#### Susannah Franklin, *vs.*John M. Creyon.

*Copy of will certified by the clerl*0/ *the county court, admitted in evidence, upon proof that the original, at the dissolution of those courts, was deposited in the office of the clerk of the district court, which was afterwards burnt.*

• *'omplainant’s grand-mother gave her by will a female slave, “ not to be subject to the debts or contracts of any future husband;” but appointed no trustee. She afterwards married, and in*1810, *her Husband sold the slave and her child to defiend-ant’s brother, (now deceased) for a full consideration; who soon afterwards sold to defendant. To the bill of complainant, filed after her husband’s death in*1820, *defendant answered that when he puschased he had no notice of the will or of complainant’s claim, and he believed his brother had no notice luhen he made his purchase: Decreed that defendant should deliver up the slaves and account for their hire. Plea of the statute of limitations overruled.*

The bill .stated that Mary- Maples, the grand-mother of the complainant, by her will executed in 1793, and left of force at her death, bequeathed as follows, “Item, I give and bequeath unto my beloved grand-daughter, Susannah Stone, and her heirs forever, a negro girl named Hetty, with all her future issue and increase, and in no wise subject to.or liable for any debt or debts, contract or agreement of her father-in-law or any future husband, in any shape manner or form.” That the said Susan-nah Stone (the complainant) afterwards married Benjamin Franklin; by which marriage the girl Hetty, so bequeathed to the complainant, came into the possession of her husband: That in 1810, the said Benjamin Franklin, without the knowledge or consent of complainant, permitted .the girl Hetty and her child Damon to go into possession of Lucas Creyón: That Benjamin Franklin died in 1820, and since his deáth shé has discovered that the said slaves, with other children since born, are in the possession of the defendant: That complainant is ignorant of the number and names of the children, of which she prays á discovery* and that defendant may account for their hire.

The defendant by his answer denied any knowledge of the will of Mary Maples, or of her bequest to complainant, or of Complainants marriage with-Franklin, He states that in 1810, *244bis brother L. Creyón, dec’d. par chased the slaves Hetty aruí D .¡non, of Franklin, who was in possession of them and apparently their owner, at the price of *‡*500, which was their full, value: That soon afterwards the said slaves were bona fide sold by the said Lucas Creyón to the firm of John Creyón, & Co. for *$*500, paid down, or passed to the credit of the said Lucas on the books of the firm, whereby the defendant became owner of-two-thirds of the said property, and upon the death of the said Lucas, the owner of the whole: That defendant, when the purchase was made by the firm of John M. Creyón & Co. had no notice of complainant’s claim, but was a bona fide purchaser for valuable consideration; and from the circumstances he'is perfectly well satisfied that Lucas Creyón had not notice at the'time of Ms purchase.

At the hearing, the complainant offered in evidence, what purported to be a copy cf the will of Mary Maples, deceased, certified by Wm. Humphries, clerk of the county court, for Clarendon county. A witness named as' executor in the said alledg-id will, was examined; who testified that after the death of ary A "aples, he saw her will, or what was understood and admitted to be such, but was not a witness to its execution: That the paper offered in ev’dence was about that time delivered to him by one of the other executors named therein, and had been always acted upon as the will of ,v! ary *,Vi*aples by the executors, and acquiesced in by all who were interested in her estate. The witness knew not of his own knowledge what had become of the original, but understood that it was deposited by Humphries, clerk of the county court, at the dissolution of those courts, with other official papers, in the office of the clerk of Sumter court, and was burnt in his office.

Chancellor *Gaillard.*— J am satisfied with the proof offered of the will of Alary Maples. In the clause referred to, the girl Hetty is given to Susannah Stone (the complainant Franklin) mid her heirs forever, not subject to or liable for any debt or debts, contract or agreement of her father-in-law, or any future husband, in any case, manner or form, &c. The husband gold Property absolutely, and it is claimed under a *245title from him, which he could not make; and from his death to the filing of the bill, the time is not sufficient to support the claim set up under the statute of limitations. It is ordered and decreed, that the defendant do deliver Hetty and her issue to the complainant, and account for their hire from the death of the husband of the complainant, and pay the costs of suit.

The defendant appealed principally on the grounds,

That the proof of Mary Maples’ will was loose and insufficient:

That *the*defendant should have been protected, as a bona fide purchaser for valueable consideration, without notice:

That his title was good under the statute of limitations.

*Gregg*and *Harper,*for appellant.

The cxistance and loss of Mary Maples’ will were not proved, but as the witness believed *and*understood.

But the ground which we consider as perfectly clear is,, that defendant must be protected as a purchaser for valuable consideration w'tbout notice. We need hardly cite authorities," for the familiar equity doctrine, that he who acquires the legal estate, for valuable consideration, without notice of an equity subsisting in a third person, will be protected: or rather any such purchaser, whether he have the legal title or no, if he has an advantage by which he can defend himself at law, will not be compelled in equity *to*give it up. It would seem equally superfluous to attempt to shew that the legal title to this pro-., perty was in the husband. The rule of law is that a wife cannot hold personal property, apart from her husband. Courts of equity, however, for the protection of the wife, have determined that though the legal title to property given to the wife for her separate use, vests in the husband, yet he shall be considered as a trustee for her. The cases however which establish this doctrine, say in terms as express as can be used, that a pur-s chaser from the husband, for valuable consideration and without notice, will acquire a good title. *2 Roper’s lav) of Husband and Wife,*155.

Was the defendant a purchaser for valuable consideration without notic ed We do not perceive that this can be made cleare? ■ *246by argument. He positively denies notice by bis answer anc. not the slighest attempt has been made to prove it. The answer- is corroborated by the proof of Lucas Creyon’s having paid the full value of the slaves.

The statute of limitations also protects the defendant’s title. He had possession three times as long as was necessary to acquire a title by the statute. The argument seems to be¡. that she was a cestüi qui trust, and likewise a feme covert disabled to sue, and therefore the statute of limitations will not fun against her. The statute of limitations will not run as between trustee and cestui qui trust, because as between them there can be no adverse possession; but We have never heard that it would not fun in favor of third persons, against both. With respect to real property, a feme covert is expressly enabled to sue by statute, but the time is extended within which she would be barred. She can have no personal property, save that which is vested in a trustee; and with respect to that, the trustee is capable to sue. If the trustee by his negligence, per-Snits a third person to acquire a title by possession to the trust property, he is answerable to the cestui qui trust. Cited, 2 *Madd.*255; 2 *Worth.*167, *n.*2 Fes. *jun.*457; 1 John. *Ch. Cá.*300; 9 Fes. 24; 5 *Wheat*808; 4 *Eq. Rep.*477.

*Holmes,*for respondent.

If Mrs. Franklin had actually-sold her separate estate, or if her husband had sold it and she had joined in the sale, the sale would have been void under the decisions of our courts. *Ewing,*vs. *Smith,*3 *Eq. Rep.*455. But it is contended that be had power to sell her separate property without her knowledge and against her consent. The doctrine that a purchaser without notice shall be protected, applies when the purchase is of the legal estate, without notice of the equity. But here the legal estate was in the wife, because the bequest was “in no wise subject to any debt or debts, contract or agreement, of her father-in-law or any future husband.” A married woman may have a legal estate in personal property; she may be both trustee and cestui qui trust. Reid, vs. *Shetgold,*10 *Wes.*380. The defendant was .bound to. make enquiry into the title of h-is vendor, and if he had done so, wou!& *247have hadnotice of the will. A separate estate was given to the wife, but not a seperate use; the husband was entitled to the use for his life. This he might sell. This is a sufficient reply to the argument in support of the statute of limitations. The sale was good for the life of the husband, and there was no right of action and no adverse possession until his death. Cited, 2 *Fonb.*151; 5 *Fes.*521; 4 *Eq. Rep.*457.

Chancellor *Descmssure.*

This is an appeal by the *defendant*from the decree of the circuit court, in favor of complainant.

The following is the substance of the case as made by the pleadings, on which this appeal is founded’: — -Mary Maples made and executed her last will and testamentan the presence of two witnesses, on the 24th October, 1793, wherein and whereby she bequeathed, among other things, as follows: “I give and bequeath to my beloved grand-daugliter, Susannah Stone, and her heirs forever, a negro girl named Hetty, with all her future issue and increase, and in no wise subject to, or liable for, any debt or debts, contract or agreement of her father-in-law, or any future husband, in any shape, manner or form; and in case of her death before she shall attain the age of twenty, or without issue, then '.hat part I give and bequeath unto my beloved grand-son, Samuel Stone, and his heirs forever.” The testator died, leaving the will in full force, and the bill states that the same was proved in open court, on 27th March, 1794, on the oath of William Terry, a subscribing witness to the same, as appears by the certificate of William Humphreys, the clerk of the court. The legatee, Susannah Stone, intermarried with Benjamin Franklin, who came into the possession of the slave Hetty, and some time afterwards, to wit: in the year 1810, without the knowledge or consent of the. complainant, sold the slave Hetty, and her child, Damon, to the defendant, or some other person, as is alleged by the bill. The said B. Franklin, husband of tbe complainant, died some time in the month of January, 1820, since which time the complainant alleges that the said slaves have been in the possession of the defendant, and the woman has several other children besides the boy Damon. *248Tbo complainant charges that she has demanded from the <fe fendant the delivery of the said slaves, or that he would acknowledge the 'possession of said slaves, and'give information of the numbers, ages and sexes of the children, which defendant has refused, and complainant is Unable to prove without the oath of defendant. She therefore filed her bill for a discovery and the delivery up of the slaves, and an account for their hire and labor.

The defendant, in his answer, stated that he had no knowledge of the will of Mrs. Maples, or of complainant’s marriage with B. Franklin, except as stated by complainant, and puts her to the proof thereof. Tiie defendant states that on the 3d February. 1810, Lacas Creyón, since deceased, the brother of defendant, purchased the slave Hetty, now in question, and her child, Damon, from one B. Franklin, who was then in possession of the said slaves and pretended to be the owner thereof; and that the said Lucas Creyón gave a fair and full price, to wit: *‡*500, for said slaves, and obtained a receipt and bill of sale for the same. The defendant also states *his belief*that Lucas Creyón had-not, at the time of the purchase, and never had any knowledge of Mary Maples or the said last will and testament, or of any claim by the complainant, or that said sale was made without her knowledge or consent. That after said purchase by Lucas Crejon, he conveyed to the firm of J. M. .Creyón ¡k. Co. the said slave and her child, for *‡*500, which was paid or passed to liis credit, by the said firm; of which he was a member; by which the defendant became a joint owner, and entitled to two thirds of said slaves: and the defendant positively ayers that at the time of said transfer, he had no knowledge of the said will or the claim under it; and upon the death of Lucas Creyón, defendant became entitled to the whole of the said slaves under his last will and testament; and he claims protection of his title as a bona fide purchaser, for valuable consideration without notice. Defendant also insists that the will of Mary Maples has never been recorded in the office of secretary of state, and that any settlement containing a separate., estate or claim thereunder, is fraudulent and void as to *249•defendant. The defendant admits the death of Behj. Franklin about the time mentioned in the bill, and that the slave Hetty has two children living, Damon and a child about three years old. The defendant admits the demand and refusal, and relies on the statute of limitations.

The first question which 'arises in this case is, as to the proof of the execution oí the last will of Mary Maples. ' The original was not produced, but a copy certified by Wm. Hum-phreys, clerk of the county court of Sumter, where the law, as it then stood, requires last wills and testaments to be recorded. He certifies that it is a copy of the original will, which has been proved in open court, by William Terry, one of the subscribing ■witnesses, on the 27th March, 179'4. Col. J. B. Richardson, proves that the public offices at Statesburgh wére afterwards burnt, and the records burnt with them; that he was in possession of the abovementioned copy of the will of Mrs. Maples and he has remained in possession of it ever since, as one of the executors, till now produced in evidence; and that all the dispositions of said will have been carried into effect, and all the (affairs of the estate, for a period of about 30 years, have been regulated by it. Notwithstanding the objections made on the argument against the probate of the will, I am satisfied that the judge, holding the circuit court, did right in considering the proof sufficient. The law required that the probate of the will should be made in open court, and that it should he recorded •and the original deposited with the officer for safe keeping, and directed certified copies to be delivered to executors, devisees •and others standing in need of them. All this is proved to have been done in this case; and it is further proved that the public records were burnt by accident; and that under the certified copy produced in court, all the affairs of the estate and the rights of the parties interested have been regulated. It would be a severe rule- which would work great mischief to the citizens, to ask higher proof than this.

• It was further .contended that to give the bequest in the will of Mary Maples, of tile'slave Hetty and her children, the effect of a separate estate, so as to be protected from the legal *250fights of the husband, and from his debts and assignments, the same ought to have been recorded in the secretary’s office, where marriage settlements are required to be recorded. I apprehend that this would be giving an extension to the doctrine of recording marriage settlements, which is new and unwarranted. The statute has never been construed to extend to separate estates given to wdves under the wills of their parents and other relations, and has always been confined to the case which it provides for — real marriage settlements, by deeds, made by husbands themselves.

The question next arose, is this a separate estate, free from the control of the husband? The will is perfectly explicit on this subject; it bequeaths the slave Hetty, and her issue, to Su-sannah Stone, in no wise subject to the debts, contract or arrangement of any future husband, in any manner, shape or form. This makes as complete a case of separate estate, placed beyond the controul of the husband, as can well be penned. And 1 agree with the circuit court in considering it a separate estate. But it is said there is no trustee, and therefore the provision fails, and the husband, Benjamin Franklin, acquired an absolute right, and could dispose of the slaves at his will and pleasure. This however is not the doctrine of the court. It was originally considered to be necessary to have a trustee expressly named in the instrument which created the separate estate for the wife. *See*1 *P. Wms.*125, *Harvey,*vs. *Harvey, and*2 *P. Wms.*79, *Burton,*vs. *Pierpoint.*But it has been established for a century, that if land or personality be devised or settled to or upon a married woman, for her separate use, without the precaution of vesting it in trustees, the intention will be effected in equity, and the rights of the wife will be protected by the conversion of her husband into a trustee for her. And it may be added, that any other person who obtains or is put in possession of the wife’s separate property, will be considered and construed to be a trustee for the w'ife; otherwise her right to the property which was intended for her, might be destroyed. The decisions in our own courts have been so; and the English judges have *251pursued the same course. *See 2nd Roper’s husband and wife,*152, 3, &c. *and 2nd P. Wms.*31, *Bennet,*vs. *Davis; 9th Ves.*583, *Parker,*vs. Brook. Even a court of law has extended its protection to the wife, in some special cases, where no trustees were interposed, holding, as the court of equity does, that persons named in the will as trustees for the persons from whom she claimed, were also to be considered as trustees for her. *See 5th Term Reports,*434, *David,*vs. *Atkinson, and 2 Roper,*153, 4: and this is the case whether the property be given by strangers to the wife’s separate use, or the estate be given, by the husband for her use. *See 2 Roper,*154; *3d Atk. 399; 2 Roper,*90; *9th Ves.*369.

The defendant however relies upon another ground, which his *able*counsel stated to be his strong one, on' which he had great confidence. It was that he was a bona fide purchaser for valuable consideration without notice; and that such a title Will not be disturbed in equity, in favor, of an equitable claimant. It will be remembered, that Lucas Creyón was the immediate purchaser from B. Franklin, and that he sold part of the interest in the slaves to his brother John, who on his death became heir of the whole; and John M. Creyón the defendant, swears that he believes his brother had no notice of the claim of the complainant under the will, and he swears positively that when he became purchaser of part of the interest from his brother, he had no notice. This is certainly a knotty question, and in my opinion the only difficult part Of the case. It appears indeed that Lucas. Creyón, the first purchaser, paid a fair and .probably a full consideration, and this raises a presumption that he had no notice that B. Franklin was selling him property which he had no right to sell. But. this is only a presumption; for the defendant very properly declines swearing positively that his brother Lucas had no notice of the complainant’s claim, and puts it merely on the ground of belief.

. Now I am of opinion that when a purchaser sets up a purchase for valuable consideration without notice, to protect a •manifest bad title, against the right owner, he is- bound to make *252that out by very clear proof, *(a)***The court requires the party who sets up the title of a purchaser for valuable consideration without notice, to be very particular, precise and positive in denying notice, and in setting forth every circumstance from wheuce notice could be inferred. See the language of chancellor Kent, in 1 *John. c. c.*802-3; *and see lord chancellor*Lough*borough's*opinion *in Jerrard, vs. Sanders,*2 *Ves. jr.*454. *(b)***This has not been done and cannot be done in this case as to the purchaser Lucas Creyón. 1 s this was a sale by a husband of separate property of his wife, which" he had no right to make, would it not be monstrous to make the sale of such property valid, when the husband was not the trustee under the will, but is construed to be a trustee expressly to protect the rights of the wife. The legal estate is not in *him,**(c)***as in the cases where the grant is to the husband in trust for the wife; he is only quasi trustee, raised up by the court to preserve the separate estate, and yet we are asked to permit the sale to defeat the estate. The counsel for the defendant cited 4 *Lq. Rep*477, to shew the rule as to purchasers for valuable consideration. But there the rule is stated to be where the legal estate is in the *253frustee wbo sold the property, and in the case cited- the sale was. Hot supported. ■

It appears to me too, that it ought to be remembered that there are no markets overt in this country, where a sale of per* sonal property to a bona fide purchaser for valuable consider» iron is good, though the title of the vendor to the property is bad. Therefore every purchaser is bound to enquire into the title. Then how stands the- case between these parties? The wife, whose interests are at variance as to this property with... her husband’s, *but whose*hands are tied by the marital bonds,, could not prevent the husband making the sale; nor does it appear that she was at all consulted or informed of his proceed* ings; the purchaser it is said asked no questions, ior the defence-rests on his having made no enquiry and obtained no notice; but-*he*takes a title from a man who has no right to sell; he could and ought to have enquired from B. Franklin for his titles and his right to sell the slave in question, and he would then have-learnt the truth, that the property was the separate property of' the wife, unsafe to touch. The equities then of these parties, are not equal. There is some balance on the one side for not enquiring, none on the other. Now I do apprehend that to, give application to the rule that the court will not give relief to the equity of the wife against the purchaser for valuable consi-; deration without notice, the equities must be equal or nearly so. See *Walwin,*vs. *Lee.*Lord chancellor Eldon admits that it may be worth consideration whether b°th parties are equally innocent, *(a)***Though he uses it there in favor of the purcha*254ser; *see 9th Ves.*31. In that case lord Eldon puts the very principle of the rule, that the court will not give relief to un-equitable claimant against a purchaser for a valuable consideration, on the ground that the purchaser has paid a valuable consideration, and therefore lie is not bound to give information which may affect his title. Now in the case we are considering, the equities do not appear to me to be equal, and therefore the application of the rule may not be obligatory. Nor is the bill' filed for a disclosure of the title or the delivery of title deeds; it was to have an account and information as to the increase of the slaves. Indeed it would be extraordinary to give that rule such an application in the case of the wife’s separate estate sold by the husband, when the court has manifested such a jealousy to protect the rights of the wife to a settled or separate property, that it refuses to sanction incumbrances made by the husband with the consent of the wife and her trustee, as in the case of *Ewing*& *Smith, Lowndes*& Champney, *and others.*Chancellor Kent, in the case of *Haviland*& *Myers, 6th John.*27, says that the wife’s equity to a suitable provision out of her separate estate, was so well established, that it would prevail against the husband or his assignees, and against any sale made by him even for a valuable consideration. The de_ fendant finally relied on the statute of limitations. The interests of the husband and wife were adverse to each other in relation to this property, at and subsequent to the time of the sale, and she could not sue alone. The legal estate was not in him; he was only a trustee by construction, to preserve her rights and not to destroy them: he has been dead only about two years, and the statute has not had time to operate between his death and the filing of this bill.- Upon the whole, I think the decree of the circuit court in favor of the complainant was correct, and ought to be affirmed.

*255It is ordered and adjudged that the decree of the circuit court be affirmed.

Chancellors *Gaillard, Waties,*and *James,*concurred.

(a)

*.)*Sed. Qu. How is such proof to be made? — R.

(b)

*.)*“I am perfectly satisfied upon the general reasoning, that this court will never extend its jurisdiction to compel a purchaser who has fuüy and in the most precise terms 'denied all the circumstance, mentioned as circumstances from which notiee may be inferred, to go on to make a further answer as to all the circumstances of the case, that are to blot and rip up his title. To do so, would be to act against the knovvn established principles of this court I think it has been decided, that against a purchaser for valuable consideration yvithout notice, this court will not take the least step imaginable. I believe it. is decided that you cannot even have a bill to perpetuate testimony against him. I am pretty sure if is determined that no advantage the law gives him shall be taken from him by this court. .The doctrine as to the jurisdiction of the court is this; you cannot attach upon the conscience of the parly any demand whatever, where he stands as a purchaser having paid his money, and denies all notice of the circumstances set up by the *bill.”*— Per *lord Loughborough, in Jerrard, vs. Saunder’s,*2 *Ves.*457.

(c)

**It does not appear from the opinion of the court in whom the legal estate was. In the executors of the grand-mother’s will? In the wife? Qu, Could either have maintained a suit at law after, the husband’s deathj against the *defendant?*— It.

(a)

*Walwin,*vs. *Lee, 9, Ves.*24. “The bill stated the title of the plaintiff as tenant in tail under the marriage settlement of his late father, and an act oí parliament, discharging part of his estates from the uses of the settlement, and settling other estates; and that he had suffered a recovery; and suggested that *the*defendant had in bis custody or power the title deeds, &e, relating to the estates comprised in the act of parliament, claiming, under pretence of mort--gages by the plaintilTs father, who was only tenant for life under the settlement, prayed that the defendant may he decreed to deliver up all deeds, &e.”

> “The defendant, asto so much of thebill as sought the discovery and deliverer of the title deeds, &c. except the deeds after mentioned, pleaded that the plaintiff’s father, alleging himself to be seized in fee, and being in actual possession .<# the premises as apparent owner, and being also in actual possession, of £h^ *254title deeds, &c. relating thereto, as apparent owner thereof, and having tira actual disposal thereof, executed the several mortgages (stating them) under which the defendant claimed; and averred 'that the defendant and the other mortgagees, through whom he derived, had no notice of the act of parliament.’’

> ■“The plea having stood a considerable time for judgment, was allowed.'’

Chancellor *Thompson,*

dissentient. It is an established rule of law, that an innocent purchaser for a valuable consideration without notice shall be protected. All the evidence which the nature of the case could admit of has been adduced, and the defendant John M. Creyón has positively sworn in his answer, that he had no notice. I am therefore of opinion that the decree of the circuit court should be reversed.