
    WILLIAM T. LEMMOND & AL. vs. RICHARD PEOPLES & AL.
    Where slaves are conveyed by a deed, absolute on its face, but with a secret confidence, that the donees should hold them in a qualified state of bondage, that is, that the donees were to consult the benefit of the negroes and not their own emolument, this trust is illegal and there Is a resulting trust to the donor.
    The cases of Huckaby v. Jones, 2 Hawks 120, Stephens v. Ely, 1 Dev. Eq. 493, Thompson v. Newland, 3 Ire. Eq 338, Cox v. Williams, 4 Ire. 15, Haywood v. Craven, 2 N. C. Law Rep. 557, McCauley v. Wilson, 1 Dev. Eq. 270, Bridges v. Pleasants, 4 Ire. Eq. 26, and Sorry v. Bright, 1 Dev Bat. Bq. 113, cited and approved.
    Cause removed from the Court of Equity of Mecklenburg County, at the Spring Term I84S.
    On the 26th of February 1844, William Query conveyed to the defendants a negro woman, named Linny, and her child, Mary, about six years old. The consideration expressed in the deed was $600. Soon afterwards he also conveyed to them a piece of land, containing 12 acres, for the consideration, as expressed, of @36. Both deeds are absolute on their faces and contain warranties.
    In September, 1846, Query died intestate, and the plaintiffs administered on his estate, and in November 1847, filed this bill. It charges that their intestate had not capacity to make a contract, and that the conveyances were unduly obtained without consideration. But the allegations in respect to incapacity’ and imposition are denied by the answer, and not established by the evidence. ’
    
      The bill, however, further charges, that the purpose, of the parties was to eifect the emancipation of the negroes and give them a home on the land, and that the conveyances were upon secret trusts of that kind, or to some such effect; and insists, that such a trust is illegal, and that a trust resulted to the donor, and prays for a discovery and a conveyance of the slaves and their increase, and an account. In their answer, the defendants admit, that the deeds were made without any valuable consideration ; but the}’- state, that they were unsolicited by them, and were accepted at the earnest request of the intestate. They then give tins history of the transaction : That the woman was a mulatto, and had been brought up by the intestate and was regarded by him with great affection: that, for several years, a free negro, named Mc-Alpin, lived with her at the intestate’s as his wife, and it was the wish of the inteslatp, that they should so con-, tinue to live ; and he, therefore, permitted McAlpin to build a house on his land and raise crops, and the woman there lived with him — which was the place subsequently-conveyed to the defendants. The defendants deny, that it was any part of the object of the bill of sale, that Linny and her children should be liberated, or sent to a free State: and say that it was designed by the deceased, that the property should be vested in them absolutely and without condition. They further state, that the real purpose of the deceased was to provide for the protection, comfort, and happiness of the woman Linny and her children : that he believed that, at his death, she and her family would fall into the hands of his relations and would be separated, without regard to his objects aforesaid ; and that he accordingly placed the title of the land and negroes in the hands of the defendants, that the land might be a home for McAlpin, and that, by him or other • wise, it might be so arranged, that the woman might live there with McAlpin: that the defendants, accordingly, during file life of the intestate, permitted the man to occupy the land, and, for a small consideration, hired his wife to him — which arrangoment.scontinuedunt.il a short limo before the bill was filed, when, in order to prevent the plaintiffs from getting them, the defendants took her and her children, including two born after the deed, into their own possession. The defendants further say, that they design faithfully to carry out the arrangement made by the intestate, and to exercise over the woman such control. as is necessary to her proper conduct and maintenance : that they claim the property in the slaves, to be appropriated in any manner they think proper, and that no part of the wishes of the donor extended to the children ; and, finally, that they were selected by the intestate, as the objects of his kindness, because he had confidence in their integrity, and disposition,to act fairly and justly by the woman, Linny.
    Avery, Wilson and Alexander, for the plaintiffs.
    
      Osborne and Bynuih, for the defendants.
   Ruffin, C. J.

There is but little difficulty, we think, in understanding, that, although there was not a trust to procure actual "and open emancipation, the conveyance of the negroes was made upon a secret trust and confidence, tha’ the defendants hold them in. what has been called, a qualified state of bondage — that is, that the donees, as expressed in Huckaby v. Jones, 2 Hawks 120, were to consult the benefit of the negroes and not their own emolument. Sucha trust, when ascertained, must be pronounced illegal, as has been frequently decided ; and, as it cannot be executed as intended and is unlawful, it follows, that, of necessity, there is a trust for the original owner, and those who succeed him. "For if a trust of any kind be intended, the donee of the legal title cannot, in conscience, hold the negroes as property for himself, but must execute it for some one, and, as there is no one else who can claim, it must be for the donor. It is so under the mortmain acts; and the provisions of our law, as judicially construed, respecting conveyances for emancipation or quasi emancipation here, bear strong resem> blance to those acts. Stevens v. Ely, 1 Dev. Eq. 493. Thompson v. Newlin, 3 Ire. Eq. 838. Every country has the right to protect itself from a population, dangerous to its morality or peace ; and hence the policy of the law of this State prevents the emancipation of slaves, with a view to their continuing here ; Thompson v. Newlin, ut supra; Cox v. Williams, 4 Ire. 15, and when the purpose is, that the emancipated slaves shall remain here, they cannot be carried away, because it is contrary to the trust, and the doctrine of cy pres does not exist with us; and therefore the trust results. Haywood v. Craven, 2 N. C. Law Rep 557 McCauley v. Wilson, 1 Dev. Eq. 270. Bridges v. Pleasants, 4 Ire. Eq. 20.

The cases upon this subject shew, that this must be deemed a disposition upon the unlawful trust mentioned. In Huckaby v. Jones, the bequest was to four persons or the survivors, “to be their lawful property, for them to keep or dispose of, as they shall judge most for the glory of God, and the good of said slaves.” In Stevens v. Ely, there was a trust “to permit the negroes to live together on his land and to be industriously employed and continue to exercise a controlling power over their moral condition, and furnish them with the necessaries and comforts of life.” And in Sorry v. Bright, 1 Dev. & Bat Eq. 113, there was an absolute bequest of the slaves, followed by a request, that the donee would '‘admit said negroes to have the result of their own labour, but ever to be under his care and protection.” In each of those cases a trust for the negroes was inferred and held void ; and therefore it was declared that a trust resulted to the representatives of the donor. In the last of them, the trust for the slaves was inferred, because, as was said, the bounty appeared to be intended for the slaves and not for the nominal donee, who viras made the legal owner, not that he should be master, but that they might have a protector ; an observation that applies equally to the present, case, which is almost literally the same with the other, according to “the real purpose” of the donor, as it is set forth in the answer. The answer, indeed, is not. as candid, as would have been creditable to the defendants. In some parts of it the defendants endeavor to cast some obscurity over the transaction, and mystify the case, by insisting on the legal property under the conveyance, and affecting to consider it as the beneficial ownership bestowed on them “as objects of the intestate’s kindness.” Yet upon the whole answer, from the nature of the transaction, it is very evident, that the conveyances were not made to the defendants to their own use, but to the secret use of the slaves themselves. It is true, “the property” was to be in the defendants, that is, apparently and literally speaking. It is also true, that the negroes were not to be carried to another State ; as the purpose was, that the family, husband, wife, and children, were to live here on the land, which the donor also conveyed to the defendants. And it may likewise be true, that emancipation here was not designed, or, rather, expected, as the parties knew that could not be effected. But still that would not come up to the claim of the properly, absolute and unconditional, in the sense in which the defendants wish it to be understood, and as it must be understood, in order to exclude the right of the plaintiffs, namely, as importing a benefit and bounty from the intestate to the defendants in jure propria. For the answer further tells us, that the defendants became thus the objects of the donor’s kindness, because he believed they would act fairly and justly towards the negroes. How, then, and why, were the defendants to have this absolute property ? The answer again tells us, it was so as “to provide for the protection, comfort, and happiness of the woman and her children,” and that was to be effected, not by exacting moderate labour from them as humane masters, but by the defendant’s placing them, upon a .color-able contract “for a small consideration,” or otherwise, with the free negro on the land, no control being exercised over them by the defendants, but such as might be necossary for their proper conduct and maintenance. There could scarcely be a plainer case óf quasi emancipation, in violation aud fraud of the law; for the family is only required to maintain themselves and the auihority to be exercised over the children is that, not of owners, but of parents. The answer in the latter part of it says, indeed, “no part of the wishes of the donor extended to the children,” and we confess that we do not know how that is to be understood, consistently with that integrity profe ssed by the defendants and with the previous statements of the answer. For, where the children are first mentioned, they are explicitly put on the same footing with the mother, as objects of the provision; it being for the protection, comfort and happiness of the “woman and her children ;” and, in another place, it is stated, that the donor meant to prevent the separation of “the family” after his death. Besides, the motive of the donor, arising out of his regard for and relation to the mother, as the latter is intimated in the answer, must have extended to the issue. One is, therefore, at a losfe how to understand the meaning of that passage, respecting different intentions as to the woman and her children. If the different parts of an answer be directly contradictory, it would seemproper to take it most strongly against the defendants. "But willing to reconcile the answer to itself, if possible, it has occurred to us, in conjecturing the meaning, that it was probably intended to say only, that the intestate did not declare any express trust, as to any future issue of the woman. If, however, that conjecture be well founded, it cannot affect the case; for the status of the issue depends on that of the mother. Partus sequilar ventrem.

The plaintiffs are therefore entitled to the relief sought, in respect both to the mother and the children, and to such profits, if any,'as might have been made from the death of the intestate with just deductions ; and the par-ties will take the usual orders for - the proper enquiries. The defendants must be held thus accountable and also' to be liable for costs, on account of their concurrence in. contriving to defraud the law’and policy of the country, by accepting a conveyance upon an illegal trust, kept secret because it was known -to be illegal — and because they have endeavoured unconscientiously to defeat the plaintiffs’ right of recovery, by attempting to set up an> unfounded claim for their own benefit.

Per Curiam.

Decree accordingly.  