#### *R. W. Broughton*& *others*vs. *Robert Telfer*& *E. Waterman.*

Wliere plaintiff in his bill alleges the execution and delivery of a deed, under which defendant claims, and calls for its production, defendant, Vpon his producing it at the trial, cannot be required to prove its execution and delivery.

Where one by his will recognizes and confirms a deed he had previously made, he . establishes the sealing and delivery of it against all who claim as volunteers under him.

A conveyance by deed, prior to the Act of 1841, of slaves in trust to allow the slaves to be practically free, is valid: — the trustee holds the slaves practically discharged from the trusts whether they be legal or illegal.

Where a party executed a conveyance of slaves to trustees, for the benefit of the slaves themselves, and died, in 1839, eight year's after the deed bore date, leaving a will, bearing even date with the deed, by which he ratified the deed: *Held*(1) that, if under the deed any interest in the slaves resulted *to the*grantor, and through him to his next qf kin, the will amounted to a waiver and abandonment of such interest, and (2) that the will operated to prevent the grantor from re-acquiring title to the slaves under the statute of limitations.

*432Some suggestions upon the question,— when is the dismissal of a prior bill a bar to a second suit”!

*Before*Dargan, Ch. *at*Charleston, *February,*1850.

On the 6th June, 1831, William Remley, of Georgetown district, executed a deed, by which, after reciting that he was the father of certain slaves, namely, Elizabeth, Catharine, Ann, Eliza, Cinda and Harriet, and that, being unable to emancipate them, he desired to give them the benefit of their labor, and to suffer them to enjoy, as far as practicable, all the privileges of free persons, &c. in consideration of the love and affection which he bore to said slaves, and of the sum of $5, and for “ divers other good and valuable considerations,” he “ granted, bargained, gave, conveyed and delivered” unto Thomas. J. Smith, Thomas L. Shaw, Eleazer Waterman and Robert Telfer, the said slaves, in trust, to treat them with kindness ; — protect them in their just rights ; exact from them no wages ; permit them to go where they please, and to appropriate to their own use the proceeds of their time and labor : and, in the further trust, that, if any attempt should be made to enslave them, to convey them to some non-slaveholding State, &c.

On this deed, which was recorded in the register’s office for Georgetown on the 9th November, 1831, was indorsed a probate by Solomon Cohen, the subscribing witness, who swore that he saw “ William Remley sign, seal and, as his act and deed, deliver the foregoing deed in trust, for the uses and purposes therein expressed.”

On the same day the deed bore date, William Remley executed his last will and testament, in which he referred to and recognized the deed, and by which he bequeathed his whole estate to the trustees in the deed named, in trust for the slaves Elizabeth and others in the deed named, and appointed the trustees executors.

William Remley died in Charleston (to which place he removed about two years before his death) in September, 1839.

On the 5th June, 1845, the plaintiffs, as heirs at law of Wil*433liam Remley, filed a bill for an account against the defendant, Robert Telfer, in which they stated that William Remley was the owner, at the time of his death, of the aforesaid slaves and their issue and other property; that defendant had taken possession of the personal estate of William Remley, as executor in his own wrong ; and charged that defendant pretended to hold said slaves under a deed of trust from William Remley to himself and others, and, also, pretended that William Remley left a will by which he disposed of his estate to the use and benefit of said slaves, &c.

Defendant answered and denied that he had interferred with the property of William Remley, or that he had any estate, at the time of his death, and filed with his answer a copy of the will.

On the 5th March, 1846, plaintiffs’s bill was dismissed by an order as follows : •

*“*It appearing in this case that the defendant has denied, by his answer, ever having had possession of the property claimed by the complainants, and there being no evidence to contradict this allegation, I am of the opinion that the bill should be dismissed, and it is so ordered, and that the complainants do pay the costs of suit.”

On the 26th August', 1846, Richard W. Broughton, one of the plaintiffs, filed a petition in the Ordinary’s office for Charleston, praying that the executors in the will named, be required to produce and prove the will, and qualify thereon, or renounce their executorship. On the 7th September, of the same year, defendant made seizure of the slaves under the Act of 1800; and on the 29th June, 1847, the will was admitted to probate, and the defendant, Robert Telfer, and Eleazer Waterman, qualified as executors.

On the 19th August, 1847, plaintiffs filed their present bill against Robert Telfer and Eleazer Waterman, in which, alleging their recent discovery of the will and deed, they charged that the trusts thereof were void, and prayed an account, and that the slaves be decreed to belong to the estate of William Remley.

*434The defendant, Robert Telfer, answered, and amongst other things said, that William Remley, soon after the deed was recorded, informed him of it; that defendant accepted the trust, but that the other trustees never accepted ; and that defendant, until his seizure of the slaves, had never exercised any decided acts of ownership over them.

Dargan, Ch. The complainants have, in-a manner entirely satisfactory to me, proved themselves the *nearest of kin,*and the distributees of William Remley, deceased. They filed a bill against these defendants on-the 5th of June, 1845, in regard to the same subject matter of controversy, arising in the present bill, namely, the- estate oí William Remley, and, the slaves alleged by them to have been illegally emancipated. On the 6th of March, 1846, by a decretal order of the Court, the bill was dismissed with costs. On the 19th of August, 1847, they filed their present bill, to which the defendants oppose as a bar the former bill and the decree thereon. I am far from being clear, that the defence is not good, and the complainants not concluded. But waiving that question, I proceed to consider the case on its merits.

The first question that occurs, relates to the due delivery of the deed of the 6th of June, 1831. The deed purports to have been signed, sealed and delivered in the presence of Solomon Cohen. And in the probate thereunto attached, Cohen makes affidavit that he saw the grantor sign, seal, and as his act, deliver, the foregoing deed in trust for the uses and purposes therein represented, and that he subscribed the same as a witness. The deed was recorded on the 9th day of November, 1831, in the office of Register of Mesne Conveyances, in Georgetown district, where Remley and Telfer then resided. Soon after the execution of the deed, Remley informed Telfer that he had made a deed and recorded the same, and that he, (Remley) had made the defendant, Telfer, a party to the deed. Telfer, in his answer says, that he accepted the trust, but that the other trustees named in the deed never did accept the said trust, nor act under the deed. The defendant, Telfer, had possession of the original on *435tKis trial, but when it was delivered to him, or by whom, did not appear. It would seem that it had never been delivered to him personally before its registry. Whether it had been delivered to any person before that time, for the defendant, or in his behalf, did not appear. But that it was done, I think probable, from the import of the deed and the probate of the subscribing witness, who was a good lawyer, who knew* how to advise, and was not likely in his probate to have fallen into the inadvertence of swearing to the delivery if it had not actually taken places Remley, himself, in his will, speaks of the deed as a valid subsisting and effectual deed, by which he acknowledges himself to have disposed of the slaves mentioned in it. These are the facts mentioned as bearing on the question of delivery. I think they are sufficient to establish the due delivery of the deed.— The question of delivery is always a question of intention. Was a delivery intended and consummated ? Did the grantor mean to do an irrevocable act *7*If the persons provided for in this deed of trust had been Uemley’s legitimate children, could there be a doubt that the delivery of the deed was sufficient ? I think not.

Having arrived at the conclusion that the delivery of the deed is sufficiently proved, the next question is as to the validity of its provisions. The case presents a perfect parallel to that of *Carmille*vs. Carmille, (2 McMull. 454.) It cannot be distinguished from it.

*There,*as *here,*there was a conveyance by deed to trustees of slaves; — the condition of the trust, in both cases was, that the slaves should enjoy their freedom. In *this*case, as in *that,*there was an open and undisguised attempt to evade and defeat the Act of 1820, which declares “ that no slave shall hereafter be emancipated but by Act of the Legislature.” I have never been satisfied with the decision in *Carmille*vs. *Carmille.*I cannot pass it without expressing my dissent and disapprobation. It is founded upon what I conceive to be a very erroneous construction of the Act of 1820. That Act declares that there shall be no emancipation but by the Legislature. But the deci-*436si on in *Carmille*vs. *Carmille*declares that the emancipator has only to he secure of his trustee to effect the emancipation of his slaves, -whom he desires to manumit, in as perfect a manner as if the Act of 1820 was not on the Statute Book. He is thtis enabled to do by indirection, and through a very flimsy and barefaced evasion, that which the law inhibits from being done by direct means. The decision is not in harmony with the spirit, the policy, or even the language of the Act. It would have been better to have held these evasions a fraud upon the law, and to have given the Act a construction which would have made such a deed as this simply void and inoperative, not only as to the trusts, but as to the title which it was intended to pass: and in the case of wills, to have held the bequest charged with such trusts void, and the slaves distributable as residuary or intestate property. But *Carmille*vs. *Carmille*stands in the way of such a decision, supported as it has been by a recent case : *Carmille*vs. *Carmille,*and similar cases, led to the Act of 1841. But in the case before me, the Act of 1841 does not operate. The deed and the will were both executed, and the testator, Wm. Bemley, died, before the passage.of that Act, The case must be decided by the law as it stood before the Act of 1841; by the Acts of 1800 and 1820. 1 am bound to submit to the authority of *Carmille*vs. *Carmille,*and of *'McLeish*vs. *Burch Taylor,*decided by the Court of Enors, at May Term, 1849. And, according to these decisions, the complainants have no right.

There is another aspect in the case unfavorable to the claims of the complainants. Whether we consider the slaves to have been illegally manumitted by Remley in his life, or, which is the same thing, to have been done by his grantee or legatee after his death; in either case, the slaves were liable to manucaption under the Act of 1800. And they were formally seized for this purpose by the defendant, Telfer, previous to the filing of this bill.

If either the deed or the will conferred on him a title, that *437title was discharged of the illegal trust. They became his property absolutely. If he attempted to execute the illegal trust, and suffered the slaves to go at large, in conformity with the directions of the trust, then they were illegally manumitted by him, and were liable to manucaption. But he had a right to capture them himself. *Lincim*vs. *Johnson,*(2 Bail. 137,) *Mays*vs. Crillam. (2 Rich. 160.) And if he was the first captor, he would be re-invested with a good title against all the world. This the defendant, Telfer, did in the most formal manner.

The bill must be dismissed with costs, and it is so ordered and decreed.

The complainants appealed.

*Northrop,*for appellants.

*James Simons,*contra.

WaRdlaw, Ch.

delivered the opinion of the Court.

The appellants present objections, in various forms, to the evidence of delivery of Remley’s deed of June 6, 1831; but their course of pleading in the suit dispensed with any proof of this fact. In their bill, they expressly state the execution of this deed and the delivery of it to the defendant, Telfer, and call for the production of it by him. When the deed was produced upon this demand no proof of its execution was needed; and it seems none was required on the trial. If proof of the deed were necessary, it is furnished in the explicit and unequivocal recognition of the deed by the grantor in his will; and the will is admitted by both parties. Our cases have settled, as to parol gifts, that from the declaration of a donor that he has given a chattel, it must be presumed that he has given-with all the formalities necessary to transfer the title. So, where one by his will recognizes and confirms a deed, he establishes the sealing and delivery of it against all who claim as volunteers under him. The notions suggested in some of the grounds of appeal, — that a deed cannot be delivered where the grantee is ignorant of its existence, and that actual delivery of the chattels must be super *438added to their symbolical delivery by deed. — have not sufficient plausibility to require refutation..

If the execution of this deed be established, there is an end of the plaintiffs’s case. Several decisions by the ultimate tribunal of this State, *(Carmille*vs. Carmille, 2 McM. 454; *McLeish*vs. Burch, 3 Strob. Eq. 225 ; *Vinyard*vs. *Passalaigue,*2 Strob. 536,) leave us no right to question, that a conveyance of slaves by deed, upon such trusts as are here declared, passes the title to the grantee practically discharged from the trusts, whether these be legal or illegal. If the trusts be legal, as they were held to be in cases like the present not governed by the Act of 1841, which made them unlawful, the beneficiaries being slaves could have no standing in Court to compel the execution of the trusts, which were thus of imperfect obligation, depending upon the benevolence of the trustee. If the trusts be considered illegal, they, are simply void, and do not impair the title of the trustee as owner.

The case of the plaintiffs would not be helped, if we should concede the doctrine of these cases to be erroneous; and that as no beneficial interest was conferred upon the trustee, there was a resulting trust to the grantor, which upon his death enured to his next of kin. Remley’s will, which, although executed co-temporaneously with the deed, speaks at the death of the testator in September, 1839, ratifies the deed ; and this ratification may be treated as amounting to waiver and abandonment by the grantor of any interest resulting to him, and through him to his next of kin. The Court would be inclined to lay hold of any such defence, where one comes to he relieved against his own act as contrary to the policy of the law.

This recognition of the deed by the grantor in his will, satisfactorily disposes of the objection to the decree, that the grantor’s possession of the slaves for eight years from the date of the deed until his death, reinvested him with title, by operation of the statute of limitations. It is impossible to regard that possession as adverse, and effectual to defeat the party’s former *439deed, when he declares at his death through his will that the possession was always in subordination to the deed.

If the title to the slaves was in Remley at his death, and Tel-fer’s ownership rested on his manucaption of them as unlawfully manumitted, there would he much force in the argument, that his office of executor, whensoever he qualified, was assumed at the death of the testator; and that his manucaption was in his character as executor, and consequently, his legal title impressed with a trust for the legatees, or distributees, accordingly as the deceased was testate or intestate as to these slaves. It would not be equitable to press a fiction of law, such as the retroactive operation of probate of a will from the death of a testator, to work injury to an individual against the right of the case; but here the seizure was after the institution of proceedings to compel the executor to make probate of the will, and the fiction would lead to no unconscientious results. It is unnecessary, however, to determine any thing on this point, as we hold the deed to bar the plaintiffs.

For the same reason, we avoid expressing the judgment of the Court on the question as to the bar of the former decree; but some suggestions on this point may be allowed. A former decree between the same parties, or their privies, as to the same subject matter, is a bar to further litigation, although it be merely a decree dismissing the bill, unless it be expressed that the dismissal is without prejudice; 2 Story Eq. §1523. In this case, the parties are the same as in the former suit; the subject of controversy is the same, except that plaintiffs allege their discovery of the existence of the deed since the termination of the former suit, and the decree dismissing the bill is absolute in its terms, although proceeding on the ground that there was no evidence of Telfer’s having ever had possession of the slaves. The reasons on which the Court proceeds in its judgment, usually do not control the extent of the judgment, which is conclusive as to all matters that should then be brought into litigation. Does the discovery of new evidence of itself remove the bar of a former decree, or only serve as a basis for a bill of review *1*Is the *440evidence in question here, in fact newly discovered, or such as proper diligence on their part would have enabled the plaintiffs to use on the former trial ?

The plaintiffs must have had some inkling of the deed when they filed their bill in the former suit, for that contains various charges concerning such a deed; and in the progress of the cause, they might have obtained fuller information concerning the deed, for a copy of the will was filed with defendant’s answer to the first bill, and the will has explicit reference to the deed. It is more satisfactory to the Court, however, to decide against the plaintiffs on the merits of their case as now presented, than to estop them by a technical bar.

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

Johnston, Dunkin and DaRgan, CC. concurred.

*Appeal dismissed.*