditor of the donor, inasmuch as the donees lived with the donor, and had no actual possession of the chattels given — that defendant is a subsequent creditor and mortgagee, without notice of the gift, of John Keith, afterwards husband of the donor — and that if notice be fixed upon him, he, as administrator of John Keith, is entitled to administer the chattels given, as assets of his intestate, in behalf of creditors of Keith, who had no notice of the gift. We are satisfied with the conclusions of the Chancellor as to all of these grounds of defence, and we consider it necessary to add little to his reasoning. It is well, however, to say that no indebtedness whatsoever of the donor, at the time of the gift, or subsequently, is proved, unless we assume, in the absence of express proof, that she and defendant joined in one administration bond. It is the usual, but not the necessary course of proceeding, that joint administrators give a single bond. The defendant was *518no creditor of Malinda Boyd, unless lie were surety upon her administration bond. If she gaye a separate bond for her administration of the estate of Samuel Boyd, to which bond the defendant was no surety, she never incurred debt to her co-administrator ; and supposing that she committed a *devastavit*in giving away the estate, she incurred a debt to herself, which was extinguished by the concurrence of the characters of debtor and creditor; and she could be made responsible on her bond as administratrix, and not otherwise.

The discussion in this Court has been principally concerning the truth of the proposition, that by marriage a husband becomes purchaser for valuable consideration of the wife’s chattels in possession, in the sense in which the term purchaser is used in the Act of 1832. A general rule in the interpretation of statutes is, to define the words employed by the Legislature, in their popular sense. It was argued before us, that the term purchaser, in the Act of 1832, must be understood in the technical sense of one who acquires estate by any other mode than by descent. This distinction between purchase and descent is applicable to real estate only, for personal property is never acquired by descent; and if applied to personalty, this definition of purchase would lead to the absurdity that a subsequent, voluntary donee might set aside a previous gift by his donor. Purchaser in the Act of 1832, must mean one who buys the chattel for money or other valuable consideration. Whether the husband is a purchaser in this popular sense, under the Act of 1832, is a question upon which we have attained no conclusion; and we reserve the decision of it until it may be presented by proper pleading. In the present case, the question is not presented by the pleadings. It is true that the marriage of Keith with the donor, and his subsequent possession of the slaves, the subject of gift, are stated in the answer; and this statement might be considered as sufficient allegation that the husband was a purchaser; but the material, integral, portion of this defence, that the husband purchased *without notice,*
      *519is altogether omitted. This omission accounts for the fact, that defendant’s claim as mortgagee of the husband in the character of purchaser from the donor, was not argued on the Circuit, nor considered by the Chancellor. The point that a husband is a purchaser under the Act of 1832, is very vaguely, if at all, suggested in the grounds of appeal. In the third ground of appeal, which is the only one containing any hint of the point, the last words “subsequent purchasers” more naturally refer to the purchasers under the sale for foreclosure, than to a single purchaser, the husband.

If Keith had notice, before marriage, of the gift made by his wife while Malinda Boyd, the gift was no fraud upon his marital rights: on the contrary, it would be a fraud in him to purchase the chattels with the view of avoiding the gift. Where one has notice of an instrument of conveyance void for incompleteness of execution, for example, of a devise of lands without attesting witnesses, he may safely, notwithstanding notice, treat the instrument as legally invalid, and, in disregard of it, may make a contract concerning the subject. Hot so of an instrument complete in itself, but declared void by the Legislature, from considerations of policy, as to particular classes of persons. Now a parol gift of a chattel, although the donee may not have actual and separate possession, is as complete and valid, since the Act of 1832, as before, so far as concerns the parties, volunteers claiming under them, and all other persons, except subsequent creditors, purchasers and mortgagees, who may avoid the gift. One who credits a donor in possession of a chattel, looking to the chattel for payment, or buys or becomes mortgagee of the chattel, after notice of a gift of it, commits a fraud upon the donee, and deserves no favor in a Court of Equity. The want of notice of the gift to the husband, Keith, is an essential part of the defendant’s defence; and of course should have been alleged in the answer. Besides answering the plaintiff’s case as made by the bill, a defendant must state to the Court in the answer, all the circumstances of which he *520intends to avail himself by way of defence; for it is a rule, that a defendant is hound to apprise a plaintiff, by his answer, of the nature of the case he intends to set up, and that, too, in a clear and unambiguous manner; and a defendant cannot avail himself of any matter in defence, which is not stated in his answer, even though it should appear in his evidence. Dan. C. P. 814, 992; *Stanley*vs. Robinson, 4 C. E. C. R. 544; *Harrison*vs. *Borwell,*16 E. C. R. 380; *Smith*vs. *Clarke,*12 Ves. 477. A plea of purchaser for valuable consideration without notice, must set forth the various requisites of the defence with such convenient certainty as to form a definite issue when traversed, and must not rest in intendment, or in general terms and allegations. 2 White & T. L. C. pt. 1, 116; Story, Eq. PI. 806. Amongst other things, such plea must deny notice of the plaintiff’s title, or claim, previously to the execution of the deed and payment of the purchase-money. Dan. 0. P. 777.' As Chancellor Harper remarks, in *Chesnut*vs. Strong, 2 Hill, Ch. 150, “when the want of notice is relied upon as a defence, the defendant is required to deny the notice explicitly on oath.”

It is scarcely ever safe to allow deviations from the regular procedure of the Court; and where the general justice of the case is so clearly against a defendant, as in the present instance, there is special propriety in restricting him to the de-fences he has regularly stated.

It is ordered and decreed, that the decree be affirmed and the appeal be dismissed.

Johnston, Dunkin and Dargan, CO., and O’Neall, Ward-law, Ekost and WITHERS, JJ., concurred.