#### *Jeremiah Walker et al. vs. James W. Frazier et al.*

In 1799, R. G. died intestate, leaving a widow and six children, all by her. In 1800, the widow and her brother were appointed to administer the estate, and in 1801 they sold, as his property, certain slaves. In 1802, ¡these slaves were conveyed by the father of the widow to her for life, with remainder to the children which she then had or might thereafter have. In 1803, the administratrix and her second husband (she, in the meantime, having married,) brought trover for the slaves against the purchasers at the administrators’ sale. These suits were compromised, the negroes given up, and the notes given by the purchasers for the price surrendered. In 1811, two of the children of R. G. being of age, an irregular and informal partition of the slaves was made, and two were conveyed, by the administratrix and her husband, to each of the six children, and the rest retained by them. In 1812, a female slave, named Isabel, who had been retained by the ad-ministratrix and her husband, was sold by the sheriff under an execution against the husband. In 1841, the administratrix died, leaving one child *by*her second marriage, besides children by her first, surviving her. *Meld, on*bill filed, claiming that Isabel and her issue were subject to partition amongst the children of the administratrix, under the deed of 1802,1st, that, if there had been no evidence of a partition m 1811, the Court would presume, from the lapse of time, that one had been made, and that Isabel *100had been allotted to the administratrix; and, 2dly, that the validity of the deed of 1802 depended on the consent of the children of R. G., and they having repudiated it, and taken under the partition made in 1811, it could not be now set up, even in favour of the child of the administratrix by her second marriage.

*Before*Johnston, Ch. *at Abbeville,*

*June,*1843.

*The Chancellor.*In this case, certain negroes, the descendants of a wench named *Daphna,,*are claimed by the children of Mrs. Amelia Griffin, afterwards Cowan, from Mr. and Mrs. Frazier, who on the other hand lay claim to them, under the circumstances which shall hereafter be stated.

As early as 1784 or 5, Mrs. Griffin,' then Amelia Sims, the daughter of Nathan Sims, of Abbeville, in this State, was married to Richard Griffin, and removed with him to Lincoln County, in the State of Georgia, where they settled. Shortly after their marriage, they were in possession of the negro Daphna, then a girl, and retained possession of her, she being generally regarded as Griffin’s property, until his death, which happened in 1799. In the meantime, she had borne several children, and among the rest a girl called *Isabel.*It is necessary to attend particularly to this girl Isabel, inasmuch as the bill is *to*recover her descendants.

On the 19th of February, 1800, Mrs. Griffin and her brother, George Sims, were appointed administrators of the estate of her late husband, Richard Griffin, and on the same day gave bond and sureties to the court of Lincoln County for their administration.

On the 1 st of March following, the administrators caused an appraisement of the personal estate of Griffin to be made, in which was included the negro girl *Isabel;*and shortly after-wards, probably about the beginning of 1801, they sold the said personal estate, at which sale this girl sold for the sum of $300. It is in testimony, that Mrs. Griffin, one of the administrators, objected to the sale of Daphna’s children, including Isabel of course.

On the 5th of March, 1802, Nathan Sims executed a deed, witnessed by Leonard Sims, George Sims and William Bond, (the two last subscribing with their marks,) by which, in consideration of love and affection for his daughter, Mrs. Amelia Griffin, ■he gave and granted “ unto the said Amelia Griffin, all the use *101and labor, profits and benefit, any way appertaining or arising from seven .negroes and their increase,” consisting of Daphna and her children, including Isabel, *“*now being in her, the said Amelia Griffin’s possession, to have and to hold during her natural life time. And at her death,” he proceeds, “ 1 do give *the above*named negroes, with all their increase, to the said *Amelia Griffin’s*childien, that she *now has,*or hereafter *may have,*to be equally divided among them.”

This deed was proved by the oaths of Leonard and George Sims, the 10th of April following, and was recorded by the clerk of the superior court for Lincoln County, the 18th of October in the same year.

It will be remembered, that George Sims, who attested and proved this deed, was one of the administrators of Richard Griffin, in which capacity he had sold the negroes. It does not appear how, after the sale, they came again to the possession of Mrs. Griffin, if, as is recited in the deed, they were in her possession at the time of its execution.

Sometime between the date of the deed, and the early part of 1803, Mrs. Griffin entered into a second marriage, with one John Cowan, and on the 10th of September, 1803, Cowan and wife brought six several actions of trover in the superior court for Lincoln County, to recover the negroes sold at the administrators’ sale, from the purchasers; and one of these actions was brought against *George Sims,*for the negro girl *Isabel.*The plaintiffs obtained a verdict at April term, 1804. An appeal was taken, by consent, which was continued from time to time by the appellant Sims, until April term, 1806, when it appeared that it had been settled at his costs, for which judgment was given.

This settlement was effected in the following manner : On the 21st of January, 1806, an agreement was executed between Cowan and Sims, which recited that six suits in trover were pending in Lincoln Superior Court, and stipulated to refer the hire of the negroes sued for to *Jeremiah Walker*and Stephen Simons, with the power of umpirage. On the same day the arbitrators awarded to Cowan for the hire of the negroes the sum of $125. Whereupon the negroes were delivered up to Cowan and wife.

After this recovery, we hear no more of the negroes covered by the deed of Nathan Sims until 1811. Some of the witnesses have spoken loosely of a partition made of them, probably about *that*time, between Cowan and wife, and the children which she *102had borne to Griffin. These are six in number, of whom Buckner Griffin and Nathan Griffin, the two eldest, were just then of age. Of these six, the said George Sims had been appointed guardian for Buckner on the 5th of September, and for Nathan the 13th of December, 1802 ; and the said John Cowan had been appointed guardian of Lucinda, Jane, Margaret and Agnes, on the 2d of March, 1803. The only evidence, however, which we have of a partition, consists in the following deeds, dated November 16th, 1811:

A deed of gift from Cowan and wife, for two negroes, Clara and Stephen, to Buckner Griffin, in consideration of love and affection.

A similar deed from Cowan and wife, to Jane Griffin, for two negroes, Dilsy and Jemima.

A similar deed from the same parties, to Margaret Griffin, for two negroes, Ailsley and a child that *Isabella*was then pregnant with.

A similar deed from the same parties, to Agnes Griffin, for two negroes, Dicy and Lavina.

A similar deed from the same parties to Lucinda Walker, (formerly Lucinda Griffin,) for a negro, Patience, for the life of Mrs. Walker, with a limitation over to her children.

And a similar deed from the same parties, to Nathan Griffin, for two negroes, Mary and Henry.

Cowan, also, made a similar deed, dated June 30th, 1813, to Agnes Griffin, for a negro child, Agatha, about 12 months old.

The rest of the negroes remained in the possession of Cowan: but no provision appears to have been made for a son by the name of William S. Cowan, whom he had by his wife, lately Mrs. Griffin.

Cowan became indebted, and about 1812 an execution against him was levied on the negro girl *Isabel,*who, it appears, was, while in his possession, occasionally, but not often, called Lizzy. The sheriff of Lincoln proceeded to sell her under this execution, In the course of the sale, one Frederick Brown, from a remote part of the county, or from a neighboring county, became a bidder. Owing to something which was said, he stopt his bidding, and did not resume it until he received encouragement and explanations, which induced him to bid again. Eventually the negro was knocked down to him, at a sum which is proved to have been a full price, which he paid, and the negro was delivered to him by the sheriff.

*103It is contended that Brown had notice of the deed of Nathan Sims, or sufficient notice to put him upon the enquiry for it, during the sheriff’s sale The testimony upon this subject is as follows:

*Peter*Lamar, who was present at the sale, says : “I cannot positively say that Brown had notice, though I believe he must have known that there was a doubt about the title, as I remember at the time some persons mentioning that the property was the children’s (properly of Mrs. Cowan — the negro purchased by Brown, as well as the other negroes in possession of Cowan.) I now believe it was a legatee, or friend to the children, and the subject was mentioned and spoken of in'the company, and in a manner that I think probable Brown must have heard it. - The statements made, (were) that the property was subject to division at the death of Mrs. Cowan. I cannot state particular words or arguments used.”

Being asked *if*a deed, and what deed, was mentioned, he answered : “ 1 cannot state particularly. The deed from Mrs. Cow-an’s father to her and her children I had previously heard spoken of. I am not certain that the title was publicly mentioned : yet I suppose it must have been done.”

He adds, “the situation of the negroes mentioned, who were in possession of John Cowan and wife, was known to a number of persons in Lincoln, and to persons in the company on the day of sale, yet conflicting opinions (existed or were expressed) as to the title. Nor can I say, that on the day of sale the subject was matter of general conversation; yet the subject was spoken of by some in my presence, though I am unable to mention the names of' the persons. My memory does not serve me.”

He says again, *“*I have related all I now remember. That on the day of sale, the subject of the title was mentioned, in my presence. I cannot state that the *deed*was mentioned, but I supposed it must have been, as the claim rested on the deed of gift entirely. Nor do I remember the names of persons engaged in the conversation, as I have stated.”

*William White*and his wife on the same subject were examined by the plaintiffs, who, declining to read their depositions, •they were read by the defendants. W. White says, “ he heard from Frederick Brown that there was, at the time of sale, a statement made by some person in the crowd, that there might be a future difficulty about the property : upon which he quit bidding for it, until he was assured by Jeremiah Walker, one of the com*104plainants, and two of the Simss, and Peter Gullat, that they assisted in the division of the property, and that Cowan had received it in right of his wife, and that there would be no difficulty about the title; and Brown said that Buckner Griffin made the same statement also.”

*Mrs. White*says, “she heard her father, (Frederick Brown,) say, that at the sale some person remarked that there might be some difficulty about the title of the negro, upon which he quit bidding, but on being assured by Jeremiah Walker that the ne-groes had been lawfully divided, and the title would be good, he bid on and bought the negro.”

Brown continued in possession of the negro purchased by him. But while in his possession, she was uniformly called Lizzy, and not Isabel. While in his possession, she bore two children, named *Phillis*and *Milly.*

A bill was filed against him by the children of Mrs. Cowan, of which we have no other information than that it prayed a *ne*exeat, and was dismissed.

He gave Phillis and Milly to his grand-daughter, Miss White, now Mrs. Frazier, who, with her husband, is made a defendant to this bill.

John Cowan and wife removed to Missouri many years ago. He died in 1822, and she in February, 1841.

The bill is filed by William S. Cowan, their son, now from 30 to 38 years of age. The other plaintiffs are the four daughters of Richard Griffin, to-wit, Lucinda, with her husband, Jeremiah Walker; Jane, now the wife of Stephen Stovall, formerly the wife of Lewis Stovall, her present husband being joined with her ; Margaret, with her husband James McMillan ; Agnes, formerly the wife of John Calhoun, but now a widow.

The defendants, besides Frazier and wife, are Nathan Griffin, and the distributees of Buckner Griffin, who is dead.

It is easy to see.that the title to Daphna and her children, at the date of Nathan Sims’ deed, was not in Sims, but in the personal representatives of Richard Griffin. It does not appear from any testimony before me that the possession of any of these slaves was ever in Nathan Sims, even for a moment, or that he ever claimed them, or either of them, until he executed the deed. On the other hand, the possession, without question or interruption, is traced, by this evidence, in Richard Griffin, from 1784 or 5, until his death in 1799.

It was not until 1802, after the slaves had been sold as the *105property of Griffin, that the deed of Sims was fabricated ; and it adds no little to the evidences of unfairness in the execution of this instrument, that George Sims, the administrator of Richard Griffin, who, in his official character, made sale of the property, was aiding as an attesting witness to its execution. In short, the circumstances attending this transaction, would most conclusively condemn it, if we were at liberty to carry our investigation back beyond the result of the actions of trover brought for the slaves by Cowan and wife. But the principle is well settled, that Brown, under whom Mrs. Frazier claims, having purchased the title of Cowan, can set up no claim beyond what Cowan could have asserted.

It has been argued, indeed, that Brown, as purchaser, under a creditor’s execution, could assert such claim as the creditor could have asserted; and this is true. But what was the measure of the creditor’s rights? A creditor certainly is not restricted to the claims actually set up by the debtor. If the latter should, from collusive or fraudulent motives, give up or deny any right existing in him, to the prejudice of the creditor, undoubtedly the latter would not be concluded. But clearly a creditor can claim no more than his debtor claims or may lawfully claim. Cowan and wife were concluded by their reception of the negroes, under the dee'd of Sims from the defendants in the actions of trover. A *question was raised*whether testimony could be received to explain under what claim these actions were brought and sustained. It was said that the records alone should speak. But it is not necessary to look into this record at all. In fact, no judgment was ever entered up for the property. Pending the suits, the cases-were compromised. But the testimony is explicit, that the negroes were delivered to Cowan and wife under the deed, and this was sufficient to bind them, although there had never been any suits brought for their recovery, to hold for the remainder-men according to the terms of the instrument.

If the creditor’s demand reached back to the date of this transaction, I have no doubt he would have been at liberty to show a pre-existing and better right in Mrs. Cowan as a distributee of Richard Griffin, and in such case, would have been allowed to unravel the transaction as a fraud upon his rights. But there is no reason to conclude, from the evidence, that the debt under which Brown purchased, had an existence at the time the ne-groes were given up by the purchasers at the administrator’s gale.

*106But it is argued that, be this as it may, Brown purchased at a fair price, and without notice of the deed, and could not therefore be affected by it. I do not think he had such notice as should affect him. Notice to affect a purchaser should not only be sufficient to advertise him that there may be some difficulty : it should point out the nature of the difficulty. It should be sufficient not only to create an anxiety on his part, but put him on the enquiry. I do not mean that it should suggest a general enquiry; it should indicate the object and ends of the enquiry. It should suggest the enquiry, and the means of making it. Any other doctrine would put it in the power of debtors or their-friends, or any by-stander, acting from any imaginable motives, to defeat all sales; for who would venture to become purchaser if liable to be deprived of his purchases, by proof that some indefinite doubt had been suggested as to the title?

But then it was argued, that although Brown had not actual notice of the deed, it was duly registered, and that affected him with constructive notice. This registration was in Georgia, and must be governed by the laws of that State. My attention was not directed to any law of Georgia, declaring what shall amount to due registration of deeds for personalty, or the effect thereof, but consulting a digest of the statutes, which has accidentally fallen into my way, I do not fin'd any thing bearing upon the subject but the following clause of an act approved the 21st December, 1819. (Prince’s Dig., 215:) viz, “ all conveyances of personal property, duly executed, and bearing date after the passing of this act, may be recorded,' and shall be admitted as evidence, under the same rules and regulations as govern in cases of real property.” This does not embrace the deed before us — nor does it declare that any effect as regards notice of it *should*have followed from its registration, even if it had been of a date posterior to the statute.

I am free, therefore, to declare my conviction, that Brown was a purchaser without notice of this deed. But it does not follow that his purchase is exempt from its operation. A purchaser, without notice of an outstanding equity, is protected against it. (Rice Eq., 330) But it was determined in *Donald*v. McCord, that this doctrine does not apply to an outstanding legal title. Innocence of purchase is defensive equity, and may be successfully opposed to another equity, but not to a legal right. The purchaser of the legal title, who has bought without notice of an outstanding equity, cannot be affected with a trust. But in this *107case, Brown did not acquire a title beyond what was in Cowan, which extended only to the life interest of Mrs. Cowan. It has been repeatedly decided in this State, that such a remainder as •was created in this deed in favor of the children of Mrs. Cowan, is a good legal title, and as such, Brown’s purchase was not exempt from its operation; and if this could ever have been doubted it can be questioned no longer, since one of the peculiar grounds of jurisdiction in this court has lately been held to be the delivery of slaves to those legally entitled to them, an equity springing out of the mere consideration of title in law. 'Ihe title of the remainder-men did not accrue until the death of Mrs. Cowan in February, 1841, and is not barred by the statute of limitation. It may have been that the court of equity in Georgia, upon some ground not disclosed by the evidence, refused to interpose for the preservation of the property, but that was no decision of the legal claim now set up by the remainder-men.

Mr. Frazier, who is a volunteer under Brown, must be liable exactly as he was while he retained the property.

So far, I see no way of escape for this defendant. But it is argued, that the distribution of some of the slaves by Cowan amongst the Griffins, by his voluntary deeds, mentioned in’the statement of this case, may be seized upon as a means of doing what justice plainly requires. I can hardly feel authorized to regard that transaction in the light of a regular partition. That it was so intended and so regarded, I confidently believe. But it seems to have been done without authority, and without the formal concurrence of any one authorized to act for the minors. There was no counter deed to Cowan and wife. I suppose I must, therefore, take it for a voluntary relinquishment on Cow-an’s part of his wife’s interest in the slaves conveyed to the children of Griffin, made in advance of the accrual of their rights in remainder. But viewed in this light, it was justly insisted that Cowan went further than he was authorized to do. He should have stopped at the conveyance of the life interest; he had- no right to convey in fee, by which he intermeddled with and partitioned the remainder. Then it is argued, that those who received slaves by the deeds of Cowan, must hold them as much subject to partition among the remainder-men as the slaves retained by Cowan, and which form the subject of this suit, and that no equitable partition can be made until they are accounted for with their increase.

It was argued also, that there is another ground of just ob*108jection to partitioning the slaves sued for, without bringing in those already distributed. Those who received the latter retained them after coming of age, and some of them sold them, and may be regarded as approving the informal partition.

It would be extremely gratifying to me, if I could so mould these transactions as to reach what I think is the justice of the case, which I am convinced is with Mr. Frazier. Although I am not allowed to act upon it, it is impossible to dismiss from the mind the fact that the slaves, of whom .those sued for are a part, were not the property of him under whose deed the present claim is set up, and equally impossible is it to force the mind from the conviction that every child of Mrs. Cowan, except Wm. S. Cow-an, has already received his full share of them.

But I must, as well as I can, divest myself of these impressions, and decide this case, not according to my convictions of justice, but in strict conformity to law.

How far, then-, has Mrs. Frazier a right to object to the partition prayed for ? She is not entitled to any thing beyond the life of Mrs. Cowan. It is the remainder, in which she has no interest, that is now to be partitioned. If the remainder-men are willing to divide that unequally, without requiring the negroes already apportioned by some of them to be brought into the account or division, how is she prejudiced by that ?

That she is prejudiced by it, is a supposition, having for *its*ground, (it appears to me,) the gratuitous assumption that the children of Griffin, by some concession, in what has been called the partition of 1811, granted to Mrs. Cowan something beyond her life estate in the negroes then retained by her. But there is no evidence of any such thing. From the minority of the parties, it was impossible to be done.

Another ground is taken. It is said, that Jeremiah Walker and two of the Griffins, by their representations made to Brown, was guilty of such fraud as to deprive themselves of all right to participation in this partition, and that their shares should be left in the hands of Mrs. Frazier, in conformity to the assurances that the title was good. Here again, I feel constrained to overrule an argument which I believe to be founded in the right of the case. I cannot regard the facts alluded to, as established by competent evidence. If publication had been ordered, I suppose the declarations of Brown, taken under the commission of the plaintiffs, would have been competent evidence in the case, but it was the defendants Mr. and Mrs. Fi azier, who moved to pub*109lish the evidence as their own, and I consider it must be subject to the objection taken to it by the other side.

Were it otherwise, I should have great difficulty in declaring, that as to Mrs. Walker, one of these parties, her interests should be destroyed by the declarations of her husband, however mistaken he may have been in making them.

On.the whole, I must sustain the bill; but I cannot order the defendants, Mr. and Mrs. Frazier, to pay costs, in such a case.

It is ordered, that the defendants just named, do deliver up to the commissioner of this court, the slaves referred to in the pleadings, and their issue, in their possession, for partition ; and that a writ do issue for the partition of them as prayed for.

It is ordered, that the other parties to the suit, pay the costs thereof.

The defendants, Frazier and wife, appealed, and now moved this court to reverse the decree, on the following grounds:

1. Because the deed of Nathan Sims to Mrs. Griffin, being made ty one having no right, title or interest, in the property therein described and conveyed, and being intended by the parties to it, to defraud the estate of his deceased son-in-law, Richard Griffin, cannot now be set up, and upheld by this court, to the prejudice of rights created, and now existing in the defendants in opposition to the provisions of that deed.

2. The estate of Richard Griffin, to whom the property described in said deed, did belong, at the time of his death, having been, upwards of thirty years ago, settled in full, and the complainants having received their full share of that estate, and of the identical property contained in said deed, the complainants are not only barred by the lapse of time, but have received their full shares of the property, and therefore their bill should be dismissed.

3. If the complainants have any right at all, it is an equity springing out of a fraudulent deed, and although it might be set up against the parties to the deed and volunteers under them, yet it cannot prevail against an innocent purchaser. Therefore, and for other reasons, the defendant’s plea of being an innocent purchaser, was a good bar to the relief sought in the complainants’ bill.

4. Frederick Brown-, having been encouraged and even beguiled into the purchase of Isabel at the sheriff’s sale, by representations made by the complainants, or some of them, in confor*110mity to the troth, that partition' had been made of the property, and that Cowan’s title was good; he, Brown, and those claiming under him, should be protected as against those claiming under the said deed ; otherwise, the truth itself, and the publication thereof, was a fraud upon the bidders, and upon Brown the purchaser.

5. The rights of minors and married women are protected in this court *against*fraud; but an illegal or fraudulent transaction confers no better right upon a minor or *feme*covert, than upon persons under no legal disability; therefore, the partition of the negroes in 1811 as the property of Richard Griffin’s estate, was valid, notwithstanding the deed from Nathan Sims to Mrs. Griffin.

6. The possession of Cowan and wife of the negroes in question, with an assertion of their right or claim, under the deed of Sims, though binding on themselves as to the other beneficiaries under that deed, is not conclusive upon strangers ; but creditors and purchasers may refer that possession to, and connect it with •the true title.

7. It is submitted, that the testimony of Mr. and Mrs. White was, under the circumstances, competent evidence in the cause, even for the defendants.

*Bauskett,*for the appellant,

contended that the complainants were barred by lapse of time, and cited Lewin on Trusts, 615; 4 Bro. Ch. C. 125; 2 Sch. and Lef. 624, 640; 2 Yes. 272; Amb. 645; 3 Bro. Ch. C. 633; 1 Hill Ch. 376 ; 1 Hill, 222; Harp. 1 ; 2 Story Eq. 736.

If complainants ever had any rights at all under the deed from Nathan Sims, by taking under the partition of 1811 they waived their rights.

But if lapse of time is not sufficient to raise the presumption of a partition, and the testimony does not establish one, then the legal title remained in the administrators. It never has passed to the complainants, and they, therefore, are not properly in court.

*Perrin and Wardlaw*contra.

*Curia, per*Dunkin', Ch.

The defendant, Mrs. Frazier, is in possession of certain slaves under a gift from her grand-father, Frederick Brown. Isabel, the mother of the slaves in controversy, was purchased by Brown at sheriff’s sales in 1812. She and her progeny have been in the undisturbed possession of Brown, or the defendant, from that time until the filing of this bill.

*111The sale at which Brown became the purchaser, in 1812, was under an execution against one John Cowan, who had married the widow of Richard Griffin, deceased. Griffin had died, intestate, in 1799, leaving a widow and six children. We agree with the Chancellor, that *“*the possession, without question or interruption, is traced by the evidence in Richard Griffin, from 1784 or ’5, until his death in 1799, and that on his decease, the title to the negroes wa.s in his personal representatives.” In fact, there is not a particle of testimony indicating either title or possession in any other person anterior to the death of Richard Griffin.

It is hardly necessary to say, that in order to protect the defendant, after this lapse of time, it would be presumed that partition was made of Griffin’s estate, and that Isabel had been allotted to his widow, who afterwards intermarried with Cowan. But, as it appears to the court, this is not left to presumption. *Peter Gullat*proved that a division of the negroes took place in 1811, between Cowan and wife, and the children of Richard Griffin, deceased, — that, on that occasion, Cowan and wife executed a deed to each of the children for two negroes by name, and that he, Gullat, with Leonard Sims, were subscribing witnesses to the deeds. These deeds were given in evidence at the hearing of the cause. *Jincey Newman*also proved that there was a division, — that “Mrs. Cowan’s *(Griffin)*children had two negroes each given off to them, and that Cowan and wife kept five negroes, among whom was Isabel.” *William H. Newman*proved the same.

The Chancellor reports, that at that time (November, 1811), Buckner and Nathan Griffin, the two eldest children, were just of age, and that John Cowan had been appointed guardian of the four minors, — that, in 1813, he executed a deed for another negro child named Agatha, to Agnes Griffin, — and that the negroes not set off to the Griffins, remained in the possession of Cowan.

Now it may be, that this partition was irregular, informal, and without any legal authority; but when it is recollected, that the youngest of the distributees is now more than 40 years of age, and that they took and kept possession of the negroes allotted to them severally, they would not now be heard to question its validity, much less to impeach the title of a *bona fide*purchaser from one of the parties. If there had been nothing more to consider, the Chancellor would have felt no difficulty in yielding to *112his strong conviction of the justice of the case, by dismissing the complainants’ bill.

In February, 1800, Mrs. Griffin, with her brother, George Sims, was appointed to administer the estate of Richard Griffin, deceased. Isabel was appraised by them as part of his estate; and in March, 1801, she, Isabel, and her children, were sold by the administrators.

On the 5th March, 1802, Nathan Sims, the father of Mrs'. Griffin, executed a deed, by which he conveyed, in consideration of natural love and affection, seven negroes, including Daphna, and Isabel and her children, to his daughter, Mrs. Griffin, for life, and after her decease to be equally divided between the children she then had, or might have. The deed recites, that the negroes were then in her possession.

On the 10th September, 1803, six suits were brought by Cow-an and wife (he having, in the meantime, married Mrs. Griffin,) to recover the negroes from those who had purchased at the administrators’ sales. One of the suits was against George Sims to recover Isabel. At April term, 1804, a verdict was rendered for the plaintiffs. The other negroes, it seems, were given up, and the notes of the purchasers to the administrators for the price were surrendered.

We agree with the Chancellor, that the deed of Nathan Sims was manifestly fabricated to answer a purpose. He never had possession of the negroes or any title to them. The administrator, George Sims, who had made the sale, was one of the witnesses to the deed, and he was the only defendant in the suit in trover which was prosecuted to a termination. There are many other circumstances, detailed in the decree, indicating the unreal character of the whole transaction. But what were the motives of the parties, it is entirely impossible, at this distance of time, and after the death of all the actors in it, to determine, or even surmise, with any confidence. It may be, that the object was to defraud the creditors of Cowan, as is suggested by one of the witnesses, although it was a very awkward and ineffectual mode to effect such object. The more probable conjecture is, that the parties intended (as the deed provides) to secure the enjoyment of the entire property to Mrs. Griffin during her life, thereby postponing the claims of the children of Griffin to two-thirds, and, as a compensation, giving to them, with her other children, (if she should have others,) all the negroes on the determination of her life interest.

*113But whatever was the motive of the parties, the success of the arrangement depended on the consent of others, who had not the power then to signify their assent, and who might, or might not, be thereafter willing to acquiesce in the arrangement. The children of Griffin were entitled to two-thirds of the negroes. When they became of age, they might concur in the arrangement, either as more advantageous to them, or from regard to their mother, or they might repudiate the arrangement, and insist on a partition of their negroes. If they had recognized the arrangement, either by any positive act of concurrence, or by waiting until their right of possession would accrue under the deed of Nathan Sims, it would not have been competent for Cowan, or any one claiming under him, to. gainsay or impeach that deed, or resist the exclusive right of the children of Mrs. Cowan to the negroes included in it.

But so far as the court can judge from the testimony, the children of Richard Griffin never acquiesced in this arrangement, or recognized this variation of their rights. So soon as the two elder children became of age, a partition was made among them all, without any reference to the deed of Nathan Sims, and precisely in the same manner as if no such instrument had ever been in existence. It is suggested, that this was by a surrender of Mrs. Cowan’s life estate. But the deeds made by Cowan and wife do not purport to be a surrender of her life estate; nor is there any thing in the testimony which would lead to the conclusion that any thing was contemplated but a partition of Richard Griffin’s estate among his distributees.

The deed of Nathan Sims was, then, of no force, because its validity depended on the consent - or approval of those who never gave it their assent; but on the contrary, by their acts, indicated their disposition not to be bound by it, and procured partition of the negroes as if the deed had never been made. It appears to the court, that those of the children of R. Griffin who are complainants in this suit, have no color of right for the claim now interposed by them.

But it is said, that though the Griffins have no right, the child of Mrs. Cowan by her last husband stands on a different footing — that, by bringing the actions of trover, Cowan and wife are estopped from denying the validity of Nathan Sims’ deed, and Wm. S. Cowan, their son, derives rights under that deed.

From the view taken by the court, the deed was valid, at least so far as Cowan and wife were concerned, when those suits *114were instituted, and so continued, until, in 1811, the children of Griffin, by interposing their paramount claims, defeated the arrangement proposed to be eifected by the deed. From that time all the parties acted as if the deed of Sims was, as the decree has termed it, ‘ a fabrication.’ William S. Cowan is now 38 or 40 years of age. If he had any rights under Sims’ deed, he had an interest in all the negroes — those in possession of the Griffins, as well as those left with his mother. Yet no attempt has been made by him to secure the property, although two-thirds of it was absolutely conveyed by the tenant for life more than thirty years before the filing of this bill. The construction thus given by the court to the deed of Sims, and the conduct of the parties in reference to it, seems more consistent with reason than has been suggested; and it is consistent, too, with the supposition that no fraud was intended by those concerned in it.

The Chancellor, who heard the cause, while he sustained the bill, ordered the complainants to pay the costs, onerous as they were, of the proceedings, from a thorough conviction that the defence was meritorious. A majority of the court are of opinion that it was also well founded in law, and that the bill should have been dismissed.

It is ordered and decreed, that the decree of the circuit court be reversed, and that the bill be dismissed.

Johnson and Harper, CC. concurred.