
    THE TRUSTEES OF THE POOR OF SUSSEX COUNTY vs. Dr. HENRY F. HALL.
    The master is liable for the maintenance of a decrepit slave, or a slave manumitt(| under ten or above thirty five years old.
    His personal representatives are also liable.
    His heirs are liable in respect of the real estate of such master.
    But it seems that a bona fide purchaser of such land, without notice, is not liable.
    Case stated. Richard Howard in his lifetime owned a netd slave, Anthony, who was blind when his master died in 1822, and has ever since been a charge on the estate. Thomas Howard and L. West administered on Howard’s estate, and distributed it'to the heirs. His land was divided in the Orphans’ Court and assigned in thirds to Thomas Howard, Lewis West and wife, and to the children of Robert Howard. The heirs at law supported this slave from the death of Richard Howard, at their joint cost, until recently, when the heirs of Robert Howard sold their third to the defendant, H. F. Hall; and on his refusing to contribute to the expense, the slave was sent to the poor house, and this application made to charge him under Dig. 416. The question was, whether he was liable to contribute. The court granted a rule to show cause why an order should not be made on Dr. Hall, as the assignee of the one-third part of the real estate of said Howard, to contribute to the maintenance of the said islave Anthony. The rule now came up for hearing.
    
      Cullen. — The estate of a person manumitting slaves is liable in the hands of assignees for the support of such slaves. The first act which [authorized the emancipation of slaves, required the owners to support Ithem. (1 Del. Lams 425, 436-7; 2 ib. 1321-2-3-5, 886, sec. 3.) Before Il819, then, the owner of a slave was bound to support him and keep [him off the county. Dig. 414,416, sec. 6, makes liable the master, his lieirs, executors, administrators and assigns, for maintenance of the llave. Section 3 makes liable only the master of a manumitted llave. If the assignees of the land are not responsible no one is; for the heirs are gone and the personal estate gone. The court must look at the liabilities as existing at the death of Howard; if the estate Ivas then bound it continues bound. The county must be protected.
    I Houston. — There is no principle of the common law that would Inake an estate liable for the support of a manumitted slave, much ■ess give relief to the trustees of the poor by this motion. It may be I moral obligation, yet not a common law right, at least to be en-fcrced in this way- The question of liability depends on our statutes ■nd only those in the Digest. These acts are all levelled at the mas-Ir setting free decrepit negro slaves; and apply to none other than lie person setting free, or the estates of such persons. Now Richard ■toward never set free or discharged this slave; on the contrary he Bed still holding the slave, and the administrators took possession of m as a part of the personal estate of R. Howard, and held him for neteen years, and then dismissed him to become a charge upon c county. These executors received personal estate to a large amount. The act (Dig. 416,) provides that in case of a master setting free a slave under ten or over thirty-five, or decrepit, such master, his heirs, executors, administrators and even assigns, that is the persons becoming entitled to the estate of the person so setting the slave free shall be liable, in respect of such estate, to support such slave; but if. the slave passes to the executor or to an heir as a slave, and is afterwards set free by such executor or heir, the estate of the former master is not liable; but the executor or heir setting free is liable, and also his heirs, executors or assigns. This view is strengthened by the remedy given by this act. The first remedy given to the trustees of the poor is by action against the master and no other; and even his heirs, &c., would not be liable unless the action was brought against the person setting him free and in his lifetime; and after judgment rendered in an action against such master, the addi-\ tional remedy is given against the heirs &c., of the master by order! of court, founded on the judgment against the master. Thejudg-I me'nt having ascertained the liability of the master, and the lien hav-l ing become fixed and public upon his estate, there is reason in thel law which gives a summary remedy against the estate of such mas-1 ter for subsequent support. But there being no proceeding or judgment against the master, the alienee of his land, having no noticel of such lien, and who could not know that the executor would there-] after throw the slave on the county, is not liable.
    But conceding that the heirs and assigns are liable, the alienee can-] not be liable whilst there are heirs who stand nearer to the masteif than he does: the trustees of the poor must first show that they havd exhausted their remedy against the heirs. These heirs received all the estate of Howard, the master; they received the full value of tha part of the real estate of Howard bought by Hall, for which he pain a full value, without reference to any such lien or liability as this the master and his heirs have received the full benefit of all the sell vices of this slave, and the heirs have received the whole of Ho\ ard’s estate. It is not reasonable then for this defendant to be chargel whilst any heirs of the master can be resorted to; and it cannot hat been the intention of the law to make the alienee of the land liable, i| discharge of those who received not only the personal estate of ll master, but the value of the lands themselves. A reasonable coi] struction of the law requires that the remedy against the heirs she be exhausted before any resort can be had against the alienee of til land: The question is very important, considering the number slaves in this county. It would be a great incumbrance on the sale-of land, if it remained liable under all circumstances in the hands of purchasers, for the maintenance of slaves before or afterwards becoming chargeable to the county.
    
      Cullen. — This is not the case of a slave set free, but of a person who is still a slave. The case stated admits that the negro was a charge on the estate of R. Howard, in his lifetime. That he was never set free by any one; one of the heirs supported him for a great many years, out of mere charity. He has now fallen on the county. The administrator never owned this slave; he was not even appraised in the estate. It is admitted that he was worthless, and a charge at Howard’s death; the executors could not sell him, nor were they bound to take him and become personally responsible. He remained a charge on the estate of Howard. As to the order of liability, the question raised by the case stated is, whether Hall is liable at all or not to contribute; and not when or in what order he is liable.
   Per Curiam.

Booth, Chief Justice.

By the law of this State, it is the duty of the master to support his slave. If the slave becomes unhealthy, decrepit, blind, lame or maimed, and incapable of getting his livelihood; or if manumitted while in that condition, or under the age of ten years; or if above the age of thirty-five years at the time of the manumission, he afterwards becomes unable to support himself, the master is liable for his maintenance and support; and the trustees of the poor may maintain an action against him for the expenses incurred by the county for such maintenance and support. And in case of the master's death before suit brought, such action may be maintained against his executors and administrators, as in case of any other personal demand against the deceased. The duty to support the slave, after the decease of the master, follows the real and personal estate in the hands of the heirs, executors and administrators; and they are ¡liable for such support, to the value of the real and personal assets’ |of the deceased received by them. A slave being personal property [vests in the executors and administrators. If he has become a charge [upon the county after the master’s death, resort must be had, in the irst place, to the personal estate; but if there be none, or if it has leen exhausted in the payment of the debts, then to the real estate if the deceased, in the hands of his heirs, against whom, both upon irinciple, and from the true spirit and meaning of our acts of assem-ily referred to in the argument, an action may be sustained for the expense of maintaining the slave, and a recovery had to the value of the land descended. But in the present case it is contended, that the heirs may severally shift this liability from themselves by conveying away their respective shares of the real estate; and that the purchaser becomes liable to the extent of his interest in the real estate of the ancestor, to pay or contribute to the payment of the expense incurred for the maintenance of the ancestor’s slave; or in other words, that the liability of a deceased master’s estate for the maintenance of his decripit slave, is a lien upon his lands in the hands of a bona fide purchaser from the heirs for a valuable consideration, without notice. To sustain this doctrine, there must be some positive statutory enactment, or some clear and inflexible rule of law to that effect. The only acts of assembly on this subject are those referred to in the argument. (1 Del. Laws 436, sec. 2; 2 ib. 885-6, secs. 3, 5, 6; Dig. 414-16, &c.) By the act first referred to, if the master by will or otherwise, set his slaves free, he or his executors or administrators, were required at the next Court of Quarter Sessions,to enter into recognizance with sureties, to indemnify the county from any charge which such slave might be to the county, in case of his being sick, or otherwise rendered incapable of supporting himself; and until such recognizance was given, the slave was not entitled to his freedom. By the act in 2d vol, 885, &c., the slave was declared free without such security having been given; but nothing in the act was to be construed to discharge the estate of the master from supporting a slave incapable of getting his livelihood. By the act of February, 1819, (Digest 416, sec. 6,) the slave might be manumitted without the master’ giving such security to indemnify the county; but if the slave, at the lime of the manumission, was under the age often years, or above the age of thirty-five years, or unhealthy, or otherwise incapable of getting his livelihood, the master, his heirs, executors, administrators orassigns, were declared liable and chargeable for the maintenance of such slave. Suppose a master, after having entered into a recognizance according to the provisions of the! act first referred to, had. aliened his lands to a bona fide purchaser! before any proceedings or judgment upon such recognizance; orl if after the master’s death, his heirs had so aliened them, such pur-l chaser would, under the decisions of our courts, have taken and held! the lands discharged from the recognizance; because being a recog-l nizance with a collateral condition, and not for the payment of mol ney absolutely, according to the judgment of the Court of Errors! and Appeals, in the case of The State for use of Ball vs. Jaquett, cited in 2 Harr. Rep. 466, it was not a lien upon lands from its caption; a lien being created only by a judgment obtained upon such recognizance. When, therefore, the subsequent acts of assembly dispensed with the security by recognizance, and declared that the master’s estate, without such security being given, should be chargeable with the support of a decrepit slave, it cannot reasonably be supposed to have been intended, that the mere liability to support the slave should be a better security to the county than a recognizance; that such lia-bilitjf should itself constitute a lien upon the master’s real estate in the hands of a bona fide purchaser, who had no notice of such lien, no means of knowing it, no place to which resort could be had to ascertain it; when the recognizance itself, being an obligation of record, acknowledged in open court, and of which a purchaser could at any time obtain information, did not constitute such a lien; and under which no lien upon the lands could be created, but by a judgment obtained in a suit upon such recognizance. It .was argued by the plaintiff’s counsel, that the act of 1819, in making the master, his heirs, executors, administrators or assigns, liable for the maintenance of the slave, clearly intended by using the word “assigns,” to embrace the case of a purchaser from the heirs of the real estate of the master; that such purchaser being an assignee of the real estate, the term assigns applied to him, and that the lands in his possession I could be followed for the maintenance of the slave. But it is not material to the decision of the question submitted to us, to inquire whether the term “assigns” does or does not refer to such purchaser. It is sufficient to remark, that the present case does not come within Ithe provisions of the act of February, 1819. The object of that act lis to indemnify the county, where the master manumits his slave unifier ten, or above the age of thirty-five years. In this case, the slave [never was manumitted. He was retained by the administrators and [heirs of the master; and supported by them for nineteen years after the Imaster’s death, and until the conveyance to the defendant. Upon iris refusal to contribute to the expense of maintaining the slave, ■Thomas Howard and Lewis West, administrators of the deceased inaster, and each holding one-third of his real and personal estate, Ihe former as an heir, and the latter in right of his wife, another heir, ■dace the decrepit slave in the poor house of Sussex county, and bind Jhemselves to the trustees of the poor, to pay their proportion of the ixpense of his maintenance. Upon this, the trustees seek to recover of the defendant, a proportion of such expense; instead of resorting to those heirs who received one-third of the real and personal estate of the deceased master, and conveyed their third of such real estate to the defendant in this case; for which they received full compensation. Upon no principle, could such a case be brought within the act of 1819; even supposing an assignee of the real estate could in any case be made liable for the slave’s support. For the reasons before stated, we should strongly incline against such a construction of the act of 1819, if any other meaning can be attached to the word “assigns,” as used in that act.

But the plaintiffs also contend, that as the lands of a deceased person are bound for the payment of his debts and may be taken in execution, although the heir may have sold them to a bona fide purchaser, they are equally bound, upon the same principle, for the support of the slave of a deceased master. But before the lands of a deceased person can in such case, be taken in execution, a judgment must be obtained for a debt or demand due from or outstanding against the ancestor in his lifetime. The heir cannot take and hold the land discharged from such debts or demands; and therefore, can- I not by his alienation, place a purchaser in a better situation than he i himself stood. The present suit is not for a debt or demand due from, or outstanding against Richard Howard in his lifetime, but for a claim upon a cause of action arising against his heirs, nineteen I years after his decease. By the common law, if the heir, before ac-l tion brought against him upon the bond of his ancestor, in which thel heir was bound, aliened the lands descended to him, the obligee could! not follow the lands in the possession of a bona fide purchaser, but! was without remedy at law; although in equity the heir was respon-l sible for the value of the land aliened. No argument then can bel derived from the principles of the common law, as was contended! by the plaintiff’s counsel, to make a bona fide purchaser from anl heir pay, or contribute to, the expense of maintaining a slave, fori which the heirs, having received real assets from the deceased, are liable.

The policy of our law is to avoid secret liens upon lands, and tc free, as far as possible, the alienation of real estate from embarrass-! ment. Hence deeds of conveyance, mortgages, judgments, recogni-l zances and charges against lands, created by last will and testament! all appear upon record, to which purchasers can Readily have access! But notwithstanding the anxiety of the law upon this subject,-real estate is already too much entrammelled; and it is unwise to increase the difficulties attending its transfer to purchasers. Upon the whole of this case, therefore, it is our opinion that the defendant, Henry F. Hall, is not bound to pay or contribute any part of the expense of keeping or maintaining the aforesaid slave Anthony; and that judgment be rendered for the defendant, with costs.

Cullen, for plaintiffs.

Houston, for defendant.  