#### *Angus P. Brown and Laurence S. Brown*vs. *Isaac A. Wood, The Same*vs. *William Ashley.*

Where a deed offered in evidence as an ancient deed, is proved to be thirty years old, it is not necessary to show that it is produced from the proper custody, and that possession has been had under it.

Where a deed is admitted in evidence as an ancient deed, it must be admitted as formally executed by signing, sealing and delivery.

To sustain a plea of purchase without notice, it must appear that the legal title was purchased.

The interest of a *cestui que trust*in slaves cannot be sold under *Siji.fa.*

A father had a life interest as *cestui que trust*in slaves, with remainder to his children. The slaves were levied on and sold by the sheriff as his property. So attended the sale, and represented that his title was *good:*— Held, that the children, who were not present, were not bound by his misrepresentations, altho.ughthey knew of the intended sale; and further, that they were not bound to appear at the sale and make proclamation of their interest.

Where a father makes a gift of slaves by deed, in trust after his (the father’s) death, for his son for life, with remainder to his son’s children, the rights of the children, the remainder-men will not be defeated by any constructive fraud supposed to arise from the son’s ostensible ownership, and the circumstances that the deed was not recorded in the Secretary of State’s office, and that the creditors of the son and purchasers from him had no notice of it.

A deed of gift of slaves in trust is not required to be recorded in the Secretary of State’s office.

A conveyance of all the slaves of whioh a grantor is possessed is good, and will carry all which ho is proved by extrinsic evidence then to possess.

*Before*Wardlaw, Ch., *at Barnwell, February,*1853.

The facts of this case are fully stated in the circuit decree, which is as follows:

Wardlaw, Ch. The plaintiils are the surviving children of Jabez G. Brown, deceased, and by these bills, filed December 27, 1852, claim as remainder-men, under a deed of their grandfather, Bartlett Brown, to be entitled to certain slaves purchased by the defendants severally at sales made by the sheriff, under executions against the said Jabez G. Brown.

The deed in question bears date, October 20, 1821, and has the form of an indenture signed and sealed by Bartlett Brown and James Overstreet, whereby,. “ the said Bartlett Brown, as *156well for the love and affection which he hath, and beareth to his children, Michael Brown, Barnett H. Brown, Benjamin B. Brown, Jabez G. Brown and Cynthia W. Calhoun, the wife of James Y. Calhoun, Esq., and for settling and assuring the premises hereinafter mentioned, and in consideration of one dollar to him, the said Bartlett Brown, paid by the same James Over-street, at and before the delivery of these presents, he, the said Bartlett Brown, hath given, granted, bargained, sold, assigned, and set over unto the said James Overstreet, his heirs, executors, administrators and assigns, all and singular, the lands, houses, hereditaments, negro slaves, household goods, rights, credits, and all other the goods and chattels, real and personal, of him, the said Bartlett Brown, whereof he is seized or possessed, interested in, or entitled unto, and the estate, right, title, interest, property, claim, and demand whatsoever, of him, the said Bartlett Brown, of, in or to the same, or any parcel thereof, to have and to hold the said lands, houses, heredita-ments, negro slaves, household goods, &c., unto the said James Overstreet, his heirs, executors, administrators and assigns, from henceforth, forever. In trust, as is hereafter mentioned — that is to say, in trust, the said James Overstreet, his heirs, executors, &.C., shall and will permit the said Bartlett Brown, to have, hold, possess, enjoy and take to his own use, the real and personal estate hereby granted for so long a time, as the said Bartlett Brown shall live, and from and immediately after his decease, in trust, for the sole and separate use, behoof and benefit of the said Michael Brown, Barnett H. Brown, Benjamin B. Brown, Jabez G. Brown, and Cynthia W. Calhoun, equally, share and share alike, for and during the term of their, and each of their several and respective natural lives, and no longer; and upon and from, and immediately after the decease of the said Michael Brown, Barnett H. Brown, Benjamin B. Brown, Jabez G. Brown, &c., or any or either of them, then the respective part or parts, share or shares, of him, her, or them, so deceased, in trust, for the only sole and separate use, behoof and benefit of his, her, or their child or children, who shall or may *157be living at the time of his, her or their deaths, respectively, and if, and in case any one or more of them, the said Michael Brown, Barnett H. Brown, &c., shall depart this life without leaving any child or children living at the time of his, her or their death; then as to the original part or parts, share or shares, of him, her or them, so departing this life without leaving any child or children living, as well as any or other part or parts, share or shares, as by virtue of the present clause shall have become vested in, or accruing unto him, her or them, so departing this life, without leaving any child or children as aforesaid; in trust for the only sole and separate use and behoof of the survivor or survivors, and the child or children of any or either of th em who may have departed this life, and for, and upon no other trust, use, interest or purpose whatsoever.”

Then follows a provision, that if Michael Brown, Barnett H. Brown, &c., should die before Bartlett, the child or children of him, her or them, so departing this life, should be entitled to all the property which might have vested in the parents of such children, if they had survived Bartlett.

One of the disputed facts of the case, affecting the execution by delivery of the deed, is the date of Bartlett Brown’s death. Dr. D. M. Lafitte testifies, that he attended the said Bartlett Brown during his last illness, and as the last entry on the doctor’s day-book, is of a visit at night on November 12, 1822, (which entry was produced,) he thinks his patient died the next day, November 13, 1822. B. H. Brown, a son of the deceased, testifies that he was a member of the Legislature from Barnwell district, in which his father resided, at the session in Columbia, beginning on the fourth Monday in November, the 25 day, 1822, and that he received information of his father’s death in Columbia, during the first or second week of December of that year, and before the middle of the month. James Overstreet left Barnwell, S. C., for Washington, to take his seat in Congress in November, 1821, and died on his return at Charlotte, N. C., on May [24, 1822. Soon afterwards William Overstreet administered upon his estate; and on the death of William *158Overstreet, in 1828, John A. Owens became administrator *de bonis non.*

The indenture of B. Brown and James Overstreet purports to have been *“*signed, sealed and delivered ” in the presence of the attesting witnesses, Jacob C. Kittles, William D. Brown, and Robert D. Bradley. Probate of the execution thereof was made December 11, 1822, by Bradley, before Dr. Lafitte, then a justice of the quorum, reciting, that the witness saw the parties' sign, seal and deliver the instrument; the deed was recorded in the Register’s office for Barnwell, on December 13, 1822. Dr. Lafitte, with the instrument before him, testifies, that the body of the probate and his subscription as magistrate, are in his proper hand-writing, and that he does not doubt that the probate was made according to its purport; but that he does not recollect the occasion, nor the person or residence of Bradley, although a man of that name was son-in-law of Kittles, who then lived near Brown, and who is now dead. He further states, that he pursued a formulary in writing the probate, and did not then know that delivery was essential to a deed, and was not accustomed to interrogate affiants as to delivery, but that he always read over affidavits to deponents, and was ready to make alterations according to their suggestions. By other witnesses, were proved the hand-writing of Bartlett Brown and James Overstreet to the deed, and the signatures of the attesting witnesses, Bradley, Kittles, and *W.*D. Brown, and the death of Kittles, and the residence of Bradley in Florida, and of W. B. Brown in Georgia. The last witness moved from Barnwell to’ Screven County, Georgia, about forty-seven miles from Barnwell C. H., about January 1, 1853 ; he promised the plaintiff’s counsel to be present at the trial, and give testimony; and in a letter of February 14, 1853, which was admitted as evidence, stated that he had no recollection of the execution of the deed, nor of its disposition afterwards.

The deed from Brown to Overstreet was found by Mr. Owens, the solicitor of the plaintiffs, in the office of the Register of *159*mesne*conveyances for Barnwell, in the summer of 1852, after having been lost sight of for many years.

Bartlett Brown executed a last will and testament, dated October 10, 1815, and attested in due form by three witnesses, whereby he devised as follows: “ After paying all my just debts, I wish for all my lands, negroes, stocks of horses, cattle and hogs, and every other species of property which I am, or may be possessed of at my death, to be equally divided among my following named children, to share and share alike, namely, my sons, Michael Brown, Barnett H. Brown, Benjamin B. Brownj and Jabez G. Brown, and my daughter Cynthia W. Brown, all of the district and State aforesaid, each to share and share alike, of all my personal and real estate. ' I do, in like manner, constitute, make, ordain and appoint my friends, James Overstreet and John B. Best, and my two sons, Michael Brown and Barnett H. Brown; sole executors of this, my last will and testament, &c.” This will was admitted to probate, December 26, 1822, and Michael Brown, Barnett H. Brown, and John B. Best, were on that day qualified as executors. On December 26,1822, O. D. Allen, the Ordinary of Barnwell, issued a warrant to five appraisers, whereby he empowered them to appraise all the goods and chattels which *should he shewn unto them by the*executors, *as the goods and chattels of Bartlett*Brown, and to make an inventory thereof, &c. On January 14, 1823, the appraisers filed with the Ordinary an *“*Inventory of all the goods and chattels, and personal estate, of Bartlett Brown,” which, among other things, sets forth thirty-two head of negroes, (without naming them,) valued at $300 per head, and various other personal property, estimated in the whole at $11,698 50. On December 26, 1822, the Ordinary, on petition of the executors, granted them leave to sell part of the estate which they did not wish to divjide among the heirs, such as horses, cattle, hogs, &c. On January 15, 1823, the executors sold the said horses, cattle, &c., for $1,783 16; and among the purchasers are all the legatees and many other persons. On January 17, 1823, on which day there seems to have been made a general *160division of the estate of the testator among his children. Jabez G. Brown signed an instrument of writing, which is in the following words: *“*Received, Barnwell district, South-Carolina, January 17th, 1823, from Michael Brown, Barnett H. Brown, and John B. Best, executors of Bartlett Brown, deceased, the following named negro slaves, viz: Sophia, Dilly, Dick, Rufus, Juda, and Richmond; also, one tract of land, to wit: the tract known and designated in the division as ‘ the Diamond Hill tract,’ containing two hundred acres, being in full for my part and interest in the personal and real estate of my father, Bartlett Brown, with the exception of whatever may be my interest in the sales of part of the personal property sold, after the just debts are paid, and the aifairs of the estate closed by the executors.” On the same day, Benjamin B. Brown signed a similar instrument for his share of the property. At the same time, a paper was signed by Michael Brown, B. H. Brown, James Y. Calhoun, B. B. Brown and Jabez G. Brown, which is in the following words: *“*We, the undersigned, do agree, that each one .of us has permission to sell and give good titles to either of the lands or negroes, drawn by us in the division of the estate of our father, Bartlett Brown, without hindrance or molestation of either one of us to the prohibition of the others, — witness our hands: signed and agreed to in the presence of each other, this seventeenth .day of January, 1823.” B. H. Brown testifies, that this last agreement was executed in conformity to the wishes of Benjamin B. Brown, to disembarrass him from the provisions of the deed of Bartlett Brown; Benjamin B. Brown being childless, after having been married for several years. Benjamin B. Brown died in 1832, without issue, leaving a wife surviving him, and a will, duly executed, dated April 10, 1827, whereby he directed his debts to be paid, &c., and bequeathed to his wife, Experience G.. Brown, the following negroes, viz : Mourning, Mary, Anne, Anne Mariah, George, Charity, Paul, Titus and Dick, with their increase; also his plantation, the ensuing crop, a horse, mare, «fee. The balance of his property, if there should be any after the payment of his debts, he directed to be equally divided among his three brothers; and to his sister, Cynthia *161W. Calhoun, he left ten dollars. Of this will, he nominated Barnett H. Brown and John J. Mixon executors. This will was admitted to probate on November 5, 1832, and B. H. Brown and John J. Mixon then qualified as executors. The property mentioned in the will is the same he got from Bartlett Brown’s estate, with increase, and this property, notwithstanding his will and the agreement of January 17,1823, (among the legatees of his father,) and the resistance of his widow, was divided under the deed of Bartlett Brown, among his surviving brothers and sisters, to whom, by said deed, it is given not for life, but absolutely. The witness, B. H. Brown, assigned as the reason for Benjamin’s leaving only ten dollars to his sister, Cynthia W. Brown, (now Nobles,) that she had refused to sign the agreement giving authority to sell and make good titles, and her name is not with the rest to that agreement, though that of her husband, James Y. Calhoun, is there.

Between the years 1830 and 1849, Jabez G. Brown became greatly embarrassed in his affairs, and judgments to a very large amount were obtained against him; among them, was a confession to B. H. Brown for $37,806 10, and according to the testimony of Seth Daniel-, deputy sheriff for Barnwell, the judgments including this confession were more than enough to cover all his property, but otherwise, if, as was conceded, this confession was intended merely to secure B. H. Brown as surety for Jabez G. Brown, according to an accompanying statement in the sheriff’s office.

For two years and a-half before February 4, 1850, the sheriff of Barnwell had advertised extensively in newspapers, sales’ day after sales’ day, that he would sell the property of Jabez G. Brown, to satisfy the executions against him, and had for various reasons postponed the sales; and from these frequent advertisements and postponements, his intention to sell had become notorious; and at length, February 4, 1850, he sold twenty-nine negroes, and on March 4, of the same year, he sold eighteen more negroes, making forty-seven in all. Among the negroes sold on February 4, 1850, were Sophy and Nanny, pur*162chased by the defendant, Isaac A. Wood, for $770; and Charlotte, purchased by the other defendant, Wm. Ashley, for $675-To these purchasers the sheriff executed bills of sale, and delivered the negroes, and from them received the purchase money. Sophy, purchased by defendant Wood, was received by Jabez G. Brown from Bartlett Brown’s estate, and Nanny (also purchased by Wood), is the child of Sophy. Charlotte, purchased by defendant Ashley, is also a child of Sophy, and derived by J. G. Brown in the same way, from his father’s estate. At the sale of these negroes, J. G. Brown encouraged bidding by stating that the property was valuable, and that his title to it was good, and free from any incumbrance whatever; and this he loudly proclaimed to the bidders generally, from an elevated position near the auctioneer; and Barnett H. Brown, on the day of the sale, made like statements to one of the purchasers, and at the trial avowed he would have so stated to all inquirers, as he had forgotten the limitation of the deed to the grand-children of the donor. The negroes brought a full price for title to them in fee. On the part of the defendants, three witnesses stated their belief that the plaintiff, L. S. Brown, was present at the sale at which the defendants bought; and it appears that Angus P. Brown, the other plaintiff, though not present, was aware of the sale, inasmuch as he procured one of the negroes then sold, to be bought for him. On the part of the plaintiffs, two witnesses, who were examined in Charleston by commission, stated that they were fellow-clerks in the store of Bancroft, and that they believed the plaintiff, L. S. Brown, was in Charleston on February 4, 1850, principally because entries purport to have been made by him on that day, in the books of his principal, of sales made by him. This testimony was objected to by the defendants, on the ground that the books were not produced. Another witness, W. E. Calhoun, a cousin of the plaintiffs, testifies that he did not see L. S. Brown at the sale, and thinks he would have seen him, if he had been there. And B. H. Brown testifies, that he does not remember the presence of his nephew, L. S. Brown, on the day of sale, and thinks he must have seen him *163and remembered his presence, if he had been present. One witness testifies, that J. G. Brown was an affectionate father, and communicative of his affairs to his children, and another says, he was chary in talking of matters of business to his family. The plaintiffs are of the respective ages of about twenty-seven, and twenty-five years; they generally lived with their father, and when absent, were so but for short intervals.

Angus P. Brown married in October, 1847, and since that time has lived apart from his father, but visited him frequently. The witness, James C. Brown, who is the cousin of the plaintiffs, and who is equally interested with them under the deed of Brown, states that he is of about thirty years of age, and knew of the old deed before the sale of February 4, 1850.

In 1844, Mr. Owens, the solicitor of these plaintiffs, filed a bill in this Court, in which J. G. Brown is the plaintiff, the object of which was to restrain the creditors of Nobles, and in that bill, the deed of Bartlett Brown is set forth; the case was struck from the docket in 1847.

Jabez G. Brown died in April, 1852, and Mr. Owens is his administrator.

The plaintiffs pray specific delivery from Isaac A. Wood, of the slaves Sophy and Nanny, and an account of their hire since the death of Jabez G. Brown; and like delivery and account from William Ashley of the slave Charlotte, and her increase.

The defendants, in their answer, deny knowledge of the deed, and insist on plenary proof of its execution. They also plead, that they are *Iona ficle*purchasers for valuable consideration without notice; and insist that the'plaintiffs knew of the deed and of the sale, and that whether they were present at the sale or not, they were bound to apprise the bidders at the sale of the existence of said deed; and that even if the deed be good between the parties to it, it is inoperative as to subsequent purchasers for want of express notice to them, or of constructive notice from recording in the proper office of the Secretary of State; and that the omission so to record the deed was gross negligence equivalent to intentional concealment, enabling J. G. *164Brown to deceive and defraud the community. And they further insist, that even if the deed had been properly recorded, it would not have been notice to purchasers, inasmuch as it does not specify and particularize the property intended to be conveyed by it; and that the plaintiffs ought to be remitted to their remedy at law, inasmuch as their claim is inequitable and unconscientious; that it would be unjust to permit the plaintiffs to take their full distributive shares of their father’s estate increased by the purchases of defendants, and at the same time to compel the defendants to deliver up the property purchased by them; and that if a specific delivery is decreed, the administrator of J. G. Brown should be ordered to account with the defendants for the purchase money and interest, and that said administrator is a necessary party to the proceedings.

The defendants dispute, in the first place, the execution — particularly the delivery of the deed of Bartlett Brown of October, 1821. In general, a deed must be proved by one of the subscribing witnesses, if there be any; but this rule of evidence is inapplicable where the deed is thirty years old, and is free from just grounds of suspicion : in which case it proves itself as an ancient deed; or where the subscribing witnesses are dead, or beyond the jurisdiction of the Court, in which case secondary evidence is admissible. It is objected to the admission of the deed in question as an ancient deed, that it is not produced from the proper custody which was in the representatives of the trustees: and that it was recorded in the Kegistry of Barnwell, long after its date, and after the death of the grantor; and that the property conveyed was divided among the children of Bartlett Brown according to his will, and not according to this deed. Considering the circumstances corroborating the genuineness of this deed — that the subscribing witnesses attest that it was signed, sealed and delivered — that one of these witnesses makes probate of its formal execution, — that it was admitted to registry more than thirty years ago — that it was acted upon in the division of Benjamin B. Brown’s estate, and set up in the equity suits of Brown *vs.*Peyton and Nobles *vs.*Peyton, and that there *165has been no possession inconsistent with it — none of the circumstances of suspicion suggested seem sufficient to overcome the intrinsic proof of this document as an ancient deed. As to the date of Bartlett Brown’s death, I give effect to the testimony of his son, Barnett H. Brown, rather than to that of Dr. Lafitte. Still, there is nothing in the testimony of the son, hindering the conclusion that the father was dead before the recording or probate of the deed. I suppose that the deed may have been proved and recorded after the death of the grantor, at the instance of some of the donees, and may never have been reclaimed from the Register until 1852. Granting this, and likewise that the deed may have remained in the possession of the donor during his life, I should still infer delivery, in the absence of contrary proof, from the signing and sealing by the donor and trustee, and from the assent of the beneficiaries in remainder, to be implied from the benefit conferred upon them.

Under the circumstances stated, the fact that the deed comes from the custody of the Register creates little suspicion, and the fact that the children of the donor divided his property according to an anterior will, in subservience of their own interest, and in sacrifice of the rights of their surviving issue, has even less weight. If the proof went no further, I should hardly reject this deed, but when additional evidence is offered that two of the witnesses are dead, and the third out of the State, and that the signatures of the settlor and trustee, and of all the subscribing witnesses are in their proper handwriting, the proof of execution is complete, even if it were a recent deed.

No other objection to this secondary evidence is made, except that W. D. Brown, one of the subscribing witnesses, was within the jurisdiction four or five days after the plaintiffs’ bill was filed, and that he now resides in Georgia, within fifty miles of the place of trial; and yet, that he has not been examined by commission. I think the plaintiffs are under no legal obligation to take his testimony by commission. They could not, under Rule 19, (Mill. Comp. 56,) take his examination by commission before he left the State ; and might afterwards avail them*166selves of his removal beyond the jurisdiction, not procured by them, to resort to secondary evidence of his attestation.

They seem to have acted in good faith in obtaining his promise to attend the trial, and in admitting on the trial his written statement, (his examination could have gone no further) that he remembered nothing of the execution of the deed. Proof of his handwriting as an attesting witness overcomes his failure to remember the transaction. I consider the execution of the deed as abundantly proved.

The defendants next insist that the interest of the plaintiffs under the deed is merely equitable, to which their plea of purchasers without notice is a complete answer and defence. The property in question is personalty as to which the estate of the trustee is intact by the statute of uses, (27 Hen. viii. c. 10.) Granting, however, that a trust in personalty would be executed in the beneficiaries whenever a use in land would be so executed, the case of *Gadsden*vs. *Cappedeville,*(Car. L. J. 343, 3 Rich. 467,) apparently contrary to the reasoning of Chancellor Dargan’s circuit decree in *Williman*vs. *Holmes,*4 Rich. Eq. 475, would require me to hold that the estate abided in the trustee. The estate here is conveyed expressly in fee to the trustee, to his heirs, executors, administrators and assigns, and ■in part for the sole and separate use of a married woman still living, and still a wife by second marriage. In the case cited, Chancellor Harper, in a decree, affirmed by the Court of Appeals, says: *“*That the idea does not seem to be warranted by any authority, that though the legal estate were executed in fee to the trustees, yet when the objects of the trust were accomplished, the fee might shift and become executed in the *cestui que use.*It is not enough that the purposes of the trust have been satisfied during a particular estate, or that no object is to be effected by giving the trustees a larger estate. If the gift be to them and their heirs, there must be something positive to restrict them to a particular estate, or inconsistent with the notion of their taking a fee. The whole fee was conveyed to the trustees, and the estate remained in them, at all events during the *167life of the donor, and there is nothing to divest it afterwards. I am of opinion, that in no case could there be such a partial execution of a use. The estate is one, and, must be executed in the trustee or the *cestui que trust.*As observed by Lord Hard-wicke, in *Gibson*vs. Rogers, “this Court will not make fractions, and consider them as trustees for only part of the inheritance.” Under the deed in question, the estate, even in the land, abides in the representative of the trustee so far as the interest of Mrs. Calhoun (now Mrs. Nobles) is involved; and if it abide in the trustee as to her portion, I suppose upon the authority of the case cited, it is not executed in the beneficiaries jointly interested with her. Such would be my decision, if the subject of controversy had been land; but the case is much stronger as to personalty, where the estate of the trustee is unaffected by the statute of uses. In my judgment, the estate of the plaintiffs is equitable only; still, the case of *Bush*vs. *Bush,*3 Strob. Eq., 131, recognizes the right of the equitable owner of slaves to come into this Court for specific delivery of them.

Admitting that the estate of the plaintiffs is merely equitable, to which the plea of purchasers without notice would be a good defence, the defendants fail in proving that they have purchased any legal estate in the slaves in question. The 10 section of the Statute of Frauds, 29 Car. ii. c. 3, which authorizes a sheriff to take in execution for the debt of a beneficiary, lands and tenements held in simple trust for him, is inapplicable to equitable interests in personalty. *¡Scott*vs. *¿Scholey,*8 East. 486; *Rice*ads. *Burnett,*Speer, Eq. 585. I am of opinion that the sheriff had no authority to seize or sell the slaves in question, and that the purchasers bought nothing.

It is further urged for the defendants, that the plaintiffs themselves, or at least those under whom they claim, had been guilty of fraud concerning the deed, or in the sale of the slaves in question. I conclude from the evidence, that neither of the plaintiffs was present at the sale, or concurred in the assertion of right in fee by Jabez G. Brown, and that the purchase by one of the plaintiffs through an agent of one of his father’s *168slaves, (not one of the slaves under the, deed,) does not commit him to the validity of the sale in fee of the negroes embraced in the deed. Doubtless all the parties believed, however erroneously, that Jabez G. Brown had some interest in the slaves liable to seizure and sale under execution ; the mere acquiescence of the remaindermen in the sale does not make them participants in his fraud, even if there were intentional fraud on his part; which is not clear. It was urged, that from the peculiar relation of father and children, the plaintiffs are bound by the misrepresentations of the parent. In *Teasdale*vs. Teasdale, Sel. Gh. Ga. 59, a father who permitted a son to settle in fee a join-ture upon his intended wife in an estate to which the father unknowingly was entitled in fee after a life estate in the son, was held to be concluded by his acquiescence, because, if the father had known of the fee in himself, he would probably have joined in the settlement in fee, or at least it would have been insisted that he should have so joined as a condition of the match. But the converse relation of son to father is altogether different in its consequences, and I am not aware of any case which held the son bound under like circumstances. Besides, here the sons do not claim at all under the father, but claim as purchasers from the grand-father. It was however insisted that the grand-father was guilty of some fraud in omitting to record the deed, and thus apprise subsequent creditors and purchasers of the rights of the remaindermen. It is assumed in *Bush*vs. *Bush,*3 Strob. Eq. 131, and recognized in other cases, that such a deed as that now in question, is not required by our law to be recorded. Granting that under the Act of 1698, the deed should have been recorded in the Secretary of State’s office, the fact of recording bears only on the question of notice to the purchasers, and I have already determined that question to be immaterial in this case.

Again, it is urged, that the deed of Bartlett Brown is inoperative, because it does not specify by name and age the particular slaves intended to be conveyed by it. The 47 section of the County Court Act, of 1785, directing memorials tó be registered *169in the Secretary’s office, of mortgages, deeds of trust, &c., of lands and negroes, does not require that the memorial shall contain the names and ages of the slaves ; but I do not regard that section of force under the cases above referred to; and I suppose the deed must be governed by common law principles. *Id certum est quod certum reddi 'potest.*A conveyance of all the slaves of which a grantor is possessed, will carry all which he is proved by extrinsic evidence then to possess. It is clear, in the present case, that the slaves in controversy were either actually possessed by Bartlett at the date of this deed, or are the issue of some of those then in his possession.

It is further said in behalf of the defendants, that it is inequitable that the plaintiffs should reclaim from them the slaves in controversy, and at the same time take their full share in their father’s estate ; and therefore, that the administrator of Jabez G. Brown is a necessary party to the suit. I repeat, however, that the plaintiffs do not claim the subject of controversy under their father; and I add, that if the defendants have any equity, (which, by the way, is very doubtful,) to be reimbursed from Jabez G. Brown’s estate for the purchase money of these slaves, it was their duty to bring it forward by bill. It cannot be set up by answer.

If the deed in question were regarded as a testament on account of the reservation of a life estate in the donor, (which, after *Jaggers*vs. *Estes,*I am not authorized to hold,) all the consequences in favor of the plaintiffs would result which have been deemed to follow the instrument as a deed, if the same had been admitted to probate in the Ordinary’s office; and if I had taken this view, I should have suspended the suit until probate might be had.

The results of the case are hard upon the defendants, and I have considered their defence with indulgence, but I am reluctantly compelled to declare that the case of the plaintiffs is not of such inequitable character as to deprive them of the remedy which they seek.

It is ordered and decreed that the defendant Isaac A. Wood *170deliver to the plaintiffs the slaves Sophy and Nanny, and any increase of them subsequent to his purchase on February 4, 1850, and that he account to the plaintiffs for the hire and value of said slaves from the date of J. G. Brown’s death; and in like manner that the defendant William Ashley deliver to the plaintiffs the slave Charlotte, and subsequent increase, if any; and account for hire from the date of Jabez G. Brown’s death.

It is further ordered, that the account on the principles stated be taken and reported by the Commissioner of the Court.

The defendants, Isaac A. Wood and William Ashley, appealed on the grounds:

1. Because the deed from Bartlett Brown to James Overstreet cannot be admitted as an ancient deed — the possession proved having been under the will of the said Bartlett Brown, and therefore adverse to the deed.

2. Because there was no proof of the delivery of the deed, and the evidence disclosed such strong grounds to suspect that it never had been delivered, as should have induced the Chancellor to reject it.

3. Because the Chancellor should have dismissed the bill for the fraud of the plaintiffs, in this: that being aware of the sale, they failed to apprise bidders of the deed, though they well knew of its existence.

4. Because the deed is not of a form calculated to give notice, inasmuch as it is too general, and does not set forth the number, names and ages of the slaves, and therefore the Chancellor should have rejected it.

5. Because the defendants being *lona fide*purchasers, for valuable consideration, without notice of the deed, should under the circumstances, have been protected in their purchases, and the Chancellor should have decreed that the legal title was transferred to them by operation of law, for constructive fraud.

6. Because the Chancellor should have ordered the administrator of J. G. Brown to be made a party, and decreed that he should account to the defendants for the purchase money and *171interest, as an equitable set off to the delivery of the negroes to the plaintiffs.

7. Because the omission to record the deed in the office of the Secretary of State was evidence of fraud, sufficient to have required the Chancellor to dismiss the bill on that ground.

8. Because the evidence was uncontradicted that the possession of the negroes, unexplained to the defendants, *enabled J. G. Brown to appear as the real owner, thereby getting*credit, *and seducing purchasers,*and the decree should therefore have been for the defendants.

9. Because according to the plainest principles, not only of equity, but even of common law, *the title to the negroes was in Jabez G. Brown,*and the decree should therefore have been for the defendants.

10. Because the decree is contrary to equity, contrary to common law, and contrary to evidence.

*Aldrich, Bellinger,*for appellants.

*Owens,*contra.

The opinion of the Court was delivered by

Waejdlaw, Ch.

Upon some of the points in this case brought under our review by the appeal, we are content with the reasoning of the Chancellor in *the*circuit decree, but it is proposed to add some observations as to the execution of the deed, and as to the effect of J. G. Brown’s possession.

Where a deed is not liable to suspicion as to its date, if it purports to be thirty years old, it proves itself. The purpose of requiring proof as to a deed seemingly ancient, that it is produced from the proper custody, and that possession has been had under it, is to give assurance that it is truly ancient, and not antedated. In the present instance, the deed has been recorded in the registry of mesne conveyances for Barnwell more than thirty years, and the settlor and trustee who executed the indenture, (the signatures of whom are proved,) have been dead more than thirty years : so that the deed is necessarily of the *172age requisite for intrinsic proof. Where a deed is admitted in evidence as an ancient deed, it must be admitted as formally executed by signing, sealing and delivery. It is unnecessary to dwell on this point, as sufficient secondary, evidence has been offered to prove the execution of the deed in question, if it be not self-proving.

It is proper to discuss more fully the effect of J. G. Brown’s possession of the slaves in controversy under a deed not recorded in the Secretary of State’s office. It has been earnestly urged upon us, that the decree in this case is in conflict with recent decisions of the Law Court in *Ford*vs. *Aiken,*4 Rich. 121, and *Burgess*vs. *Chandler,*Ib. 170. If we supposed there was any such conflict, we should either conform to the judgment of the other Court, or send the case to the Court of Errors. The administration of justice between two Courts, professing to proceed on the same principles in matters of concurrent jurisdiction, would be justly unsatisfactory, if a party in the same state of facts should succeed or fail accordingly as by choice or compulsion he might be before one or the other of the tribunals. The great object of establishing a Court of Errors was to redress this mischief of conflicting decisions in the two Courts. But there is no conflict in the present instance. The judgments in the cases cited, are not inconsistent with the decree under review. *Ford*vs. *Aiken*and *Burgess*vs. *Chandler*decide, that where a father-in-law delivers slaves to a son-in-law, the law raises the presumption of gift; and that if the father-in-law, by some secret arrangement, give the delivery the form of hiring or loan, and reserve the absolute title to himself, he is guilty of constructive fraud or of concealment, having all the consequences of intended deceit, as to subsequent creditors of the son-in-law, who extended credit on the faith of his ownership of the slaves. This is not new doctrine. It has been asserted by this Court, in *Garrett*vs. *Bank of Hamburg,*1 Strob. Eq. 66 ; *White*vs. *Palmer,*McMul. Eq. 115 ; *Edings*vs. *Whaley,*1 Rich. Eq. 301. The presumption of gift in such case, arises irom the relation of the parties, and the duty of the *173father to provide for the maintenance and settlement in life of his children; and, as between the parties themselves, it cannot be rebutted by any subsequent modification of the gift against the will of the son-in-law; nor as to his subsequent creditors by cotemporaneous modification of which they have no notice, actual or constructive. ■ But thé presumption of gift from mere custody of slaves, does not arise in the case of strangers in blood, not even in the case of step-father and son-in-law. *Willis*vs. *Snelling,*6 Rich. 283. Nor where the possession is derived from a stranger, is there any allocation for constructive fraud upon the creditors of him in possession. In such case, it is a question of intentional fraud. If one having the legal title, deliver-possession to a stranger, with the purpose of enabling him to commit a fraud on purchasers or creditors ; or if he wilfully allow the possessor to claim the property, and treat it as his own; he is guilty of express fraud, and cannot re-claim the property against one wrongfully deceived. *Brooks*vs. *Penn, 2*Strob. Eq. 120. Where a father delivers possession of a chattel to a married daughter, and by secret reservation of title to himself, endeavors to obstruct the *jus mariti,*he obviously violates the policy of the State, in prescribing registration of marriage settlements ; and properly fails in a contest with creditors of the son-in-law who have trusted to his apparent ownership. But in a case where the duty of maintenance does not exist, where the Legislature has not prescribed notice to creditors by registration or otherwise, and where no deceit is intended, it would be preposterous to hold that the owner could not maintain his title against the creditors of him in custody of - a chattel, although they may have had no notice of the title in another. If A. should hire a slave to B., a stranger, for a week, or for years, without any intentional fraud, it would not be pretended that B.’s possession of the slave gave his creditors any right to purchase the chattel for the satisfaction of their debts, although they may have had no notice of the bailment, and may have rashly inferred from his mere possession, that B. was owner. It is conceded in the argument here, that the notion *174of constructive fraud from the mere transfer of possession so as to defeat title, has no application except as to dealings between father and son, or son-in-law. But it is argued that Bartlett Brown, the donor in the deed, by omitting to record the deed in the office of Secretary of State, enabled his son Jabez, who af-terwards came into possession of the slaves, to commit a fraud upon his creditors, and incurred the consequences- of constructive fraud.

The argument lacks the necessary grounds of fact, that the donor transferred the possession of the slaves to the son while title abided secretly in himself, and that the law requires such a deed to be recorded in the Secretary of State’s office.

Bartlett Brown retained possession of the slaves during his life time, and as long as any title continued in him or his representatives by operation of the deed. He obtained, and he sought, no advantage from his own wrong. He transferred no possession to his son, which the security of creditors required him to keep, on pain of forfeiting all title and advantage to himself. He did not knowingly permit his son to acquire any delusive credit by possession of the property.

If there was any obligation by law to record the deed, the duty was imposed upon the trusteee, and not the donor. If the law does not require recording of such deeds in the Secretary of State’s office, registry there would not operate as constructive notice to creditors ; and so far as good faith is involved in measures for giving notoriety to the deed, and thus preventing the life tenant from deluding creditors by his possession of the property, recording the deed in the Clerk’s office in Barnwell, was better adapted to the end, than recording it elsewhere. That was the proper office for recording as to the lands conveyed by the deed, and in that District all the parties resided. Incautious creditors frequently suffer by the constructive notice to them, arising from the legal registry of instruments of title ; and they suffer, in the same lack of actual information, where notice of title separate from possession of the chattel, is not required to be given to them. No contrivance of man can make the state *175of the title, where it is not co-incident with possession, so noto rious as the fact of possession. It is clear, and it is conceded in the argument of appellant’s counsel, that no statute of the State requires a gift of slaves by deed of trust to be registered in any office ; but it is insisted, that as the law requires certain conveyances of personalty, for certain ends, to be recorded in the Secretary’s office, this permits the recording there, of all conveyances of personalty, and makes the omission of the donor to avail himself of the permission in the special case of a father giving to a child or son-in-law, a constructive fraud upon the creditors of the donee in possession. Before the Act of 1843, concerning mortgages, which does not apply to this case, the only Act of this State, now in force, relating to registry of transfers of personalty other than marriage settlements, was the Act of 1698, (2 Stat. 137,) which includes only sales and mortgages of negroes and other chattels. This trust deed is neither sale nor mortgage. As to sales and mortgages, the Act does not absolutely require recording. It merely postpones a sale or mortgage not recorded in the Secretary’s office to a subsequent sale or mortgage which has been so recorded. An unrecorded conveyance of personalty, not infected with fraud, is good against any posterior title except a sale or mortgage made by the same grantor, and properly recorded. According to the construction given in *Youngblood*vs. Keadle, 1 Strob. 122, the Act was intended to guard, against double sales or mortgages by the same person ; and it was held there, that a bill of sale made by one to whom A. had transferred a slave by parol sale and delivery, had no precedence under the Act to A.’s prior unrecorded mortgage ; and the bill of sale was treated as the Act of a third person. Here the bills of sale under which defendants claim were made by Jabez G. Brown, through his agent, the sheriff, and in no proper sense can be treated as the acts of the grantor in the trust deed. See *Bush*vs. Bush, 3 Strob. Eq. 131. The will of Bartlett Brown was revoked by the deed as to the estate conveyed by the latter; and in no view is a will to be regarded as a sale or mortgage within the meaning of the Act of 1698.

*176The plaintiffs themselves have been guilty of no fraud concerning the deed or the property conveyed by it, unless it may be in not making proclamation of their interest in the slaves on the occasion of the sheriff’s sale. But they were not present at the sale; they did not procure their father’s possession of the slaves; they are not bound by his misrepresentations made while they were absent; they probably supposed that the life estate of their father was liable to sale; and their equitable right, contingent on their surviving their father, was not then vested in title or possession. Under these circumstances, they are not affected by the fact that purchasers were not apprised of their claim under the deed.

If any person committed a fraud,, it was the life-tenant, and it would be a strange result, that his deceit, without collusion with the remaindermen, should defeat their estate, and enlarge his own into a fee, even for the benefit of his creditors. He would make profit from his own wrong. And however we may be disposed to protect creditors, we should not encourage, for their benefit, speculating frauds by tenants of particular estates against those entitled to the fee.

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

DunkiN and Dargan, CC., concurred.

J ohnston, Ch., absent at the argument.

*Appeal dismissed.*

NOTE. — -The following circuit decree of Ch. Johnston, valuable for collecting all the Acts concerning registry, and his comments on them, is here appended as a note to *Brown*vs. *Wood:*

REBECCA DOPSON, Admx. JANE HARLÉY *and*JOHN A. HAYS, f BarnweI1 District. Adm’ors of JAS. HARLEY, *et. al*J

The above cause came to trial before Chancellor Johnston, on the IstEebruary, 1852. The bill stated that in 1798, one Edward Harden made a voluntary conveyance of certain slaves to his near relation, Joseph R. Dopson, in trust for the joint use of the plaintiff Rebecca, wife of said Joseph R. Dopson and the other plaintiffs, her children, undone Robert Miller, a nephew; that Joseph R. Dopson, during his life, disregarding his *177character as trustee, sold some of the slaves contained in the said deed, and that all the purchasers had notice of the deed of 1798; the bill then prays for a delivery of the negroes, and for an account of their hire.

The defendants pleaded that thoy were innocent purchasers, for valuable consideration, without notice, &c.

The said deed was dated the 24th November, 1798, and was recorded in the office of Begister of Mesne Conveyances for Beaufort District, on the 1st November, 1799, and nowhere else.

“I shall now enquire,” says the Chancellor, “whether the defendants and those under whom they claim had notice of the deed, premising that wherever in tracing a title in defendants, you first come upon an innocent purchaser having no notice, from that moment the title is considered sacred in Equity 5 under which principle, a purchaser with notice, from one without notice, is protected in this Court. The plaintiffs insist that the defendants and those under whom they claim, are fixed with notice — 1. By rumor — 2. By certain public proceedings — 3 By recording the deed; and 4. By actual personal notice. X know of but two kinds of notice: actual or personal, and constructive or implied. Under one or the other of these heads, the different modes in which it is contended the defendants were notified of the deed must fall.”

The Chancellor then goes on to argue that constructive notice cannot be implied from rumor, however general. Passing from that, he decides that no notice is to be inferred from the public proceedings relied on, consisting of a decree relating to the property, pronounced *after*the purchases; and then he takes up the question of recording, (a)

“To operate as constructive notice,” he proceeds, “the recording must have been in the office pointed out by law, and the deed must be of that from which it is calculated to impart the notice intended by law. The deed in question was recorded by the Begister of Mesne Conveyances for Beaufort, the 1st November, 1799. That was the only recording, either of the deed itself, or of any abstract or memorial of it, that ever took place within this State or elsewhere. In my opinion, the deed was not properly recorded.

“ An Act was passed on the 16th June, 1694, entitled 'An Act for the better and more certain keeping and preserving of all registries and public writings of this part of this province.' I have not the means of ascertaining its contents, or knowing whether there exist any other traces of the Act than the title, which is to be found in the 7th page of the titles of the Acts of Assembly preceding the Public Laws, and is numbered 106.

“ By the Act of 1698, (b) it is declared that *that*conveyance of *lands and*tenements, which should be first recorded in the Begister’s office in Charleston, then the only office of that kind in the province, (and the same, I apprehend, which is in subsequent Acts styled ‘the Begister’s Office of the Province,’) should be preferred over all others: And that *that*conveyance of negroes, goods or chattels which should be first recorded in the *Secretary's office*in Charleston should be preferred over all others: under which Act, by the way, it has been adjudged (c) that the term ‘ Chattels ’ was not intended by the framers of the Act to include chattels real; conveyances of which must be recorded by the Begister.

“The Act goes on to subject these two officers to damages for false certificates to enquirers concerning the conveyances recorded in their offices respectively. This statute *178clearly makes the *Register's*the proper office for recording conveyances of realty, and as clearly points out the *Secretary's*as the proper office for recording conveyances of personalty, expressly including *negroes.*

“ The next Act on the subject of recording is that of 1731 *(d)**.*It relates altogether to lands; but perhaps something may be gathered from it. The 18th clause declares that the office of Register, (styling it ‘the office of Register of this Province,’) established for recording mortgages and conveyances of *landsi*shall be continued distinct from all other recording or other offices, among which is mentioned that of Secretary of State* whose duties we have already seen in the Act of 1698. This legislation still leaves the Secretary’s the proper office for recording conveyances of negroes; unless, indeed, by a strained construction, one particular kind of conveyance of them (mortgages) might be recorded with the Register. No admissible construction would include ssuch conveyances as Harden’s deed of 1798.

“ The 22 Article of the Constitution, adopted 26th March 1776, (e) provides that the Register of the Province be chosen by joint ballot of the General Assembly and Legislative Council, but does not alter his duties.

“ The 29 Article of the Constitution of 1778, *(f)***próvidos for the election by joint ballot of the Senate and House of Representatives, of a Register of Mesne Conveyances for each district (District Courts had in the mean time, particularly in the Act of 1769 *(g)***been established): but the Article of the Constitution last mentioned leaves the duties of the Register the same as before. We shall see hereafter, that no Register was by law, in obedience to this Constitution, given to *Beaufort*until 1786.

“Then comes the County Court Act of 1785; *(h)***from the operation of which, by its 67th section, the district of Beaufort, (in its whole extent, as dofined by the 2 sect, of the Act of 1769,) (i) is exempted, together with the districts of Charleston and Georgetown.

“ The 45th section (k) enacts that within times, therein limited, conveyances for *lands> tenements*and *hereditaments*shall be recorded in the offiee of the *Clerk of the County*Court, within whose county the lands lie; at the same time declaring that such conveyances shall not be admitted to record, except upon proof of their execution in open Court, by the acknowledgment of the grantors, or by the oath of two witnesses. This section also declares the effect of recording conveyances of lands.

“ The 47th section (l) (the only one in which personalty is mentioned,) is as follows : « And to the end that persons who are inclined to *lend*money upon the security of lands or *negroes,*or to become *purchasers*thereof, may more easily discover whether the lands or *slaves*offered to be sold or mortgaged, be free from incumbrances: Be it further enacted, that a *memorial*of sales and conveyances, mortgages, marriage settlements, *deeds of trusty*whereby any *lands*or *slaves*residing in this State, charged, encumbered *179or passed from one person to another, *shall be registered in the Secretary's office,*in books to be kopt for that purpose, which memorial shall contain the date of the deed of conveyance, the names, surnames and additions of the parties thereto, the consideration mentioned therein, the lands conveyed, settled or mortgaged, and where the same lies} and the number, *names*and *ages*of the slaves, if any be sold, settled or mortgaged: And the Clerks of all and every of the *County*Courts, within this State, are hereby required, twice in every year—in the month of January and June,—to transmit *memorials*of all such deeds, settlements, mortgages, or other conveyances, as shall have been *proved*and *recorded*in their respective Courts, the preceding half year, to the Secretary’s office, to be there registered as aforesaid.'

“ An Act of 1786, (m) declares that in obedience to the Constitution (of 1778,) a Register of Mesne Conveyances shall be appointed for Beaufort, to possess ‘ like powers and authorities with those exercised by the Register in Charleston,5 that is, (I apprehend,) the powers conferred by the Act of 1698. A Register is at the same time given to Georgetown.”

“Another Act of 1786, *(n)***relating to the subject of recording, only goes to amend the Act of 1785, by providing a different mode of proving deeds in certain cases, in order to their being recorded in the County Courts.

“ The Act of 1788, (o) further amends the Act of 1785, by entitling deeds to record in the County Courts, upon acknowledgment of their execution by the grantors before a Judge of the Superior Courts, or the oath of one witness before a justice, out of Court.

*"*The Act of 1785 is further amended by that of 1789, (p) which extends the time for recording conveyances for lands.

“ Stopping the investigation at this point of time, it appears to me, that in 1789, such a deed as that of Harden could not be recorded in the Register’s office for Beaufort.

“ The Act of 1698, *gave the registration of such deeds to the Secretary of State.*There is nothing in any succeeding ordinance to take them from him, except the 47th section of the County Court Act. Upon that section it may be observed, that it does not positively require that such deeds should be recorded in the County Courts. The law would have been fully satisfied, for any thing contained in that section, if such deeds had been recorded in the Secretary’s office, although never recorded in the County Court. In other words, if the Act of 1698 had been observed, nothing more could be required by virtue of the section referred to. But if the whole deed was not recorded in the Secretary’s office, agreeably to the Act of 1698, then it was required by that section, that at least a *memorial*should be registered in that office j in which case the enquirer must be sent to find the deed set out at length in the County Court, to which the memorial would refer him.

“ The Clerk of the County Court could not refuse to record a deed for lands, because the 45 section of the Act under examination declared that deeds for lands should be recorded in his office. He might have refused to record deeds for negroes, because the 47 section, (the only one which relates to conveyances of personalty,) does not declare that such deeds shall be recorded in his office. In that case, the grantor would have been driven to register his deed at large in the Secretary’s office. If, however, the Clerk undertook and did record, in which case, he became *quasi*the agent of the grantee, then a memorial *180was positively required to bo recorded in the office of Secretary. In either case, the *Secretary’s*office was made by law the point whence notice was to issue to subsequent creditors and purchasers. It was essential that some such central point of warning should be established, as related to persanalty; which being transitory in its nature, (and the evidence of right as to which, lying mostly in possession,) it might be carried from district to district, and from county to county, and purchasers under such circumstances would not otherwise have been safe without consulting the records of every County Court in the State.

“ That the Secretary’s office was intended as a central point for extending notice, and that the County Courts were not intended, but *through this centralpoint,*to communicate *notice,*may be inferred from another circumstance. The 47th section of the Act of 1785 does not declare the effect of recording the deed in the County Court, or the memorial in the office of the Secretary, and the effect cannot be learned unless we call in tho aid of the Act of 1698. Butting the 47th sect, of the Actof 1785, and the Act of 1698 together, I infer that the Legislature, by both, meant, that all deeds of personalty should, in some shape or other, be recorded by the Secretary; and when recording took place there, in that case, and in that case only, shouldthe recording have an effect to work a preference among deeds for the same property. A recording in the County Court alone, worked no preference.”

The Chancellor proceeds to argue, that even admitting that the County Court Clerks wero bound to record deeds such as the one under consideration, (q) and that such recording operated constructive notice, still that would not authorize recording them by the *Register of Mesne Conveyances in Beaufort District,*(where no County Court was ever established,) or raise an implication of notice from such reading. He maintains that the offices of *County Court Clerk*and the *District Register*of Mesne Conveyances were distinct; that their duties were different as respects this subject of recording; that the duties of the Register were defined by the Act of 1698; those of the Clerk, by the Act of 1785, and that the duties of the Clerks of County Courts were limited by tho extent of the County Court system; thatthe only case in which the Secretary’s office was not the *only proper*office for recording conveyances for negroes, was where County Courts existed; and that in no case, had a *District Register*the right to record such conveyances.

It may not be out of place hereto state that County Courts were abolished in 1799, (see 7 Stat. 291.)

“That District Registers of Mesne Conveyances” proceeds the Chancellor, “had no such right,” (the right to record such conveyances,) “ appears, I think, by a legislative exposition of the recording law. It will be recollected that the throe districts excepted out of the County Court system were Charleston, Beaufort and (Georgetown. Of these, Charleston always possessed a Register. In 1786, Registers were given to Beaufort and (Georgetown also, possessed of the *same powers*as those exercised by the *Register of Charleston.*What powers, in relation to recording were thus conferred on the Registers of Beaufort and Georgetown 2 Did they extend to the recording conveyances of negroes or any other species of personalty 7 If they did, why was it deemed necessary to confer that right on the Register of Georgetown, as the Legislature did by the Actof 17917 (r).

“ Up to the passage of that Act, no Register of Mesne Conveyances in the State, and after it, none but the Register of Georgetown could rightfully record conveyances of negroes.

*181" In 1799 the Clerks of the District Courts for every district except Georgetown and Charleston, were by statute *(s)***constituted, in virtue of their clerkships, Registers of *Mesne Conveyances*for their respective districts; but their duties were left, as by the Act of 1698, to extend only to the recording of conveyances for *land.*And thus, I believe, matters remain to this day; the Legislature still electing, under the Constitution of 1778, the Register of Georgetown and Charleston; while those of other districts, being Clerks of the District Courts, are elected by the people.

" My opinion, then, is, that since the abolition of the County Courts, (which took place on the 1st January, 1800,) (t) the only proper office for registering conveyances of personalty is that of the Secretary of State, excepting only conveyances of that description in' Georgetown, which by special statute may be recorded by the Register of that district.

" Granting, however, that the Register of Beaufort was the proper recording officer, in the first instance, for Harden’s deed, there would be several difficulties in implying notice from the registration there.

“ The first difficulty is, that no memorial of the deed was recorded with the Secretary of State ;

" The second is, that the deed was not proved before it was admitted to record;

** The third is, that the deed recorded is not of a form calculated to give tho notice intended to be produced by recording.

“ Upon the first, my opinion is, that the registration of a memorial with the Secretary is indispensable ; and that creditors or purchasers will not be disturbed in this Court unless notice has been extended to them by the means afforded for extending constructive notice. Registers act for the benefit of the claimants under the deeds recorded by them, and not for the benefit of but against subsequent creditors and purchasers. *ll*follows, then, that as between an equitable claimant and subsequent creditors and purchasers, the Register, although a public officer, is to be considered the agent of the equitable claimant, — rather than that of subsequent creditors and purchasers, — for the transmission of the memorial to the Secretary; and on his failure to transmit it, the equitable claimant rather than the creditors or purchasers, should suffer in the first instance, and be thrown, for relief, on his remedy against the defaulting officer.”

The Chancellor then considers the second difficulty, (that the deed was not proved before it was admitted to record,) and then passes on the third objection, to wit: that the deed is not of a form calculated to give the notice intended to be produced by recording.

In regard to this objection, he says, “I think it is substantial. The Act of 1785 requires that the memorial, and of course, the deed, should set forth the *names*and *ages*of the slaves. Some description of the slaves, to make them known when carried from place to place for sale, was absolutely necessary, in order to put purchasers on their guard. The age and name of a slave would, in general, answer this salutary purposo. The deed from Harden does not state ages of any of the slaves. The Act, if insisted on, by the plaintiffs, must be shewn by them to have been strictly complied with — constructive notice cannot otherwise be implied.

" Before I quit this subject of recording, I may be allowed,” says the Chancellor, “ to say, that I have not found any decision in which recording conveyances of personalty by the Register has been held good. I do not know how to interpret some expressions used *182in *Harrison*vs. Strother, *(u)**.*In that case, the deed recorded by the Secretary was preferred. Still, it must be admitted, the language of the report is very vague. The deed recorded by the Secretary was certainly * first recorded,5 and being recorded by the Secretary, was rocorded 'somewhere in the State.’

“ The result of this investigation is, that constructive notice cannot arise from the recording of the deed of 1798. The only remaining inquiry upon the subject of notice, is, Was there actual personal notice 7 ”

The Chancellor then proceeds to conduct this inquiry at considerable length, and finally decides that some of the defendants had actual notice, and that others had not. In regard to the former class, he gives relief, and in regard to the latter, he dismisses the bill, and so sustains the plea of purchase for valuable consideration.

(a)

*Rutland*vs. *Smithy*1 McC. Ch. 405; *Irby*vs. *Venning,*2 McC. 379-380. *Bank*vs. Hunmphrys, 1 McC. 388-90.

(b)

**Pub. Laws, 3; 1 Brev. Dig. 165-6.

(c)

*Ex Parte Leland,*1 N. & McC. 460.

(d)

 Trott’s Law; P. L. 131. 131. See note to *Peay*vs. *Pickett,*3 McC. 323.

(e)

**Published with the Acts of 1823, p. 154. This is tho oldest revolutionary constitution in the Union. It contains a very full enumeration of the causes of the revolution, coinciding with those set out in the declaration of independence adopted by the General Congress several months afterwards.

(f)

 Idem 160.

(g)

**P. L. 268; 1 Brev. 218; and see note to 1 Brev. 215.

(h)

**P. L. 385.

(i)

**P. L. 269; 1 Brev. 219.

(k)

**P.L. 381 ;1 Brev. 171.

(l)

 P. L. 382; 1 Brev. 172.

(m)

 P. L. 400, No. 1418.

(n)

 P. L. 401, No. 1419.

(o)

 P. L. 453; IBrev. 173.

(p)

 P. L. 485; IBrev. 173-4.

(q)

 Compare 1 Faust 17 with do. 19 20. Et Vide P. L. 475—No. 1570.

(r)

 1 Faust, 89; 1 Brev. 176.

(s)

*2*Raust, 318; 1 Brev. 119.

(t)

 2 Raust, 265.

(u)

 1 Bay. R. 332.