#### *Abram*Hodge, Administrator, *and William Lewis, Ordina*ry, vs. *Joseph*Montgomery, *Zimmerman Scarborough and Thomas Clerry.*

1. By deed of gift of Sth March, 1821, G. D, in consideration of love, good will and affection, conveyed to his six children, certain slaves, with their future increase, to them, their heirs and assigns, with clause of warranty, &c. Recorded the day of its execution. Three of the donor’s children having died, the survivors, in 1838, instituted against G. D. an action of trover for the negroes named in the deed, with their increase, he having remained in possession till that time; and obtained the following verdict. “We find for the plaintiffs, four thousand two hundred and seventy-five dollars, being one half the value of the negroes and hire.” Under this verdict judgment was awarded, and a *fi. fa.*issued, by virtue of which the negroes were sold by the sheriff, in April, 1840, and purchased by the defendants. A. H, one of the complainants, who had administered on the estate of one of the deceased children, and the Ordinary, who represented the others, there being no administration, claimed a moiety of the negroes sold under the deed of gift.

*2692. As to the effect of the verdict in trover on the rights of complainants’s intestates, the court were of opinion, that if they could be regarded as parties to that proceeding, or represented in it, they would he bound by it. Their right in the negroes would have vested in the defendant, and passed to the present defendants under a judicial sale.

3. But if no privity existed between the complainants and the plaintiffs at law, it was *res inter alios*acta, and from it they could derive neither prejudice nor benefit.

4. The negroes having been levied on and sold as the property of G. D., and purchased as such, by the defendants, — and the Chancellor who heard the cause having reported, that both from the testimony and the conduct of the parties subsequent to the deed, it had all the “leading characteristics of fraud,” the court refused to interfere, and dismissed the appeal.

5. In this view, the deed could have no more effect against the rights of a purchaser for valuable consideration, than against creditors.

*Before*Johnson, Ch. Sumter, *May*Term, 1842.

This was a bill for the partition of slaves, and states that on the 5th of March, 1821, Gilbert Dinkins executed the following instrument of writing:

, State op South-Carolina,

*Sumter*District.

To all to whom these presents shall come, greeting: Know ye, that I, Gilbert Dinkins, of the State and district aforesaid, greeting: that for the love, good will and affection which I have towards my children, to wit: William G. Dinkins, Harriet B. Dinkins, Emily E. Dinkins, Sarah M. Dinkins, Mary Dinkins, and James E. Dinkins, I freely give and grant, and by these presents do give and grant, unto the said William, Harriet, Emily, Sarah, Mary, and James Dinkins, their heirs and assigns, the following property: one negro man named Ned, and his wife Fatimore, and her children, namely, Sam, George and Mariah; one negro woman named Molly and child Kendil; one negro girl named Hannah ; one negro woman named Sarah, and her daughter Nancy ; together with their future increase ; to have and to hold the said negroes, unto the said William, Harriet, Emily, Sarah, Mary and James Dinkins, their heirs and assigns, forever. I also give unto my daughters, Harriet, Emily, Sarah and Mary Dinkins, one feather bed and furniture, each; and to my son, James E. Dinkins, one filly or mare, known by the name of the

*270Janel filly, and.her increase ; the right and title of said property, I warrant and forever defend unto the said William, Harriet, Emily, Sarah, Mary and James Dinkins, against myself and all other claimants whatsoever. In witness whereof, I have hereunto set my hand and seal, this fifth day of March, one thousand, eight hundred and twenty-one.

his

Gilbert m Dinkins.

mark.

Signed, sealed and delivered in presence of )

Fr’s. C. Edwards, Henry Hudnal.

State op South Carolina, )

*Sumter District.*$

Personally appeared before me, Henry Hudnal and Pr’s. C. Edwards, who being duly sworn, saith, on oath, that they were present, and saith the within mentioned Gilbert Dinkins assigned, sealed and delivered the within instrument of writing as his deed, for the uses and purposes within mentioned. Sworn to before me, this 5th day of March, 1821.

Sam’l R. Gibson, j. p. Fr’s. C. Edwards.

Henry Hudnal.

Recorded 5th March, 1821.

That the deed was recorded in the Register’s office for Sumter, the day of its execution. That the increase of the negroes are Lavinia, Linda, Louisa, Cressy, June, Rachel, Diana and her child, July, and some not known. That the children of Gilbert, mentioned in the deed, were minors at the execution of the deed, and living with their father. That William G. Dinkins died in 1835, and Abram Hodge has administered upon his estate; James E. died in 1835, and Sarah M. in 1837; and no administration has been taken upon their estates. That Harriet B. married Benjamin B. Hodge, Emily E. married Benjamin D. Hodge, and Mary married John M. Hodge. That Gilbert Dinkins; in Í838, being in possession of the ne-groes, converted them to his use, and the three Hodges, with their wives, being the survivors of William, Sarah and James E. Dinkins, on the 31st January, 1838, brought trover at law against Gilbert Dinkins, for Hannah, Diana *271and her child, July; Molly and three children, Lavinia, Sinda, and Louisa; Darcas and child, Sinbad; Cressy, June, Kendal, Sam, George, Fatima, Rachel, and Maria, being the negroes mentioned in the deed, and their increase. That the jury found the following verdict: “ We find for the plaintiffs, four thousand two hundred and seventyrfive dollars, being one half of the value of the negroes, and interest as hire and judgment was awarded for the plaintiffs, on 9th March, 1840, and a *fi. fa.*issued the same day, and lodged in the sheriff’s office, under which the negroes were sold on the 6th April, 1840. That Joseph Montgomery purchased Cressy, June, Kendal, Sam, George, Fatima, Rachel, and Maria; Zimmerman Scarboroug-h purchased Hannah, Diana, and July ; and Thomas Clerry purchased Molly, Lavinia, Sinda, and Louisa. That the defendants became tenants in common with your orators, by their purchase of Gilbert Dinkins’s interest in said slaves. That Abram Hodge is entitled to one-sixth part upon partition ; and William Lewis, Ordinary, by virtue of his office, representing James and Sarah Dinkins, who died intestate, is. entitled to two-sixths thereof.

The answer of Joseph Montgomery states, that he believes Gilbert Dinkins did execute such a deed as stated in the bill, but denies that it can operate against him, as it was executed with fraudulent intent to defraud the creditors of Gilbert Dinkins, and -without the intention of operation between the parties themselves. That James and William Dinkins, in 1834, admitted to defendant, that they set up no claim under the deed, at a time when defendant purchased these negroes of Gilbert Dinkins, at sheriff’s sale, Sarah, Nancy and Patsey, the two first included in the deed, and the last, a child of Nancy. That under their assurance, and that of the Hodges, who married the three sisters, that they set up no claim under the deed, he purchased, and has been in possession ever since, having paid to Gilbert Dinkins, with the knowledge of his children and their husbands, the difference between the bid at sheriff’s sale, and the amount agreed upon with Gilbert Dinkins upon private contract. Denies that all the children were minors at the execution of the deed ; that Wil*272liam and Harriet were over age. Believes William died at the time stated, and that Abram Hodge has administered upon his estate; that James and Sarah died as stated, and that Harriet, Emily and Mary, married as stated. Admits the suit in trover, as stated in the bill, for all the negroes except July and Sinbad; that the jury found the verdict as stated; and that he purchased the negroes as stated ; but denies that he became tenant with complainants, or that they are entitled to partition, or to any portion or share, and prays the benefit of the statute of limitations. That the recovery in trover is a bar to any further claim by complainants. That plaintiffs in trover represented not only themselves, but William, James and Sarah, of whom, as survivors, they sued and recovered. That Abram Hodge was present at the sale, and gave no notice of claim. That he paid a full price, without notice of any claim. That defendant, believingthat the deed was never intended to operate between the parties, but was a mere pre-tence, purchased from Gilbert, on the 3d February, 1838, for $2,775, the negroes Fatima, Sam, George, Diana, June, Rachel, Mariah and Hannah; and on 22d July, 1839, purchased from Gilbert Dinkins, for $2055, Molly, Kendal, Darkey,. Cressy, Viney, Sinda and Louisa; of which amount, except about $1400, he has been loser. That if partition be ordered, he claims Gilbert Dinkins’s interest in estate of James and Sarah Dinkins. Prayer, *&c.*

The answer of Thomas Clerry states, that he has no knowledge of the deed, except from report. That previous to the sheriff’s sale, at which he purchased Molly, La-vinia, Sinda, and Louisa, under execution at the suit of the Hodges and wives, he had heard that the plaintiffs in the action claimed under a deed from Gilbert Dinkins to his children, or some of them; but he had no knowledge of such deed, except from report. Does not admit it, and requires proof. The rest of the answer is substantially the same as that of Joseph Montgomery.

The answer of Zimmerman Scarborough denies notice in any way, and the rest is substantially the same as the others.

Johnson, Ch. The late Gilbert Dinkins, by deed bear*273ing date the 5th March, 1821, in consideration of natural love and affection, gave to his six children, William B., Harriet B., Emily E., Sarah M., Mary, and James E., and to their heirs and assigns forever, ten slaves, by name, some of the females of which have since had issue and increase. William B., one of the children, died in 1835, intestate, and administration of his estate was granted to complainant, Hodge. James E., another of the children, died in 1835, and Mary M., in 1837, both intestate, and no administration of their estates having been granted, the complainant, Lewis, the Ordinary, represents their interests in this suit. The three remaining children intermarried, Harriet B. with Benjamin B. Hodge, Emily E. with Benjamin D. Hodge, and Mary with John M. Hodge.

Gilbert Dinkins, the donor, notwithstanding the deed, remained in possession of the negroes until 1838, when the three children last named, and their husbands, as survivors of the three deceased children, brought an action of trover against the said Gilbert Dinkins, for the wrongful conversion of the negroes mentioned in the deed, and their issue and increase, On the trial of that cause, the following verdict was rendered by the jury, to wit: — “We find for the plaintiff, four thousand two hundred and seventy-five dollars, being one half the value of the negroes, and interest as hire.” On this verdict, judgment was entered up on the 9th March, 1840, and execution thereon was issued and lodged in the sheriff’s office on the same day. This execution was levied on the negroes mentioned in the deed, and their issue and increase ; and at the sale by the sheriff, on the 6th of April, 1840, the defendant, Montgomery, purchased eight, defendant Scarborough, three, and defendant Clerry, four of their number.

Such are the facts stated in the bill; and the complainants insist that they are entitled, in right of the deceased children whom they represent, to a share of the negroes, as tenants in common with the defendant; and they claim for each one-sixth, under the deed ; and complainant, Lewis, further claims for those whom he represents, one other sixth part, and the distributive share of the interest they took in the estates of those that had previously died ; and they pray partition of the negroes accordingly.

*274Several grounds of defence are relied on, and, amongst others, that of the statute of limitations, which I shall first notice.

This defence rests altogether on the possession of Gilbert Dinkins, as the possession of the defendants did not commence until they purchased the negroes in 1840, and the bill was filed in 1841. But, as before stated, Gilbert Dinkins had possession of them at the time of the execution of the deed in 1821, and they remained in his possession, and under his control, from that time up to the sale in 1840, a period of about nineteen years. If that possession was adverse, it may be assumed, and the facts will warrant the conclusion, that the children represented by the complainants, were all barred during their lives. But the proof is abundant, that from about the time, or shortly after the execution of the deed, up to the time of the death of the children, Gilbert Dinkins disclaimed all interest in the negroes, and declared they belonged to his children. Having been arrested on a *ca. set.*in 1827, he rendered a schedule, purporting to be of all his effects, with a view to take the benefit of the insolvent debtor’s Act, which, although sworn to, contained no negroes. The necessary conclusion, therefore, is, that his possession was con-sentive, and not adverse. Two circumstances would seem to oppose this conclusion. James, one of the deceased sons, had entered into a treaty to exchange one of the negroes for a tract of land, which Gilbert Dinkins refused to sanction, and the treaty was broken off. William, another deceased son, hired two of the negroes from Gilbert Dinkins. But these circumstances may be reconciled to the foregoing conclusions, by supposing that, although the deed was absolute, there had been some agreement between the parties, that Gilbert was to have the use of the negroes. They will, perhaps, be better explained by matters hereafter to be stated.

I conclude, therefore, that their possession was not adverse, and that the defendants are not protected by the statute of limitations.

Another ground of defence, and one much relied on, is, that the recovery in the action of trover, fs a bar to the complainants’s claim.

*275That, it will be recollected, was an action by the surviving children, as survivors of the deceased children; and it is insisted, in the defence, that the plaintiffs, as survivors, were entitled to recover the entire value of all the negroes, and were accountable to the representatives of their co-tenants for their interest in them, and therefore the recovery was a bar.

It is a familiar and well understood rule, that if several are jointly interested in a chattel, and one or more of them die, the survivors only can maintain an action at law, and that the executors or administrators of the deceased party can neither be joined with them nor sue separately. Chit. PI. 55. It follows, that in an action by the survivors, they are .entitled to recover the full value of the property.

- • It would seem from the verdict, that the jury undertook to apportion the damages, and to allow the plaintiffs in that causé only the value of the interest which they had in the negroes, reserving the right of the deceased parties. But it may well be questioned, whether that verdict is examinable even as between the parties themselves. It was a matter of which the law court had jurisdiction, and had the power to afford complete and adequate relief; and if there was error in the verdict, a mode of relief in the law courts was open to the plaintiffs. Here, however, strangers to that proceeding had become interested. A recovery in trover vests the property in the defendants, and all that the purchasers at the sale were concerned to know was, that there had been such a recovery, and that the plaintiffs were, at law, entitled to recover the full value of the property. Nor would the declaration in the verdict, that the sum found was only half the value of the negroes, be sufficient to put them on their guard that there were still other interests in them. At most, that is but surplusage. There is no necessity that a jury should give their reasons for finding a verdict. If it were, we should often find them very incongruous, and at war with the conclusion. It is the conclusion which decides the rights of the parties, and that alone can operate. Let any stranger look into this verdict, and what is there to indicate that it was not predicated on the assent of the plaintiffs to accept half the value, or on a *276release from the deceased children .of their interest in the negroes *1*

The case of *Henry*vs. Means, 2 Hill, 334, has been referred to as establishing that in trover at law, the damages may be apportioned according to the interest of the parties. In that case, two or three joint owners of negroes were barred by the statute of limitations, on account of the possession of defendant, and it was held, that the third might, notwithstanding, recover against the defendant, to the extent of his interest, and that the damages might be so apportioned. But it will be perceived that the defendant there had, by his possession, acquired to two-thirds of the property, and thus became joint owner with the party not barred; and if, as I suppose, one of several joint owners might maintain trover against another, for the wrongful conversion of the whole, the amount of the recovery could only be measured by the value of the undivided interest of the party sueing.

Now, if I am right in supposing that the plaintiffs in the action of trover referred to in these pleadings, had the right to recover the entire value of these negroes, the case of *Henry*vs. *Means*has no application at all.

A third ground of defence is, that this deed was intended to defraud the creditors of Gilbert Dinkins, and is therefore void.

The proof is, that the negroes named in the deed were all that were owned by Gilbert Dinkins, and constituted the bulk of his property. He was considerably indebted at the time, and within ten days after the execution of the deed, confessed a judgment to General Sumter, for $637, for a debt contracted before, which was finally paid out of the proceeds of the sales of these negroes, in 1840. His pecuniary embarrassments continued, until, in the end, all the property of value which he possessed was sold under execution. Both William G. and James E., the two deceased sons, again and again disavowed any interest in the property, and declared that the deed was only intended to protect the property against the creditors of Gilbert Din-Idns; and, as before stated, William G. hired two of the negroes from him, and he refused to suffer James E. to dispose of one of them; circumstances utterly inconsistent *277with their right of property. There is no evidence of any direct disavowal on the part of Mary, the deceased daughter ; but she was present on one occasion when one of the witnesses was in treaty with Gilbert Dinkins for the purchase of some of them, and interposed no objection. She lived apart from her father for several years, without asserting her rights under the deed, although, as I infer from the circumstances of the family, she was not otherwise provided for. And when it is recollected that Gilbert Din-kins retained possession of the negroes for nineteen years, and until they were forced from him by the process of law, and that the deed was merely voluntary, we have all the leading characteristics of a fraud.

It is therefore ordered, that complainant’s bill be dismissed, with costs.*

The complainants appealed from the decree, upon the following grounds:

1. Because the recovery in the action of trover, by *Benjamin B. Hodge and wife, Benjamin D. Hodge and wife, and John M. Hodge and wife,*vs. *Gilbert Dinkins,*is not a bar to complainants’s demand, inasmuch as it appears upon the face of the verdict, that the damages were apportioned, and the recovery was only for their interest in the said negroes, and that the jury had a right to make such apportionment.

2. Because the complainants were neither parties or privies to the action of trover for the said negroes, and were not represented, and they ought not to be precluded by the verdict in that case.

3. Because the verdict and judgment rendered at law, in the action of trover, was only for the interest of the said Benjamin B. Hodge and wife, Benjamin D. Hodge and wife, and John M. Hodge and wife, and vested only their interest in the said negroes in the defendant Gilbert Din-*278kins, under whom the defendants now claim, and that only such interest could be sold under said judgment.

4. That it was no lorio us and well known to the defendants, and especially to Joseph Montgomery, who was in effect a defendant in said action of trover, and to Thomas Clerry, that the plaintiffs only recovered, and that the verdict of the jury was only rendered for, the interest and share of the said plaintiffs in said action.

5. Because, in an action of trover at law, by one of several joint owners, the interest of the parties may be apportioned, and the damages rendered accordingly.

6. Because the interests of the complainants could not, by any act of theirs, have been represented and enquired into at law, and they should not be precluded by the act of others.

7. Because, if the deed made by Gilbert Dinkins was intended to defraud his creditors, these defendants, purchasers under him, who purchased only the interest he took by the verdict and judgment in the action of trover, cannot have the benefit of such defence or objection to the deed.

8. Because only the creditors of Gilbert Dinkins could set up the defence of fraud to said deed.

9. Because any disavowals, on the part of William G. and James E. Dinkins, are entirely reconcileable with the nature and circumstances of the transaction, and the subsequent possession of Gilbert Dinkins, and as between these defendants, should not operate as a bar to their claim.

10. That Mary Dinkins never disavowed her right or title in said negroes, and the mere negative conclusion of the Chancellor ought not to deprive her of such right.

11. Because the decree is, in other respects, contrary to law and the tesmoney.

12. Because the complainants ought not to be charged with costs, they having a right to investigate their claim only in this court, and were not represented elsewhere by others.

13. The complainant, William Lewis, further appealed, upon the question of costs, because, he says, as a public officer, (to wit, ordinary,) he is bound by law, and it is *279made his duty, to take charge of and collect all derelict estates, and that he ought not to be held responsible for costs.

*DeSaussnre and*Garden, for the Appellants.

In actions *ex*delicto, if all the parties will not join,' defendant may plead in abatement, or the damages may be apportioned. Cited 6 T. R. 766 ; 7 Id. 279 ; 1 Saund. 291, (I;) 4 East, 407.

In actions for injury to the freehold, tenants in common must join; but if in ejectment, they must sever. Cited 1 Chittv PI. 54, (N. Y. Ed. 1809.)

The action of trover subjects the chattel to the payment of the judgment, and is in effect an action to recover the *corpus.*2 Hill Cln 488.

*Moses,*contra.

The statute saves the abatement of the suit, if one of the joint tenants, (fee. die *pendente lite. 7*Stat. at Large, 193.

Surviving joint tenants, (fee. may sue for injuries done to the joint property. Bacon Ab. (Joint Tenant, K ;) Com. Dig. (Abatement E.) 9, 10, 11.

A recovery binds all the parties and their privies. A verdict is a conclusive bar to the second action. 2 Johns. Rep. 210.

*

**There was a good deal of evidence taken before the Commissioner on a reference, and also before the Chancellor on the trial, but as the facts deducible from it, going to establish the fraudulent character of the deed, are substantially stated in the circuit decree, it is deemed unnecessary to publish it

*Curia, per*Dunkin, Ch.

It is not intended by the court, to express any definitive opinion as to the effect of the verdict in trover, in relation to the rights of the complainants’s intestates. If they could be regarded as parties to that proceeding, or represented in it, they are bound by it. Their right in the negroes vested, by the verdict, in the defendant in that suit, and has passed to the present defendants under a judicial sale.

But if no privity existed between the complainants and the plaintiffs at law, it is *res inter alios acta,*and they can derive from it neither prejudice nor benefit. The negroes were levied *on*and sold as the property of Gilbert Dinkins. They were so purchased by the defendants. On the part of the complainants, it is insisted that they are entitled to a moiety of these negroes, under the deed of gift from Gilbert Dinkins, executed in March 1821.

The Chancellor who heard the cause reports, as the result of the testimony, that this deed, and the subsequent *280conduct of the parties, “have all the leading characteristics of fraud” — that two out of three of the deceased parties repeatedly disclaimed any interest in the property, declaring that the only object of the deed was to protect the property from the creditors of the donor, and that the remaining party was present when one of the witnesses was in treaty with Gilbert Dinkins for the purchase of some of the negroes, and interposed no objection. The conclusion of the Chancellor is, that it was a fraudulent transaction. In this view the deed can have no more effect against the rights of a purchaser, for valuable consideration, than against creditors. In a case of much more doubt, this court would not interfere with the judgment of the Chancellor, on a question of this character. But if the rights of the complainants under the deed of gift, were of a much less equivocal nature, the repeated disclaimers of the parties, standing by and permitting Dinkins to treat for the sale of the property as owner, without interposing any objections, <fcc. would, upon familiar equity principles, forbid the interference of this court.

On the subject of the costs, the court see no ground to vary the decree.

It is ordered that the appeal be dismissed.

Johnson and Harper, Chancellors, concurred.

Johnston, Ch., absent from indisposition.