#### *Whitfield Brooks et al.*v. G. *L.*& *E. Penn et al.*

Columbia,

May, 1848.

A husband purchased negroes and paid a part of the purchase money, talcing the bill of sale to his wife’s trustee, without having him named in it as such; the trustee subsequently paid the balance due out of the proceeds of the wife’s trust property; afterwards, upon the sale of the husband’s whole estate by the Sheriff, it was announced that these negroes were held in trust, and they were accordingly exempted from the sale. The Court *held*that, after seventeen years unchallenged possession under this title, they were not liable generally for the husband’s debts, but that his creditors were entitled to the amount paid by him on their purchase, with interest from the sale of his property.

A father, for the benefit of his married daughter, bought at the Sheriff’s sale of her husband’s property, two plantations and a number of slaves, but neglected to take titles from the Sheriff for more than three years after his purchases, during which time he allowed the premises to be managed by his daughter’s husb¡ nd, (the husband never setting up any claim, but managing solely in the right of his wife’s father ) The father then executed a deed of the property to a trustee for the sole and separate use of his daughter, &c. — (the husband still continuing to manage on the same terms underthe trustee.) Upon judgments being obtained against the husband, some eleven years after the execution of this deed (which had been duly registered,) the Court ordered a perpetual in*114junction to restrain the sale of any part of the proceeds of the property under executions levied thereon, and to prevent all interference with any and every portion of the said property.

The actual custody of personal property, though frequently denominated possession, is notpossession for all purposes. Unless there be something in the case which excludes for a determinate time the control of the real owner, he may at anytime claim the actual custody; and, as owner, his right of property draws to it the legal possession; and the possession of the bailee or agent may be claimed as his own.

It may be laid down as a universal truth that the law always considers the real owner in possession, except where the property is held adversely to him.

*Before*JohnstoN, Ch. *at*Edgefield, *June Sittings,*1847.

Johnston, Ch. The bill is brought by Whitfield Brooks and his sister, (the wife of the defendant, Barkley M. Blocker,) to protect two bodies of proporty, which the said Brooks alleges he holds in trust for the separate use of Mrs. Blocker and her issue, from executions obtained by the defendants, Penn & Co. and Presley, against their co-defendant, Block.er, And the real question raised in the cause is, whether the property sought to be protected belongs in law to the trustee ,or to Blocker.

It is alleged, and proved, that Blocker, who was in possession of a considerable property, consisling, among other things, ¡oí two tracts of land and a number of slaves, set out in the pleadings, became deeply embarrassed toward the end of the year 1828.; and, as the event proved, insolvent fora large amount of his debts. Numerous judgments had been obtained against him, and suits were in progress, upon which judg-paents were impending and afterwards rendered. Under these circumstances, a negio woman, Elsey, who had, for the preceding 6 or 7 years, been hired, and employed occasionally as a house servaut, but principally as a wet nurse for the children of Blocker, was (with her two children, named in the pleadings,) purchased from Hankins their owner. The circumstances of this purchase will be particularly noticed hereafter. For the present, it is sufficient to state that the bargain was made by Blocker, and the bill of sale written aud taken by him, in the name of Brooks, who was not present. It is in the following terms :

Received 9th January, 1829, of Whitfield Brooks, six hundred dollars, in full payment for a negro woman, Elsey, and her two children, Caroline and John; which said ne-groes I warrant and defend to the said Whitefield Brooks, his heirs and assignees, against myself and heirs and all persons whomsoever claiming the same.

Witness my hand and seal, the day and date above written.

SAMUEL M. HANKINS, [l, s,] Signed in presence of Wm. Moore.

*115These slaves, with their issue, named in this bill, constitute the first trust property in the case. The bill alleges that they were purchased upon consultation with Brooks, with the express intention that he should hold them in trust, for the separate use of his sister, Mrs. Blocker, and her issue; and the bill prays to have the trust declared and established, and the property itself protected against the executions and claims of Blocker’s creditors. This property, after the purchase, remained, as before, where Blocker and his family resided. The *second*trust in the case embraces the two tracts of land and a considerable number of slaves belonging to Blocker, and particularly described in (he pleadings, which were sold by the Sheriff of Edgefield, the 6 th and 8th of May, 1829. This sale was made under executions against Blocker, in virtue of which the whole of his visible property was levied on and disposed of by the Sheriff. At the sale on the 6th, Col. Brooks, the father of Mrs. Blocker, bought the lands and a number of the negroes; others being bought by third persons. There was still a negro at Blocker’s house remaining to be sold (being too much indisposed to be brought to the court house,) as also, his furniture and plantation tools, and stock. These were sold on the 8th at Blocker’s residence, and Col. Brooks also bought at that sale.

Notwithstanding creditors and their agents attended the sales throughout, and the property brought its full value, there remained a large amount unsatisfied on the executions against Blocker.

The slaves purchased by Col. Brooks on the 6th were returned to the plantations, which he had also bought, and, with the slaves and other property bought by him on the 8th, remained there. He purchased one or two other negroes from other persons, which were also placed on the same premises. This was the state of affairs until the 30th of Oct. 1832, when Col. Brooks, having (as I think then recently) obtained conveyances from the Sheriff for the property bought in May, 1829, (as already stated,) executed a deed by which he conveyed the same to the plaintiff Whitfield Brooks in trust, “for the sole and separate use of Nancy Blocker, for and during her natural life, (in no wise liable or subject to the debts, contracts or engagements of her present or any future husband;) and upon the death of the said Nancy Blocker,” &c., over to her issue, (fee., with power to the trustee to sell and reinvest, <fcc., and an obligation that he would allow the possession and enjoyment of the trust property to Mrs. Blocker during her life. This deed was duly registered. I have stated that Col. Brooks, as I conceived, had not taken titles from the Sheriff at the time of his purchases, nor probably before the date of his trust deed in 1832. My reason for this conjecture is that the deeds from the Sheriff, when produced at the hear*116ing, bore date more than a month before the sales were actu-made, to wit: the 1st oí April, 1829; and were never registered. I notice this failure of Co!. Brooks to take titles tQ himself at the time of his purchase, not because I deem it of much importance, but because one of the defendants’ counsel made it the ground of a very ingenious argument, which I shall probably notice hereafter.

We' have now distinctly before us the creation of both the trusts, and the state of the trust property, up to 1832. It continued in the same state until recently; when it was disturbed in the following way. On the 9th of July, 1842, the defendant Presley recovered and entered up a judgment against Blocker for $186 36, with interest and costs; and on the 14th of Oct. 1843, another judgment for $52 81, also with interest and costs. ,And, on the day last mentioned, the defendants, Penn *&*Co., also recovered and entered up a judgment against the same party for the sum of $1,086 49, with interest on $741 85, and costs. On these three judgmenis executions were taken out, and levied the 20th Deer. 1843, on the slave Elsey and all her descendants but two, (mentioned in the bill) and upon 16 bales of cotton, the produce of the trust plantation. This bill was filed for an injunction the 17th of January, 1846.

It may be well, while stating the case in this general way, to observe that the bill contains the following charge of notice on the part of the creditor defendants. “Your orator and oratrix charge, that the debts due to Enoch B. Presley and G. L. & E. Penn &. Co., as above stated, were not incurred upon the faith that the property thus levied on, or any part of the same, was in any wise liable for the debts of the said B. M. Blocker; but, on the contrary, insist that notice of the rights of your oratrix, not only in respect to the property embraced in the said deed from her father, but *also in regard to*the slave Elsey and her descendants, was had by the creditors of the said B. M. Blocker, previously to his debts to them being incurred; — and to these points full and explicit answers are required.” No answer was required to be put in by Blocker. The joint answer of Penn & Co. and Presley to the above charge is as follows. “These defendants further answering, say that they never would have extended credit to the said B. M. Blocker, if he had not been *in possession*of the property which is now sought to be made liable for their demands, — and as to the allegation in the bill, that these defendants had notice of the deed pretending to settle a portion of said property on the wife and children of said B. M. Blocker, and of the claims now set up to said Elsey and her children, they answer: — that they were not aware, until very recently, and long since their debts were contracted, of the *real character of*the transaction concerning the purchase of the negro *117■woman Elsey and her children, nor when and from whom the said B. M. Blocker purchased them; or that they *any notice of the claim now set up to the said Elsey and her children.*

*“*And although it seems to be the case, that the deed from Z. S. Brooks to Whitfield Brooks was recorded some years ago, these defendants have heard that *doubts*were entertained as to the *validity*of said deed ; but were not themselves informed of facts, which they are advised render it ineffectual to cover the property from the claims of the creditors of said B. M. Blocker, until within a short time past.”

The general statement, applicable to both trusts, will enable us now to take them up separately, and consider each in connection with its peculiar circumstances. And I shall invert their order, and examine,

First, the trust deed of 1832.

This may be decided, by considering the objections brought against it. It appeared in evidence, that the Fall Court of Common Pleas for Edgefield District, in the 'year 1832, fell on the 1st Monday after the 4th Monday in October; and that Col. Brooks executed this deed on the eve of its sitting. At that time there were pending a number of suits against Blocker for debts due by him, upon which judgments for large amounts were recovered against him at that term. It was argued, as Col. Brooks had never until this time taken titles to himself for the property, and had allowed Blocker the possession of it, it was evideut his purchases were not made for his own benefit, nor for the benefit of his daughter, but with an intention to set *Blocker*up again by a gift of the property to *him;*and that this purpose was relinquished only when it was found that-judgments were about being obtained which would defeat the bounty intended. That as to the personalty at least, (and the personalty was all that was contended for under this argument,) it was then too late for Col. Brooks to take a title from the Sheriff. The title to it was already in Blocker, by over 3 years possession, and there was none in the Sheriff to convey.

This argument assumes, that the possession had been for the whole interval in Blocker, without any interference or claim on the part of Col. Brooks. This, as we shall see, is' not only unsupported, but contradicted by the evidence. To this I shall attend hereafter. The argument assumes, again, that Col. Brooks sent the property to the plantation, with an intention to make a donation of it to Blocker; and that this intention was changed only in view of the judgments about to be obtained at Fall term, 1832. But to say nothing of the evidence showing that the intention was *not*to make a gift to Blocker — it will be observed, that while the argument ascribes to the judgments obtained in the autumn of *1181832, a controlling influence over the conduct and intentions 0f (j0p Brooks, even lo die extent of wholly changing them; *it*deuies to the large judgments, left unsatisfied at the sale in their natural influence to prevent him from adopting at that time the conduct and intentions attributed to him.

If the judgments about to be obtained in 1832, constituted a sufficient prudential motive to recall an intention to give, why were not those existing in 1829, an equally sufficient guard against the forming of such an intention? The argument depends for its force entirely upon Col. Brooks’ prudence.

Might not a prudent man, (it was asked,) be moved by approaching incumbrances to *revoke*his gift ? But it was well retoited; would the same man, and theiefore possessing the identical degree of prudence, have *made*the gift, in the face of existing liens, to the full value of the property, which stood ready, the next moment, to sweep it away and frustrate the charity?

The natural inference from the unsatisfied liens of 1829, and the debts and incumbrances of 1 fc32, seems to be, that the former were sufficient to deter Ool. Brooks from making a gift of the property to Blocker, and to move him to keep the contiol of it until ready to settle it on his daughter, and that the latter only increased that motive by increasing the necessity for carrying it into execution. They both tended harmoniously to the same result.

The bill confesses that the plaintiffs are unable, at this distance of time, to remember the reason wh/ titles were not immediately taken from the Sheiiffand made over to the trustee; and suggests that the delay may have arisen from the fact that Col. Brooks lived at a considerable distance from the court house, where Whitfield Biooks resided, and seldom visited that place ; and that Whitfield Brooks, who may have been looked to to draw the trust deed, was in very *feeble•*health, during the years that elapsed between the purchase- and the conveyance to himself.

It seems from the evidence, that Col. Brooks was occasionally at the court house, and that Whitfield Brooks, although very feeble, did in fact attend to his own business, and could have drawn the deed. But it turns out that Col. Brooks was: obliged to resort to his credit for the means of making his-purchases; and when he placed the property under an overseer, he instructed him “ to push the crop” to enable him to pay the debt that he contracted.

Now suppose that Col. Brooks may have wished to retain his control of the property, and to postpone the settlement, until he saw at least a considerable part of his debt paid; and that he may, at this time, have contemplated creating the trust by a direct conveyance from the Sheriff to the trustee; or suppose, again, that Whitfield Brooks, although able to *119draw the deed, may have hesitated to undertake so large and burdensome a trust, until his health became less precarious, and that his father may have been willing to indulge him in deferring the acceptance of the trust, in his then state of health ; — would either of these solutions of the delay which occurred be strained or unnatural ?

But these are matters which do not essentially involve the merits of the case. Col. Brooks was undoubtedly well entitled to the property, when he purchased and paid for it, as there is ample proof he did; and he was as well entitled, at that time, to do with it as he pleased. If he had taken titles and made the settlement when he purchased, certainly no one could have rightfully complained, and probably no one would have contested his disposition of the property. The only question is, whether, when he came to take titles in 1832, and to convey to the trustee, he had done any thing to forfeit the right of property which he indubitably had in May, 1829. If he was still the owner of it, he was justly entitled to, and might have enforced, a conveyance from the Sheriff; and, as owner, might as justly settle it upon his daughter.

It will be observed, that these observations are confined to the personalty. No objection is urged as to the land. But it is objected that he allowed the personal property to remain in the possession of Blocker from 1829 to 1832, and that this vested it in Blocker, at least so far as to make it liable to Blocker’s creditors. It will be observed that the creditors existing at the time, received the price of this vety property; and that Col. Brooks holds it under a sale made by them, acting through their agent the Sheriff. And it will also be observed that not one of that class of creditors has ever attempted to molest the property; neither between 1829 and 1832, nor for the 15 years that it has been held by the trustee. The creditors who seek to subject it, are creditors who began to trust Blocker for the first time, in Sept 1836, nearly 4 years after the execution and public registration of the trust deed. And surely if they seek to avoid the instrumant, in virtue of the rights of the pre-existing creditors, and not in virtue of their own proper rights, they must be affected by the acquiescence of the existing creditors.

It is remarkable, also, that these defendants, when expressly charged with notice of the rights arising from the trust deed, and called upon for an explicit answer, do not deny the notice. When asked if they trusted upon the faith that the property levied on was liable for the debts of Blocker; — of course as being his property; — they do not say that they considered it liable for his debts, or as his; but that they would not have trusted him if he had not been in the *posses'siou*of it. Not a word as to the right which they conceived he had to the property. That they had notice of the trust deed is as *120good as confessed. After admitting its registration, they say tjjey. haVe heard that doubts were entertained oi its validity) but were themselves, until lately, ignorant of facts calculated ren(jer ^ invalid. This is certainly not a denial of the no* tice of the deed; and if they had notice of that, they extend* ed credit at their peril, whatever doubts may have been expressed by others. But still it is urged that Blocker had possession. This can only affect the personalty, as I have repeatedly said. This matter of possession, is often allowed an undue influence. It was a barbarous state of the law, unsuited to commerce, and therefore unpropitious to creditors, when the actual *custody*and the *right*of personal property strictly coincided. If ever such was the universal rule of that species of property, it has long since been much modified. The actual custody, though frequently denominated possession, is not possession for all purposes. If unaccompanied with the right of property absolutely, as in the case of a bailee or agent, it only subserves to vindicate the property against the interference of strangers, to the intent of enabling the person holding it to answer, as in the law he is.bound to do, to the real owner for the time being.

When the custody is accompanied with the right, either temporary or general, this is known as possession, in a legal sense. If a bailee or agent have t e custody, he is also invested with the legal possession, as far as that is necessary to the purposes of his bailment or agency. But unless there be something in the case which excludes for a determinate time the control of the real owner, he may at any time claim the actual custody; and as owner, his right of property draws to it. the legal possession, and the possession of the bailee or agent may be claimed by the owner as his own. Thus, it may be seen by the cases, the law constantly recognises the ownership as the leading and important idea. It allows the ownership to one, though the actual custody may be in another;' audit couples the legal possession with the ownership, whenever that is necessary to the vindication of the right of property. And it may be laid down as a universal truth, that the law always considers the real owner in possession, except where the property is held adversely to him. The case of a negro loaned at the discretion of the owner, or hired for a determinate period, or placed under an overseer, tobe managed, are all familiar cases, where the custody jnvolves no idea of ownership in the custodiar, and where it would be as destructive of the interests of society, as repugnant to justice, to subject the property to the debts of the custodiar, or to allow him to alien it in any form, without the consent of the owner. Truepif the owner allows the custody to another *mala fide ;*if he knowingly permit him to claim the property, and hold it out or treat it as his own; — this is a case of fraud, and he *121shall not be allowed to reclaim the property against a party whom he has wrongfully deceived. He shall not make advantage by his own wrong. -This is the current of decision both in England and America.

Our own case of *Smith*v. Henry, as qualified in *Jones*and Blake, allows such a possession as Bloeker had in this case, to be explained by testimony. And the case of *Archer*v. *Fall,*quoted in argument, has been represented to me as having been decided upon grounds and facts which do not appear in the report; and therefore leaves the doctrine, as I have stated it, untouched. I feel at liberty under our decisions to hold, that if there had appeared in Blocker a possession undisturbed, unquestioned and exclusive, his creditors might have availed themselves of the presumption of property in him, arising *prima facie*from this, to subject the property. But this presumption may be rebutted and explained away by proof of the real estate of the case.

The burden of explanation lies of course upon Col. Brooks, in this case. The fact that he purchased the property, and paid the existing creditors for it, is indubitable. An attempt was made to raise a presumption that the means are derived from Blocker, but completely failed. It was attempted to show that Blocker might have raised the funds from a mercantile establishment and a tan yard, in which he was a partner some *years*before. But the proof was, that these had both been wound up without profits, and indeed with loss; and so complete was the failure of both, that towards the close of the mercantile concern, the partners were reduced to the necessity of paying 20 per cent, for the use of money; even the wages of the Clerk were obliged to be raised by the sale of a negro.

Another attempt was made. It was proved that Blocker went to the West just before the sale of his property in 1829, to get money from his brother to enable him to avert the sale, or buy in the property. But he was unsuccessful and returned without the money. Col. Brooks was himself examined and proved that he paid every dollar of his purchase out of his own money; and indeed after the proofs were gone through this seemed to be no longer disputed.

The question we are now considering, is whether Colonel Brooks retained the possession and control of the property after his purchase, or gave the property back to Blocker; and the fact that he advanced his own money for it, may aid in the solution of this question ;• — for it is not to be supposed that he would have strained his means for the purchase of property, to be given back to a man so encumbered by judgments and so loaded by debts that he could not possibly hold it.

But Col. Brooks in his examination sets this matter at rest. *122He says that he purchased expressly for the benefit of his da lighter, and that he openly announced this purpose before and at the time of his purchase.

All the facts'afterwards, harmonise with this testimony.— Blocker’s overseer, who was thrown out of employment by the sale, was instantly re-engaged under a new and different contract by Col. Brooks; and installed over the property, with precise instructions, that Blocker was not to interfere with the plantation. The overseer continued throughout that year. It is true, that when he left the plantation no other overseer was engaged. Blocker managed the premises. But it is put beyond a doubt, that he did not manage them in his own right, but in that of Col. Brooks. He never claimed the property, nor was he reputed to be the owner of it. Col. Brooks always intervened when acts of ownership were, to be performed ; — thus exhibiting a continued assertion on his part, and a constant recognition oí it on the part of Blocker. It Was supposed that Blocker sold some of the negroes to Mr, Bauskett, until the bill of sale was produced, executed by Col. Brooks. So of a contract made by Col. Brooks with the late Mr. Key. He also bought other negroes and put them on the plantations. The intention ascribed to Col. Brooks to give the property to Blocker has no foundation in the testimony. There was no ground for creditors to trust the latter on the faith of the property, other than would have existed if Brooks had expressly placed it under his management as an overseer. The naked custody was all that they had, from which to infer that there was any right of property in him. He was the husband of Mrs. Blocker, for whose sake Col. Brooks bought the property; and must be allowed to reside on the promises with her; unless the law is so harsh as to deny a father the privilege of conferring a charity on his married child, without requiring a divoiceand separation of the married parties. Not only was there no ground for creditors to trust Blocker on the faith of the property, but we have no evidenee that during the 3 years intervening between the Sheriff’s sale and the execution of the trust deed any creditor did so. This fact is aided by the further fact, that no creditor existing at the time of the sale, nor any of the creditors who obtained judgments even in 1832, have ever attempted to draw in question Col. Brooks’ right to the property. Thus matters stoo.d in 1832, when the world was advertised of the state of the property by the registration of the trust deed. Of this deed the defendants have not denied express actual notice. The trustee exercised acts of ownership by selling part of the land, as authorised by the deed, and substituting other land in place of it. It is true that Blocker remained on the premises, and occasionally sold the crops, as the overseer had done before. Does it appear that *123lie sold them as his own, or misapplied the proceeds ? By the terms of the deed, the enjoyment was to be allowed to, the *cestuey que*trust, Mrs. Blocker. Her husband was with her, and his position and conduct was necessarily that of the head of the family and overseer. On one occasion he hired out one of the negroes ; but he passed off the note taken for the hire in payment for necessaries furnished the *cestuey que trust*and her family. If he misapplied the funds or property, he was accountable to the trustee, as whose agent he assumed to act; but there is no ground, from the evidence so far as it goes, to conclude that there was an application not warranted by the objects of the trust. In the face of all these facts the defendants have chosen to extend credit to Blocker. And can there be any hesitation in declaring that they did so at their own peril? Common justice requires this. They, in the face of the trust deed, chose to trust to Blocker’s *naked, possession;*when the law notoriously makes the mere fact of possession a very fallacious criterion of property.

If they suffer, they suffer in consequence of their own rash speculation upon a point, the uncertainty of which should have induced greater caution and further enquiry.

Here we have an actual and *bona fide*purchase of personal property; the property is delivered to the purchaser by the agent of the creditors, to whom he paid the full market val.ue; it is placed by the purchaser in the custody of his overseer, and put upon lands indubitably his own; his possession is kept up by a continual claim to and control of the property ; selling and disposing of such portions as he pleased.

During alt this time no creditor interferes or complains. — . He then conveys it, by a deed, duly registered, to a trustee, who, as authorised by the conveyance, disposes of a part of the premises and substitutes other property for it, subject to like trusts. Can a subsequent creditor of a third person, who almost in terms admits actual notice of the deed, and who was bound to take notice of it, as spread upon record for his information ; can such a creditor have any just claim to subject this property ? It would be a reproach to the law, if it sanctioned any such thing.

This brings us to consider the trust of Elsey and her issue. The bill, after alluding to the condition of Blocker’s affairs in the fall of 1828, which resulted in the sale of all his property in May, 1829, states that “ at this juncture in the pecuniary affairs of the said B. M. Blocker, one Samuel M. Hankins, the owner of a negro woman slave, named Elsey, which slave had for many years previously been hired by the said B. M. Blocker, declined longer to let the said slave to him, and announced his purpose, either to sell or to carry her from this State to one of the western States, whither the said Han-kins had removed. Thai .the said slave, whilst in *the*pos*124session of the said B. M. Blocker previously to that time, had been employed as a house servant, and chiefly in attendance about the person of your oratrix, and as a wet nurse for her children. That your oratrix had become attached to the said slave, was extremely reluctant to part with her, and requested the said B. M. Blocker to have the said slave and her two children, Caroline and John, then infants, bought and secured to her. That the said B. M. Blocker did accordingly bargain .with the said Hankins for the said slaves and with the view of fulfilling your oratrix’s wishes in this regard, applied to and conferred with your orator (Whitfield Brooks) upon the subject. That your orator, moved by the earnest desire of your oratrix in respect to the said slaves, advanced, of his own money, the sum of one hundred dollars, towards the payment of the purchase money, and thereupon received from the said Hankins, on the 9th of January, 1829, a bill of sale of the said 3 slaves, bearing date the day and date last aforesaid,” (exhibited;) “that the residue of the purchase money, $300, with interest, was paid by your orator, some two years after the said purchase, to Elijah Bird, the brother-in-law of the said Hankins, to whom the said Hankins had transferred that demand. That your orator was afterwards reimbursed his said advance, out of the profits and issues of the lands and personalty of the said B. M. Blocker, purchased by Z. S. Brooks for the benefit of your oratrix and her children, as hereinafter mentioned; but at what dates, or in what sums, your orator is unable to recall; but your orator affirms explicitly that he was never, in any wise, reimbursed by the said B. M. Blocker, or out of any funds, effects or estate belonging to him. That your orator has no recollection or knowledge'of how much money was paid by the said B. M. Blocker, towards the purchase of the said 3 slaves; nor can your orator collect any *information*upon the subject. But as the consideration recited in the bill of sale, above exhibited, is $600, and as he feels assued that he himself advanced but $400, your orator concludes that the remaining $200 must, of necessity, have been, in some mode, advanced by the said B. M. Blocker.

“ That your orator observed, by reference to an addition, in his own hand writing, to the said B. M. Blocker’s schedule of his estate hereinafter mentioned, that the said sum of $300, the residue of the purchase money aforesaid, is there stated to have been secured by a mortgage of the said 3 slaves.— But your orator frankly admits that he is entirely unable to remember whether the said mortgage, or the note upon which the same was probably founded, (if either ever existed) was executed by the said B. M. Blocker or by himself; though, as the legal title to the said slaves was vested in your orator, it would seem that both must have been executed by him*125self. But neither is now in the possession or control of your orator ; nor does he remember their having ever been delivered up to him; nor has he any idea of what has become of them or either of them. That though no trust is expressed in the said bill of sale, it was, nevertheless, distinctly announced and declared, at the time of its execution“ and your orator and oratrix believe it was then, and has been, ever since, generally known and understood that the said 3 slaves were had and held by your orator upon the like trusts with the property conveyed to your orator by the said Z. S. Brooks for the benefit of your oratrix and her children, as is hereinafter mentioned. That the contract of purchase entered into by the said B. M. Blocker was abandoned and renounced by him, in consequence of his inability to pay the price of the said slaves.

“ That your orator and oratrix, at the time of the purchase by your orator of the said 3 slaves, regarded your orator as invested with the full ownership and property of the said slaves : — subject, perhaps, to the equity of reimbursing the said B. M. Blocker the sum of $200, advanced by him as aforesaid. That the said slaves since their purchase by your orator, &c. have been in the possession and control of your orator,” &c.

From this statement, so admirable for its candor, so dissimilar to the colored and perverted representations frequently found in the pleadings of litigating parties, but so consonant to the character of Mr. Brooks, we should be led to expect much uncertainty in the evidence relating to the purchase of these slaves; and we shall not be disappointed.— The whole transaction is covered with obscurity and mystery.

The extract which we have made from the bill, refers to a schedule made hy Blocker after the purchase. It appears that among the judgments obtained against Blocker in 1828, were two, particularly referred to in the pleadings : — one entered up by Smith &. Robbins, the 25th of September, and the other by Hoyt & Co. the 25 th October, 1828, — the former for $285 68^-, and latter for $229. besides interest and costs. Upon *ca set's*issued in these causes Blocker was arrested; and desiring to take the benefit of the Prison. Bounds Act, filed his schedule of his whole estate the 4th of April, 1829, valued at $12,597 62.

To this list of property originally contained in the schedule,the following addition was made in the hand-writing of Whitfield Brooks:

“In addition to the foregoing schedule, I have the posses-sion of a negro woman and two children named Elsey, for the purchase of whom Whitfield Brooks paid $100, *and*the title taken in his name, and also a mortgage was given for the payment of $3U0, which still remains due and unpaid. Mr. *126Brooks holds the negroes as bound for his $ 100; and they are bound for the $>3U0, which was a part of the purchase money.”

This schedule, subject to prior incumbrances, was assigned to the arresting creditors, and Blocker was discharged on the 16th of the same month. The slaves were not levied on, or, if levied on, were not included in sales of Blocker’s property made by the Sheriff the ensuing month ; but remained at Ins house with his family, as before; and aie still there, with all their increase, except two, who went into the possession of Blocker’s daughter upon her marriage. These two are not embraced in this suit. It is remarkable that Hankins, who was examined, knows nothing of the mortgage spoken of.— He says that he sold the negroes to Blocker, who stated, as well as he could recollect, (though his memory is very indistinct,) that he desired to have them for his daughter.

On the other hand the condition of Mrs. Blocker requiring the services of Elsey, whom she had had about her from 1822, and whose qualities rendered her very desirable, are all proved. Mrs. Blocker was proved to be in feeble health, and to have borne twin children, requiring the accustomed services of Elsey. Her skill and fidelity were proved to be such that the house and the children were left to her care, in Mrs. Blocker’s occasional absences ; yet there is no proof of Mrs. Blocker’s having any knowledge of or privity with the bargain when made by Blocker. The bill of sale was drawn by the latter at his own house, and perhaps a small part of the price was paid by him at the time.. A note was given for the balance; and from the evidence it is probable (though this is not expressly stated by the witness,) that it was given by Blocker. Hankins says he received a letter from Blocker to Mr. Brooks, upon the delivery of which Brooks paid him $100.

He carried the note out of the State and traded it to Bird, his brother-in-law. Bird testifies that be called on Brooks with the note after it fell due. who paid him the money; observing with an oath, “ if these negroes axe not paid for I’ll sell them.” Although I have supposed that Blocker paid part of the purchase money at the date of the bill of sale, Hankins does not say so. Putting his testimony and that of Bird together, the payment of the whole price of the negroes is attributed to Mr. Brooks, contrary to the statement of the bill, which supposes that he paid but a part of it. There is something, however, in the depositions of the witnesses which makes a contrary impression. The depositions are in writing, and will serve to explain what I mean, and also to correct me if I mistake their import.

One additional fact will close the statement in relation to these slaves, and it is, that when the Sheriff went to levy on *127the other slaves, the bill of sale was in Blocker’s possession, who showed it to him, with a view, as I suppose, of exempting the slaves covered by it from being levied on. Mr. Brooks was then in Florida.

Certainly there is more difficulty about this point of the case, than in relation to that which I have already considered. I place more reliance upon the statement of facts appended to the schedule than upon any other branch of the evidence.

This statement was made by Mr. Brooks and concurred in by Blocker, within about three months after the negroes were purchased; when all the facts were fresh in the recollection of both of them. My conclusion from the evidence, is that the purchase was made by Blocker, on his own account and for his own purposes, “ among which was probably the settlement of the property on his wife or daughter,” and that being obliged to resort to Mr. Brooks for money, he took the title to him, as a security for the advances, as well as to serve the purpose of creating a title subservient to the settlement contemplated by him. I cannot read the schedule in any other- light, than as an assertion of property by Blocker, and a concession of it by Brooks. *“*Mr. Brooks holds the negroes (the title of which is taken in his name) bound for his $100.” This is all the claim he asserts. Nothing is intimated of his holding the title as trustee.

This is one incumbrancethe other is a mortgage given for $300 of the purchase remaining unpaid to Hankins. The property is assigned as Blocker’s, subject to these two liens. What can I make of this, but that at that time Mr. Brooks had no claim but for the $100, advanced by him. I verily believe Mr. Brooks has entirely forgotten this matter; for he is as incapable of a wilful mis-statement, as he is of fraudulent intentions or dishonorable or dishonest dealing. But that the state of affairs, at the date of the schedule, was as I have stated it, is the best I can make of the evidence before me.

It may be that after this time a trust in favor of Mrs. Blocker was projected, and that this took place when Blocker, as the bill says, “abandoned and renounced the contract of purchase entered into by him, in consequence of his inability to pay the price of the said slaves.”

But that Blocker in his own right did purchase them, and that he framed the bill of sale to operate as a security to Brooks for his advances, appears pretty plainly from the evidence.

Brooks subsequently paid the remaining $300; and undoubtedly no creditor of Blocker can take the property from him without reimbursing him what he advanced, with interest. But he admits that he has been reimbursed. Of course his claim of title is gone, at least in this Court; — for it is a *128familiar principle of equity, that that which is given as a security shall never be set up as an absolute title.

But in the admission of reimbursement, it is said that the repayment was not by Blocker out of his own funds. This may be so. The fund may have come from the income of the other trust property.

In that case a trust may have resulted in that quarter.— But this is not to be presumed. It must be proved. And I take it for granted it cannot be proved; because the bill says, there is a total oblivion of all the particulars. The trustee or the *cestuey que trust*(one or the other) is charged with a knowledge of the accounts of the trust estate. If a resulting trust is insisted on, the burden of establishing a foundation for it is upon them.

The opposite party is not bound to disprove it. Lastly, it is said in the bill, that Blocker’s right in these slaves, whatever it was, legal or equitable, passed by assignment to his arresting creditors in April, 1829. What is meant by this *1*How does it operate to protect this property from the executions of the defendants *1*If it be meant that the assignees have a preference over the defendants, that is a topic Which the plaintiffs are incompetent to urge. If it be meant that Blocker, by a possession adverse to his assignees, has barred them ; then even supposing that a debtor in possession can bar his judgment creditors, that only makes the property more clearly his own, and as such, liable to the executions now brought against him. If the meaning be, that his possession inures to the benefit of Brooks, who held, the title, this proceeds upon a total misconception of the equity of the case. Brooks’s title is to be contemplated only as a security; and his demands being satisfied, the possession is to be counted only for the pledger who owned and held the property, subject only to the debt while that existed. If I were to give up the impression I have received, in part from the express testimony, but perhaps more from the internal evidence of the case, respecting the nature and character of the purchase from Hankins ; still there is too much obscurity resting upon the right now set up, to admit of its being made the ground of a positive interference with the legal process levied on the property.

The Court cannot interfere where so much doubt exists of the rights of the parties claiming its aid. It is' ordered and decreed, that the bill be dismissed, as to the slave Elsey and her issue, levied on by the defendants; and that an injunction do issue to restrain the defendants from selling the cotton levied on by them, as stated in the bill, and that the said defendants do deliver the same to the plaintiffs: and that the defendants be also enjoined from interfering with any and every portion of the property, covered by the trust deed exe*129cuted by Col Brooks to the plaintiff Whitfield Brooks in 1832. Each party to pay his own costs.

The plaintiff to be allowed his costs out of the trust property last mentioned.

The plaintiffs appealed, and moved the Court of Appeals to reverse or modify the Chancellor’s decree, so far as relates to the slaves Elsey and her descendants, and will endeavor to maintain: That the legal title to said slaves was in Whitfield Brooks, and he might declare, as he did and does, that he held for the use of Nancy Blocker and her children — that Brooks paid the whole purchase money, and has been reimbursed exclusively from the profits of the trust estate of Mrs. Blocker and her children, and a trust in said slaves results to said Mrs. B. and her children — that ifB. M. Blocker paid any portion of the purchase money of said slaves, his right to recover such money, and any consequent title in him to said slaves or lien upon them, passed to his assignee in 1829, and the assignee is barred, in favor of Brooks as trustee of his beneficiary, by the Statute of Limitations and the lapse of time — that even if Brooks’s claim to said slaves was a mere lien or incumbrance, there is no evidence of the discharge of this lien by the payment of the debt, except Brooks’s admission in the bill, that his advances have been repaid from the profits of the trust estate of Mrs. B. and her children, and this statement, taken altogether, proves a resulting trust to Mrs. B. and her children, or at least an incumbrance on the slaves for two-thirds of the purchase money — that the exemption of said slaves from the sale by the Sheriff of B. M Blocker’s property, in May, 1829, for the reason that they were then declared to belong, and did belong, to Mrs. Blocker’s separate estate, and the acquiesence of B. M. Blocker’s creditors in that view of the facts, from that time until 1845, establishes the right of plaintiffs to the said slaves.

The defendants, Penn & Co. and Presley, appealed from so much of the decree as supports the deed of Oct. 1832 — and moved to reverse that part of the decree, for the following amongst other reasons:

1st. That the possession by B. M. Blocker of the negroes embraced in the deed referred to, from May, 1829, rendered said negroes liable to the claims of his creditors.

2d. That the said B. M. Blocker acquired title to the said negroes under a gift from his father-in-law, evidenced by his long possession, and the exercise of acts of ownership over them.

3d. Because the deed of Oct. 1832, was executed to protect the said negroes from their liability to the creditors of B. M. Blocker, and was therefore void.

4. Because in any view the demands of these defendants, or at least so much of them as was properly chargeable on *130the trust property, should have been ordered to be paid out 0f saj¿[ property, or its income.

Speers’ Eq. R. 598.

Carroll and Wardlaw, for plaintiffs,

Griffin and Bauskett, for defendants.

Dunkin, Ch.

delivered the opinion of the Court.

In respect to the property included in the deed of 1832, the Court concur entirely in the judgment of the Chancellor, and for the reasons stated by him. It is deemed necessary to add any thing to what he has said, only in consequence of the defendant’s last ground of appeal. It is said that *“*in any view, the demands oí the defendants, or at least so much of them as was properly chargeable on the trust property, should have been ordered to be paid out of said property, or its income.”

It would be out of place, or at least premature, to discuss here at large the principles on. which this Court acts, in subjecting trust property to the payment of debts. They have been very fully considered and declared in the case of *Reid*v. Lamar, decided in December, 1846. In *loor*v. *Hodges,*the defendant had levied on property secured by a marriage settlement. The Court rendered the injunction perpetual, declaring that whatever might be the equitable interests of the .husband, or whatever the rights of his creditors, they should be brought to the notice of the Court in proceedings properly instituted by them for that purpose. If an execution at law can be levied on the property, “ I do not perceive,” says Chancellor Harper, “what purpose is answered by having a trustee or marriage settlement. If creditors are compelled to come into Equity lor the purpose of making the husband’s interest liable, there are various equities by which their claims might be rebutted.”

Some of these remarks are not inapplicable to the property embraced in the bill of sale from Samuel M. Hankins to Whitfield Brooks, bearing date 9th January, 1829, which I now propose to consider. There are some leading facts in relation to this transaction, which the Court think abundantly sustained by the witnesses and corroborated by circumstances.

The important inquiry is whether this was a purchase made by B. M. Blocker, “ on his own account and for his own purposes,” as supposed by the decree, or whether it was a purchase for the wife and children of Blocker; and supposing the latter to be the true character of the transaction, a subordinate enquiry arises, whether any part of the purchase money was paid, or agreed to be paid, by B. M. Blocker. The bill of sale executed by Hankins at the time, is in the name of Whitfield Brooks as vendee, and acknowledges the consideration money to have been paid by him, or to haye been re-*131©eived from him. This creates a presumption, that at least the purchase was not made for Blocker. Mr. Brooks being one of the complainants on the record, was not examined as a witness, although the defendants relied much on the statements of the bill, so far as they seemed to impair his claims as trustee. Certainly the bill, as such, is not evidence, either for or against the complainant. In this case the bill is sworn to by Mr. Brooks, and therefore is admissible, as an acknow-ledgement by him under oath. But in this character I think it should be received like all other admissions of a party, that is to say, the whole admission, the whole affidavit, should be taken together. He states, in the most unequivocal terms, that the -slaves, Elsey and her children, “ were purchased upon consultation with him, and with his privity, with the express intention that he should hold them in trust, for the separate use of his sister, Mrs. Blocker, and her issue.” The Chancellor, very properly, does not reject this part of his statement, but comments upon it, and comparing it with the other circumstances so fully'discussed in the decree, adopts the conclusion that “ Mr. Brooks” (in the language of the decree,) “ had forgotten all about this business, for (says he) he is as incapable of a wilful mis-statement, as he is of fraudulent intention or dishonorable dealing.”

Passing by, for the present, the statements of Mr. Brooks, and bearing in mind only the indubitable fact that the bill of sale was taken in the name of Brooks, there were three other witnesses as to the character of the purchase, to wit: Hankins, the vendor, Elijah Bird, and William Moore, who is a subscribing witness to the bill of sale. *Hankins*was a young man, was about to remove to Tennessee at the time of the sale, and has ever since resided there. He speaks of a transaction which took place some seventeen years prior to his examination. He says that Blocker bargained with him for the negro Elsey and her children ; that he told him at the time, that his wife wished his daughter to have Elsey. as she was a favorite negro ; that it has been witness’s impression ever since, that he at that time secured the title to his daughter, though he might be mistaken; thinks that Blocker gave him a letter to Brooks for part of the purchase money; that his impression has long been, that he made the bill of sale for the negroes at Blocker’s house, to his daughter. Knows that Blocker told him at the time, that he wished it so made. The full examination of this witness forms part of the decree.-

In the cross examination of *Elijah Bird,*he was asked if he had ever heard any thing about these negroes being the trust estate of Mrs. Blocker and children, until an attempt was made by Blocker’s creditors to make them liable for his debts. The witness had previously stated, that Hankins, in returning from South Carolina to Tennessee, in January, *1321829, had stopped a few days at witness’ house, in DeKalb county, Georgia. In reply to this cross interrogatory he says, among other things, that “he is of the opinion, that Hankins did state to himself and wife, in January 1829, that the ne-groes were bought by the request and for the benefit of Mrs. Blocker.”

But *William Moore*was the subscribing witness. He had been a Clerk of Blocker’s, and was then living in the house, and continued to live there till the Fall of 1830 ; “thinks that Blocker purchased the negroes from Hankins, at the request of Mrs. Blocker, and, as witness believes, for Mrs. Blocker’s benefit.” There was a bill of sale for the negro woman and her children, executed to Whitfield Brooks, to which the deponent was a witness. He further testifies that he was living with Blocker in May, 1829, at the time his property was sold by Edmund Belcher, Sheriff of Edgefield District ; that he was present at the sale of the property; that, at the day of sale at his house, Col. Z. L.‘ Brooks, or Whitfield Brooks, remarked that the negro woman Elsey was not liable for B. M. Blocker’s debts j that they were purchased for the separate use and benefit of Mrs. Blocker j that the slaves Elsey and her children were not sold at the Sheriff’s sales of B. M. Blocker’s property, in 1829, and for the reasons he has stated. In his cross examination he says that “ the negro woman Elsey was not sold at Sheriff’s sales, but was exempted, as the property of Mrs. B. M. Blocker.” He further says, that the bill of sale was written by Blocker at his house, but does not know whether it was delivered to Blocker, or to whom; Brooks was not present. Witness saw Hankins execute the bill of sale, and he subscribed the same as witness.

After the sales of Blocker’s property in May, 1829, a very considerable amount of judgment debts remained, and yet remain, entirely unsatisfied. When it is a conceded fact that, from May, 1829, when, according to Moore’s testimony, Elsey and her children were excepted as the property of Mrs. B. M. Blocker; that they have remained in her unchallenged possession until the levy of this execution in 1845. it seems to the Court very difficult to entertain any doubt as to the nature of the transaction, or the notorious character of the complainants’s claims. It is true that the amendment to Blocker’s schedule in April, 1829, made in the handwriting of Mr. Brooks, affords much ground for the observations of the decree. But how is it possible to reconcile the construction put upon this act, with the depositions of the witnesses *1*with the announcement at the Sheriff’s sales the very next month ? (for Moore does not say that notice was given of a *mortgage,*or of any other claim of that character, but that Elsey and her children were not liable for Blocker’s debts, because they had been purchased for the separate use and benefit of Mrs. *133Blocker, and they were accordingly exempted from the sale for that reason;) or how. with the acquiescence of urgent and enquiring and disappointed creditors for seventeen years af-terwards? ^ . ■

But the loose manner in which the amendment to a schedule of an insolvent debtor is often made, is well known to all who have had occasion to be familiar with such proceedings. While the omission to insert the property in the original schedule, is rather an argument that the debtor did not believe it formed any part of his estate, it may be put in the amendment, because an after-thought, or the suggestion of others, may create a question whether he has not some right, and there is no harm in inserting it; and this leads to the en-quiry whether, although the purchase was made for Mrs. Blocker and her children, and the title taken to Whitfield Brooks, to carry that object into effect, B. M. Blocker may not have paid some part of the purchase money, for which he, or his creditors under the assignment, might have an equitable claim on the negroes. Relying on the testimony of Han-kins and Bird, it is quite clear that the whole purchase money was paid by Brooks, and not a dollar by Blocker. But Mr. ¿rooks says that he paid but four hundred dollars, with interest, of the purchase money, which was refunded from the profits of the trust estate of Mrs. Blocker, settled upon her by her father, and he, therefore, concludes that the residue of the purchase money, (two hundred dollars,) was in some way advanced by B. M. Blocker. It is not remarkable that, after such a lapse of time, and amid the multiplicity of pecuniary transactions, Mr. Brooks should fail to recollect the fact of payment by Blocker, or the mode of payment. If any thing could add to the credit of his testimony, it is, that he does not affect to recollect these particulars. His evidence may well be reconciled with that of Hankins and Bird, and also afford some solution to the amendment of Blocker’s schedule. All the purchase money was received by the witnesses from Brooks, but he may have collected money to the amount of two hundred dollars for Blocker, or Blocker may have placed that sum, or choses to that amount, in his hands. Mr. Brcoks concludes, however, knowing what he himself paid, and which had been refunded from the trust property, that, in some mode, two hundred dollars was advanced by Blocker. In April, 1829, he may very well_have considered him as having a claim on the negroes to that extent, and the amendment to the schedule was made. But that he, at that time, well knew that the negroes, Elsey and her children, were not the property of B. M. Blocker, but were held by him as trustee for his sister and her family, is proved, not merely by his ac-knowledgements now, but by the testimony of the witnesses, and by the declarations at the Sheriff’s sales a few weeks afterwards.

*134It is a familiar rule, that a party asking the aid of this Court, must equity. Blocker’s creditors are entitled to the two hundred dollars, with interest from April, 1829. But the as-sjgnee unc[er the Prison Bounds Act, is not before the Court. The assignment was made nearly twenty years ago, and embraced choses in action to a considerable amount, which were-not bound by the lien of executions and from which the as-signee may have been satisfied. In that e'vent this fund may be liable to distribution among the general creditors of Blocker, among whom are the defendants. The Court, under these circumstances, can make no definitive order as to the appropriation of the fund, but it must be paid into Court by the complainants, with liberty to the creditors to apply by petition, or otherwise, for a further order.

It is ordered and decreed, that the complainants pay into Court the sum of two hundred dollars, with interest from April, 1829 ; that the injunction heretofore granted, to restrain the sale of Elsey and her children, be made perpetual; and that, in all other respects, the decree of the Circuit Court be affirmed, and the appeal dismissed.

Caldwell, Ch. and Dargan, concurred.

JohNSton, Ch.

I concur in so much of this judgment as relates to the property covered by the deed of 1832; but I feel too much doubt in relation to Elsey and her issue, to go as far as my brethren.

*Decree modified.*