
    ELIZABETH HUNTLY vs. ROBERT S. HUNTLY & AL
    A. being separated from her husband, it was agreed between B., the brother of A. and the husband, that, in consideration of two hundred dollars and other considerations from B to the husband, the husband should deliver three negroes lo B., for the sole and separate use of A., and the negroes were accordingly so delivered. Afterwards A. became reconciled to her husband. Held, that B. held these slaves as trustee for the sole and sep- ' arate use of A., and must account for them as such, with the right, how* ever, to be reimbursed such sums as be had advanced for A.
    Appeal from a decree of the Court of Equity of Anson County, at tbe Spring Term 1547,
    The bill was filed in March 1847, by a married woman, by her next friend, against her husband and her brother Samuel H. Ratcliff, It states that, in 1838, differences arose between the plaintiff and her husband for causes, which obliged her, as she conceived, to separate from him; and that she did so and put herself under the protection of her said brother, who undertook the office of her next friend, and to direet her and maintain and aid her in asserting her rights: and, in that capacity, he brought a suit in her name against her husband for alimony, and certain slaves of the husband were seized under an order in the cause, and, in order to regain the possession of them, the husband was under the necessity of procuring a bond to be given for $4000 for the production of them as the Court might decree : that friends of the parties then interposed their good offices to arrange the differences and put an end to the controversy, with as little expense and scandal as possible ; and that, to that end, it was'finally agreed between the parties, that, in consideration of $200 paid to him by the brother on behalf of his sister, the plaintiff, and that the said Ratcliff would pay the costs of the suit for alimony and indemnify the husband against the debts and contracts of the plaintiff, while they should live separate, and, also, that the said bond for the production of the negroes should never be enforced, he, the husband, should convey three slaves, named Mary, Lewis, and Joe, to the sole and separate use of the plaintiff, so that she might possess and enjoy them free from the debts, disposition, or control of the husband: that, on the 22nd of May, 1838, in order to perpetuate the said agreement, and bind the parties to its performance, the defendant Ratcliff, with one McColl as his surety, executed a bond to the husband in the parol sum of $3000, with a condition under-written, as follows: “ The condition of this obligation is such, that whereas a misunderstanding has taken place between the above mentioned Robert S. Huntly, and his wife, Elizabeth, and they separated, and she took legal measures to procure from said Huntly a separate maintenance, and the sheriff seized certain negroes, &c., and took the bond of one Elijah Huntly for the delivery, &c,; and the friends of the said parties being anxious that the said controversy should be settled with as little expense and delay as possible, and the parties agreed to settle all existing lawsuits on the following conditions, to-wit: The said Robert Si Huntly has agreed to give to his wife Elizabeth, a negro woman by the name of Mary and her two children, Lewis and Joe, of which negroes he agrees to warrant and defend the title forever to her and her heirs, and that she may forever hereafter use, possess, and enjoy said negroes free from any contract or liabilities on his part; and the said James H, Ratcliff, agrees in behalf of his sister, the said Elizabeth, to pay to the said Robert S. Huntly two hundred dollars in cash in part consideration of said negroes, and to pay all such costs and expense as may have accrued or shall accrue in consequence of any suit or suits of the said Elizabeth against the said Robert S., and that the bond given by Elijah Huntly to the sheriff of Anson for the delivery of the said negroes shall forever be null and void, and that the said Robert S shali never be liable for the debts and contracts of his wife, so long as she may live separate and apart from her husband: Nov/, if the said James H. Ratcliff shall well and truly perform all his part of this agreement, then the above bond to be null and void — otherwise, to remain in full force.”
    The bill further states, that the husband accepted the money and bond, and that, in execution of his part of the agreement, he then delivered the three negroes to the said Ratcliff, as trustee for the plaintiff: whereby the said Ratcliff became possessed of the slaves in trust for the sole and separate use of the plaintiff and bound to apply them to her benefit, and account to her for their profits, and convey them according to her directions : and that he, Ratcliff, had them in his possession ever since.
    The bill further states, that, in 1840, the plaintiff and her husband became reconciled and again lived together in harmony, and had done so ever since ; and that, from the period of the reconciliation, the defendant, Ratcliff, had applied the profits of the slaves to his own use and refused to let the plaintiff have any benefit therefrom, and denied any right in her to the slaves. The prayer is, that the slaves and their increase may be declared to bo in equity, the property of the plaintiff, and that the defendant may be decreed to execute a proper declaration of a trust for the sole and separate use of the plaintiff, or execute a conveyance to some fit person on such trust} and also account to her for the past profits.
    The defendant demurred to the bill for want of equity and many other causes enumerated, and on argument the demurrer was sustained and the bill dismissed with costst and the plaintiff appealed.
    
      Winston, for the plaintiff.
    
      Strange, for the defendant.
   Ruffin, C. J.

The effect of the transaction between these parties upon the legal title is not an open question ; for, in an action of detinue, brought by the husband for the slaves, after the reconciliation, the Court held, the title at law passed to the brother, as upon a sale and delivery. Huntly v. Ratcliff, 5 Ire. 542. The question is, then, for whose benefit he took the title, his own or his sister’s, or the husband’s? Upon that it would seem there could be little doubt. As the bill is framed, there is no doubt at all; because the bill states explicitly, that the original agreement by parol was, that in consideration of the money paid to him by Ratcliff on behalf of his sister and the other stipulated benefits to Huntly, he, Huntly, ,should convey the negroes — not saying to whom — to the sole and separate use of his wife, so that she might possess and enjoy them free from the husband’s debts or control; and, further, that, in execution of that agreement, the husband, after getting the money and bond, in consideraton thereof, actually delivered the negroes to the defendant Rat-cliff, upon such trust, to the sole and separate use of the wife. According to those allegations, which the demurrer admits to be true, it is perfectly clear, that there was a parol sale and delivery pf the slaves upon the alloged trust for the wife; and, thus taken, the whole beneficial interest would be in the wife, and the brother would have to be regarded as paying the money, and assuming the obligations set forth, out of good will and bounty to his sister, to prefer and advance her ; and, of course, the demurrer would be over-ruled. But to have that effect, it is not necessary to insist on the terms used in the bill, taken literally ; but the written contract and the attendant circumstances are sufficient to convert the brother into a trustee for the plaintiff to her separate use, with only one qualification : That is, that the brother should be entitled to insist on being reimbursed by his sister, or out of the property, the money he advanced in order to obtain the conveyance of the slaves, and for the costs and the maintenance of the plaintiff or any thing else on his account. It is just he should be thus reimbursed, if he choose to insist on it, as it does not appear that he intended a pure gift to her. But it is certáinly as just, that he should claim nothing more than the reimbursement of those sums and his expenses in the execution of the trusts ; for, undoubtedly, nobody intended or understood, that the slaves were conveyed to him as his property or, rather, to his own use. On the contrary the articles — for so they are to be regarded — -state, that he, Ratcliff, agreed, “on behalf of his sister,” &c. ; thus showing, though confused and very badly expressed, the character in which he acted and the ends in view, namely, the securing a proper provision for the plaintiff, independent of the husband. Hence, he disposes of her suit for alimony without scruple, and engages to pay the cost of it, and to give up all her claims on her husband or other parts of his estate. Then, the instrument, though not executed by the husband, but in the form of an obligation to him, proceeds to state or recite, what the husband agreed to do ; which is, “ to give his wife the said slaves, that she may forever use and enjoy them free from his debts or control.” That was not intended as. a present executed gift to the wife. Several reasons'show that it was not. It would have the legal title in the husband r as trustee by implication for the wife ; which would have exposed her to the necessity of seeing him again in equity, while it was the principal purpose of the arrangement to terminate all litigation between them. Besides, the husband was not to execute the instrument. Therefore, that deed was only intended as permanent evidence of an executory agreement by the husband to make a conveyance, which would be proper to secure to the wife such a separate property in the negroes, as would be equivlent toan absolute gift to her, if sole. That agreement was afterwards executed by the delivery of the negroes to Ratcliff in consideration of the price paid and the other things specified. It would have been better, no duubt, if the conveyance had been in writing, with a clause plainly setting forth the trust. But the parties seem to have been inopes consilii and very incompetent to put such transactions into approved form ; and therefore the intention is to be gathered from all the attendant circumstances. It is true, then, that there is no written declaration of trust, nor any statement that one w'as expressly made, orally, upon the delivery of the slaves to Ratcliff. But the delivery is clearly to be referred to the prior contract, and therefore the trust for the separate use of the wife was incorporated into the parol transfer; subject, nevertheless, as before mentioned, to the making good to the trustee his advances. Upon the whole, therefore, it is manifest, that there was an unequivocal intent to exclude the right of the husband, and that Ratcliff cannot in conscience hold the slaves for his own benefit; and it follows, that he took them to the use of the plaintiff, who has a right to a declaration of the use, and to the profits of the slaves, and that, to those ends, she is entitled to the defendant’s answer. Consequently, the- decree must. be reversed, and the demurrer over-ruled, with costs in both Courts.

Per Curiam.

Decree reversed.  