#### *Edward*Footman, trustee, *et al.*v. *B. R. Pendergrass et al.*

Columbia

Nov. 1848.

It is an established principle, that the husband or wife should be excluded from giving evidence in a case where either the legal or equitable interest of the • other is involved in the issue.

March 5.1832.

*Before*Caldwell, Ch. *at*Williamsburg, *March*¡Sittings, 1848.

Caldwell, Ch. This was a bill for the specific delivery of the negro slaves mentioned in the pleadings, and for pensation for their loss while out of the possession of the plaintiffs, who claimed them under a deed made by William C. Footman, which is as follows: “State of Georgia, Bryan county. Know all men by these presents, that I, William C. Footman, of the county and State aforesaid, for and in consideration of the sum of one dollar to me in hand paid by Edward Footman, of said county and State, and before the sealing and delivery of these presents, the receipt whereof I do hereby acknowledge, have granted, sold and delivered, and by these presents, do grant sell and deliver unto the said Edward Footman the following negro slaves, to wit: — Prince, Nancy and their children, Matilda, Little Prince, Henrietta, Binah, Mary, Rosina and her children, Malissa, George, Sarah, Phoebe and Thomas, Harriet, Nelly and Caroline, Christmas, Chloe and Primus. To have and to hold the aforesaid named negroes, together with the future increase of the female slaves, unto the said Edward Footman, his executors, administrators and assigns forever, free and unrestricted from any debts and contracts which may hereafter be incurred or entered into by the said William C. Footman; upon condition, nevertheless, to and for the sole and separate use, benefit and behoof of Mrs. Mariah H. Footman, and her children Peter Oliver Footman, Mary Elizabeth and John Maxwell Footman, with any future issue hereafter to be begotten between *318the said William C. Footman and Mariah H. his wife, in trust upon the condition above stated: and lastly, I, the said William C. Footman, the above named property, in trust as aforesaid, will warrant and forever defend. In witness whereof, I have hereunto set my hand and seal, this fifth day of March, in the year of our Lord, eighteen hundred’ and thirty-two.

(Signed) Wm. C. Footman, [l. s.]

Signed, *settled and delivered \*

*in presence of*)

Joseph A. Pelot,

Joseph S. Pelot.

Georgia, i

*Bryan county.*$ Clerk’s office of Superior Court, recorded in book C, page 74 and 75, April 11th, 1832, and examined by

Joshua Smith, c. s. c.

The parties and slaves then resided in Bryan county, Georgia: the donor had formed1 the intention of removing to South Carolina in January before the execution of the deed, and accordingly did remove to the State afterwards; after the execution of the deed, the negroes remained in Georgia about a year longer, and were then brought here. The child Peter Oliver Footman has died, and the following children of William C. and Mariah H. Footman have been since born, to wit: Eliza Juliana, Mariah Isabel, Amelia Almira, Richard Morgan and Henry Edward Footman, who, together with the trustee, Edward Footman, and their mother and brother John Maxwell Footman, and their sister Mary Elizabeth and her husband Robert A. McKelvy, with whom she has intermarried, are the plaintiffs in this case, and allege that the donor was out of debt when he made the deed. The defendant Benjamin R. Pendergrass, denies that William C. Footman was out of debt, and states that he was then embarrassed with debt and has continued so up to the present time — that Mrs. Footman assumed the relation of *feme sole*trader in the community. The defendant admits that the negroes were in the possession of William C. Footman, and alleges that defendant, on the second of February, 18 7, loaned to William C. Footman and wife $2282, taking their bond payable at ten years, to secure which they mortgaged a tract of land in Williams-burg District, supposed to be worth six or eight hundred dollars, and four slaves, Malissa, Sarah, Henrietta and Binah; that sometime in 1845, the parties being indebted to him for interest credited on the said bond and for supplies of com and money advanced, executed, on the 11th of March, 1845, their bond to him for $1070, payable on the 11th of March, 1846, and to secure the same gave him a mortgage of the negroes Matilda and her children Elvira, Rose and Betsy, Mary and her children Charlotte and Frederick, Prince, Nan*319cy, Prince Junior, George, Rosina, Thomas, Caroline, Jacob, Edgar and Nelly, and when the mortgage was due he proceeded to foreclose the same, taking, through an agent, the negroes mentioned in the bill as captured, intending to sell the same in the mode prescribed by law. Three of the ne-groes, Matilda, Rose and Betsy, have run away from him, and, as he has heard and believes, are in the possession of the family of Footman and wife. The defendant denies that until he had so seized the negroes he had any notice or intimation of any such deed, and submits that the whole contrivance is a fraud on the part of William C. Footman and wife to defeat the jüst rights of the defendant in the premises — that the deed as to the defendant is null and void, as he occupies the position of a *bona fide*creditor and purchaser for valuable consideration without notice.

prince,s Dig . 162.

Ib. 215, sec. 3.

The first question is whether the deed is fraudulent. When it was executed by William C. Footman, he, and his wife, and their three children and trustee Edward Footman, and the negro slaves conveyed by it, resided in Bryan county, Georgia, and the first inquiry is, was the deed valid according to the laws of that State *1*There is no law, either common or statute, that prohibits the making of such a deed in the State of Georgia, and the evidence does not establish any subsisting debt against the donor at the time of its execution sufficient to invalidate it. No creditor has preferred any such claim; and the suggestion that he owed debts at its date which would now be barred by the statute of limitations, or that may have been since paid, is not enough to set aside the deed for fraud. There was no sufficient proof of any debts then subsisting against him that have not been discharged. It is incumbent upon the defendant to make the proof of indebtedness ; which he has failed to do, while the plaintiffs have satisfactorily established that all the debts that he probably then owed, have been discharged. The next question is, do the laws of Georgia require the deed to be recorded ? However expedient such a statute might be to prevent fraud, there was no law of Georgia at the time the donor made this deed that required it should be recorded; the law of that State leaves it altogether optional with the party whether a deed of personal property shall be recorded or not.

The Act of 1785 relating to the recording of deeds of real estate has always been construed merely in reference to enabling the party having his deed so recorded to give *it in evidence without any other proof of its execution,*and under this construction all the subsequent statutes have been adopted, except the late Act relating to marriage settlements, passed during the session of 1847, but which does not affect this case.

The Act of 1819 provides that “all conveyances of person*320al property duly executed or bearing date after the passage of this Act *may be recorded,*and shall be admitted as evidence, under the same rules and regulations as govern in cases of real propertyand the Act of 1827, prescribing how future deeds are to be admitted to record, provides “that every deed of conveyance or mortgage, of either real or personal property, hereafter to be made, may, upon being executed in the presence of and attested by a Notary Public, Judge of the Superior Court, Justice of the Inferior Court, or Justice of the Peace, (and in cases of real property by one other witness) be admitted to record and made evidence in the different Courts of Law and Equity in this State, as though the same had been executed, proved and attested as heretofore required by the laws of this State in cases of deeds of real property.”

4 Stat. of S. Oa. 656.

Absolute conveyances are required to be recorded within twelve and mortgages within three months. From these Acts it is apparent that agreeably to the laws of Georgia *it is not necessary to record a deed of personal property,*and that it is entirely optional with the party whether he record it or not; and the benefit derived from recording is the right to offer the deed in evidence without proof. The Acts have no reference to the rights of creditors or purchasers, but are intended to protect the parties or privies to a deed, by enabling them to establish it without proof of its execution. This deed has been executed, witnessed, recorded in the proper office and certified in the usual mode prescribed by the laws of that State — -the only proof of recording, then, is the attestation of the Clerk on the document recorded. But the execution of the deed was proved by one of the subscribing witnesses, who was examined by commission, independently of the effect of recording, and therefore the question as to the recording of it becomes immaterial: it was a valid deed in Georgia when it was made, and the right and title of the negroes vested in Edward Footman the trustee ; and the *only*remaining question is, did the removal of the donor, the cestuique trusts and the property to South Carolina, make it necessary that the deed should be recorded here ? If this deed be considered as a post nuptial settlement, making provision for the wife and her issue, the Act of 1785 embraces only such marriage settlements “ that shall hereafter be entered into for securing *any part of the estate, real or personal, in this State,”*and therefore cannot affect property and persons out of the State when their rights vested. But it has been argued that as the donor intended, before he made the deed, to remove to South Carolina, and he and his wife mortgaged the property to the defendant without giving him notice, it is a fraud, and the deed ought to be considered null and void, as the defendant is both a creditor and purchaser. But there is no proof, except what may be presumed- from circumstances that occurred *321subsequently to the execution of the deed, that William C. Footman or his wife or the trustee intended to practice a fraud when the deed was made, and whatever wrong he has done, has been effected after too great a lapse of time to raise any reasonable presumption of an intention to defraud. The mortgage was given nearly five years after the deed, and however unfair and fraudulent it may have been to give a mortgage of property to which he knew he had no title, it cannot have the retrospective effeet of invalidating this deed. There was very strong proof offered at the hearing to show that Wm. C. Footman had paid all his debts, as far as his factor knew: and there appears to be no sufficient ground to believe that the deed at its execution was intended to defraud any of the persons that he then owed; its terms repel such a presumption, as its object seems to have been entirely prospective. There were rumors that Mrs. Footman was *a. feme-sole-tra-der,*but if she had been she was not competent to make such a mortgage: her -contracts, to be valid, would have to have been confined to her so'le-dealing: and it is well settled that lands and negroes are not the subjects of feme-sole-trading. But there was no proof that either she or her husband made any such representation to the defendant; and fraud, to invalidate the deed, cannot be inferred from her legal disability to make a bond and mortgage.

The defendant has also relied upon the ground that he was a purchaser for valuable consideration without notice, but this cannot avail against a legal title. This is certainly a hard case against the defendant, who has been greatly wronged and injured by the confidence he has reposed in the bond and mortgage of William C. Footman ; but there are others interested in the property who are not only innocent but are under the disability of infancy, and their rights must be protected. The charge of fraud against Mrs. Footman was not sustained by sufficient proof: there are many married women who are ignorant of their being incapable in law to make a contract, and it is a popular error that a married woman who is interested in a trust estate can make a contract to bind that interest.

It is therefore ordered and decreed, that the defendant, Benjamin R. Pendergrass, be perpetually enjoined from selling the said negroe slaves under the said mortgage, and he do forthwith deliver them that are in his power or possession to the plaintiffs who are entitled to the same under the deed, and that he do account to the said plaintiffs for the hire of such negro slaves as have been under his control or in his possession, and that it be referred to the Commissioner to ascertain and report the same. The plaintiffs to pay their own costs, and Wm. C. Footman to pay the costs of the defendant Benjamin R. Pendergrass.

*322Price’s Dig. 15».

The defendant moved the *Court of Appeals to reverse the*decree of the Chancellor, on the grounds:

1. Because all the circumstances of the whole transaction shew that the deed originated in fraud, and the Chancellor should have so decreed.

2. Because the deed being the voluntary conveyance of the husband to his wife and children after marriage, was void against subsequent creditors and purchasers.

3. Because the deed is to be regarded as a post nuptial settlement, and void against *creditors*and purchasers, for want of record according to law.

4. Because his Honor, the presiding Chancellor, held that the deed was recorded in the proper office in the State of Georgia — and that there is no law of Georgia requiring the recording of such an instrument. Whereas it is respectfully submitted, there was mo sufficient or competent proof in the case, that the said deed had ever been recorded in Georgia. And it is also submitted, that the Act of 1785 of that State requires such a deed to be recorded, and on *failure thereof, it*cannot operate to defeat the rights of a subsequent creditor and purchaser in South Carolina, without notice.

5. Because there was proof of indebtedness existing at the time of the execution of the deed, unsatisfied at the time of filing the bill.

6. Because his Honor permitted the commission for the examination of the witness in Orangeburg to be received in evidence, although it had been conveyed from the Commissioners by the said William C. Footman, *who, the*appellant submits, was not a competent bearer thereof, inasmuch as he was interested in the event of the suit.

7. Because in any event the Chancellor should have decreed the interest of the said W. C. Footman, as a distributee of the deceased child Peter Oliver Footman, under the said deed, liable to the mortgage.

8. Because the decree is in other respects against justice, equity and conscience.

F. J. Moses, for the motion.

Rich and Haynesworth, contra.

Caldwell, Ch.

delivered the opinion of the Court.

From the statement made in the defendant’s brief, we cannot separate the testimony of the witnesses so as to ascertain what weight ought to be given to the testimony of Wm. C. Footman, the husband of Maria H. Footman, who is one of the plaintiffs: the case must therefore be sent back to the Circuit Court. As the question has been made by the parties, whether the husband, (who is one of the defendants,) is a competent witness on the part of the plaintiff, we have deemed proper to decide it. Although no other relation is excluded, *323it is a well established general rale, that the husband or wife cannot testify for or against each other, either in civil or crim-, iual proceedings: to this, there are several exceptions, but we are not satisfied that in this case the husband can come within any of them.

onEv. 77, 81. 1 Bur. 428.

10 Pick. 261,

4 Term, 678.

Hopkins v. Smith, J. J. Marshall Rep. 263.

5 Russ. 19.

Bland v. Sur- ^ násier" 1 Ry. & M. -^il. ¿roTe'^ T¡_ rellton; Áve-nallJ92." '

In *Wyndham*v. Chetwynd, the Court, relying upon the de-cisión in *Hilliard*v. *Jennings, held*that a husband could not be a witness for the wife, on a question touching *her separate estate.*But the decisions have not been uniform upon this subject. In *Richardson*v. *Learned,*which appears to have been a well considered case, the Court came to the conclusion that the husband was a competent witness, under the following circumstances: the plaintiff, who was trustee of the wife, brought an action of covenant to recover money in trust for her sole and separate use; *the wife had a general power of appointment,*and the property, if recovered by the plaintiff, would be held by him subject to her direction and appointment, without the control of her husband, who could have nothing but a contingent interest in the suit; and the Court therefore held that the husband was admissible as a witness .for the plaintiff.

The case of *Davis*v. *Dinwiddy*appears to have a strong analogy to the case under consideration: that ivas an action brought by the executor of a surviving trustee under a marriage settlement, to recover the value of certain goods which had been sold by the defendant, as sheriff, under an execution aginst the husband of the *cestuique*trust; the husband was offered on the part of the plaintiff to prove the identity of the goods, and in this respect his testimony would have been against his own interest, (as he would still be liable for the debt, which would otherwise be satisfied by the sale of the goods,) yet the Court held that he was incompetent, as his testimony directly affected his wife’s interest. *‘*

The same principle was recognised and applied by Sir John Leach, in the case of *Gregg*v. *Taylor,*and he lays down the rule broadly, that it makes no difference whether the interest of the husband or wife, to be affected by the testimony, is legal or equitable. Indeed so far has this principle been extended, and so strongly has it been supported, with a view of removing all distrust, and of establishing the most unlimited confidence between husband and wife, as well promoting the most perfect union of their interests and affections, the Courts have held, that even after the parties have been separated by a divorce dissolving the marriage for adultery, they are incompetent to give evidence of what occurred during the marriage. Even the death of one of the does not render the survivor competent.

Independently, therefore, of the interest of the parties, it would seem that the peace of families and public policy are *324sufficient grounds upon which the principle should be esta-that the husband or wife should be excluded from giving evidence in a case where either the legal or equitable interest of the other is involved in the issue.

It is ordered and decreed that this case be remanded to the Circuit Court for rehearing.

The whole Court concurred.

*Case*remanded.