
    
      Cullin Lark vs. James Cunningham.
    
    Plaintiff claimed a certain negro, under an alleged parol gift from defendant, his father-in-law. The negro had boen sent home with plaintiff and his wife, when they removed from defendant’s, more than a year after the marriago: — Held, that defendant, for the purpose of showing that the negro had boen only loaned, might give, in evidence, as part of the res gestee, a paper signed by plaintiff’s wife, and bearing date a few days before their removal from defendant’s, containing a promise to return the negro when called for.
    where the husband uses the wife as a channel through which he claims a title to chattels by gift from another, the alleged donor may give in evidence the acts and declarations of the wife, made at the time of the alleged gift, though such acts and declarations were not known to the husband, for the purpose of showing that there was in fact no gift, but only a loan.
    
      Before Whitneb., J., at Laurens; Fall Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was trover, to recover the value of a slave, Ben. The plaintiff was the son-in-law of defendant, and his title to the slave in question rested on the following proof: Plaintiff and the daughter of defendant were married in 1849 ; she remained at her father’s during that year, though her husband had charge of a place in the neighborhood, either his father’s or his own, which he overlooked. In the Spring of 1851, they removed to his place, where they have since lived. The slave Ben and some other slaves, together with some articles of furniture, were sent along with them at the time. Defendant is a man of substance, a widower then and now, and this daughter his only child. Ben remained in the possession of plaintiff until May or June, 1852 — ranaway ; soon after in possession of defendant, who on demand, refused to give him up, and suit was immediately brought. Ben was proved to'be worth $1,000, and his annual hire worth about $100. Joseph Waldrope proved that on one occasion, returning from Poplar Spring Church, in the latter part of the Spring or early Summer of 1851, defendant said to him, “he had given plaintiff three negroes,” (and named them, though the witness could not call the names; recollected one was a “ boy1 s'name”) and other property, and added, “if old man Lark would do as much, plaintiff would have a pretty good start?1 On his cross-examination, witness said, there was no mention of any conditions to the gift, nor did the defendapt say he intended to give. He spoke of a difficulty with his son-in-law, «fee., «fee. Robert Spears testified to a conversation in 1852, in which defendant spoke of his son-in-law and himself having fallen out about some negroes he gave them when they left — negro man, woman and child — that he had moved them to Lark's himself; Lark was not satisfied, fell out with the negro, and another, or others, given in place; that Lark and Pitts came after the negro he first had, armed with guns. The negro was demanded, and he told Lark he had better go home and let the negro alone. The negro was seen ploughing in a cotton field; they broke off for him, and he ran and escaped. They came back to the house; Lark demanded that he should give the negro up, and cursed him for a d-d abolitionist, and rode off. Last Spring defendant said he had taken an instrument of writing secretly from his daughter, that the negroes were to be given up when called for.
    “The demand was proved by Pitts — the boy Ben being seen in the field, and subsequently ran to the house — and in reply to the demand, defendant said: “He is here, and get him if you can;” told plaintiff to go home. This was in June, 1852; suit brought July, 1852.
    “On the part of the defendant, John Snell proved that plaintiff and wife moved home 2d or 3d of April, 1851; Ben, a woman Lizzy and child, and a girl, Angeline, went in possession of them; sent by defendant, as was witness also, to assist in moving them and other property. Plaintiff and wife, defendant and witness, all went along.
    “ In his direct examination, the witness said he had a conversation that day with defendant, though neither Lark nor his wife were present, in reference to these negroes. Defendant said, “it was property he took there for them to use, and when he saw proper, it was his property, he could remove or take it; said he had that arrangement, he could take it when he saw proper?1 
      Witness testified that he did not speak of a paper, nor was he ever present at any conversation between the parties.
    “On his cross-examination, witness testified that he could not say whether this conversation was before or after they started, or whether it was in fact on that day. He had heard defendant speak of it more than once. Witness was in employment of defendant. The defendant offered a witness to prove the handwriting of plaintiff’s wife, with the view of introducing a paper alleged to have been executed by her, to which objection was made by plaintiff. I inquired whether this was on the day the negro was sent home with plaintiff, or if any proof could be offered first, of the time and circumstances, to which the counsel replied, none other than such as the paper furnished. On inspection, I ascertained that the paper purported to have been executed some days before ; and, though with much hesitation and doubt, I excluded the testimony. I did not take a copy, but it purported to be a receipt signed by Mrs. Lark, March 26, 1851, of “ four negroes, Ben, &c., which negroes is to be returned when called for.”
    
      “Thomas Cooper was called to fix the day of removal in March, but spoke vaguely, as he had seen Lark at his home 8th of April, and thought he had been there a week or two, but did not know.
    “ G. W. Sullivan was called as to a conversation with defendant in the Summer of 1851, and though objected to, I felt constrained to receive. He spoke to witness of the treatment of his son-in-law; said he had reserved the title of that property in himself, and had a paper to that effect. Shortly after, found Cunningham and his daughter at his house; they talked on the subject, and remembers Mrs. Lark wept, and asked if the paper could not be kept from her husband. John Snell was recalled, and testified that in a few days after the negro was sent to plaintiff, the defendant spoke of an arrangement intended before and after their removal; said he had made an arrangement; thinks lie spoke of the arrangement on the day of removal. At this point of the case, the defendant closed, and believing the paper excluded, was comparatively of little additional consequence, being virtually before the jury, I suggested the propriety of dis-embarrassing the case by admitting the paper; the objection was persisted in, and the previous ruling remained. The reflection afforded whilst the case was being argued would have induced a different course.
    “In reply, Daniel Austin was sworn, and proved that after Ben had run from his lot, went to tell Lark; said Ben could be got, if Mr. Lark would trade him; defendant said he would trade or swop for Ben; thinks he used the words swop Millie and Em for Ben.
    
    “The case was committed to the jury, after very full argument by counsel; contenting myself with instructions as to the law involved in conformity with reported cases, and about which there seemed no difference as to any legal point raised, except, perhaps, as to the legal effect of concealment of terms, being a fraud on the rights of the husband, and therefore ineffectual and void.
    “Speaking of the conduct of each party to the other, I said the concealment of terms other than those that would be imported by the conduct of the father, was unfortunate, wanting in frankness, and hence justifying animadversion. But as a legal proposition, I would not hold them fraudulent; that the mere transfer of possession was not itself a gift; the act should be judged by its nature and circumstances; that the donor might well annex terms to the transfer, and acting in good faith and without a disposition to deceive, his terms would be effectual, and that these terms might well be communicated to the daughter alone, where she was the meritorious cause moving to the act; that sending with the daughter, or placing in the care or custody of the daughter, an article of property, the father might well annex conditions or terms explanatory of the act; the question here being a gift or loan, whatsoever was done or whatsoever had been said by the donor, limiting or explaining his acts or his words, were to be considered and judged of; but the effect to be given to acts or words, only known to or heard by third persons, as opposed to acts and declarations in the presence of those whose interests were to be affected thereby as manifesting the intention, could only be determined by the jury on the case made.
    
      “ The jury returned a verdict for plaintiff for $1,150.”
    The defendant appealed, and now moved this Court for a new trial on the grounds:
    1. Because the Court rejected proof of the execution of a receipt given by the plaintiff’s wife to the defendant, bearing date 26th March, 1851, for the negro in question and others, wherein the right to the said slaves was reserved, and they were to be returned when called for.
    2. Because the declarations of the plaintiff’s wife as to the terms and character of the plaintiff’s possession of the slave in question were rejected.
    3. Because the proof was, that the slave was delivered as a loan, and not as a gift.
    4. Because it is respectfully subipitted that the Court erred in saying to the jury that the concealment of the terms of the delivery of the slaves from the plaintiff struck him as fraudulent, although he was not prepared to so hold, but that he should not fail to animadvert upon that part of the case.
    
      Sullivan, Henderson, for appellant,
    cited Gregory vs. Parker, 1 Camp. 394; Walton vs. Green, 1. Carr, and P. 621; 2 Stark, Ev. 45; Fenner vs. Lewis, 10 Johns. B. 38.
    
      Young, contra,
    cited White vs. Palmer, McM., Eq., 117; 1 Green. Ev. § 185, 338.
   The opinion of the Court was delivered by

Withers, J.

The case turned upon the question of gift or loan by Cunningham, the defendant, to his daughter, the wife of Lark, the plaintiff.

The defendant would have put in evidence a paper, signed by the wife, called a receipt, which stated that the negro in question (with others) was to be “ returned when called for.” This paper was rejected as being incompetent on the general and incontestable rale of evidence, that neither the wife nor her declarations shall be received for or against her husband as party to a record in civil actions.

Whether that rule did apply so as to exclude the paper referred to, is the only question necessary to be considered by this Court.

We hold that the fact which the paper is understood to disclose should have been admitted in behalf of Cunningham. This is founded on the assumption that it was not a circum-tance occurring after any right of the husband attached, nor so long before, or under any other such conditions, as to show that it was not a part of the res gestee — meaning thereby the transaction of transferring a negro by the father to his married daughter. Such conditions touch the admissibility of the evidence. Its effect would be wholly destroyed as against the husband, if it should appear that there was a purpose to defraud the husband, to be inferred from arjy circumstance sufficient to sustain that conclusion, as a confederation to conceal what the husband ought to know, and so forth.

Premising thus much, and concluding nothing that may hereafter be made to appear, we suppose this case to be before us, to wit: A father delivers a negro to his married daughter, the husband absent, and alleges, that he annexed terms showing the transaction imported only a loan at will — and he offers, towards proof of his intentions and the conditions of the delivery, what his daughter admitted at the time, or as part of the res gestee.

The father has an absolute right to give or lend. He may do it by parol. That the husband may not be present, and does not, in fact, know the conditions that may be annexed, does not abridge the father’s rights, or annul his reservations. Something more than merely his ignorance of what the father said or did must appear, to make it a fraud on his marital rights. Where a deed is made, and delivered to a wife, or a trustee for her, excluding or abridging the marital rights, the husband’s ignorance merely does not vitiate the conditions and limitations. (Richmond vs. Yongue, 5 Strob. 46; Henson vs. Kinard, 3 Strob. Eq. 371.) No principle distinguishes the case of conditions and limitations annexed by parol, and to be proved by evidence of that grade. Suppose a father to address his daughter thus: “ Observe, I allow you to receive this negro for ten years, or to nurse your child for the present year, or to be returned when I may require it — I hope you understand it” — and the daughter to reply, “Yes — I hear and understand what you say ” — cannot the answer of the daughter be given in evidence, when the question is between the husband and the father? Suppose the daughter were to solicit the father, in writing, to deliver to her a negro, on terms specified, and the father to consent, how should we exclude her words, when the object is to ascertain the true meaning of the father’s act ? To shut out such a light, would be to surround the very truth of the transaction with darkness. Our doctrine that the creditors of the husband are not affected by conditions unknown to them, which yet may affect the husband, (though accompanying a delivery to the wife and unknown to him,) shows,, that he is held to know more, that may be understood by his wife in a matter of donation by the father to her, than other people. Look at the rule of law which supports the action of one who supplies goods to the wife. He may make the husband liable, generally. Wherefore ? It is answered, the wife is presumed to be his agent. But why ? Because he is presumed to know what the wife imports into the household — he has a right, an interest and an opportunity to inquire and be informed. And though it be his legal duty also to supply her with necessaries, and she his agent to receive them, yet it is not his duty to furnish or to answer for luxuries beyond her condition. Yet if, having the opportunity of knowledge, he does not disavow her acquisition of princely attire, it is not easy to see how he would escape liability to pay for it, except by showing, touching that, a fraud by concealment, or otherwise. So in such case as the present, it is not unreasonable to presume, that the husband is willing to accept a donation, though it may be a limited one, and not as much as he might wish or hope for, but yet that he would inquire of his wife the terms where he allows her to introduce what was not his before, and hence to separate him, in a contest with the donor, from his creditors.

Suppose a conversation had arisen between the wife and the husband, plaintiff in this case, when she reached home with the negro, or afterwards, and she had told him what it is said the paper called her receipt imports, could it be reasonable to exclude evidence of that, when offered by Cunningham, to establish the terms upon which he parted with the negro? Our conclusion is, the paper excluded is admissible, as tending to prove that fact — for the substantive inquiry is as to what the defendant did and said bona fide ; and what the wife admitted at the time, or as part of the res gestee, and bona fide, may aid in showing the declared intention of the father, and so bear on the question of loan, or gift absolute.

We do not infringe the rule that the wife cannot, by word or act, divest the husband of a right, or subject him to a liability, in capacity of wife, or because she is wife. We do not infringe upon Lord Raymond’s decision, [Hill vs. Hill, 2 Stra. 1094,) that the wife’s admission of payment cannot estop the husband from recovering the wages earned by her, for she would thereby divest him of a legal right already invested in him. But we hold, that though by matter of contract, and as wife, she is powerless to bind the husband to pay, or to discharge what is payable to him, yet, when the husband uses her as a channel through which he acquires another’s goods, by donation, to which he had no title, and which the donor might lawfully encumber with limitations, what she did and said, as part of the transaction, may be adduced by the donor, to throw light upon his intentions.

This is enough to show that the case must go back on the ground discussed; and, therefore, we do not enter upon any other matter of complaint urged by the party appealing.

It is ordered that the motion be granted.

O’Neall, Wardlaw, Frost, Whitner and Glover, JJ., concurred.

Motion granted.  