
    Emily C. Gunn et al. vs. James E. Mason et al.
    
    1. Practice. In supreme court. Evidence. Exception to depositions. Where no exception, either general or special, was taken in the court below to a deposition — none can be taken in the supreme court — even upon grounds of incompeteney apparent upon the record.
    2. Evidence. Witness. Donor of slave who warrants title. The donor of a slave who had made to the donee a voluntary warranty of title, is a competent witness to support the same agaiiist a conflicting title.
    S. Loan. Of slave. Statute of frauds. Act of 1801, ch. 25, §2. The act of 1801, ch. 25, § 2, upon the subject of fraudulent loans, contemplates only such loans as might be terminated at any time within the time specified, by “demand ruffle and pursued by due process of law.” If the duration of said loan be fixed by contract, the statute does not apply. Vide. 2 Yerg., 78.
    
      4. Same. Same. Same. Where a father gave to his daughter, a feme covert, the use of a slave for five consecutive years, taking from her husband bis notes for the hire, for four years of the time, for the purpose as proven, of protecting said slave for the use of the daughter, from the creditors of the husband — such a transaction and the possession under it, is not a loan within the meaning of the act of 1801, ch. 25, § 2, although there was avowedly no purpose on the part of the father to collect said notes.
    FROM FAYETTE.
    This bill was filed in chancery, at Sommerville, upon the facts, and for the purposes stated in the opinion. At the March term, 1855, Chancellor Williams decreed in favor of the complainants, from which defendants appealed.
    Joel L. Pulliam, for complainants:
    The only question arising in this case is, whether there was a hiring from witness, Eobert Saunders, of negro woman Mary, or whether it was a loan of the property? If the hiring is evident and clear, then the complainants are entitled to the relief prayed. Otherwise, not. Porter & Allison vs. Armstrong et al, 2 Yerg., E., 74, 81.
    
      Gilliam vs. Spence, 6 Humph., 160, 164, relied upon by defendants, is not here controverted.
    JohN W. Harris, for defendants,
    said:
    In this case I insist that this court has no jurisdiction. That the remedy is ’ purely legal. And it is thought no case can be -found where a court of equity will interfere under such a state of facts as are presented in this record. .
    If this is not an action" of- detinue, brought in a court of chancery, it must be because the plaintiffs have asserted their demand by a bill instead of a declaration. 1 Robertson’s Rep., 323.
    That a court of equity .will restrain an officer from selling a slave claimed as the- property of another, is admitted. 4 Yerg., 84, 93. And this results from this peculiar property, “a property in intellectual, and moral, and social qualities, in .skill, in fidelity, and in gratitude, as well as in capacity for labor.” 10 Yerg., 30, 40.
    Formerly, it was held to warrant the restraining power" of this court in thá. class, of cases, that the affection and attachment of master and slave, must be grounded on some particular cause set forth and proven. But this is now abandoned, and the jurisdiction assumed general-ly, because the rights of humanity combine themselves with the rights of property, which must be equally true in every case. 4 Yerg., 84. 6^ Yerg., 24. 8 Yerg., 63.
    
    And to authorize the court to interfere, the com-nlainant must make out in himself, an undoubted and clear right of property, or else- the court will leave him »to litigate at law and before a jury his doubtful right. 4 Yerg. 84, 93. Pope vs. Eakin, 3 Humph. Rep., 413, 415.
    To entertain jurisdiction in every case, would supersede, to a great extent, the action of detinue. 5 Yerg., 142, 143. And would obliterate the line of demarcation between the two tribunals, so far as slave propertyx is concerned, and permit actions of detinue for the recovery of slaves indifferently, in a court of law or a court of chancery, at tbe election of the claimant. 1 Robertson’s Rep., 327.
    If the defence be purely legal, it is not under any circumstances a fit subject for chancery investigation, and therefore no neglect on the part of the defendant in chancery, in insisting on the want of jurisdiction, will prevent him from availing himself of it upon the hearing, or in other words, neglecting to demur, and answering over upon the merits, will not, in such case, give jurisdiction. 5 Humph., 50, 52.
    
    No case can be found, it is thought, where the sale has been made, that the purchaser has been held in a court of chancery to give up the slaves; or in other words, when the court of chancery entertains jurisdiction against the purchaser. It is only in cases where the title is clear that the court will enjoin the creditor and officer from selling slaves, the property of another. The party claiming title, neglecting to assert his right by permitting the officer to sell, cannot seek the protection of this court, unless he wishes a discovery of some sort, or charges that the slaves will be removed, but is required to litigate his rights in a court of law. In this case no discovery is sought; no charge made that defendant is about to remove, or will remove the slaves .out of the State. Then according to all the authorities this court cannot ‘give relief.
    But it is insisted, this court will entertain jurisdiction, because the bill is filed by the beneficiaries in the deed of Robert Saunders to Patrick Booth, as trustee, against defendant, and also against tbe trustee, Booth. In order to avail themselves of this remedy, they must charge in their bill and prove, that the trustee is colluding with the defendant, or with the creditors of Gunn, or that he fails and refuses to protect the interest of the beneficiaries. This they have not done. They only make him a party defendant. He answers, admits the execution of the trust, his acceptance and approval of it. The making -of the deed invested him with the legal title to protect "this property and non ■constat, but that he is willing to do so. And this being the case an action of detinue should have been brought in his name to recover the slaves, if in right he was entitled to them. court of chancery will not permit itself to entertain jurisdiction, because the beneficiaries have chosen to- sue in their names without some allegation or charges in the bill, and proved by the admissions of the trustee or otherwise, that he fails or refuses to protect their rights.
    ■ This slave, Mary, was in the possession of Gunn more than five years before defendant had hife execution levied on her, and by the act of 1801, ch. 25, § 2, I insist she was liable for the debts of Gunn. The proof is, Gunn moved to Fayette county, Tennessee, in January or February, 1841, bringing said slave with him, and that he has been in the possession ever, since, up to the time she was taken by the officer, in October, -1846, claiming her as his own, and exercising acts of ownership over her.
    And the deed made in September, 1846, by Robert Saunders, has no effect to prevent this, as said deed was not made until the' possession bad remained with Gunn, upwards of five years.
    But I insist'this deed has nothing to, do with the case.
    Here Saunders permitted said slave to remain in the possesion of Gunn 'for five years as a loah, as I think I shall show, by which his credit was extended, without any writing, showing the character of the possession duly registered, as required by said act. And therefore was liable to the creditors of Gunn. This deed ought not to be received as evidence for any purpose. This statute is similar to the Virginia statute, in such cases, M. & Y., 102, 115; and it is held in that State, 8 Leigh’s Rep., 80; that after a loan to a person with whom, or with those claiming under him, possession has remained for five years, a deed is made by the lender, declaring the original loan and continuing it,' but this deed is never registered, the deed cannot affect a creditor of the person in possession and ought not to be received as evidence against such creditor. If I am right, that this deed cannot be received as evidence, then it does not appear that complainants are interested or entitled to any relief at all.
    It is, however, insisted for complainants, there never was a loan, but Robert Saunders hired said slave every year and took his bonds for the hire.
    It is true, he says he hired the slave, but his evidence, ■ if it is entitled to any weight, I think, shows conclusively that there was in fact no hiring, but an effort by fraudulent means to evade the law. He desires that his son-in-law shall have the possession of the slave, well knowing the possession alone for so long a time would enhance his credit, and thereby enable him to make debts on the faith of this property.
    This was done, as the proof abundantly shows. At the same time secretly and privately taking bonds for-the hire, as he says, for each year, but never intending to collect them; and he would receipt them, send them back to his daughter as a present. Was there-ever a more barefaced fraud practiced on the community where Gunn lived than was done in this case; The intention no doubt was, and so understood, that this slave Gunn can keep; the bonds will be preserved, and if any creditor should presume to levy upon her, they (the bonds) will be produced to show that there was no loaning but a hiring.
    It was the intention of Saunders, as stated by himself, not to collect the bonds, and permit Gunn to keep the slave. Is this any thing else, than in effect a loan? It was not necessary -for Gunn to be a party to the understanding, that the bonds were not to be collected, to make it a loan. The property was old man Saunders’, he had a right to do as he pleased with it. The question is, what was in his mind at the time, was it a loan or a hiring? Certainly a loan, because he did not intend to collect the pretended hire, but to let him have the absolute use and benefit of the slave-free of any charge. Suppose he, Saunders, had have drawn up a writing, stating on its face, that he had loaned Gunn this slave, or suppose Gunn had signed a writing to Saunders, stating that he, Saunders, had loaned him, Gunn, this slave for five years, and it was never registered, would not the slave be liable for Gunn’s debts? Most clearly so. Now, what is the difference between the case supposed, and the present one? None can be seen.
    It was never Mr.' Saunders’ purpose to resume the possession, and to make these bonds for hire available, but if he did, they should, or the first one, at least, have been registered, to show the character of the holding, so that others might not ,be misled in giving Gunn credit. But he fails to do this, and suffers the character of the possession, as he now states it to have been to remain concealed, until his son-in-law has contracted debts on the faith of the property being his, •and when the slaves have been sold for his debts, or a short time before that, it is heard, the slave belongs .to .another. During this whole time, not a word is heard but that she belongs to Gunn, and he claims her as his own property, and no one hears of any bonds for hire, until about the time defendant’s suit is brought.
    Upon an examination of the case, and the facts and circumstances about it, it seems to me that complainants are not entitled to any relief, and that this 8lave was liable for the debts of Gunn.
   Caeuthees, J.,

delivered the opinion of the court.

The complainants claim the slaves in controversy under a deed of'gift made by Robert Saunders on the fth of September, 1846, to a trustee for the separate use of the complainant, Emily C., his daughter, for life, and then to her children. The defendant, James E. Mason, obtained judgment against James Gunn, husband of said Emily, on the 26th of August, 1846, on notes dated January preceding., Executions issued and were levied upon tbe slaves on tbe 8th of October, 1846, and they were bought by James E. Mason. This is the antagonistic title to that of complainants under the deed.

There is no controversy but that the slaves were the property of Robert Saunders, and whether it passed to his daughter under the deed, or to his son-in-law, Gunn, by gift or possession before that time, is the question in the case.

The facts upon which the' complainants rely for the support of their title are disclosed in the deposition of the 'said Robert Saunders. • The defendants insist that his evidence cannot be looked to, because he is incompetent on account of interest; having warranted the title in his deed of gift of the 7th September, 1846.

This objection cannot be sustained: 1. Because it was not made in the court below. On this subject the rules of practice are, that exceptions for irregularity in taking depositions must distinctly specify the ground of objection, and no other will be noticed by the court, and that a general exception will only raise the question of competency. 10 Humph., 19. 1 Swan, 336. 2 Robinson’s Prac., 336-7. '

But where there is no exception, either special or general, in the court below, none can be taken in this court, not even to incompetency apparent upon the record. 2 Robinson's Prac., 336. 2 Paige, 6. 3 Paige, 555. 3 Liv. Law Mag., 458., 5 Cushman’s Miss. Rep., 19. The reason is most obvious. If the exception had been taken at the proper time, the objection might have been removed by a release, or other unobjectionable evidence obtained to supply the place of that which is disallowed. The rule of practice contended for, would be a surprise-upon tbe party, and often "produce great injustice. He would have a right to suppose that all exception to bis proof was waived, if not made at or before the hearing in the court below.

2. If the objection had been made in time, or could now be made, we are of the opinion that it could not be sustained. What is it? The witness made a deed of gift to complainants, with a warranty of title, and being thus bound to make it good, he cannot be received as a witness to support it against a conflicting title. It is true, that a warranting vendor is incompetent in such a case, but we are not aware of any case or authority that would exclude a donor who had made a voluntary warranty. This distinction has been suggested to the counsel, and no authority has been produced in conflict with this opinion.

The witness then being competent, establishes the title of complainants under the deed. But the defendant insists that his, title should still prevail, because, his debtor, Gunn, held said- slaves as a loan, without any writing recorded, for more than five years before the execution of said deed of gift of September, 1846. The complainants rely upon the proof of Saunders to show, that it was a case of hiring, and not a loan. He states that he took the notes of his son-in-law, Gunn, for the' hire for four years, and for one year of the five neglected it, jrat did not intend to collect them, “except circumstances turned up that might make it necessary to compel him to pay it, although there was no bargain made to that effect.” .He never did make him pay any of the notes, but gave up some of them to his daughter, but yet he holds the note for the first year’s Lire,. 1841. Under this arrangement the slaves were brought to this State, and remained with Gunn up to the time they were sold, and bought by the defendant.

Much proof is made as to the character of his holding; to many he claimed the slaves as his own, and to many others, he said they belonged to his wife and children, to Bobert Saunders, &c. But all this can have no effect upon the turning question; which is, whether 'the transaction was. a loan, so as to fall under the operation of the act of 1801, ch. 25, § 2. Saunders says, his object in taking the notes for the hire, was to prevent Gunn, or any other person, from claiming the slave by “long possession.”

It is contended that this transaction is in substance and in fact, a loan, and that the pretended hiring is a fraud upon the law, and should not be allowed to defeat the rights of creditors under the act. The words of the act are: “When any loan of goods or chattels shall be pretended to have been made to any person with whom, or those claiming possession under him, possession shall have remained for the space of five years, without demand made and pursued by due process at law, on the part of the pretended lender, ***** *** the same shall be taken, as to the creditors and purchasers of the person aforesaid, so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession,” unless such loan be declared by will or deed, proved and recorded.

It is very clear that Saunders did not intend to part with his right to the property, until the deed of 1846 was made. Down to that time, it is not controverted that the slaves were held' either upon a loan or hiring. As between the parties, Saunders and Gunn, whether the transaction was the one or the other, the relation was that of bailor and bailee; the right would remain in the former without limitation of time, unless there was an adverse holding, with the knowledge of the bailor for three years, which would vest the title in the bailee by virtue of the statute of limitations; or if it were a loan without writing, “proved and recorded” even without claim of title by the loanee, for five consecutive years, it renders the property subject to his creditors, although the title remains unchanged as between the parties themselves. The policy of this act has never been controverted. The possession of property so long is calculated to give credit, and men may reasonably consider the right with the possession, when the same is permitted to remain undisturbed for so long a time. It is easy to avoid its operation by a writing duly proven and recorded.

If the case under consideration was a loan at all, it was for the definite period of five years, and not for an indefinite time which the lender might terminate whenever he chose to do so; which latter is the only case to which the act applies, according to the case of Porter & Allison vs. Armstrong et al., 2 Yerg., 78. The act would seem to contemplate a loan which might be terminated by “demand made and pursued by due process at law.” This could not be done, if the time of j|s duration was fixed by contract.

But we do not consider this transaction a loan at all. It is expressly proven by Saunders, the owner, to have been a contract of hiring. True, he says, he did not intend to collect the hire unless circumstances made it n'ecessary, and that he gave, two. or more of the notes to his daughter, and had enforced 'the payment of none of them. But how can his intentions and purposes affect the nature of the transaction? The question is, whether it was a loan or not, and if not, the statute does not operate upon it. It is a very strong provision by which a man’s title is taken away without his consent, in favor of the creditors of his beneficiary. His only fault is, kindness and humanity too long protracted. It is sustained by considerations of policy alone, and we are not disposed to extend it by latitudinous construction. The owner of the slaves was aware of the law upon this subject — that long possession would endanger his right, in case of a loan, and therefore resorted to a different kind of bailment. He certainly had a right to do so. We are unable to see the force of the argument, that this was a fraud upon the law. He could surely do as he pleased with his own, and collect the hire or not, as might seem good to himself.

The decree of the chancellor will be affirmed, and the cause remanded for an account of the hire.  