
    THOMAS JONES AND LUCY ANN BAIRD against JOHN BAIRD and another, Executor.
    
    Where a party made a bill of sale of a slave, for a valuable consideration, ■which was inoperative, because there was no subscribing witness to it, it was Held that the purchaser had a clear equity to call for a conveyance; either upon the ground that it was an attempt to pass the title, which failed by reason of a mere formal defect, or upon the ground that the inoperative instrument was evidence of an agreement to convey.
    Where, by an ante-nuptial deed, it was provided that the slaves of the wife were to remain in the possession and use of the husband, during coverture, in a suit, brought to compel the husband’s personal representatives to perfect the conveyance of a slave which the testator had attempted to convey to the wife’s trustee, in lieu of one of her’s, which he had sold, which1 conveyance was inoperative, for the want of a subscribing witness, it was Held that the possession, by the husband, of the slave, intended to be. substituted, was, during the coverture, not adverse to the wife’s trustee; so-that, neither the statute of limitations, nor the act creating a presumption of abandonment from the lapse of time, was applicable.
    
      Cause remo ved from the Court of Equity of Person county.
    •' William Baird and Lucy Anri Jones; béing about to be married, entered into a contract, in writing, called herein a marriage settlement, reciting that both were possessed of considerable property, and conveying the estate and property belonging to her, consisting of land, slaves, &c., to her two brothers, Thomas, and Roger A. Jones, in trust, to permit the said William, during the joint lives of himself and wife, “to cultivate the said tract of land, and use the said slaves, and other personal property, and to have, receive, take, and enjoy all the crops, hires, rents, issues and profits, to and for his own use and benefit,” and on the death of Mr. Bail’d, she surviving, the property may to go to her, but on her death, leaving him surviving, then to her appointees or legatees, and in case she should make no appointment or testamentary disposition, then to her heirs and next of kin, according to the laws of Virginia. After several provisions securing his estate against the wife’s claim for dower, distributive share, &c., the deed provides, “And whereas, the said Lucy Ann, by agreement, entered into with her brothers, is bound to pay a certain portion of the debts of her father, it is hereby agreed that the funds, necessary for her compliance with this agreement, shall be raised from the sale of crops, made on the above mentioned plantation, or, if necessary, by the sale of some part of the property herein convej’ed ; it being the intention of the said Lucy Ann, that the said William shall not be required to pay the whole, or any part thereof, out of his own estate.”
    In the year 1828, it became desirable to sell one of the slaves, above conveyed, a young negro woman, named Jenney, whose conduct had become displeasing to her mistress ; whereupon, by the consent of the trustees, a sale was made by Mr. Baird, the husband, and the price received and used by him. At the same time, he executed an agreement, in writing, to substitute in her place another female slave of equal value with the one sold ; but some two years afterwards, not being satisfied with the instrument containing this agreement, he executed to ThomaS’ Jones, the surviving trustee, another instrument — a deed, dated 26th of June, 1830, of which the following is a copy : “ Whereas, in the year 1828, with the consent of my wife, Lucy Ann, I sold a negro woman, named Jenney, daughter of Oloe, which negro woman Jenney, by marriage contract between me and my said wife, was conveyed in trust to Thomas and Roger A. Jones, for purposes therein expressed, which contract is recorded in the clerk’s office of Halifax county, Ya., and as far as necessary, is intended to be considered a part of this instrument of writing; and whereas, it was understood at the time of the sale of Jenney, that I would substitute my negro woman, Mary, daughter of Molly, and the said Thomas Jones consenting to the said sale and substitution, as far as he is competent to consent, as surviving trustee: Now, therefore, know all men by these presents, that I, William Baird, in consideration of the premises, and for the further consideration of one dollar, paid to me by the said Thomas Jones, the receipt whereof is hereby acknowledged, in order to make the said substitution, have granted, bargained, and sold, substituted, and conveyed, and by these presents do grant, bargain, and sell, substitute, and convey, unto the said Thomas Jones, in trust, for the same purpose and benefit expressed, or intended in the said marriage contract, the said negro woman, Mary, and her child, Washington, born since my agreement to substitute Mary in the place of Jenney, to have and to hold, &c.,” expressing the trusts as declared in the marriage contract.
    This deed, on its being executed, was delivered to the trustee, Thomas Jones, and, after remaining in his custody several days, was handed to the bargainor, who promised and agreed to take it to the county of Person, in North Carolina, where he and his wife resided, and where the slaves in question werej and home the, same registered. , This was not done by him, and the deed is still unregistered. This deed has no subscribing witness. It remained in the possession of the defendant’s testator, Mr. Baird, for several years, and was by him handed to his wife, the plaintiff, Lucy Ann, who produced it after his death in the year 1857. The bill further alleges that after the death of Mr. Baird, the plaintiffs demanded the slave, Mary, and her increase, of the executors, who refused, to give them up. ' '
    The prayer of the bill is, that the defendants, who are the executors of Mr. Baird, shall be decreed to surrender the woman, Mary, and her offspring, born since the year 1828, and make a proper conveyance of the same to the trustee for the use and benefit of the plaintiff, Lucy Ann, according to the terms of the marriage settlement, and for an account of hire, &c..
    The defendants, being executors, in their answer, do not profess to know any thing of the matters above stated, but they express a belief that, as their testator had to pay a large sum for his wife, (over three thousand dollars,) which she was bound to pay to the United States on account of her father’s liability as a custom house officer — he altered his purpose of making this conveyance, and that in this way its not being registered is accounted for. They insist, further, that if the plaintiffs have anjr equity in the premises, that out of such claim should be deducted the sum paid as above mentioned, with interest thereon, being paid out of his own means by their testator, for and on account of his wife; which by the marriage contract he was to be entirely exempted from.
    The defendants also rely upon the statute of limitations and the presumption of abandonment arising from the length of. time.
    The cause was set down for hearing on the bill, answer, exhibits and proofs, and sent to this Court.
    
      Badger and Norwood,, for the plaintiffs.
    
      JReade and J. H. Bryan, for the defendants.
   Pearson, C. J.

The evidence establishes the execution of' the deed by William Baird, the testator of the defendants, to the plaintiff, Thomas Jones, beaming date of the 26th of June,’ 1830, and by ;the force and effect :of that.deed the plaintiffs are entitled toJhe slaves in.,controversy., A ' L A;

, .The fact 'that William Baird, after the' marriage, paid ‘a’ .large amount of money in satisfaction of a-debt of the father of the plaintiff, Lucy Ann, for which she was liable, did not justify the failure of the said William to have the deed registered as be had undertaken to do, and does not furnish to the defendants, his executors, any ground upon which they can resist the claim of the plaintiffs. If the existence of that debt had been concealed from the testator, the case would have presented a different aspect. It was, however, not only made known to him, but by the deed of marriage settlement, under which he was entitled to the profits of the land and other property during eoveture, and all of which he enjoyed during his life-time, it is expressly stipulated that the portion of the debt for which the plaintiff, Lucy Ann, was liable, should be paid out of the crops made on the plantation, and he took the use thereof subject fo that charge.

The statute of limitations and the lapse of time cannot avail the defendants, whether the deed of the 26th of June, 1830, be treated as an executed conveyance by which the title passed, or as evidence of an executory agreement by which the one slave and her child were to be substituted for the other. If the title passed, then the plaintiff, Jones, held the slaves for the use of Baird during his life, and he was, by the provisions of the deed, entitled to the possession; so it was not adverse, and the statute has no application. If it was an executory agreement, being by deed, it does not fall under the provisions of the statute, and no presumption of a release or abandonment of the claim can arise from the lapse of time, becausethe covenant vras not broken and Jones had no cause of action at law until a performance was demanded and refused ; and. in equity under the maxim- that “.that is considered as done which ought to be done,” the possession of Baird was “ congeable,” and there- being no conflict, there was nothing to induce a presumption inconsistent with tlie-respective rights-of tliei parties'. iff other woi'ds,1 ■ where, the- "possession, off "tile par-' ties.is not adversary, toerédñactioffor a'failufé fobreqúire tíie' formal execution of a muniment of title' in pursuance off aim-agreement, will give rise to no other presumption than that of the fact that they were acting under the agreement as if it was executed.

The Court met with more serious difficulty in this question: If the deed of the 26th of June, 1830, passed the title, then Jones ought to have had it registered, and the plaintiffs have no standing in equity; for, although Mrs. Baird, being a cestui qui trust, could maintain a bill against her trustee and the present defendants upon an averment that he refused to bring an action at law by collusion with them, yet such is not the fact in our case.

We are satisfied, however, that this deed did not pass the title because it was inoperative as a bill of sale having no attesting witness according to the provisions of the statute. Eev. Stat. chap. 37, sec. 19.: “All sales of Slaves shall be in wilting, attested by at least one credible witness, or otherwise shall not be deemed valid.”

It is held in some of the old cases, that the act of 1784, as to sales, and the act of 1806, as to gifts of slaves, apply only in favor of creditors and purchasers, being intended merely to prevent/rowi, and that as between the parties, sales and gifts of slaves are valid at common law. The correctness of these decisions has always been questioned, and it was thought the statutes were intended to prevent perjury, as well as fraud. In respect to the act of 1806, one of its provisions makes valid a parol gift by a parent to a child, if the parent dies intestate. This branch of the statute, by its very terms, applies inter partes, and accordingly it has been held, in many cases, that such a parol gift is not valid as well between the parties as in favor of creditors and purchasers, unless it stands unrevoked until the contingency happens. In respect to the act of 1784; the act of 1819, Eev. Stat. ch. 50, sec. 8, requires all contracts to sell slams, to be in writing. This, of course, applies inter partes, and is intended to prevent perjury as well as fraud, and was a Legislative construction of the act of 1784; for manifestly, the same ceremony should be required in regard to a sale, as was deemed necessary in regard to an agree menttosell, there being the like danger of perjury, a,nd the provision, in respect to sales, “ which are -accompanied ydth the actual delivery of the slave to the purchaser,” did not weaken the inference ; for, if the statute only applied in favor of creditors and purchasers, and left a parol sale good between the parties, at common law, the title would pass without delivery, and so, although perjury was guarded against, in-.a. contract to sell, yet the door was left wide open for it in. the case of a sale, and it was only necessary to procure-witnesses to swear that the parties sold, and did not simply contract to sell. We will not enter further into the question, because it is settled by the case of Tooley v. Lucas, 3 Jones’ Rep. 146.

As the deed, on the 26th of April, 1830, did not pass the title for the want of the ceremony of an attesting,witness, its due execution having, been established, and it appearing- thereby that, for a valuable consideration, the testator of the defendants had agreed to convey the woman, and: child, named in the pleadings, in the place of the one- whom he had been permitted to sell, and the price of whom, he had applied to his own use, the plaintiffs have-a. clear equity now to call for the execution of a formal, conveyance, upon two grounds: if the parties intended, by the deed, to pass the title, as is to be inferred from its terms, and the intention failed to take effect,, by the omission, of a mere formal act, equity, there being, a valuable consideration, will require the conveyance to be perfected ; as a surrender is supplied in the conveyance of a copy-hold estatej or the informal execution of a power of appointment is aided ; and if the legal effect of the deed is merely to furnish evidence of an, agreement to convey, as a note or memorandum thereof, in. writing, signed by the party, equity will enforce a specific performance.

.Per. Curiam, Decree for plaintiffs..  