#### James Thompson and Wife, Executor and Executrix of Murray, vs. Dr. J. W. Schmidt.

Tried in Charleston, May Term, 1835, before his Honor Judge EaRle.

Trover for a negro man, Neptune.

Plaintiff claimed under a paper purporting to be a bill of sale from Richard Connelly to John W. Murray, in trust for his wife, who was the daughter of Connelly, dated 23d September, 1826, recorded 27th January, 1827. Murray died in April, 1829, having made a will,appointing his wife sole legatee and executrix, dated 18th April, 1829, and Mrs. Murray qualified the same day, and soon after intermarried with the plaintiff, Thompson. The defendant claimed as purchaser at sheriff’s sale, as the property of Richard Connelly, under an execution against him, in his, defendant’s, favor, lodged 2d October, 1829, on a judgment of the same date, founded on a note of recent date. He also gave in evidence, a judgment in favor of the ordinary of Charleston district vs. Richard Connelly, 14th February, 1829, on a bond, dated 14th January, 1828. Shortly before the sale by the sheriff, Thompson had placed the negro in the hands of an auctioneer, who sold him to Wagner ; the sheriff levied on him when in Wag. ner’s hands, or after he had returned him on account of the dispute in the title, as the property of Connelly, and sold him to the defendant on the 8th June, Í83G. The.plaintiff, Thompson, by some means ■obtained possession of the negro in January, 1835, and lodged him in jail for safe keeping, directing the jailor not to lock him up, to give him the liberty of the yard, and every indulgence. The defendant -on the same day lodged & detainer, directing the jailer not to giv® *39him up to the plaintiff, not to lock him up, and whip him if necessary. The plaintiff did not apply for him afterwards, but the jailer deposed that he would not have given him up if he had. On the 23d February, 1835, the plaintiff commenced this action, and on the 5th March, the negro escaped from jail. The pleas were not guilty, and the statute of limitations.

1st. I held, and so charged the jury, that the exception in favor of femes covert allowing them five years, operated in favor of Mrs.Thompson, and that the plaintiffs are not barred in four years.

2d. It was clear, that the conveyance, purporting to be a bill of sale, was voluntary, .the plaintiffs themselves had, in a bill filed, called the paper a deed of gift, and Connelly, the donor, deposed that there was no consideration paid or received.

3d. Was the gift duly perfected by delivery of the negro, or what would have been equivalent, the delivery of the conveyance *1*On this point the testimony was conflicting.

William Burrell deposed that Connelly lived with Murray before his death ; that the negro was frequently at Murray’s, and was considered and called Murray’s property; abroad, he attended Connelly,-at home, Murray’s family.

James Duffie said Connelly and Murray lived together, and the' negro was about the yard; understood and considered him the pro-. perty of Murray ; heard so from both parties; heard Connelly say he had given him the negro, and did not own any property; their premises were adjoining, and communicated by a gate. And on his cross-examination by the defendant’s counsel, Murray told him Connelly had done something handsome for him, had given him two negroes.

On the part of defendant, Connelly testified that he never lived with Murray; that he, Murray, never had the negro in his possession, and if he wished the use of him, always applied for it; that the deed was never delivered to Murray, and was not intended to be, unless he was pressed by his debts. Murray so understood it, and never set up any claim to the property ; he came one day into the shop and got the deed out of the desk, and told him afterwards he had put it away safe enough, and did not consider it of any account. Thompson seized the negro and tried to sell him.

Mrs. Murray, another daughter of Connelly, deposed, that her father always had possession of the boy until Murray’s death, after that he had lived with her, and still had the negro in possession.

The circumstances attending the execution of the deed of gift, were stated by these two witnesses. Connelly said he was then in debt, had been burnt out at the fire, and was apprehensive of a bond he had signed as security for Mr. Gannahan, who had failed; was endorser on some "notes for M’Guire, on which judgment was obtained in 1829, and not yet paid. He made the deeds, this and one to his daughter Elizabeth, with the intention of securing something to himself in case these debts should come against him. He owed the debt at the time and before the bills of sale or deeds of gift were made ; owed for money borrowed after the fire. Owed him at that time the largest portion of the judgment which he confessed. Mrs. *40Murray said when the deeds were executed, her father said they v/evo not intended to take effect until after his death, as he was gob g to sea. Mr. Perry, who drew Murray’s will, deposed that Murray did not enumerate this negro with his other property, and made no disposition of him. Mr. Elford siated that Connelly confessed a judgment to him for $1600 or $1700, to protect him from some debts he owed as security. This Mr. Elford liad entered as satisfied, when Connelly was sued. 3d. The question as to the delivery of the negro, or the delivery of the deed, was submitted to the jury with proper instructions. The counsel, in his second ground, has mistaken what was only a suggestion, by way of argument, for a positive instruction. The deed was obtained by Murray clandestinely; and this was a strong argument that it had not been delivered, but the donor permitted it to remain in his custody ; he had also recorded it, Which io of itself, strong, if not conclusive evideucc of delivery ; and but for the recording, I should incline to think the weight of evidence was against the delivery of the deed. 4th. The next question was, whether the deed was fraudulent and void as to creditors ; and on this point the counsel has mistaken, in part, the charge. I instructed the jury, that the defendant to avoid the deed, could not avail himself of ether debts which had been paid off; only such creditor as was delayed, hindered, or defrauded, either existing or subsequent, could impeach the deed ; that however fraudulent, as to ex. isting debts, if they were paid off, the deed is good. That if the defendant was an existing creditor, and all the donor’s property was conveyed, and he has been, or will be hindered or defrauded of his debt, the verdict must be for the defendant; that as the defendant also claims to be a subsequent creditor, it was material to enquire, whether the donor continued in possession, as in that case the conveyance was void. But if there were no existing debts that remained unpaid, and the possession bars accompanied the deed, then it. is good against the subsequent creditor, unless made with a view to future indebtedness ; in' that case it was a question of intention for the jury. But if the donor remained in possession, it is void against the subsequent creditor, notwithstanding the recording. Oa the whole, I thought the defendant ought to have a verdict. But the case was submitted to the jury on the facts. I think the evidence, as to the delivery of the negro, was very slight. That he was in possession of Con-nelly from the death of Murray, until January. 1830, was *clearly*proved; this, in connection with the fact, that Murray made no disposition of him by will, would afford a strong presumption that the deed was colorable merely. The jury found for the plaintiff the full value of the negro. If the title was with the plaintiff, I thought the-defendant liable for the full value. His acts while the negro was in jail clearly constituted a conversion, and as there was no proof that the negro came again to the possession of the plaintiff, I thought the defendant liable for the full value. The defendant appeals on the grounds annexed.

B. J, EARLE.

*411. Because his Honor charged the jury, that Jane Thompson, one of the co-plaintiffs, being a feme covert, the action in behalf of the estate of Murray was not barred until five years after the cause of action had occurred.

2. Because his Honor charged the jury, that the donor, not recovering possession of the deed in dispute, from Murray, was equivalent to a delivery by him ; whereas, it was clearly proved, that the possession of the deed was obtained fraudulently, and kept by force in opposition to the will of the donor.

3. Because his Honor charged the jury, that only creditors existing at the time, a voluntary deed is made, would impugn its validity, and if these debts are paid, that the deed is good as to all the world.

4. Because his Honor charged the jury, that the defendant was liable for the value of the slave in dispute ; whereas, it was proved, that he was taken out of his possession by the plaintiff, and that he has never had him in possession since.

5. Because the fraud ulency of the deed was clearly established, and the verdict of the jury was contrary to law and evidence.

6. Because by the deed relied on by the plaintiffs, no interest in the property conveyed, is transmitted to the plaintiffs as representatives of the testator, John Murray.

7. Because it was not proved, at the trial, that the estate of John Murray, the testator, had any property in the slave in dispute.

R. B. & E. SMITH, *Pro Appellant.*

The opinion of the court was delivered by

Mr. Justice Butlek.

By the 10th clause of the act of 1712, P. L. 102, a feme covert has five years within which to bring her action ©f trover, as well as other actions enumerated in the same clause. If it be true, that this action is brought to try Mrs. Thompson’s title to the negro Neptune, and to recover damages for his wrongful conversion, she would be clearly entitled to the benefit secured to *feme coverts,*by the above act. But if the proposition can he made out, that at the time of con. version by the defendant, the title to the negro was exclusively in her husband, Thompson, it would follow, as a legal consequence, that his right to recover, (and this action, of course,) would be barred by the statute of limitations, more than four years having elapsed from the sheriff’s sale to defendant, till the commencement of this suit. The title, under which plaintiffs claim, is derived from the deed executed by Richard Connelly to John W. Murray, (the then husband of the present Mrs. Thompson,) as trustee of his wife, for her special use and benefit. This deed must be construed according to its legal purport and operation. The negro is not given to the wife, but to the husband. The donor may have intended that the husband should hold the property, in trust, for the sole and separate use of the wife. But the title by the common law, was vested in *42Murray. Allowing the deed to be unimpeached by fraud, and to have been duly delivered, and it is so assumed, it gave him the right of possession and dominion of the negro. He had it in his power at any time to assert his title, at law, against Connelly or any one else, who might claim the property. Equity might interpose and establish the trust, and order Murray to hold the negro, for the sole and separate use of his wife, if it were so intended by the donor. Such a purpose in the donor, however, should be very distinctly expressed, before, even a court of equity would establish it against the rights of the husband. To permit a feme covert to take and enjoy property to her separate use, is a qualification of the law by equity, and is a right peculiarly enforcible in a court of equity, where the true intention of the donor can be reached, and where entire justice can be done to all parties concerned. It is not the proviuce of a court of law to do this kind of justice, although it may be safely committed to equity, where its rules are well understood and definitely prescribed. The old maxim of the law, is, “ the husband is the head of the wife,” and therefore, all that she has belongs to him. It is uncertain from the testimony, whether Murray ever had possession of Neptune. Be' that as it may, he had a right to the possession, and upon his death, all his interest and title to the negro, passed, as all his other property did. Who was entitled to his property after his death ? By his will, duly executed, he appointed his widow his sole executrix, and made her his sole legatee. By qualifying as executrix, she subjected herself to the payment of her husband’s debts, if he left any, and became the legal owner of his estate. If the will conferred a benefit, by giving her more property than would pay the debts, as seems to be conceded, it was her interest to assent to her legacy under the will. It will be presumed, under such circumstances, that she did assent, and that she did not hold the property' in possession as executrix, but by her higher title as legatee. Any right of action that may have existed in her husband, she would have been obliged to prosecute in. her character, as executrix. Thompson, upon his marriage with her, would have been required by law, to sue in the same right, by joining his wife’s name in the action. By the marriage, all the personal property of Mrs. Thompson, in possession, became the property of her husband, and all that he reduced into possession, during cover-ture, became his exclusively and absolutely; whether the possession was acquired by action or otherwise, would make no difference.

The inquiry now arises — did Thompson, the present plaintiff, have possession of Neptune before defendant’s purchase at sheriff’s sale, which was the time the statute commenced to run ?■ There seems t© *43ba no contradiction of testimony on this part of the case. Thomp. son certainly did have the *actual*possession, and his conduct, if not conclusive evidence, was a satisfactory indication of the character in which he held the negro. Claiming to be the absolute owner, he sold him to Wagner, or rather put him in the hands of an auctioneer, who sold him to Wagner. Wagner must have had the possession for some time under the title of plaintiff. For, from whom did he derive his title, if not from the plaintiff 1 It was not until after Wagner understood that there was some dispute about the title, that he returned him, and, as I understand, returned him to the plaintiff. Why suppose that Thompson took possession as the executor of Murray, when it was his interest to claim and hold the negro in his own right, which it was entirely competent for him to do ? It is said he acquired the possession by stealth. What difference can this make ? It is perfectly immaterial how he acquired the possession, if it were legal, and in fact, he had it before defendant’s conversion. I come to the conclusion, then, that at the time the statute commenced to run in favor of defendant, the title to Neptune was exclusively in Thompson, and that Mis. Thompson’s rights, as a feme covert, are not at all involved in this case. The only other view that can be taken of the subject, would be equally conclusive against the plaintiff’s right to recover. — Supposing the relation of trustee and cestuique trust to have existed, and been established between Murray and the present co-plaintiff, Mrs. Thompson, in whom would the title to this negro have vested after Murray’s death ? Most assuredly in his wi-dow, for she would have had the entire interest, both legal and equitable, united in her ; a;.d upon her marriage with Thompson, all his marital rights would have attached. The case is narrowed to this, that Neptune was Thompson’s property, and not 'his wife’s, at the time defendant’s statutary title commenced ; and it follows, that his right to recover, is barred by the statute of limitations, the defendant having been in possession of Neptune for more than four years before the commencement of this action. The verdict must be set aside, and a new trial is ordered.

A. P. BUTLER.

Murray’s minor child may be interested in this negro, as it seems from Murray’s will, brought to the view of the court since the within opinion was read, that the wife has only a life estate in the property given to her by the will, and the child to the remainder. This can make no difference in my opinion. Upon reducing the life estate into possession, it became the property of the husband, and his right *44is barred by the statute. The minor’s interest cannot be affected by this decision. For not until his mother’s death, had he any right to take the negro. This right is unimpaired.

A. P. BUTLER.

We concur,

HENRY W. DESAUSSURE,

DAVID JOHNSON,

J. JOHNSTON,

J. S. RICHARDSON.

I dissent, — the plaintiff’s right of action, was as executor and executrix, and they were entitled to five years to bring their action.

JOHN B. O’NEALE.

I dissent from the opinion of the court is this case.

RICHARD GANTT.