
    Joseph Barksdale, Appellant, v. George B. Elam et al., Appellees.
    1. Condition, illegal : how it aeeects a contract. — A. sold to B. two slaves, upon tire condition that B. would, after A.’s death, support and maintain another slave of A.’s, as a free white person, and permit the slave to enjoy the use and benefit of her own labor; and if A.'s heirs objected to this, that B. should, nevertheless, have the two slaves. Held, that B.’s title to the two slaves was valid, although the condition upon which they were conveyed might be illegal.
    2. Same. — If illegal conditions be annexed to a grant, the grantee’s estate will not be defeated, but he will take it discharged of the condition. See 13 S. & M. 685.
    Appeal from the Probate Court of Holmes county. Hon. Richmond J. Brown, judge.
    The appellees, George Elam and others, heirs of one Jonathan Carter, deceased, filed their petition in the Probate Court of Holmes county, against Joseph Barksdale, the appellant, the executor of the last will and testament of said Carter, in which they sought distribution of certain slaves, viz: Jane, William, Harriet, and Eanny. Barksdale claimed Jane and William, by virtue of a purchase of them, made by him from Jonathan Carter, in his lifetime. He relied upon a deed executed by himself and said Carter, on the 9th of February, A. D. 1858, by which the said slaves, Jane and William, and some other property, were conveyed to the said Barksdale, (the said Carter retaining possession and control during his life,) upon the condition, “ that the said Barksdale is, at the death of the said Carter, to take charge of a yellow girl, nearly white, named Harriet, aged twelve years, born of the house-woman Fanny, belonging to said Carter, and to keep the said Harriet in his house, as a free white person, and in no way to be treated as a slave, but the said Harriet is to be fed from his table, in his house; to sleep in his house, and to be clothed from the store, both fine and common; and the said Harriet shall have the full benefit of her labor, and also the full right, power, and privilege of making complaint to her guardian, B. B. Wilkes, and his wife Elizabeth Wilkes, at any and all times. Now, if the said Harriet shall marry any free white man, at any time during the life of said Barksdale, then the said Wilkes and wife, and said Barksdale, shall consult together, and if they deem it proper and right, they shall give the said Harriet a portion of the above specified property, or so much thereof as they may deem equitable and just; which portion so given, shall be managed and controlled by said Wilkes and wife, for the use and benefit of said Harriet and her offspring, and the remainder shall be the property of said Barks-dale and his offspring.” The deed provided, that if Barksdale fails to comply with the above conditions, he should forfeit his right to the property: and it further provided, “ that should any of said Carter’s heirs attempt to enslave the girl Harriet, it shall in no wise affect this deed for said Jane and William, to said Barksdale, provided he faithfully carries out the requisitions herein specified.”
    The Probate Court decreed that all the slaves should be sold for distribution, and Barksdale appealed.
    
      J. M. Dyer, for appellant.
    1. Barksdale is a bona fide' purchaser of Jane and William, for a sufficient consideration — the support and maintenance of Harriet. That the consideration was inadequate, cannot affect the contract, if there were no fraud; and there is none pretended here. 1 Story, Eq. Jur. §§ 244, 245, note 6, and authorities there cited; 1 Parsons, Cont. 361, 362.
    2. But if the conditions of the deed would not constitute Barks-dale a purchaser, then it was a voluntary conveyance by Carter of his own property, which he had a right to make, and it was irrevocable, as to bim and bis beirs. Lisloff v. Mart, 25 Miss. R. 245; VerplanJc v. Sterry, 12 Johns. R. 548.
    8. Tbe condition upon wbicb tbe property was conveyed, was not illegal; tbe girl Harriet was still to remain a slave, subject to tbe control and management of a white person, and subject to all tbe law regulating slavery. Tbe personal exemption from labor, stipulated for, was not illegal. Tbe master is not bound by law to make bis slaves labor; be may support them in idleness, if be see proper, and if so, be may stipulate for others to do tbe same thing. It is not to tbe mode and manner in wbicb slaves shall be treated, that our laws against emancipation are directed. They are enacted for tbe purpose of preventing tbe legal status of tbe slave from being changed. This has not been done in this case.
    4. Barksdale is in possession of tbe slaves by virtue of bis contract, and if that be immoral and against public policy, bis possession will not be disturbed either at tbe suit of Carter, or bis beirs. In pari delicto potior est conditio defendentis, et possidentis. See 1 Story, Eq. Jur. § 29; 1 East, R. 96.
    5. Tbe stipulation in tbe deed, that Carter should retain possession during bis life, does not make it invalid. 10 S. & M. 394.
    6. Tbe Probate Court has no jurisdiction to try tbe title of tbe slaves. 4 Cusbm. 116.
    
      W. Broolce, for appellee.
    Tbe petition filed in tbe court below by tbe appellees, as tbe beirs of Jonathan Carter, seeks distribution of certain negroes, viz.: tbe girls Harriet and Eanny, and Jane and her child. Tbe appellant, as executor of said Carter, resists tbe application, and sets up title to Jane and child under a written contract, wbicb is set out in tbe record. Tbe court below ordered distribution of all of said negroes. Tbe appeal is taken only so far as Jane and her child are concerned.
    It is evident, from tbe tenor of tbe will of Carter, and of tbe contract, and tbe evasive statements in tbe answer to tbe petition, that tbe girl Harriet is tbe offspring of the woman Eanny, by testator, and that tbe object of both tbe will and contract is to have said girl Harriet brought up as a free woman, and ultimately to be given in marriage to a white man. In this event, by the terms of the contract, a portion of the property conveyed to appellant is to go to said girl. Both Barksdale and "Wilkes are made, or intended to be made, instruments to carry out this scheme.
    This arrangement, contravening the settled policy of the State, is certainly illegal, and of course, the contract entered into for the purpose of perfecting it, is null and void. Barksdale could only lay claim to the negro Jane, by a fulfilment of his unlawful undertaking. No court certainly would lend its aid to enforce rights predicated upon immorality of the grossest and most dangerous kind — dangerous, because the example of a negress, or mulatto, brought up in the manner and style specified in said contract, would necessarily exert a most baleful influence upon the surrounding negVo population. Minds v. Brazealle, 2 How. 843.
   Fisher, J.,

delivered the opinion of the court.

This was a proceeding in the Probate Court of Holmes county, to compel the plaintiff in error, as executor of the last will and testament of one Jonathan Carter, deceased, to make distribution of certain slaves, alleged to be part of the estate of the testator. The executor claimed the slaves as his own, by virtue of a certain deed, executed to him by the testator in his lifetime.

This deed contains certain conditions, which, it is said, are contrary to the spirit and policy of our laws, and that the whole instrument is therefore rendered void. It may be conceded, for the sake' of the argument, that every duty which the deed attempts to impose upon the donee, and every condition annexed thereto,, must be treated as absolutely void, yet, under the authority of the case of Weathersby v. Weathersby, 13 S. & M. 685, the donee’s title is not affected by such void conditions. He takes the property discharged from the conditions, supposing them to be void.

Decree reversed, and cause remanded.  