*Columbia.*

Heard by Chancellor James.

#### John Elders *vs.*C. H. Vauters.

A person entitled as distributee to the personal estate of her deceased brother, possessed herself of the same, without administering on the estate, and assigned part of it to another, with whom she lived in concubinage. — After her death, administration.was taken out on the brother’s estate, and the administrator brought suit at law against the assignee for the property, and obtained a verdict. The court will not in such a case interfere in favor of the assignee, and enjoin the judgment. The transaction was irregular, and no proof of valuable op’;. Adoration to support it.

*156FEB'Y 1811.

Tiíju bill slates, that Hugh MeClain died intestate possessed of a female slave named Betty, and other personal property — leaving Margaret M‘Grcw, his sister and only heiress. That Margaret M‘Grew took possession of the personal estate ; — and meeting with difficulties in discharging the debts, she applied to John Elders, the complainant, for assistance; — and he believing that Margaret MeGrew had a good title to the property of M*Clain, discharged all the debts of Hugh M‘CIain to a considerable *amount;*and that Margaret M‘Grc\v, in consideration thereof, and for other valuable considerations, sold and delivered to the complainant, and executed to him a bill of sale for the female slave, Betty. That the complainant continued to hold the property until the death of Margaret M‘Grew, who died intestate. After her death, one Cornelius 15. Yauters, obtained letters of administration on the estate of Hugh M‘Clain-, neither being a creditor or next of kin — and commenced suit against the complainant at law, for the female slave Betty, and her offspring, who were in the complainant’s possession; that the judge of the court of common pleas was of opinion that the legal right to the property in question was in Cornelius II. Vautcrs, who was therefore en-f Hied to recover at law. That complainant appealed to the constitutional court, and a majority of the judges concurred with the judge below. The bill prays that Cornelius II. Vautcrs may be directed to stay all further proceedings at law, and that the complainant may be quieted in the possession of said property.

ifiie answer admitted that Hugh M‘Clain died intestate, and that Margaret M‘Grew was the sole heir of Hugh M‘C3ain, and she was entitled to the administration of the said estate. The answer denies that the estate was considerably indebted, but asserts that Hugh ?.TClauds estate was sufficient to satisfy all his debts, it further denies that Elders did pay debts to a consider-hlo amount; but that Margaret M‘Grow paid the debts of the. said estate. The answer further states, that Margaret MHirow, in her lifetime, employed John Elders as an overseer : and that ¡hey lived together as man and wife *157without having been actually names', and John Elders may have prevailed on her to execute the bill of sale mentioned ; but denies that there was any consideration. It states, Unit after making the bill of sale, the slave continued on the plantation of Margaret M-Grcw. The answer admits that Margaret M*Grcw died at the time stated, and that the defendant did apply for* and obtain letters of administration on the estate of Hugh M‘Clain, at the earnest request of Elizabeth M‘Grew, daughter of Margaret Ms Grew, with whom ho was about to be married, and whom he has since married. It further admits, that defendant did institute a suit against John Elders, and that the jury found a verdict for the plaintiff, which was supported by the constitutional court — .and ought to be conclusive on the complainant.

The cause came to a bearing : — It was proved that tire bill of sale was executed by Margaret M*Grew, on the 19th May 1800, for the female slave, Betty, to John .Elders for SlL The slave Lad belonged to McClain's estate, and was in Mrs. MeGrew’s possession after her brother’s death. Eiders was a poor man, but industrious, and had a little property. He came to live with Mrs. M‘Grew, many years ago: He managed her property and that of McClain’s csiate, and worked himself. She was not wealthy, but was in better circumstances to pay debts than he was. They lived together as man and wife, and had two children, hut were not married. The slave Betty, had two children, and they continued in Mrs. M‘GrewJs possession. She was of much more value than 1 he sum mentioned in tiic bill of sale 5 but some of the witnesses said she was not in perfect health.

Mr. Crenshaw", for the complainant,

contended, that Mrs. M‘Grcw being the sole heir of her brother, If. M-CIain, had such an interest in his property, that she could sell or assign the personal estate, though she never administered on the estate, as she was entitled to have done. She had a legal ami an equitable right, though not a legal possession, and could assign those, rights. 2 P. Williams, 183, 608,; 1 Towel, 156; 1 Com. 569; 2 Com. 361; 3 P. Yfms. 132; 1 P. Wins. 254 ,r 5 Aik. ,SG8.

*158An assignment may be made without *consideration*— > Powel 318 ; 3 P. Williams, 199 j 2 Eq. Cases Abr. 89, aTJq jf there be no fraud, there can be no relief, — ! Eq. Cases Abr. 84 ; 2 Vernon, 308. If creditors were in question, it would alter the case.

Mr. Blanding and Mr. Starke, for defendant,

argued, that the defendant liad established his legal right to the property by suit at law, and there is no ground for the interference of this court. The whole ease was before that court. The cases cited of assignments supported without consideration, are where the assignors conveyed their own *property;*but if Mrs. M‘Grcw had administered, she could not have assigned without consideration *i*and she ought to have administered in order to pay the debts of M‘Clain. 2 Bla. 495 ; 1 P. Wms. 277 ; Co. Lit. 58.; If she had acted regularly and administered, the order of the court of ordinary was necessary to sanction her sale or assignment. The complainant was hound to shew a good consideration, which he h.as not done. There is no ground for this court to interfere and decree a specific execution, as of an agreement. This court does not interfere in cases of personal estate, where there is a remedy at law. 2 Powel, 215 *; 1*Fonbl., 148 — 9. Nor will this court be astute to carry an agreement into execution, where it is not shewn to be altogether fair and founded in morality; and the circumstances of this case, justify at least a do ubi' on that point.- — 2 Powel, 143, 221, 225, 259. In such a case, the court will leave the party to make what he can of his deed at law — 1 Fonbl. 215. Such a transfer by a wife would have been void — a fortiori when made to a paramour. There is strong presumption of fraud. — 1 Fonbl. 114," 2 Vez. son, 155. If the heirs or distribu-tees should bo allowed to take possession of the property, and dispose of it at pleasure, all the salutary regulations as to administration and security, made for the sake of creditors, and even of the heirs themselves, where there are several, would be defeated. If there he an equal equity this court will not interfere,.

*159After tbe argument, chancellor James delivered "the following decree:

In this case, which arises' oii injunction to stay pro-eeedings at law, it has been said, that the court of common pleas was of opinion, that Margaret M‘Grew had a disposable equitable interest in the property in question $ but that C. II. Yauters was entitled to recover at law as having the legal estate. But after the most mature consideration, I cannot see upon what grounds the complainant in this case, as claiming through her, has a right to recover in equity. It is not within the power of this court, any more than a court of common pleas, to legislate or dispense with any established law, the object of which is clearly defined; and such I take to be the law of 17-89, directing the granting probates of wills and letters of administration. If, by a loose construction- of this, act, courts of equity were to allow persons under color of being heirs of any estate, to convey away property without administering,- the obvious consequence would be, that creditors, especially by simple contract, would be deprived of that remedy, which they now have by law of suing for their demands. And bond creditors, also, must search about the country after heirs, who are not always properly designated or certain, before they could establish their legal demands. Besides these reasons, what has been urged at the bar must have considerable weight, <£ that letters of administration when granted, must relate hack to the death of the intestate, and therefore, that this complainant, if ho can recover at all, must recover by action against the administrator.” These reasons might appear sufficient for decreeing against the complainant, but there is another, and a, strong one, which has been urged. It is, *if*that the complainant in this case does not come into court, according to a common phrase in the court of equity, with clean hands $ that the contract under which he claims, is not such an one as this court would aid him in, so as to decree a specific execution of it, and that it is in fact, contrary to the general policy of a well regulated society.5-'' It appears from the evidence, that the complainant *160and Margaret M(Grew, at the time the contract in question was entered into, were living together as man and without the marriage ceremony having been performed; — that she had, also, children by her deceased husband, one of whom is married to the defendant, and that she had also children by her paramour, the complainant. Now, there can be no doubt, but what if she had been married to him, and made the deed in question, it would have been of no manner of validity, on account of that influence which the husband has over the acts of the wife. And if this be one and the principal reason, why contracts between husband and wife are set aside, certainly the same reason must have considerable effect, where the contract is between a woman and the man living in adultery with her: for his influence over her must be full as great as that of a husband, and must be of a more improper nature. The question then is, will this court decree a specific performance of a contract under such circumstances, so as to deprive the children born in wedlock of the property ? 1 apprehend not.

The property disposed of by the deed, was the whole of the property which came by the brother : it still remained in the possession of Mrs. M‘Grew after the execution of the bill of sale $ — it lias not been proved tit at the debts of Mr.M'Clain were paid j — the consideration is somewhat impeached by the circumstances under which the contract was made j and, upon the whole, though no actual fraud has been proved, yet such a strong presumption of it arises, that f am compelled to refuse the aid of this court. Let the bill of sale be delivered to the complainant, and let him make the most of it lie *c;in;*but let his bill bo dismissed with costs.

W. D. James.

From this decree there was an appeal on the following grounds:

In this case the complainant moves the court of appeals, to reverse the decision of the presiding; judge, on the following .grounds *t*

*161First, — That Margaret MMire.w being the neríí of bin, and only legal representative, liad a right in equity to hold this property subject only to creditors and pri- or incumbrances. '

Second, — The Court could not presume that there were creditors, because the defendant, who is the administrator of Hugh M‘Clain, positively denies that he owed any debts at the time of his death, and if he did, ■ admits that they were all paid: and it is not pretended that the property was encumbered.

Third,' — Because if Margaret M‘Grew had a right to the property, she had a right to transfer ami assign-it | and although the assignment was not good ir» law, it was good in equity.

Fourth,- — 'Because the administrator is considered in equity, as a trustee for the next of kin, where there, arc no creditors or after the debts are paid ; and, a for-tiori, trustee for the assignee of the next of kin.

Fifth, — because the decree is erroneous, in supposing the complainant has come here, for a specific performance of the contract. He comes to be quieted in the. possession of property which he holds under a contract executed, and of which he is about to bo deprived by a mere technical form of law, contrary to oquity and good conscience.

Sixth, — Because the court has presumed fraud, where it is admitted that none has been proved : and that it is presumed against the solemn deed of- the only person interested, and against positive testimony offered by the. defendant himself, that it was bottomed on a valuable consideration.

Seventh, — Because if the -principle assumed by the. decree is correct, that the complainant and Margaret M‘Grcw were to be. considered as husband and \yiie, and that the contract was therefore void, the samé principle would give him the property without any -contract.

Eighth, — It is not correct that the property always after remained in the possession of Margaret M-Grew, for since it is admitted that they lived together, the possession must be. presumed in the bno who had the right, *162which, after the bill of sale, certainly was in the complainant.

Ninth, — It is equally incorrect to say, that this was all the property McClain had $ for the contrary is admitted by the answer, and appears from the proceedings at law.

Tenth, — Because the decree goes to establish the principle, that an administrator, (although a stranger,) lias the absolute right to the personal property against the next of kin.

Crenshaw appellants solicitor.

• At the sitting of the court of appeals, at Columbia, present chancellors James, Desaussure and Gaillard, the appeal was argued, and the court affirmed the decree of the circuit court.