#### The Executors of J. E. M'Pherson v. The Executor of Ann Ferguson.

A conveyance, though attended with suspicious circumstances, will *not be*presumed to be without consideration and colourable only, where a consideration is expressed upon its face.

A volunteer, taking a benefit under a deed, cannot impeach it as fraudulent.

*Before his Honor Chancellor JOHNSTON, at Coosawhatchie, February*1838.

Berkley Ferguson, sheriff of Beaufort, then husband of the defendant’s testatrix, conveyed seven slaves, and among *them*three, named Bina, Betsey and Mira, to Mrs. Varlin, his mother-in-law, by deed, dated March 3d, 1810, upon a consideration expressed of $1,400. He was at the time, and continued till his death, insol*225Vent. Mrs. Varlin, by deed of the same day, on a consideration expressed of natural affection for her daughter, the wife of said Berkly Ferguson, and also on a pecuniary consideration, merely nominal, conveyed live of the said seven slaves, and amongst them Bina, Betsy and Mira, directly to the said Mrs. Ferguson, without the intervention of trustees. This deed was recorded in the registry of Colleton, where Mrs. Yarlin lived, the 1st. of September, 1810. -

A letter was sent by Mrs. Ferguson, to the plaintiff’s testator, which, although it bore no date, yet upon its contents was evidently written between the execution of the deeds above mentioned, and are presently to be mentioned, which Berkly Ferguson subsequently executed to said James E. M'Pherson. In it Mrs. Ferguson referred to the effort which her husband had made to secure the slaves, and that the instrument by which they were conveyed was thought ineffectual; stated that her husb.and’s creditors were threatening to have them levied on for. his debts, and implored M'Pherson, as a friend, to devise some means by which Binah, Betsy and Mira, whom she mentioned with peculiar affection, might be saved for her.

On the 14th of March, 1810, Berkly Frguson executed an instrument, under seal, by which, in *consideration*expressed, of one thousand dollars, he conveyed the three slaves, Bina, Betsy and Mira, to the said J. E. M'Pherson, the plaintiff’s testator, with a stipulation however in the instrument, that Mrs. Ferguson should be allowed the possession and services of the said slaves during her life, and that at her death, they should be delivered up to said M'Pherson.

There was no person present when this instrument was executed and delivered. No witness subscribed it at the time, nor was there any evidence that there was any money paid, other than the acknowledgment of it in the paper itself.

A few days afterwards one John M. Davis, (whose testimony was read on the trial, to prove the deed,) called casually at the house of M'Pherson, when M'Pherson produced the instrument to him and enquired why he had not come with Ferguson to witness its execution. Davis replied that he had not heal’d of any such *226appointment. M’Pherson tiren asked him if he was satisfied that the signature was Ferguson’s; and upon his answering in the affirmative, requested him to subscribe as a witness, which he accordingly did. The instrument was afterwards, in 1833, after Ferguson’s death, recorded in the Secretary’s office, upon the probate of a witness, who swore to Ferguson’s hand writing merely.

The three slaves Binab, Betsy and Mira, remained in Mr. Ferguson’s possession. She loaned Mira to Davis. While she was in Davis’ possession, under this loan, M’Pherson requested Davis to retain her for him, and promised if he would do so, he (M’Pher son) would not trouble him (Davis) about a negro called *Ness,*(or Neston,) whom Davis had purchased from Ferguson,.and of whom M’Pherson held a mortgage. Davis refused and returned Mira to Ferguson, who sold her in Charleston, without the knowledge of M’Pherson. Ferguson died about 1827, and Mrs. Ferguson in 1832. Shortly after her death, M’Pherson demanded the three slaves, Binah, Betsy and Mira, with their issue, from the defendants, her executors; and on their refusal to deliver them, brought suit at law for them. The suit abated by his own death, in February 1834. -

The bill in the present case was filed by his executors to compel a delivery of the slaves, and an account for the value of such as had been sold.

The circuit decree was as follows:

I can come to no other conclusion than that Col. M’Pherson, in obedience to the earnest entreaty contained in Mrs. Ferguson’s letter, (which informed him of the ineffectual effort that had been made to secure the slaves to her use, through the instrumentality of her mother,) undertook to devise some other more plausible means to effectuate the intention of the parties, and that the conveyance of Ferguson to him was the result: combining the previous attempt, the letter, and the evidence of Davis. I think this conclusion is unavoidable. I take it there was no serious intention to vest a title in M’Pherson, except for the purpose of protecting the property. That the transaction was not real, but merely coloura-ble, such a3 is often entered into by a failing man with his friend, to *227secure his property. The intention was not to convey, but to cover.

If the plaintiffs can enforce their claim at law, they must do so. But being satisfied that their title is apparent merely — that it is against conscience and without equity to suppoit it, I do not think this Court should give them its assistance, but should leave them to their legal remedies, upon their legal rights, such as they may be. It is ordered that the bill be dismissed, each party to pay his own costs.

The plaintiffs appealed on the grounds:

1st. Because there was no evidence to justify the conclusion that the sale to J. E. M'Pherson, was a mere arrangement to secure the property from Berkly Ferguson’s creditors, for Ann Ferguson’s benefit.

2nd. The deect is conclusive evidence of a sale, for valuable considerations.

3d. Mrs. Ferguson’s letter proved the sale to have been.with her knowledge, and the deed proves that it was designed to secure to her an interest in the property, for the term of her life only.

4th. Berkly Ferguson’s creditors are not parties resisting plaintiff’s claim, and if they were, there is no evidence to affect the sale in their favor.

5th. The possession by Mrs. Ferguson, during hér life, was under and consistent with the deed.

*De Treville,*for plaintiffs.

*Edwards,*for defendant.

The following decree was delivered by the Appeal Court:

Johnston, Ch.

A re-examination of the evidence, upon the argument here, satisfies me that my conclusion on the circuit was hasty and unwarranted.

The circumstances are calculated to throw great suspicion upon the transaction, and I confess, I still have doubts, and very strong doubts, whether the conveyance to the plaintiff’s testator was upon the consideration expressed in that instrument. But when the *228question is of fraud, a matter that should not be presumed any more in equity than at law, (except when it arises by implication from fiduciary relations,) it would be going too far to set aside the explicit acknowledgment in the deed, unless upon very strong proof of its incorrectness.

The deed was drawn, as well as signed by Berkly Ferguson. The acknowledgment of the receipt of the consideration money is very special, not by way of recital, but with as much particularity as if it had been a separate receipt drawn up for the mere purpose of a receipt.

Opposed to this, are the circumstances referred to by me on the circuit. But they are, at best, but dubious, while this is certain. Besides, there is no necessary inconsistency between them. M'Pherson may have been induced to undertake the saving the negroes for Mrs. Ferguson, according to her request. But it is but fair to admit, that the means which he devised may have been fair and legal — that he may not have undertaken to save the negroes, except in a legal manner — that in order to do this, he may have paid their value, and allowed Mrs. Ferguson to have the use of them during her life.

If he did this, it was not only without fraud, hut was generous and praiseworthy.

That he did it, we have the positive admission of Berkly Ferguson; and the fact that the slaves were not afterwards disturbed in Mrs. Ferguson’s possession by those creditors who were dissatisfied at the deed to Mrs. Varlin, is some proof that money was paid by M'Pherson, which went to appease them.

The ground is correctly taken, that even if the deed was fraudulent, and even if it was avoidable by Ferguson, these defendants cannot impeach the plaintiT’s title. Suppose a failing debtor com veys to a friend, with a proviso-that a stranger shall have the use of the property for a given time; that stranger cannot dispute the right of the grantee under whom he holds. But here Mrs. Ferguson taires as a volunteer, and upon precisely the same condition as any other volunteer, though never so little connected with the parties.

*229It is needless to say that the act of limitations can have any operation here. Mrs. Ferguson had notice of the deed, which was executed at her solicitations and for her benefit. She did not hold adversely, but consistently with the provisions of ihe deed.

It is decreed that the circuit decree be set aside, and that the defendants do deliver to the plaintiffs such of the slaves mentioned in the pleadings, with their issue, as have not been disposed of, and that out of the assets in their hands, they account for the value of such as have been sold, with interest, and also for the hire (since the death of their testatrix) of the slaves not sold; and that if the defendants do not admit assets, to pay the sums hereby decreed to the plaintiff, an account be taken and reported, of the assets of their testatrix, and of the proportion to which the plaintiffs are entitled in a due course of administration.

The defendants to pay the costs so far as they may have assets, the residue of the costs to be equally divided between the parties.