
    Mary E. Lord, Administratrix of Jacob N. Lord, and Others, v. James M. Lowry, and Dutarque Fogartie, and Eliza Ann, his Wife.
    TraB1, decreed as to a moiety of a plantation, upon proof of admissions by the party in possession, that the complainant was equally interested in the land with himself, and that he had purchased the land jointly with him, corroborated by the evidence of circumstances, and proof of a copartnership between them, in the employment of the land, and a division of the profits. And the title deed being lost, and no evidence of its contents, it was held to be immaterial, whether it were taken in the joint names of both parties, or in the name of the party in possession only; as in the latter case a trust resulted from the evidence going to shew that the complainant had paid half of the purchase money.
    A trust decreed upon an absolute bill of sale of slaves, on proof of acknowledgments by the grantee, corroborated by circumstances, that the slaves were the property of the grantor, notwithstanding the bill of sale; but the grantor having admitted, that he was indebted to the grantee to the amount of the consideration stated in the bill of sale, ordered that the latter stand as a security for the debt: and it makes no difference, it seems, in such a case, that the bill of sale was executed by the grantor to protect the slaves from his creditors.
    That the evidence upon questions of fact is involved in much doubt, constitutes, perhaps, the best reason, why the Court of Appeals should not review the Chancellor’s decision in relation to it.
    At Charleston, May, 1830.
    Harper, Ch. The original bill in this case was filed by Jacob N. Lord against David Sealy, charging that about fifteen, or sixteen years before the filing of the bill, complainant and defendant purchased jointly a plantation called Widehall, the purchase money of which was paid equally by each party; and that by an agreement executed between themj they were to share equally all profits arising from the plantation: that complainant contributed his share of the stock; and that they purchased a sloop, jointly, for the purpose of transporting wood, which, along with the plantation,, and stock, went into the possession of the defendant, who still retains them. The bill states, that, until within the last three years, the defendant regularly accounted for, and divided with the complainant the profits of their joint property, but has since refused to do so. The bill further charges, that about three years ago complainant, on a settlement, being found indebted to defendant in the sum of $1,400, or $1,500, executed to him a bill of sale for seven slaves, but being unable to agree on the price, it was stipulated that they should he sold, and the surplus, if any, returned to complainant; but that defendant has failed to comply with this stipulation, and still retains possession of the slaves. The stipulation is charged to have been in writing, hut complainant states that his house was burnt in 1826, by which means this paper, and the agreement relative to the plantation, were burnt.
    The answer denies the joint purchase of the land, and states that the title was made in defendant’s. name alone; and defendant states, that he left the title deed with complainant to he recorded, hut has repeatedly inquired, without being able to learn what has become of it. Defendant unequivocally denies any partnership in the plantation with complainant; admits, however, that there was an understanding, after the purchase, that if complainant would pay half the price, he should he equally interested, hut states that he never did pay any part, or assume any responsibility therefor. He denies any agreement for a partnership. He admits that complainant contributed four horses, and one mule, to the stock of the plantation, of which the horses have since died: admits also the joint purchase of the sloop, and that complainant put four slaves on the land to cut wood; hut alleges that complainant received from his factor the proceeds of wood sold, in payment of their hire. The answer further states, that about two, or three, years ago, upon an examination of his accounts, complainant was found, indebted to defendant, in about $2,060, and offered to sell him the seven slaves mentioned, which were then on defendant’s plantation, for $1,460. Defendant states that he was unwilling to take them at that price, as he thought it too high, hut regarding this as his only chance of receiving even a part of his demand, he consented to accept them, and an absolute, and unconditional transfer of them was made. The bill of sale, absolute in its terms, is made an exhibit: and defendant states that from that time, the sloop and mule have been idle and expensive; and he is willing ' to allow complainant one half of their value.
    It seems, that, just before the filing of that hill, the defendant, David-Sealy, by a deed of the date of 12th February, 1827, conveyed the plantation, and slaves mentioned, to the defendant, James M. Lowry, in trust, for the sole and separate use of his wife, Eliza Ann Sealy, who, since the death of Sealy, has married the defendant, Dutarque Fogartie. The complainant, Jacob N. Lord, having died, the present hill was filed by his wife and children, his administratrix and distributees, making the same allegations as the original bill.. The defendants principally rely on the answer of Sealy to that hill.
    The first question relates to the land. I must consider the denial of the answer that Lord was a joint owner of the land, equally in
      terested>t0 MUy disproved by the testimony. Five witnesses, Mrs, Buckner, Mrs. Melrose, Mrs. Browning, Mr. Clifford, the factor, and Mrs. Cruikshanks, prove Scaly’s express admissions, that Lord was interested in the land with himself, or, that he had purchased the plantation jointly with him; and their testimony is strongly corroborated by the fact, that Lord did put stock and slaves upon the land, and that from the time of the purchase, which seems to have been sometime about the year 1812, up to 1819, they jointly employed a factor, who kept an account, in their joint names, of all the profits of the plantation. They certainly held themselves out as joint owners to all intents and purposes. These admissions must have meant either, that the conveyance was. to them jointly, or that Lord ]rad paid half the purchase money. I cannot conceive of any other way in which they could have been joint owners. It is admitted, that a conveyance was executed, which, it seems, was never recorded. Sealy states in his answer, that it was left in Lord’s possession. If so, that is also a circumstance to favor the conclusion, that he had some interest, or ownership, in the land. If it was in Lord’s possession, I think a probable account is given, of its destruction by the fire, which consumed Lord’s house. But if the existence and loss are proved, we have no direct evidence of its contents. The chief evidence is the admissions of Sealy, which have been referred' to. If they were joint owners, or equally interested, the natural presumption would be, that .the conveyance was to them jointly. This' is corroborated, in some measure, by the testimony of Mrs. Cruikshanks, who states, that about, or after, the conveyance of the slaves, Sealy expressed his desire that Lord should make him a title for half the land. “ He said he had every thing he wanted but titles for the land.” The testimony of Mrs. Melrose tends to show, that Lord advanced the whole of the purchase money. She thinks it was so stated in a conversation, at which Lord, and Sealy, were both present. But if there was any inequality in their advances for the purchase, I must suppose it was settled in the course of their long transactions. It is immaterial, however, whether the conveyance was in the names of both, or whether they paid equal shares of the purchase money. In the latter case a trust resulted. I must conclude that in one way, or the other, Lord was a joint, and equal, owner of the land.
    The demand in relation to the slaves is involved in somewhat more difficulty. According to the testimony of Mrs. Cruikshanks, it would seem, that after the execution of the bill of sale, Sealy acknowledged a trust in them for Lord. He acknowledged they were Lord’s property, notwithstanding he had procured the bill of sale; find a declaration of trust in personalty may be made by parol. But the testimony of that witness is to be taken with some qualification. It was given in a confused manner, and she may have been under some bias. - I do not think there was an unqualified trust in the whole property. It was admitted at the hearing, that Lord was indcbted to Sealy, to the amount stated as the consideration of the bill of sale. If this had not been admitted, it might be difficult to say, that the slaves were not held entirely in trust. I think the testimony of Mrs. Cruikshanks is corroborated by the circumstance, of the inadequate consideration alleged to have been paid for them, and also by the testimony of Mrs. Buckner, and, in some degree, by that of Gibson. Three, of the seven slaves, were proved to have been worth $1,300, in 1824, nearly the alleged price; and there is testimony of Scaly’s having admitted that they were all “ prime negroes.” The price must have been greatly inadequate. If Lord had been indebted to Sealy $2,060, as stated by the answer, that amount would have been a moderate price for them; and it is not likely that Lord would have convoyed them for a less price, than the whole debt. I must take the admission as fixing the true debt. The testimony of Mrs. Buckner is, in effect, that Sealy admitted, that he had in his possession negroes belonging to Lord. It does not appear, whether this was before, or after, the execution of the bill of sale; but if it was before, I think it serves to corroborate Mrs. Cruikshanlc’s testimony.
    It is probable, that Sealy was a fraudulent trustee for Lord, to secure both the land, and slaves, from creditors, from about the year 1819. It must have been about that time, that Lord became involved in dissipation, and debt, and we find him insolvent, and in gaol, in 1824. In 1819, for the first time, the plantation accounts at the factor’s, were kept in Sealy’s name alone. Sealy was in possession of the plantation and slaves. In 1824, all Lord’s other property was sold under Manigault’s execution; but property enough could not be found to satisfy it, and it still remains unsatisfied: and about this time the bill of sale was executed. Lord’s wife was the stepdaughter of Sealy, and the latter expressed the intentiou of securing the property in his possession to her and her children. Mrs. Browning, as well as Mrs. Buckner, testifies to this. Under those circumstances, if ua actual sale of the slaves had been intended, the inadequacy of the price would probably have vitiated it, as being a purchase by a trustee o.f his cestuy que trust. , But I take it rather as evidence that an actual sale was not intended. It is infinitely more probable, that it was intended as an execution of the purpose, in which he expressed his concurrence to Mrs. Buckner, to secure some-10 Lord’s family. It was probably intended to secure his owiS debt first, and then for the benefit of Lord’s family.
    It is therefore ordered, and decreed, that the defendant, James ¡VL L0Wry, convey to the complainants, as heirs, and distributees, of Jacob N. Lord, an undivided moiety of the tract of. land in question: that the slaves mentioned in the bill, and their increase, if any, together with the sloop, and mule, mentioned in the bill, be sold by the master for cash; and that after paying the defendant, James M. Lowry, as trustee, the sum of $1,460, with interest from the 30th July, 1824,. the surplus be paid to the complainant, .Mary E. Lord, as administratrix of Jacob N. Lord. And it is further ordered, that the defendant account with the said complainant for the rents and profits of the land, and the hire of the slaves, from the said 30th of July, 1824.
    From this decree the defendants appealed, and now moved that the same might be reversed, as contrary to law, and equity, and against the evidence in the cause.
    Lance, and Hunt, for the motion.
    Petigru, contra.
    
   Johnson, J.

All the grounds urged in argument turn upon the question of fact, whether there was a copartnership between Jacob N. Lord, and David Sealy, and when it was dissolved.- The evidence as to that fact is certainly involved in much doubt; but that furnishes, perhaps, the best reason, why this Court should riot review the Chancellor’s determination of it. His decree is, therefore,, affirmed.

O’Neall, J., and Harper, J., concurred,

Decree affirmed.  