#### *Sarah Fry, by next friend*vs. *John Fry, Abner Buckalew and Wm. R. Robinson.*

Petition against A. B.} J. P. and *~W.*R. charged, that A. B. held the legal title to certain lands subject to a parol trust for the ancestor of petitioner; that J. P. as attorney of A. B. conveyed the lands to W. R. without valuable consideration and subject to the trust. The petition was taken *pro confesso*against A. B. and J. P.; and the proof was that the conveyance toW R. was not for valuable and *bonajide consideration:*— Held, that J. P. and A. B. by allowing the petition to be taken as confessed, admitted the trusts ; and W. R. not being a purchaser for valuablo and *bonajide*consideration, the conveyance^ him was set aside.

*Before*Dunkin, Oh., *at Lancaster, June,*1853.

This case was first heard by his Honor Chancellor Johnston at June sittings, 1852, who pronounced the following decree :

Johnston, Ch. The case is stated in the petition and the answer of the defendant Robinson, with the exhibits ; the petition having been ordered *pro confesso,*against the defendants, Fry and Buckalew.

The defendant Buckalew, on 26th October, 1844, obtained a conveyance, reciting a consideration of $400 from Mary Byrd, (both parties residing in Tennesse,) for all her right, title arid claim *“*in the estate of her husband, Joseph Byrd, who died in South-Carolina, to have and to hold, to the said Abner Bucka-lew, his heirs, executors, administrators and assignees forever; and the said Mary Bird,” *“*by these presents, authorized and empowered the said Abner Buckalew to sue for and recover in her name,- the said real estate, or property, or any part thereof, or its proceeds, and apply the same to his own use, or collect the same without suit for his own use,” <fcc. •

Coming to this State, he instituted suit in this Court against two persons by the name of House, for the recovery of Mrs. Byrd’s third of a tract of land lying on the Catawba Falls, the suit being brought in his own name; and by decree pronounced in June, 1848, recovered a certain portion of said land with rents accrued. ’

*130In his bill, on that occasion, Buckalew stated: “Your orator further shows that Mary Byrd, the widow of Joseph Byrd, resides yet in Tennessee, and lives with' your orator, (who intermarried with Elizabeth Byrd, one of the children aforesaid); that she was desirous of selling or disposing in some way, for money, her interest in the land, and procured your orator to come into this State for that purpose. To enable your orator to do so more easily and satisfactorily, instead of executing a *power of attorney,*or constituting your orator her *attorney in fact,*formally, she executed to him a deed, dated the 26th of October, 1844, by which she granted, bargained, *sold and transferred*to your orator all her right, title, claim and interest, which she had in law or equity, in the estate, real and personal, or mixed, of the said Joseph Byrd ; a copy of which is herewith exhibited,” &c.

This passage of the bill is noticed in the decree : which was in favor of Buckalew.

On the 24th of September, 1845, Buckalew, by deed duly executed, constituted John B. Fry, the husband of the plaintiff in this case, (who is a daughter of Mary Byrd,) his attorney in fact, “ for me and in my name, to sell and convey to any person or persons, their heirs and assigns forever, (who will purchase the same) by general warranty, all the lands I own in South-Carolina, and especially a tract of land *conveyed to me*by Mary Byrd, and take and receive the consideration money for the same, or take notes for the same at his discretion. He may also bring suits,” <fec.

This power of attorney was delivered by Fry to Mr. Clinton, who thereupon brought suit, as has been stated.

On the 12th February, 1850, which was after the decree, Fry? who had been for some time absent from this State, in Florida, called upon Mr. Clinton for the power, in order to sell the land, Mrs. Byrd was then dead, and Mr. Clinton, before delivering the power to him, made the following endorsement upon it :• — ■ *“*Buckalew was only an attorney to sell, and could not make an attornev to sell. .Mrs. Byrd (Fry says) is dead, and all “ *131power to sell is at an end. My fee in the case of Buckalew *vs.*House, is #500. M. CLINTON, Feb. 12, 1850.”

Mr. Clinton states that this statement as to his fee was intended to defeat the power of Fry to sell ; and that in fact he had no such charge.

On the 18th of the same month, (Feb. 1850,) Fry executed a deed for the land, and an assignment of the rents recovered, to the defendant Robinson. This deed was executed in Winns-boro’, in Mr. Hammond’s office. It was proved by one of the subscribing witnesses, who says he was called in merely to attest it, and was only present for the time necessary to see it executed. He saw no money paid. The consideration recited for the conveyance of the land is $500, and that for the assignment of the rent is $200. The power of attorney is recited in the instrument conveying the land. The petitioner claims the land, &c., as heir of her mother Mary Byrd, and alleges that the deed executed by Mrs. Byrd to Buckalew, was intended as a mere power of attorney; that there was no power to appoint the sub-attorney Fry; that both powers were determined by Mrs. Byrd’s death, before thjs sale was made ; that in fact the purchaser was aware that Fry’s power was revoked at the time he took his conveyance, and that he paid no consideration for it, and should not in Equity be allowed any benefit under it. All these allegations are denied by Robinson in his answer. The evidence taken will appear in my notes.

I have no doubt Robinson is chargeable with the notice endorsed on the power by Mr. Clinton. A purchaser is always affected by constructive notice of whatever is to be found in his chain of title. There was enough in this case, therefore, to put Robinson upon the inquiry. But the facts stated in Mr. Clinton’s endorsement are not to affect him further than they are legally true. It is asserted in that endorsement that Buckalew was a mere attorney to sell: that he was clothed with a mere power, without title or interest. But when by this statement, Robinson was driven to examine the deed, it was what the deed said, and not what Mr. Clinton thought of it, that must govern. *132The deed gave a title and not a power; and a title (whether subject to a trust or not) is not revoked by the death of the grantor.

The distinction is very clear between a legal interest conveyed in property, and a mere power conferred for the disposition of it. This, also, appears in the statement in Buckalew’s bill. If Robinson looked at that, he found that the title was in Buckalew, not a power merely, but a title; and though the title was to be executed with a view to the benefit of Mrs. Byrd, that was a trust only, and did not impair the legal title. In fact, it is asserted in the bill substantially, that the title was vested, in order to enable Buckalew to exhibit and sell the land as his own. Then, Buckalew being the legal owner, Fry was his attorney, and not the attorney of Mrs. Byrd, and her death could not impair his power. It could only be revoked by Buckalew, and he did not revoke it.

I .doubt whether parol evidence is competent to show that the deed from Mrs. Byrd to Buckalew was intended for anything else than the absolute conveyance — which on its face it purports to be. M}* impression is,,that deeds are subject to such evidence, only when by accident, surprise or fraud, they are prevented from completely exhibiting the real intention of the parties. If this is so, no trust could be proved by parol in this case deflecting the intention of the deed to affect the purchaser. But I shall determine nothing on this point, but reserve it for further evidence to be taken by the Commissioner, along with evidence on another point, which I shall send before him for inquiry.

That point is whether the purchaser paid or passed a valuable consideration when he took his conveyance. If he did not, it is clear he cannot hold the land. Buckalew and Fry, by allowing the bill to be taken as confessed, admit that the land was still, at least, subject to a trust for the benefit of Mrs. *Byrd;*and unless Robinson took his conveyance for valuable and *bona fide*consideration, he is not entitled to take it unaffected by the . trust to which it was liable in their hands.

*133His assertion of payment of valuable consideration is for him to prove; and I will allow him, (in consideration of the sickness of Mr. Hammond at the hearing,) to prove it, if he' can, before the Commissioner.

The case, when this proof, (and any other that can be made in the case, upon the points reserved) is prepared, can be presented at the next term for final adjudication. Until that time, the questions which I have indicated are reserved.

At June sittings, 1853, the Commissioner submitted his report as follows:

“The decree of Chancellor Johnston, pronounced June Term, 1852, states this case so very fully and clearly, that the Commissioner will proceed at once to the consideration of the point referred, which is : “ Whether the purchaser paid or passed a valuable consideration, when he took his conveyance.” The decree states that Robinson’s assertion of payment of valuable consideration, is for him to prove before the Commissioner.

*“ John Z.*Hammond, (who drew the conveyance or assignment,) was examined on the part of defendant, Robinson. He states that he was present at the execution, saw money handed from Robinson to Fry, did not pay much attention to them, does not know the amount' — several bills; saw Robinson and Fry with bills in their hands counting; just saw it was money; did not see the denomination of the bills; understood the money as being a payment for the land. ' Fry left for Florida next morning. This was done in the office of Mr. Hammond, in Winnsboro’; he was engaged at the time in drawing the assignment for rents. The power of attorney from Buckalow to Fry was before him at the time; did not hear the contract between Fry and Robinson for either the land or rents. David Elkin and John M. Buchannan are the subscribing witnesses — the former, Mr. Hammond states, is a cosmopolite, now living in Florida, the last he heard from him, and the latter now resides in Orangeburg district.

“ Defendant Robinson also offered a receipt dated 18th Feb*134ruary, 1850, (same day of conveyance,) from Fry to him for $500 in full of all demands, and for land, with the description thereof. This paper was objected to by the solicitor for petitioner, as evidence, on several grounds, as being ante-dated, given after litigation was moved; the receipt not in the handwriting of Mr. Hammond; as being a fresh-looking paper, and seems as if it was sent by mail, and smells strong of fraud. This receipt purports to be “in complete discharge of the consideration money due me (Fry) from the said Robinson,” for the 96 acres of land described in conveyance.

“ On the Part op *Petitioner.*— D. *M. Tilman*states he’ knows the land well — worth from ten to twelve dollars per acre now, and would have brought ten dollars per acre in 1850. Heard Robinson say it would help to make up a bad trade, in buying the Hill Island Fishery. Fry, before the sale, had been to the West, and came back, then to Florida and back, and then sold to Robinson; he was slipping about, and did not make himself public; was apprehensive of a warrant for bigamy against him ; was afraid to go for power of attorney, but sent to Mr. Clinton for it. Robinson well acquainted with Fry before he bought — Fry a man not to be depended on ; no confidence to be placed in him; he told witness, his wife (the petitioner was dead, that he saw her die, told her last words, and shed tears at the recital. Fry has been in this country recently. Petitioner a woman of good character and very poor.

“ *Capt. John iS. Perry*knows the land— it adjoins him: worth from ten to fifteen dollars per acre ; nearly all of it would bring a bale of cotton per acre when cleared; it is now in woods.

*“ James Broughton*knows the land; would not take twenty dollars per acre for it, if it belonged to him.

*“ John G.*Houze, in March after the purchase, heard Robinson say, in speaking about the purchase, that he had let Fry have money enough to carry him home — was then living in Florida, whither he had taken his second wife.

“ *James Wall,*examined by commission, was in treaty with Fry for same land — before the purchase of Robinson, was pre*135vented from what Mr. Clinton said: that Fry had no right to sell; told Robinson so; and that Mr. Clinton said: *“*the land belonged to Mary Byrd’s heirs.” Robinson, after the purchase, told witness that he did not wish a better right than Fry’s deed with his power of attorney annexed.”

“Defendant objected to all the testimony, not being upon the the point referred.

*“*From this testimony it will be seen that the value of the 96 acres of land • has been estimated at from $960 to $1920. At ten dollars per acre would be $960; at twenty dollars per acre $1920. The consideration expressed in the deed from Fry to Robinson, is $500; what sum Robinson actually paid to Fry, does not appear. Mr. Hammond saw money passed and paid, but does not know the amount. The decree says: “His assertion of payment of valuable consideration is for him to prove,” *“*and I will allow him (in consideration of the sickness of Mr. .Hammond at the hearing) to prove it if he can before the Commissioner.” Has he proved it? The consideration, $500, expressed in the conveyance, was before the Court — that was not satisfactory or sufficient. It is what I regard the Court as terming *“*his assertion of payment of valuable consideration.” Has he proved the payment of that sum, or any other ascertained sum of money? except that Mr. Hammond saw bills of money paid, but no precise or definite sum stated; if he, by his own declaration to Houze is left to fix the sum, it was only money enough to carry. Fry to his home in Florida. The receipt of the same date, however fair, speaks but the language of the deed, and is no higher evidence of actual payment of valuable consideration, — “a valuable consideration is an equivalent for a thing purchased.” (Bouvier Law Dictionary.) ■ Is the uncertain sum proved by his own witness and himself an equivalent for a tract of land worth not less than $960, and probably worth $1920 ? Regarding as I do, the *onus probandi*as resting upon the defendant, under the decree, I am not satisfied that he (Robinson) has proved that he paid or passed a valuable consideration when he took his conveyance.”

*136The defendant, Wm. R. Robinson, excepted to the report, on the following grounds: .

1. Because the Commissioner having ascertained that the defendant Robinson made a payment of money to the defendant Fry, for the land, described in the pleadings, should have reported that a valuable consideration for said land passed from said defendant Robinson to said defendant Fry.

2. Because upon the testimony taken by the Commissioner, he should have reported that a valuable consideration passed from the defendant Robinson to the defendant Fry, for said land.

Btjnkin, Ch. The Court concurs in the conclusions of the Commissioner; the exceptions are, therefore, overruled.

It is ordered and decreed that the deed of 18th of February, 1850, be set aside; tha.t the defendant, Wm. R. Robinson account for any s.ums received by him, under the assignment of that date,' and that he also account for the rent of the premises since the date of the conveyance. It is further ordered, that leave be given to amend the pleadings, by making the distributees of Mary Byrd, or others, if necessary, parties thereto, preparatory to a final order for partition and distribution.

The defendant Wm. R. Robinson, appealed from both the decrees, on the following grounds:

1. Because Chancellor Johnston, in his decree filed 29th June, 1852, erred, it is respectfully submitted, in deciding that the assertion of payment by the defendant, Robinson, of valuable consideration for the land in dispute, was for him to prove before the Commissioner; when the said defendant, in his answer, responsive to the charges in the petition, alleges the payment of the consideration expressed in the deed of Fry, as the attorney of Buckalew to him, which allegation is uncontradicted by evidence.

2. Because the said deed imports on its face evidence that a valuable consideration passed from the defendant Robinson to Fry, as attorney aforesaid.

*1373. Because Chancellor Dunkin, in his decree filed 18th of October, 1853, it is respectfully submitted, erred in overruling the exceptions of the defendant Robinson to the Commissioner’s report, filed 11th of June, 1853, and in confirming said report.

4. Because the Chancellor, in said decree, erred in setting aside the deed of the 18th February, 1850, from Fry to Robinson, when there was no evidence of the'revocation of the power of attorney made by Buckalew to Fry ; no evidence of the existence of any trust whatever, in relation to the land, nor evidence of fraud on the part of Robinson in procuring said deed.

5. Because the defendant Robinson had no notice of the revocation of the power of attorney from Buckalew to Fry; nor of the existence of any trust in relation to the land, even if any such revocation was ever made, or any such trust ever existed.

*Hammond, Moore,*for appellants.

*Clinton,*Contra.

*Per Curiam.*

We concur in the decrees, and it is ordered that they be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*