
    George W. Hodges vs. James H. Cobb.
    L. W. advanced to T. M. four thousand dollars, to be used in buying and selling negroes, and agreed to settle one-half of the nett profits to the sole and separate use of the wife of T. M. There were executions against T. M. at the time, and he was insolvent. T. M. purchased negroes, and after the death of 1. W. settled with his administratrix. Some two or three weeks after the settlement, the administratrix executed a deed, by which she conveyed some of the negroes which had been purchased by T. M., and which had remained in his possession ever since, to a trustee for the sole and separate use of his, T. M.’s wife, the same being intended to represent one-half of the nett profits of the traffic: — Held, that the transaction was valid against the execution and other creditors of T. M.
    An insolvent husband may stipulate beforehand, that the proceeds of his labor shall be appropriated to the sole and separate use of his wife, and such stipulation is no fraud upon his creditors.
    BEFORE O’NEALL, J., AT ABBEVILLE, SEPTEMBER, EXTRA TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of trover brought for the recovery of the value of a negro woman named Milly and her children. The whole case turned upon the title ; and that depended upon facts about which there was little or no dispute.
    “ The late Leonard,J. White was a man of large means. He and Tarleton P. Mosely married sisters, the daughters of the late Donald Douglass, of Abbeville.
    “ Mr. Mosely failed in business, and made an assignment to Mr. White, to whom he was largely indebted.
    
      “ To benefit Mrs. Mosely, Mr. White, on the 10th of February, 1849, advanced three thousand dollars to be employed by Mosely in buying and selling negroes; ‘ the one-half of the profits arising from the said three thousand dollars,’ the said White agreed ‘ to make over to Frances E. Mosely, the wife of T. P. Mosely, ‘ in such manner, as will not Be liable for the debts of the said T. P. Mosely This was evidenced by a writing under the seals of the parties, the said L. J. White and T. P. Mosely.
    “ On the 2nd of July, 1849, a further advance of one thousand dollars was made, and an instrument under seal was executed by L. J. White, in which he recited both advances, and stated that Mosely had been and was to be engaged in buying and selling negroes as his (White’s) agent, and for his entire use and benefit, and that he was to account to him when called on for the capital of four thousand dollars, and the nett profits therefrom realized; and White bound himself ‘to make over, settle and fix upon Frances E. Mosely, the wife of the said Tarlton, for her sole use and benefit one-half of all the neat profits, that has or may be made on and with the aforesaid four thousand dollars, in the trade and traffic aforesaid, in such way and manner that the said one-half of neat profits shall not be liable or subject to any of the creditors, or heirs of the said Tarlton P. Mosely, except the said Frances E. Mosely.’
    
      “ The negroes Milly and her children were bought by Mosely as the agent of White, in the city of Richmond, Virginia, on the 15th of Febuary, 1850.
    “ Leonard J. White died the last of March 1850; administration was granted to his widow, Celestia A. White, who was his only heir, on the 4th of May, 1850.
    
      “ On the 28th of June, 1850, Mrs White executed a deed of trust whereby she conveyed to the plaintiff the slaves in dispute, with another negro and other property, ‘ in trust to and for the sole and separate use of Frances E. Mosely, wife of Tarlton P. Mosely, for and during her natural life, not subject to or liable for the debts or contracts of her present or any future husband, .with the full power to the said Frances E. Mosely with the consent of her said trustee, Gr. W. Hodges, to dispose of said slaves,’ thy deed or will;’ failing such disposition, then Ho her child or children at her death, discharged from all trust;’ failing a disposition by deed or will and child or children at her death, th¿n ‘ for the use, support and maintenance of Tarlton P. Mosely for life,’ — ‘ then to his children, if he should have any;’ ‘ if he should have no children, then to Drusilla Douglass, Catharine M. Wilson, and Mary M. Glymph, equally divided to their sole and separate use and benefit, not subject to the debts or contracts of their husbands, in fee.’
    “ Mrs. White, now Mrs. James M. Cochran, was examined for the defence; she stated that she executed the deed to carry out her husband’s agreements. She had a settlement with Mosely, under the agreements with her husband, Mr. White; the negroes now in dispute and the other property mentioned in the deed, was the half of the neat profits, which, as she said, fell to Mosely’s share, under the agreements; they were in Mosely’s possession five or six weeks before the deed was executed.
    
      “ I see from copies of Mrs. White’s receipts to Mosely for the proceeds of the trade in negroes, to Mr. White’s death, that they bear date the 7th and 12th June, 1850. The first of these is therefore, I presume, the period of the settlement twenty-one days before the deed.
    “ On the 28th of November, 1850, Mrs. White advanced to Mosely six-thousand three-hundred and thirteen dollars and sixty-two cents to be used, as her agent in the buying and soiling of negroes for her use and benefit, and the whole profits were to be for the use of Mrs. Mosely.
    “ Various executions against Mosely were given in evidence; under them the sheriff seized, and on being indemnified proceeded to sell the 'slaves ; public notice was given of the deed of trust, which had been duly recorded in the office of the Register of Mesne Conveyance at Abbeville, and in the Secretary of State’s office, Columbia. The slaves were purchased by the defendant, Jas. H. Cobb, who refused to deliver them to the plaintiff on demand.
    “The jury were instructed that the slaves were the property of Leonard J. White (deceased); that they so remained until there was a settlement and division.
    “ Up to that time, the creditors had no pretence of claim. There was a division between Mrs. White, the administratrix, and Mosely, and unquestionably, if it had not been for the agreements between him and White, the negroes would have been his, and the deed would have been void against his creditors.
    “ But the division was in pursuance of those agreements, and the deed in conformity thereto. The deed was therefore good, unless there was fraud in the previous agreements. I must confess I have never been able to discover any ground on which I could say there was fraud.
    “White it was conceded furnished the money; he had the right to say in what way the profits should be disposed of. If the jury found anything in the case to justify them in believing that the money employed was Mosely’s, then indeed I thought there might be ground to declare the deed fraudulent. -
    “ It is very true, I said to the jury, that a man’s creditors could not compel him to labor for their benefit ; all that they had a right to demand was his property.
    “ I thought and so said to the jury, that if upon the settlement the slaves had been delivered to Mosely as his own, that then the subsequent deed could not control them; but the fact was they were left in his possession under Mr. White’s_ agreements ; and the subsequent settlement in conformity thereto was no more than the Court of Equity would have decreed.
    “The jury found for the plaintiff.”
    The defendant appealed, and now moved this court for a new trial on the grounds:
    1. Because his Honor charged' that in the contract between L. J. White and T. P. Mosely, for trading in slaves, there 
      could be no fraud, unless the money upon which the trading commenced, was the money of T. P. Mosely.
    2. That the contract for trading in slaves signed by L. J. White and T. P. Mosely was a valid and bona fide contract, and that under such contract T. P. Mosely might labor for life for L. J. White, and that White could settle the property acquired by, or profits of, such labor béyond the reach of his (T. P. Mosely’s) creditors, upon his wife or child.
    8. That the legal estate was proved to be in the plaintiff, and that if there was fraud in the transaction, it might perhaps be reached in equity but not at law.
    4. Because his Honor charged the Jury that, looting at the case as he did, it was difficult to see how they could find otherwise than a verdict for the plaintiff, to the amount of the value of the slaves.
    5. Because his Honor charged that, the only event upon which there could be a verdict for defendant would be upon the supposition that the slaves, after the settlement for the trading, were delivered to T. P. Mosely; but that, in point of fact, they were not so delivered. Whereas we submit that the slaves were always in the possession of Mosely up to the time of the settlement and after, till the execution of the deed of trust.
    6. Because his Honor should have charged that, under the contract between White 'and Mosely, one-half of tho profits of the trading belonged to Mosely; and that so soon as acquired in the shape of property, the lien of the creditor’s executions attached upon it, and that the deed of trust as against creditors of Mosely conveyed nothing.
    7. That the verdict was contrary to law and the evidence.
    
      Wilson, for the motion.
    MeQ-owen, contra.
   The opinion of the Court was delivered bj

White and Mosely married sisters. In 1849 Mosely was hampered by judgments and executions, and was in fact insolvent. White, being affluent, advanced money which Mosely was to use in buying and selling negroes and to return to White the principal and the nett profits, who stipulated that he would settle one-half of those profits upon the wife of Mosely (whose trustee the plaintiff here is) in such manner as to exclude it from the reach of Mosely’s creditors. Mosely, in pm*suing his traffic upon the money so advanced, purchased in Richmond, in February 1850, Milly and her children, (the subjects of this action of trover), and had them in possession in March 1850, when White died. Mosely accounted with Mrs. White, administratrix and sole heir of her husband, in the forepart of June 1850, for principal and nett profits, in pursuance of the agreements with White in his lifetime, and some days after-wards (not exceeding 16 from the date of the last receipt given by Mrs. White,) she conveyd Milly and her children, as well as other effects, to the plaintiff, as trustee of her sister, Mrs. Mosely, the same being intended to represent one-half the nett profits of Mosely’s traffic, which White had agreed to settle on Mrs. Mosely. The negroes had continued in the possession, or custody, of Mosely from the time he bought them until they were so conveyed. Under executions against Mosely before referred to,, the sheriff seized and sold Milly and her children to Cobb, the defendant here, who defends upon the ground, that he is clothed with the rights of Mosely’s creditors on judgments and executions — and that as to them the negroes were Mosely’s, inasmuch as the agreement between him and White worked a fraud upon them by smuggling the fruits of his skill and labor into a form that should benefit his family and indirectly himself, whereas his creditors were and are entitled to such fruits. It is further urged for Cobb that, the legal right to the negroes vested in Mosely and became subject to their executions, because of his possession for a space of time (from sixteen to twenty-one days) between tbe settlement with Mrs. White, and her conveyance to tbe plaintiff, as trustee.

It is under circumstances, thus briefly stated, that tbe point of the case arises, the jury having found a verdict for the plaintiff under instruction, that the lien of the creditors’ executions did not attach upon the negroes, and that the transaction between White and Mosely, executed as it was, worked no fraud upon creditors.

All must agree that if Mosely had been so unmindful of the duties of life as to work not at all, or for half price, or for nothing, his creditors could not have pricked him up, with their executions. That he should have left his family to starve would have brought neither consolation nor profit to them. What stimulated his exertions — what produced the fruits that make the subject of this litigation ? The answer is, that a beneyolence of White; a stranger to Mosely’s creditors, towards Mrs. Mosely, his sister-in-law, set in motion the debtor’s industry ; and the use of White’s capital, Mrs. Mosely being the meritorious cause and object, produced the fruits now in contest. These have been created by a cause, and a means over which the creditors had no control, and from whose liens they were wholly free, and when they were in posse merely were devoted, by agreement, to an object most worthy in the eye of all sound morality. It is very true, on the other hand, that this debtor-could not have set apart the fruits of his labor, after they had been earned, in trust for his wife and children. But if he had agreed to sell his labor to White, on terms the most improvident, as for his mere maintenance or for less, how could his creditors have rectified that? If he had’made a more reasonable and thrifty contract with White, as, for example, that he would labour for him, on condition that he would maintain his wife and children, and articles consumed in the use were accordingly applied, what fraud would there be, in such case, upon creditors — what scope would have been found for tbeir executions — wbat would they have lost to which they could show any title ? If White, by the promptings of a benevolent sympathy, should have agreed to add something more enduring, in the hands of a trustee, for the use of the wife, no infringement of a creditor’s right can be detected in that.

Although it is conceivable, that, under stipulations such as characterize this case, an insolvent debtor might be enabled to engage his labor and skill upon means, trusted to him by a benevolent friend of his wife, upon previous stipulations so liberal as to endow her trustee with a sum large enough to make the transaction seem a mockery in the eye of a creditor, and although we admit that, in an adventure so fortunate, his just expectations would be sadly disappointed, yet the question would still be as to the range of his execution, not his expectations; and, on the other hand, we see that the principle of this appeal would make it a fraud, if, in pursuance of a debt- or’s stipulation in the morning, the proceeds of a day’s work by him should be applied, in the evening, in the shape of bread towards the maintenance of his family. Neither difference in sums, nor in time, fortunate or unfortunate adventures, provident or improvident contracts, in a debtor’s selling his labor by previous stipulation, can alter a principle.

As to the possession by Mosely of the negroes during some days after adjustment of accounts with Mrs. White, and before her transfer of them in trust, it seems clear, that he held them as property of White’s estate. No one seems to have regarded that possession in any other light, and it is not perceived how he could'have repudiated the right of property in that estate. Now, there being no perceivable fraud on the part of White, if the conveyance to the plaintiff were set aside, it would seem obvious that thentitle in the negroes would be found lodged in White’s estate. We do not perceive how Mosely, or his creditors in his stead, could have recovered from White’s representative, the half of the profits arising from Mosely’s traffic, for that is repugnant to his stipulation, and the negroes represented that sum of profits, though it must be conceded that if the deed to the plaintiff was fraudulent and void, he could not have recovered in this action. Observations have been made, to showfhat it was not; and such being our conclusion, the motion is dismissed.

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

Motion dismissed.  