#### *Julia E. Carmille vs. The Administrator of John Carmille, Geo. Pringle et al.*

Where one in *his life time was*seized *and*possessed of certain slaves, to wit — : “ Henrietta and her four children, Charlotte, Francis, Nancy, John, and Elizabeth, and also Tilly and Mary” — and by deed bearing date 26 Feby. 1830, for a nominal consideration, assigns to the defendants P. & C. the said negroes, Henrietta, and her four children (as above named) on the special trust, confidence and condition, that they will from time to time and at all times hereafter, permit and suffer the negroes above named, or any or all of them, and also the future issue and increase of the females, to seek out and procure employment, and to work for their own nfaintenance and support, and further in trust to allow them the said negroes, &c. to receive and taire for their sole use and benefit, all such monies as they might obtain for then' labour or otherwise, after paying to the trustees the sum of one dollar per annum and no more. The other deed purports to convey to the same trustees the slaves Tilly and Mary, in trust, to apply their labour to the use of Henrietta and her children as aforesaid, until her youngest child shall come to the age of twenty-one years, and then to sell the 'slaves Tilly and Mary, and divide the proceeds between Henrietta and her .children, share and share alike. *It was*held,

1. That the deeds were good,' and sufficient to vest the title to the slaves in the defendants. That the negroes mentioned, viz. Henrietta and her children, are still slaves under the dominion of their masters, and must so remain.

2. That if the defendants should give them, under the deeds, the fruits of their labor, it is not unlawful.

3. That the second deed is a good common law conveyance to the defendants of the two slaves, Tilly and Mary, for the use of other slaves.

4. That by the laws of this State, slaves may acquire and hold in possession personal property (not prohibited to them by Act of the Legislature) with the consent of their master or mistress. And such property is in law to be regarded as the property of the-owner of the slave.

*Before Cvnkj.n, Ch. at Charleston, June,*1839.

The following decree was pronounced by his Honor, and will-explain fully the facts of the case and the important questions involved.

John Carmille died in July, 1833. After his decease a paper was propounded for probate, as his will. It was dated 17th July, 1832, and by it he gave all his estate to his slave Henrietta, and her children, directing his executors to emancipate them, if it could be legally done, and if it could not be done within fifteen years, to send them away, and set them at liberty in some country where it could be done. The paper was rejected, on the ground, that subsequent to the execution, Carmille had married, and -had issue. Letters of administration were granted to William Wightman, and upon his death, to Thomas F. Purse. It appeared, from the testimony, that on the 1st or *4552d of March, 1830, Carmille was married to Margaret Arnott, with whom he lived for about ten months, when his wife died, leaving the complainant surviving her, the issue of the marriage.

Not including the slaves, hereinafter to be mentioned, the personal estate of the intestate Consisted of some articles of household furniture, &c., and an outstanding debt; amounting, altogether, to between six and seven hundred dollars. The debts due by the estate amounted to about $1000. He left also a house •and lot on Meeting street road, and 111 acres of land in Goose Creek. In addition to this property, the intestate, at the time of his death, was in possession of the slave Henrietta, and her children, (four mulattoes,) Charlotte, Francis, Nancer, and John, and Elizabeth, the child of Nancy, and also of Phillis, or Tilly, and Mary. On the death of the intestate these slaves went into the possession of the defendants, George Pringle and Philip Char-trand, and are held by them under deeds from John Carmille. The object of this bill is to set aside those deeds, and subject the slaves, in the first place, to the payment of the debts of the in.testate, and to have the surplus paid or delivered to the complainant, as. next of kin. The first deed bears date the 26th February, 1830, and for a nominal consideration, assigns to the defendants, Pringle and Chartrand, “the said negroes, Henrietta, Charlotte, Francis, Nancy, and John,” on the special trust, confidence and condition, that they will, from time to time, and at all times, hereafter, permit and suffer the negroes above named, or any or all of them, and also the future issue and increase of the females, to seek out and procure employment, and to work out for their own maintenance and support; and further, in trust, to allow them, the said negroes, &c., to receive and take, for their sole use and benefit, all such moneys as they might obtain for their labor, or otherwise, *“*after paying to the trustees the sum of one dollar per annum, and no more.” The second deed bears date on the same day with the former deed, refers to it, and purports to convey to the same trustees the slaves Tilly and Mary, in trust, to apply their labor to the use of Henrietta, and her children, until her youngest child shall come to the age of twenty-one years, and then to sell the slaves Tilly and Mary, and divide the proceeds between Plenrietta and her children, share and share alike. These deeds were not proved, or recorded, until 22d July, 1833, after the déath of Carmille.

*456It appears to the Court too clear to admit of argument, that the bill of sale of Henrietta and her children, is an undisguised attempt to evade the law of this State, forbidding emancipation, “ a law, which,” as was said in *Fable*and *Brown,*“ however harsh it may appear to those who have no opportunity of forming a judgment on the subject, is founded on principles of true humanity, as well as just policy.” The trusts created by this deed, cannot be carried into execution without effectually violating the policy, and defeating the objects of the law. The trusts must, therefore, «fail. The consequence is succinctly as declared by Lord Eldon, in *Morice*vs. the *Bishop of Durham,*10 Yes. 535, “ If the testator meant to create a trust, and not to make an absolute *gift,*but the trust is ineffectually created, is not expressed at all, or fails, the next of kin take.” . The object of the second deed was merely to carry into effect and complete the purposes of the former deed, and must fall with it. 2 Story Eq. 44, 3. The slaves Tilly and Mary, are to be held in trust for Henrietta and children, who are also slaves. “ The title is not changed, but the title and possession must be referred to the Master.” *Fable*vs. *Broion, 2*Hill’s C. R. 397.

It is ordered and decreed, that the negroes mentioned in the pleadings, be delivered up by the defendants, George Pringle and Philip Chartrand, for the purpose of being administered as part of the estate of John Carmille, deceased; that the accounts of William Wightman, deceased, the former administrator, and of Thomas F. Purse, the administrator *de bonis non,*of John Car-mille, deceased, be referred to the commissioner of this court, to report thereon. Parties to be at liberty to 'apply for such further orders as may be necessary for the final settlement of the estate.

The defendants appeal in this case, on the grounds:—

1. Because the remedy is at law, and the bill ought to have been dsimissed.

2. The right of action is in the administrator, and not in the heir.

3. The deeds to defendants were valid, and if the trust failed, the conveyance became absolute.

4. If the title was defective under the deed, the defect was cured by the lapse of time.

5. That under the case of *Frazer*vs. Frazer, 2 Hill’s C. R. 313, *457the defendants have a right to send the negroes out of the State, for the purposes of emancipation.

6. That the decree is erroneous, and ought to be rectified.

Grimke, for the motion.

The first deed bears date the 26th Feb., 1830. By the *premises*it bargains, sells and delivers to Pringle and Chartrand, Henrietta and her four children. To have and to hold the said negroes with their issue unto the said Prin-gle and Chartrand, and the survivor of them, and the executors, administrators and assigns of such survivor, forever. Then follows, in the “ terms of stipulation” a condition, which, in the language of the Chancellor, we will admit to be an undisguised attempt to evade the law.

The second deed bears date on the same day, between the same parties, and in like manner bargains, sells and delivers to the said Pringle and Chartrand, two negro slaves, Phillis and Mary. To have and to hold the said negroes, with their issue, unto the said Pringle and Chartrand, and the survivor of them, and the executors, administrators and assigns of such survivor, forever. Then follows, in the *“*terms of stipulation” a condition, that the wages of said slaves shall be applied to the use and benefit of the said Henrietta and children.

The case then is simply this. By the premises of the deed the bargain and sale is made in positive and distinct terms. By the *habendum*the estate created is absolute in the grantees, viz. “ to them and the survivors of them, and the executors, administrators and assigns of such survivor, forever. To these premises and to the *habendum,*which are perfect and complete, the grantor has chosen in the “ terms of stipulation” to embody a condition, which (for the sake of argument) he knew could not be performed without violating the existing law.

The condition is subsequent, not precedent. By the execution of the deeds, the estate became immediately vested.

The words of the deeds in the “ terms of stipulation” are — • “ In trust nevertheless to, for and upon the special use, trust, confidence, and condition.” Of the terms here used, the word condition is the one of most extensive signification, and comes last.

The rule is, that whenever a word of limited signification is used last in a sentence, and a word of extensive signification first, the last controls and restricts the first. But where the word of most extensive signification comes last, it enlarges all preceding *458and more limited words, and in fact merges them all in itself. By this, which I take to be the true rule both in law and criticism, we must read the clause as if it contained no other word than the word condition.

To the facts above stated, it is only necessary to add that under the issue ordered by the Court of Errors at Feb. Term, 1840, the jury by their verdict established the due execution and delivery of the deeds.

Out of these facts arises the question, what is the law *'l*

By the civil law the complainant would stand no chance. But what says Lord Coke, the oracle of the law, and indeed every other judge *or*elementary writer in England or America, from his time to the present day. “ That where the condition is illegal, the' condition is void and the estate is good.”

“ Conditions against law are void,” 1 Just. 206, 20. *“*Conditions repugnant to the estate, impossible, <fcc. are void, and if they go before the estate, the estate and condition are void; if to follow it, the estate is absolute, and *the condition*void. *1 Just.*206, 9. Rep. 128.”

The reason why a condition contrary to law is void, and the deed good, is simply, that there had been no violation of law in the execution of the deed, and could be none until the performance of the condition was attempted or accomplished; for this reason the law merely relieves the party from the performance of the condition, and leaves the deed itself absolute in its original terms. The law can only, and seeks only to avoid that part of a deed, which being either *mala in se,*or *mala*prohibita, interferes with it's enactments. That portion of the deed being void, or mere surplusage, leaves the rest, or legal part, of course, in full force and virtue. Even the Act of 1820, expressly enacted with a view to this special matter, does not pretend to impair the validity of the deed, but merely prohibits a particular act.

In *Ingraham and Porter,*4 McC. 200, the court say, where the *habendum*of a deed is wholly inconsistent with and repugnant to the premises, so *that they*cannot stand together, the *habendum*must he considered as void, and if the premises pass any thing the grantee shall hold.

Now in the deed executed by Carmille, as in the one in the case of Ingraham and Porter, executed by Daniel Porter, the property is given absolutely and in *presentí.*In Porter’s case the *habendum,*was - inconsistent with the premises, and the court *459therefore declared that *it*could not take effect. But in the case now before the court, the *habendum*is consistent with the premises, and they are both perfect and complete; the estate conveyed there does take effect, by vesting in Pringle and Char-trand a present interest, and an absolute estate; and that estate untrammelled and uncontrolled by any illegal condition, inserted in the terms of stipulation.

The formal parts of a deed are, 1. the premises. 2. The habendum, which determines what estate or interest is granted. 3. The terms of stipulation, which prescribe the conditions or terms upon which a grant is made. 4. Warranty. 5. Covenants. 6. Conclusion.

The first part of a deed has priority in law as well as in fact. 3 Dyer, 272; 14 Viner, 51, 56, 100, 141, 145.

Judge Huger, in delivering the opinion of the Court of Appeals, Harp. L. R. 493 — 4, uses the following language,— *il*Where the premises of a deed are not complete and perfect, resort must be had to the *habendum*to ascertain the intention of the parties. It may then limit or extend or frustrate the premises. But when the premises are complete and perfect, and the *habendum*is at variance with them, and they cannot stand together, the *habendum*is void,” not the deed.

When Carmille executed the depd, he knew the law. I dont mean merely the common presumption, that he, like every other man, knew the law, but his will shews that he was fully aware of the Act. of 1820, and his counsel who drew the deeds, advised him of their effect. He knew then that the deed he executed was a deed of gift, conveying and intended to convey an absolute and indefeasible estate to the grantees. By the deeds then, and under our own decisions, as I shall presently shew, Carmille divested himself, his heirs and assigns, of all interest and estate which he held in the property, and passed to the grantees an interest in 'presenti, which might have been levied upon and sold by the sheriff, for the debts of Pringle or Chartrand, or which, under certain circumstances, might have been attached by their creditors.

Carmille left property, besides these negroes, amply sufficient to pay his debts. His creditors are not claiming.

• But suppose the creditors of Pringle and Chartrand were before the court, under an issue made up to try the right of property, as between then; on the one part, and Carmille in his life. *460time, or his heir or legatee, after his death, on the other. Can there be a doubt as to what would be the instruction of the court to the jury, under the evidence as now adduced?

Suppose Carmille in his life time, had brought an action of Trover against Pringle and Chartrandfor these negroes. Would not he have been estopped by the deeds *1*If he would have been, then all those claiming under him are so likewise. And allow me to ask the attention of this court to the opinion of the Court of Appeals, as delivered by Mr. Justice O’Neall, in the case of *Cline and*Caldwell, 1 Hill, 425, 6, in which opinion the present Judges, David JohNson and Wivi. Harper, concurred; and under the law as there laid down, how is there any possibility of this court coming to the' conclusion that the present claimant can recover. What says the court in that case at p. 425. — “That the deed from *Jos. Caldwell*to *Cato Goldman*was good as against the grantor, and all those claiming as volunteers under him, even if it had been intended as an evasion of the Act of 1820.”

Again, at p. 425. — -“ The defendant, his principal and the intestate, are all in the place of Caldwell, and take no other or better title than he had himself; after he had conveyed to *Cato*Gallman, he had none, and they of course have *none.”*Just so here the complainant can take no other or better title than Carmille himself had, after he had conveyed to Pringle and Chartrand, the defendants. He had none, and she of course has *none.*How then, I would most respecifully submit, can her claim to this property, in which it is decided she has no title, be sustained?

It is said, however, that to sustain the deed is contrary to the policy of the country, and at war with our peculiar institutions. With this the court has nothing to do. The province of the Bench is to declare what the law is; not what it ought to be. But I deny the position as to the policy of the measure. What is the court asked to do ? What is the question before the court ? Is it whether these negroes are bond or free ? No. It is simply whether they are the slaves of the plaintiff, or the defendants, This is the only issue made by the pleadings and by the evidence, and can the court travel beyond these, and base their decision on what may or may not be presumed to be the intention of the parties, after the judgment of the court is pronounced? Besides, if presumptions are to have any weight, I *461would aslt of the parties before the court, which is it most likely would be most willing to carry out this attempt to evade the law *\*viz. whether the defendants, perfect strangers to the negroes and to Carmille, would be most anxious to fly in the face of the law of the land, or whether the complainant would be willing to hold in the bonds of servitude, and bind with the chains of slavery, two brothers and sisters of the half blood. So much for the morale and policy of the case, with which however we have nothing to do.

Take the case of A, the owner of a menagerie of great value, ■composed of animals *ferae et ferocissimce- naturae,*and he was to execute a deed thereof to B, in the language of the premises and *habendum*of this deed, and in the terms of stipulation he was to ■insert words to the following effect, viz: “In trust, nevertheless, and to, for, and upon the special use, trust, confidence, and con•dition” that the grantee within ten days should turn the wild beasts ■out in the public square. The deed is signed, sealed, and delivered, and the grantee takes possession, and after the expiration of the ten days, he gives the grantor notice that he intends to keep the animals, and to exhibit them for his own benefit, and proceeds to do so. A then brings his action vs. B. The deeds are produced, and the court find B in possession of the deeds and of the property, (as in the present case.) What, I would ask, would be the judgment of the court ?

The fact is, that in the deeds now before the court, the premises and *habendum*being “perfect and complete,” the terms of stipulation must be regarded merely as surplusage, being nothing but the expression of a wish or a direction, which the party at the time of making it, knew to be idle and useless. The deeds: therefore are valid to pass the estate, and the negroes are the-, slaves of the defendants. A gift, if you please; but where is the-law which says a man shall not give away his own property?’ and a gift, even in exclusion of the legal heirs; but shew me the* statute which prohibits a man, either by deed or will, from disinheriting all or any of his children ?

The case of the *Bishop of Durham*in 10 V. is relied on, and is indeed the foundation of the complainant’s argument.

Now I would respectfully submit that the decision in that case is no authority in this. It maybe very good law for Westminster Hall, but not for this country. In England, chancery makes and models men’s wills to suit their own notions of *462the law of the land, and the policy of the government, and vouchsafes to allow no trust but such as they can meddle with, and execute, or annul. The grand feature of our government, and the ruling principle of our jurisprudence, is, that the magistrate does not interfere with the private concerns of the individual.

The reasons as connected with the policy of the government, not the people, which influence the judgment of the court at Westminster Hall, do not exist in this country. Our Chancery is not the Chancery of that Bench, and indeed English law has nothing to do with this case, and the less weight it has in this country, in this or any other case, the better. We have never departed from-the beaten path of British jurisprudence, but the effect has been to elevate the standard, and improve the condition of the law. What they gave us as a sealed book, we have made an open letter. The temple of justice here is dedicated, not to a king and a great landed aristocracy, but to the sovereign people.

The law of the land here, is, that the owner of property has the right of parting with the possession, and either by deed or by will, of divesting himself, his heirs and assigns, of all title and estate therein. Where is the statute here, or even a decision of our courts, which gainsays this position ; and in England where .gifts in mortmain were against the policy of the government. But even there, did the court declare those gifts void, until the ■statute had said so *1*

In this State, where a man gives to another, for an object which is contrary to law, the Court of Appeals, in *Cline and*Caldwell, and *Linaur and*Johnson, have said, *totidem verbis,*the title has passed from him and his heirs forever. Where then is the descent to the heir or the title to the administrator *%*

The court then, under the law, as shewn to be settled by their ■own decisions, cannot say the heir shall take, nor can they make a title for the administrator: They must then leave the property where they found it, in the hands of the grantee; he taking it, as both grantor and grantee knew, at the time of the execution of the deed, under a condition or trust, if you please, which being contrary to law is void, and the execution of which would subject him personally to the pains and penalties of the law, if any, in such case made and provided.

The sole object of the present proceeding is to revert the title to the property in the administrator or the hdir, which by the cases *463above quoted it has been shewn was out of the ancestor at the time of his death. This clearly could not have been done for the ancestor, if he had asked it in his life time, and it therefore cannot be done for the heir after his death; it is beyond even the extraordinary powers of the Court of Chancery. And, if it could have been done for the ancestor, where would have been the reason or sense of the Act, which would have given property back to a man who had shewn himself, in the very act by which he divested himself of the title, viz., to use the language of the chancellor, by an undisguised attempt to evade the law, as utterly unworthy of the trust and responsibilities which the possession of property necessarily imposes?

But again, the case of the Bishop of Durham is a case of a trust under a will; this is the case of a condition in a deed. The Bishop came into court with the property in his possession, as sole executor. It has been urged, that this is a trust, not a condition ; now although every condition is not a trust, yet every trust is a condition. But as I have said, this is the case of a will; so are the cases of *Bostick and Walker, Fable and*Brown, *Hovey and Deas, Monks and Field, and Rhame and Dangerfield.*But the cases of *Linattr and Johnson, and Cline and Caldtoell,*were cases of deeds, and the deeds were sustained.

And again, the case of the Bishop of Durham dont apply, even admitting that its authority has been, as is too often the case, followed by American judges, merely because it is English law.

The question which is made in this case, could not legitimately have arisen in that. In that case, as is stated in 9 Yes. p. 397, “ The Bishop, by his answer, expressly disclaimed any beneficial interest in himself personally.” A case is only authority in reference to the issues made by the pleadings, and can be regarded as settling no other principles than such as are involved in those issues.

And I almost feel warranted in saying, that if a case like that of the Bishop of Durham came up before American judges, for their consideration, and if it could receive, as it would deserve, a fair and candid deliberation, unbiassed by English law, and untrammelled by English decisions, that the judgment of an American court would be the reverse of the Lord Chancelfor’s Decree.

Another aspect in which this case is to be viewed, is presented by that portion of the bill which prays that the deeds may be set *464aside, and one ground taken is, “ that the same are void and unavailing, so far as they dispose of more than one fourth part of the clear value of the estate of the said John Carmille, after payment of his debts, under and by virtue of the Act of assembly, entitled “ An Act to provide for the maintenance of illegitimate children, and for other purposes therein mentioned,”, inasmuch as the said deeds were made for the use and benefit of a woman, the said Henrietta, with whom Carmille lived in adultery, and for the use and benefit of his bastard children by her.” This ground, it seems to me, may be dismissed with a single remark. In the first place, at the time of the execution of the deeds, Carmille had neither wife or child; and secondly, Henrietta being a slave, his children by her are not bastards in the eye of the law; the A. A. then of ’95 does not apply.

The next ground taken in the bill is, that, these deeds ought to be set aside, and the property ordered to be delivered up to the administrator for the benefit of the heir. First, because the deeds are voluntary and without consideration; and second, because they are on trust void in law.

The Court of Equity does sometimes interfere on behalf of creditors, but it has seldom happened, if this is not the first time, that application has been made to the extraordinary powers of a Court of Chancery on behalf of a volunteer, claiming under the grantor, to set aside a voluntary conveyance.

A voluntary transfer by deed of a chattel in trust is valid, as between the parties, without any consideration appearing. *Brue vs: Winthrop.*1 *John. C. R.*329.

A voluntary deed of settlement fairly made, is always binding in equity upon the grantor, unless there is clear and decisive proof that he never parted, or intended to part with, the possession of the deed; and if he retains it, there must be other circumstances besides the mere fact of his retaining it, to shew that it was not intended to be absolute. *Souverbye vs.*Arden, 1 *John. C. R.*240.

In the case now before the court, the deeds and the property are both found in the possession of the grantee. Besides, the deeds which bargain, sell, and deliver this property to the grantees, bear date on the 26th Feby. 1830, on which day the verdict of the jury has established their due execution, and the bill in this case was not filed until the 16th of May, 1835, a period of more than five years.

*465A voluntary conveyance or settlement, though retained by the grantor in his possession until his death, is good. 1 *John. Ch. Rep.*329.

There are many other cases which might be referred to, but it is useless to multiply authorities on this point.

The Court of Equity here, like the English Chancery, has been known to interfere with people’s wills, but not with *deeds,*except in cases of fraud, mistake, or where there is great equity. Now this is clearly no case of mistake, nor can we discover any very great equity in the application which is made, on behalf of one child of Carmille, to obtain a decree declaring his four or five other children slaves, and ordering them to be sold.

Is it then a case of fraud ? There is no fraud as to Carmille’s creditors, for there is no proof that he was in debt at the time he executed the deeds, nor does it appear that they were made with a view to future indebtedness. There could be no fraud as to the heir, for Carmille was not even married at the time.

“ To invalidate a conveyance, the party must allege and prove it to be fraudulent,” as said by the court in the case of *Jones and Briggs vs. Blalce and wife.*2 *HilVs Ch. Rep.*629, *at p.*636.

In the case of *Smith and Henry,*1 *Hill, p.*16, the court declared the deeds void. But that was done on behalf of creditors, and for their benefit. Here the creditors are not parties, except incidentally, as represented by the administrator, who is one of the defendants, and even he is not claiming on their behalf, for it is manifest that the estate of the intestate, exclusive of these negroes, is amply sufficient for the payment of his debts ; at any rate, if there be a deficiency it ought to have been made to appear, but it is in fact not even alleged.

The rule of the court always has been to support rather than destroy an instrument that has been fairly and solemnly executed, and. I would respectfully submit that the bill ought to be dismissed as to the defendants Pringle and Chartrand,

1st. Because the complainant, as against them, having made out no case either of fraud, mistake, or great .equity, sufficient to impair the validity of the deeds, they must stand.

2d. Because her claim is barred by the statute of limitations, more than five years having elapsed from the date of the deeds, viz., 26th Peby. 1830, to the filing of the bill on 10 May, 1835,

3d. Because the complainant could take no other or better *466title than Carmille himself had, after he had conveyed to Prin-gle and Chartrand ; he, under the cases of *Cline and*Caldwell, and *Linaur and Johnson,*had no title, and she of course has none. She, therefore, having no interest, cannot sustain the bill.

Ashby, for the motion,

also said, 1st. The conveyance is absolute, it is a gift. Cited 9 Ves. 232 ; 9 ib. 403. Gift for a horse would not be a trust, Dud. 220. What difference is there between a gift for a slave and for a horse *1*both are chattels, 10 Ves. 536; Co. Litt. 207 ; 2 B. C. 156; 7 ; Fonb. Equ. B. 1. c. 4 ; 2 Wilson, 341; 11 Mass. 374; 2 B. *&*All. 368.

A party shall not avoid his own deed on account of his own fraud. 2 Ves. Jr. 116 ; 3 P. Wms. 236 ; 6 Ves. 747; 2d. ground, 7 Stat. at Large, 443 ; 2 ib. Act 1820, 139; Bin. Rep. 196 ; 1 Hill C. R. 134; 2 Hill C. R. 313; 3 Leigh, 492; 8 Crunch, 135 ; 5 Page, 114; 3 B. C. 271; 1 Strage, 447. A bequest to slaves is not void.

Mr. Baxley, contra.

Cited Lewer on Trusts, 175; 22 L. Lib. *(Neto*Series) 89. Is the trust void or unlawful ? Cited 2 P. Wms. 361; 1 Ves. 108 ; 3 Dou. 194; 1 S. <fi¡ S. 290 ; 2 Ves. *&*Beam. 294; 18 Ves. 463; 3 M. *&*R. 262; 1 E. 262; 1 ib. 508 ; 6 Ves. 52; 9 Ves. *Morris vs. Bishop of*Durham; B. Ab. Tit. Con. 399 ; 97 Law Lib. ; 10 Vos. 527. If he says, I give in trust, and it cannot be ascertained or executed, it is for the next of kin, 328. 1 Sch. *&*Lef. 22 Law Lib. 84; 2 At. 156 ; 6 Ves. 68. A bill filed for the discovery of an illegal trust, a demurrer will be sustained. 3 M. 399 ; 2 B. 209 ; 1 Vern. 59, decides that equity will not enforce an illegal trust. 1 Bailey, 632. There can be no emancipation until the negroes are turned loose.

The Act of ’20 makes the deed void. 2 Hill C. R. 304; 1 Bailey, 632, it was supposed had decided this very question:

The second deed, the first deed being bad, must be so too. 2 Devx. E. Cas. 440 ; 1 ib. 493 ; 1 Dev. L. Rep. 189 ; 2 Law Repository, 557 ; 2 Hawk. 120.

The A. A. 1841, settles *the*question. It is retrospective in its operation. 1 Kent’s Com. 408-9, 455.

HuNt, in reply,

said the law was not introspective, but prospective, and admits the law as it formerly was. The legislature have no right to pass such an Act, if it is regarded as retrospective.

Mr. Hunt contended that the Act of ’20 was prospective by *467every word. 3 Me C. 93. All laws ought to be prospective. There is not one of the authorities of the cause on the other side that covers this case. In any point of view he contended the deeds were good. The Court of Equity does not decree for the distribution until administration.

As long as the statute is unchanged, there is no illegality in the trust. Every resulting trust must arise *eo instante*with the execution of the deed.

Curia, *per*

O’Neall, J.

The case of *Morrice vs. the Bishop of Durham,*9 Ves. 399, and the same case, 10 Ves. 521, was a trust to dispose of the ultimate residue of the testatrix’s estate to such objects of benevolence and liberality as the Bishop of Durham in his own discretion shall most approve of; and the Bishop was appointed sole executor. The master of the rolls and the Lord Chanceller ruled that this bequest was a trust, and conferred no personal benefit on the legatee; but that it was too indefinite in its creation, and could not therefore be executed ; and that as it was an estate’undisposed of, in the hands of the executor, a trust resulted for the next of kin. From this summary of that case, it will be seen it cannot reach this case. For there, that was a disposition by will, and the fund was in the hands of the executor, whose whole estate in equity is regarded as upon trust and confidence. So too the trust was not so declared that the objects of the testatrix’s bounty could be ascertained from the will, and hence it could not be supported. The case before us stands upon deeds executed and taking effect in the life time of the intestate, and the case must be considered as if the intestate was himself the complainant, asking that the deeds should be set aside. Without appealing to foreign adjudications, our own conclusively show that such a bill could not be sustained. For the complainant there would stand upon this footing, that he claimed to be relieved from his own act done in ■ fraud of the law. Such a notion has no countenance any where. That the administrator, and consequently the distributee, seeking to avoid their intestate’s deed for fraud, actual or legal, on his part, must claim in his right, and cannot have any superior equities, have been so often decided, that it is not necessary to cite authorities to prove it. Looking at this case in this point of view, there could be no difficulty in saying the complainant cannot recover. But I think the case deserves to be examined in *468another aspect, and I am satisfied *there is*nothing in any point of view, in which I am able to regard the case, which ought to defeat the deeds. The Act of 1820 (Acts of ’20 p. 22) merely declares “ that no slave shall hereafter be emancipated but by the Act of the legislature.” Here it will be observed, that the Act does not declare a deed conferring emancipation void. - It cuts off emancipation altogether, except by Act. If emancipation depended upon the execution of the deed alone, then the deed being wholly inoperative, the slave in such case would remain the property of the grantor, and no harm would be done. But the Acts of 1820 and 1800 are regarded in *pari materia*; and when so construed, they make this legal provision, that a slave cannot be emancipated *in this State,*“ *but by Act of the*Legislature,” and if emancipated without an Act, that then such slave so emancipated, shall be liable to seizure and conversion to his own use by any person. *Frazier vs. Frazier, 2*Hill’s C. R., 304. *Johnson vs. Linaur, 2*Bail. 137. To constitute an emancipation, something more than the execution of a deed is necessary: there must be a “ parting with the possession of the slaves by the owner or owners,” and thus *“*permitting them to go at large and act for themselves.” *Senior vs. Sylvester: Young vs. the*same, 1 Bail. 642. An invalid attempt to emancipate, so long as the possession remains unchanged, or the slave is in the possession of a *legal owner,*does not subject him to seizure; *Cline vs. Caldwell,*1 Hill’s Rep., 423. These principles have the sanction of so many cases decided by our own Court of Appeals, that I suppose they will be regarded as settled law. Having in a greater Or less degree participated in the decision of them all, I will not now attempt to fortify them by any other reasoning than such as is contained in the judgments pronounced in them.

Taking the law to be as I have stated it, how can it be pretended by the distributee of the donor, that slaves which by him have been conveyed to others, upon the trust and confidence that they would suffer them to work out for their own maintenance, *upon the said slaves paying an annual hire of one dollar,*are to be regarded as emancipated contrary to the Act of 1820 *?*They are still to all intents and purposes, slaves. The persons to whom they are conveyed (Pringle and Chartrand) have the right to govern and protect them. The hire which they pay, however inconsiderable, is a constant recognition of servitude. At law, there neyer copld be a pretence that the slaves were not the pro* *469perty of Pringle and Chartrand, for at law the trust would not be noticed, *unless it had been executed*by emancipating the slaves. The *State vs. Rhame and others,*Dudley’s Law Rep. *Rhame vs. Ferguson and others,*Rice’s Rep., 196. But if it could, then it is equally clear that the donor and those claiming under him, could not at law avail themselves of this objection. *Cline vs. Caldwell,*1 Hill, 423. *Chappell vs. Brown,*1 Bail. 528. It is only in equity that the trust can be looked to, and there the question arises which is now made, is the trust unlawful? and which, as I have already shown, would, (if it were) constitute no ground upon which the deeds could be set aside. The distinction is, where any thing is to be done to enforce an Unlawful trust, equity will not set it up or enforce it, or in any way aid its execution, even against the party creating it. But where the case is reversed, and the donor comes to be relieved against it, his position, as the party perpetrating the unlawful act, closes the court against him, and he is left where he ought to be, to stand on *the law ;*if that help him, it is well; if not, he is punished, as he deserves to be. Had the Act of 1820 declared all deeds, upon trust, for the benefit of slaves, or intended to secure their freedom, void, then the parties representing the intestate would have had no difficulty; For in that case' they could have rested *on the law,*and succeeded. But here their misfortune is, that there is no such provision. The utmost which can be contended for is, that the slaves have been emancipated contrary to law. For Prin-gle and Chartrand have the actual possession, and may, I suppose, have suffered the slaves to work out for their maintenance, paying an annual hire of one dollar.

Admit that to be emancipation, what is the consequence ? Not that the slaves go back to the donor, but that they are liable to capture ; and equity has no right to say any thing else, for such is the lex scripta. But the question whether the trust is lawful, is worth examination. I confess I have never been able so to regard it. The objeyt of the Act of 1820, was not to deprive a man of the right to do with his own as he pleases, but to prevent him from conferring freedom “ within the State” upon a class of people, as to whom her policy demands that they should be slaves within her limits. If the deed, construed with its trusts, still makes the slaves of the donor, the slaves of the donees, the fact that he has desired that they should give to them the fruits of their labor, cannot be unlawful. They still are slaves, chattels *470personal, they still are under the dominion of masters, and must so remain. For if Pringle and Chartrand ever relax their hold upon them, and suffer them to go at large and act for themselves *xoithout their*restraint, *actual or*constructive, they would be liable to seizure, and would become the slaves of the captors. Kindness to slaves, according to my judgment, is the true policy of slave owners, and its spirit should go (as it generally has) into the making of the law, and ought to be a ruling principle of its construction. *Nothing will more assuredly defeat our institution of*slavery, *than harsh legislation rigorously enforced.*On the other hand, as it hitherto has been, with all the protections of 'law and money around it, it has nothing to fear from *faxiaticism abroad or examination at home.*If it was so that a man dared not make provision to make more comfortabe faithful slaves, hard indeed would be the condition of slavery. For then no motive could be held out for good conduct; and the good and the bad would stand alike. Such has never been the rule applied to our slaves, and such I hope it never will be. I am satisfied that there is nothing unlawful in the trust of the first deed, and if it be necessary to place the case on that ground, the court are prepared to so rule. On all the other grounds, however, previously considered, we are satisfied that the deed is good and must have effect. The second deed is also, I think, good and valid. The only thing which could effect it would be the unlawfulness of the trust, if it be unlawful. It is a good common law conveyance to Pringle and Chartrand of two slaves, for the use of other slaves conveyed to them. In such a case Pringle and Chartrand *having the possession,*have the right to say, it is a naked conveyance to them; and that the trust is mere matter of advice and recommendation, which they may or may *not*regard. But suppose the trust is to be noticed, then it would be a gift to the slaves of Pringle and Chartrand, which is, I think, a gift to the owners. According to *Fable vs. Brown,*2 Hill C. R. 378, such a gift, even by way of devise, would prevail in equity. I do not agree to the reasoning of that case, however ingenious and able it may *be.*I concurred in the result merely. For I hold that the personal property of the slave is the property of the master, and that any thing personal given to the slave is given to the master; and this I understand to be the opinion of the Court of Errors. Our legislative Act of 1740, § 34, P. L. 121, shews that *471unless prohibited by Act, slaves might, by consent of the master, acquire and hold personal property, and that even in prohibited cases, u particular course altogether different from *escheat*must be pursued to subject the property of the slave to forfeiture. Our decided cases, with the exception of *Fable vs.*Brown, and the guardian of *Sally vs.*Beatty, 1 Bay, 260, acknowledge the right of the owner of a slave to all his or her acquisitions. The case of the guardian of *Sally vs. Beatty,*denies the right of the owner, under special circumstances, to the acquisitions of a slave, and sustained the freedom of a negro, purchased by a slave out of her own earnings. That case goes further than I desire to go ; but it is ample authority to prove, that by the law of this State a slave might acquire *personal property,*and that such a thing as an escheat was not an incident of it. The case of *Hobson vs. Percy,*1 Hill, 277, holds that a master in possession of the personal property of his slave, may maintain trespass for an immediate and forcible injurydone to it. That case was for an injury done to an article of property, which by the Act of 1740, § 34, slaves are prohibited from owning, and yet being in the possession of the master, it was regarded as his property. Looking back over our legislation, and our decided cases, and the usages of our people, I think that we are well sustained in saying *that a slave may acquire and hold in possession personal property, (not prohibited to him or her by Act of the Legislature) with the consent of the master or mistress, and that such property is in law to be regarded as. the property of the owner of the slave.*Both deeds are therefore good, and must be sustained, unless by the Act of 1841, (11 Stat. at Large, 154) entitled “an Act to prevent the emancipation of slaves, and for other purposes,” they are rendered inoperative That Act has been supposed to be retrospective, but on carefully considering it, I think all its provisions are future, and I rejoice that they are so. For I should have thought it a stain upon the purity of our legislation, if it had been true that the Act had been passed to defeat vested rights.

That such an Act would have been contrary to our own constitution, which has declared that “no free man shall be disseized of his freehold, liberties, or privileges, or outlawed,for exiled, or in any manner deprived of his .life, liberty or property, but by the judgment of his peers, or the law of the land,” seems-*472to me to be too plain to admit of argument. The motion to reverse the circuit decree is granted, and the complainant’s bill is dismissed.

JohnsoN, Harper, Richardson, Evans, Earle, and Butler, CC. and JJ., concurred.