
    ANDREW BROWN & AL. vs. NATHANIEL CLEGG & AL.
    A Court of Equity will compel the discovery of a secret trust, to enforce if B if lawful, or declare it void, if unlawful, whenever the fact of its not being declared in the conveyance, creating the legal estate, is caused by fraud or circumvention, or is the result of accident or mistake, or the omission ia by design, the trust being unlawful and the object of secrecy being to evade the policy of the law; the Court in all these cases proceeding upon the idea ol preventing fraud.
    Cause removed from the Court of Equity of Chatham County, at the Fall Term 1848.
    The bill alleges, that Thomas J. Winter, in 1824, being indebted to sundry persons, executed a bill of sale for several slaves to Archelaus Carloss, the intestate of the defendant, in trust to sell and pay the said debts. In 1825 one Haroldson caused an execution to be levied upon the interest of the said Winter in the slaves. Atthe sale, the said Carloss contrived to buy the slave,s at an under value by representing, that he was bidding for the benefit of the wife and children of the said Winter, and thus stifling the bidding. Winter was present and made no objection. After the sale, it being apprehended that Carloss, being trustee, could not legally become a purchaser, it was agreed between Carloss and Winter that the officer should make a bill of sale to one Farrar, to whom Carloss assigned his bid ; that Carloss and Winter should also make a bill of sale to the said Farrar; and that Farrar should then make a bill of sale to the said Carloss; all of which was accordingly done.
    The plaintiffs allege, that the bill of sale, so made to Carloss, although upon its face absolute, and for the apparent consideration of $950, was made in trust, that Car-loss would sell as many of the slaves as might be necessary to pay off the debts, and hold the rest of the slaves in trust for the wife of the said Winter and her children; but that this trust was not inserted in the deed, nor was any written memorandum thereof taken, because of the confidence reposed in the honesty and friendship of Car-loss.
    In 1827, Thomas J. Winter died, soon after which Car-loss took the slaves into his possession, sold two of them for a price sufficient, or nearly so, to pay off the debts, and held the rest in his possession up to his death in 1845.
    The prayer is, that the plaintiffs, who are alleged to be the wife and children of the said Winter, for whom the trust was declared, and their husbands and representatives, may be allowed to redeem, by paying the balance of the incumbrances, if any, and have an account, &c. The plaintiff, Nancy Brown, was the wife of the said Winter.She married the other plaintiff, Brown, soon after the death of her first husband. The plaintiff Joseph is a son of the said Winter, and was born after the execution of the bill of sale to Carloss. The plaintiff Martha and her sister Frances, who is the intestate of the other plaintiff Marks, were the only children of the said Winter living, when the bill of sale was executed
    The defendant, who is the administrator of Carloss, •does not admit the trust, but avers, that, according to his information and belief, there was no such trust; and insists, that, as his intestate held possession of the slaves from 1827 to his death in 1845, claiming them as his own, the trust or’equitable estate of the plaintiffs, if they ever ■had any, will be presumed to have been satisfied or •abandoned.
    
      II. WaMdli for the plaintiffs.
    
      W. II. Haywood and Ilaughton, for the defendants.
   Pearson, J.

A Court of Equity will compel the discovery of a secret trust, to enforce it, if lawful, or declare it void, if unlawful, whenever the fact of its not being declared in the conveyance, creating the legal estate, is caused by fraud or circumvention, or is the result of accident or mistake, or the omission is by design, the trust being unlawful and the object of secrecy being to evade the policy of the law ; the Court in all these cases proceeds upon the idea of preventing fraud.

The trust alleged in this case is an expressed verbal trust, which the parties did not choose to set out in the deed. It is not admitted by the answer. There is no allegation, that fraud or accident prevented its being set out in the deed. On the contrary, the bill states, that “no written promise or other memorial of this undertaking, on the part of Carloss, was executed, the parties having an unbounded confidence in his honesty and friendship.” So, the question, intended to be raised, is, can a bill of sale for slaves be added to by parol proof, so as to show, that, although absolute upon its face, it was upon a trust, no fraud being alleged, and no reason being assigned, why the trust was not expressed in the deed'!

The question is one of much interest. We do not feel at liberty now to dispose of it, because the decision of the case does not make it necessary, and we prefer to put the- decision upon another ground — especially, as the proof made of the trust is very vague and uncertain, com sisting mainly of the recollection of conversations held' with Garloss, in reference to. the slaves, not agreeing as to the- precise nature of the trust, arui stating no facts or circumstances cle/sars the deed, so as to make it probable, independent of mere words, that there was a trust.

As-to the plaintiff Joseph Winter, the bill must he dismissed, because he was not born until after the trust was executed ; and its being for Mrs. Winter and her children) would, in the absence of any words to enlarge the meaning, be confined to the two children, then in esse..

As to the other plaintiffs, th© bill must fee dismissed!,, because there is nothing to repel the presumption, that-the trust or equitable estate has been satisfied ©r abandoned. The intestate ef the defendant held the slaves, as his own, for nearly twenty years; during which time-there was no. recognition ©f any right on the part of the-plaintiffs. This case furnishes a strong illustration of the wise policy of the statute. It is an attempt to. set up a verbal trust, after the death ©f the original parties, and after the lapse of 21 years! Mrs. Winter, now Mrs. Brown», married soon after C-ariess took the slaves into possession. No reason can be assigned, why she did not set up her claim % there is no saving on account of coverture Ira the Statute, and as a husband has a right to receive satisfaction, release, or abandon an equitable ©state of his wife in slaves, there is nothing to repel the presumption.

Th© same observation is applicable to th© claim of Mrs. Marks and her sister. It may be, that, if the pleadings, had been amended, so as to make the allegation of infancy and set forth the dates ©f their respective marriages,, there might have been something to ¡repel ike pres’amption, as to them ; but there is no such allegation, and, although it is quite probable, that they were both infants at the time the trust was executed, and when Carloss took possession, we are bound by the pleadings.

Per Curiam.

Bill dismissed with costs.  