
    A. Jackson, and Others, v. John Inabnit, and Andrew Inabnit.
    Where one signed a deed conveying several slaves in trust to his son with limitations over, and kept the deed —neither the trustees nor the son being present, — and the son had possession of some of the negroes at the time, and afterwards got the others ; but there was no proof that he fever recognized the deed: Held, that there was not such evidence of delivery of. the deed as to subject the property to its limitations. [*415]
    Where parties claiming under the limitations of a deed obscure and doubtful in its terms, had submitted it to counsel for advice, and afterwards publicly abandoned their claim, and the property was sold at the instance of creditors, and went into the hands of purchasers for valuable consideration, they shall not be permitted afterwards to setup their claims: that would sanction a practical fraud on the purchasers. Their acquiescence is an abandonment of their rights. [*416]
    Heard before Chancellor De Saussure, at Walterboróugh, January, 1835.
    The plaintiffs filed their bill against the defendants, claiming certain negroes under a deed wherein defendants are appointed trustees, executed by Baltus Inabnit, deceased ; in which, as they allege, he conveys the negroes in question, to his son Christian, with limitations over in favor of the plaintiffs, in the event of his death without issue. They allege that Christian died without issue, and that they are entitled; and pray that such of the ^slaves as came into defendants’ possession, may be p.¡..„ delivered up, and that they account for the remainder, which they *- charge have been lost by their negligence and mismanagement. Several questions were made and argued on the hearing of the case on $ie Circuit, and decided by the Chancellor. But it is only necessary to state the facts connected with those decided by the Court of Appeals.
    The first question related to the delivery of the deed. It purported to have been signed, sealed and delivered in the presence of three witnesses —was proved and recorded. G-eorge Clayton, one of the subscribing witnesses, testified that he witnessed the signing by Baltus Inabnit, and proved the deed before a magistrate. He did not in fact see the deed delivered; for neither John nor Andrew Inabnit was present, and Baltus took it away with him. It was objected by the plaintiffs, that it was inadmissible to examine the witness as to the delivery, as he had previously sworn on the probate, before recording that he saw the deed “signed, sealed and delivered.” On which the Chancellor, in his report, says, “ I overruled the objection, because it was manifest that the witness, an ignorant man, when called on to prove the execution, meant no more than that he saw Baltus Inabnit sign the deed. He says he did not see it delivered. On principle, witnesses can be thus examined. On the trial of the due execution of wills,'although the subscribing witnesses have testified that the will was duly executed, they are subjected, subsequently, to a full examination as to the particulars of the execution, to ascertain whether the facts which took place at the time of the execution, corresponded with the course prescribed by the statute. Besides, the proof is clear that John Inabnit was not present, and it was not alleged that Andrew Inabnit was. This is a distinct, independent fact, clearly admissible to proof; and being proved, as it was, even by the subscribing witness to the deed, is conclusive that no delivery in fact took place, for none could take place to them. Now, in this suit, which is to make the trustees liable, this is all-important. Again, Baltus Inabnit took away the deed; he kept the control over it, to be used or not, as he pleased. There is, indeed, no proof that the deed was ever delivered by Baltus Inabnit to the persons he had named as trustees in the deed ; for when it was desired to have it proved, the witness, Clayton, testified that he was sent for to prove it, by Baltus Inabnit; and there is no proof who ordered the deed to be recorded. Nor *is there any evidence that these persons ,„ ever accepted, or did any act showing an acceptance of the trust, t-This bill then, which seeks to make them liable as trustees, for neglect of duty amounting to a breach of trust, cannot be sustained against them.”
    The deed itself, as the Chancellor states, “ is profoundly obscure; more obscure than the subtlety of learning, designing to conceal a meaning, could have contrived it. It was a gift of the property to Christian Inabnit, with incomprehensible provisions and limitations, which are void for uncertainty, and he held the property clear of them. ” “ It appears further,” continues the Chancellor, “ by the evidence, that Baltus Inabnit had put his son, Christian, in possession of this property before the execution of the deed, and that he held the same as his own. So that the father had no right to exercise any control over these slaves, and to make a new gift with limitations. And it seems certain, that Christian Inabnit did not claim, or hold under the deed, (if he knew of its existence,) for he treated the slaves as his own absolute property, and mortgaged them to secure the payment of his own debts.
    “ There is still another ground of great importance. After the death of Christian Inabnit, the brothers and sisters set up a claim, under the deed, and took counsel thereon. On a very hasty perusal of the deed, and without a full knowledge of the facts, the gentleman consulted (who is remarkable for his sound judgment) was of opinion that it was a good and valid deed, and would operate on the property, and give the plaintiffs a good title. Subsequently, on fuller information and on a more deliberate consideration, he changed his opinion. Other counsel of great respectability was also consulted, who informed the plaintiffs that the deed was so obscure, that no intelligible meaning could be made out of it; and that in his opinion the plaintiffs could not sustain their claim under the deed. It was then necessary to come to a conclusion, for the creditors of Christian Inabnit desired to know of the plaintiffs whether they meant to make a claim under the deed, that they might resist the same, and bring it to a conclusion. After a deliberate reconsultation with their counsel, and under his opinion, the plaintiffs gave up their claim. They abandoned their intention to pursue it; and the creditors were informed of this resolution : whereupon they took no steps to get the judgment of a Court. In consequence of this abandonment, the creditors of Christian Inabnit *4141 acted upon their liens, *and the slaves in question were sold pub-J licly, and in the presence of almost all the plaintiffs, who made no objection, and some of them even became bidders at the sale. The slaves were purchased by different persons, at high prices, and have been held by them, and in some instances transferred to other purchasers for valuaable consideration. The proceeds of these sales were applied to pay the debts of Christian Inabnit. Under these circumstances, it appears to me that these transactions can never be disturbed, and that the plaintiffs cannot have relief, and their bill should be dismissed.”
    The plaintiffs appealed.
    
      Smith, Attorney-General, for the appellants.
    
      Memminger, contra.
   Mr. Justice Butler

delivered the opinion of the Court.

The Chancellor who pronounced the circuit decree, being in full possession of the whole case, has decided all the questions fairly involved in it. His decision leads to the conclusion that the plaintiffs’ bill should be dismissed, and we concur in this conclusion. Whilst it was proper for him to decide on all the grounds taken below, it is not necessary for this Court to take more than will sustain his decree.

The grounds on which we rest'our decision, are :

1. There was not sufficient testimony to satisfy the Chancellor, that the deed which purports to have been executed by Baltus Inabnit was ever duly delivered by him for the purposes expressed in it; or that Christian Inabnit took the negroes under the deed, and held them subject to its limitations and control.

2. The parties who were interested in claiming under the deed, after Christian’s death, having deliberately and upon a full knowledge of their rights, agreed not to assert their claims, they shall not now be permitted to do so after the negroes have been sold to bona fide purchasers, for valuable consideration, in satisfaction of the debts contracted by Christian Inabnit on the faith of them.

As it regards the first ground, it is peyhaps sufficient to say, that the Chancellor who heard the testimony was more capable of judging of its force and sufficiency than we can be, who must look at it as it is represented, and not as it was developed during the trial. It is certain, from the testimony of the only subscribing *vvitness that was examined, that the deed was not delivered in fact, at the time it purports to *- have been executed. Baltus Inabit kept it in his possession — in his exclusive possession — during his lifetime. He may have intended to reserve to himself a control over the deed, and the property conveyed by it. But it might be inferred that a delivery had been made, sufficient to give the deed its legal operation, if it had been proved that Christian took under it, or acknowedged its existence in the lifetime of his father. But such a conclusion does not seem to be authorized. At least, the Judge below did not think so. He says : — “It appears further by the evidence, that Baltus Inabnit had put his son, Christian, in possession of this property before the execution of the deed, and that he held the same as his own. So that the father had no right to exercise any control over these slaves, and to make a new gift with limitations. And it seems clear that Christian did not claim or hold under the deed, (if he knew of its existence,) for he treated the slaves as his own absolute property, and mortgaged them to secure the payment of his own debts.” From the explanation made in the argument, it is probable that the son had part of the slaves only in his possession, before the deed was executed. The others that went into his possession afterwards, were regarded by him, as the first were, as his own absolute property ; and as there is no evidence that he knew of, or assented to the deed before his father’s death, it is fair to conclude that he held the negroes by a title independent of the deed. But, as before observed, it was a question of evidence ; and the judgment passed upon it, by the Circuit Chancellor, is entirely satisfactory to this Court, he having a better opportunity to decide rightly than we have.

We feel fortified in the second ground, by the consideration that the slaves were sold to satisfy the debt of Christian Inabnit, contracted, no doubt on the faith of their being his absolute property. This of itself would not be enough to deprive the parties of their rights under the deed, if they were clearly expressed and definitely secured by the provisions and legal requisites. But the deed is exceedingly obscure, and of doubtful import. So much so, that it wmuld be difficult for any Court to pronounce a satisfactory judgment on its legal construction. The plaintiffs believing, or supposing that they had a legal claim under the deed, submitted it to intelligent counsel for direction and advice. This was at the time the negroes were about being sold. Their counsel took *time, r^.. - by agreement with the representatives of creditors, to investigate L the question presented. The plaintiffs were informed that their claim could not be sustained. This was not the hasty conclusion of inexperienced advisers. The plaintiffs, on such advice, agreed to abandon their claim; and by their consent or acquiescence, the property was sold, and bought by purchasers for valuable consideration. Would it be right to set aside these sales, made under such circumstances ? To do so, would be to sanction, if not an intentional, a practical fraud upon the purchasers. By the conduct and consent of the plaintiffs the purchasers acquired their title. The law will not disturb their title now, by offending the obvious justice which the whole case suggests.

If the deed under which the parties claim has no legal existence for the want of delivery; or, if it has lost its legal operation by the conduct of those interested in it, then the plaintiffs must fail in their application for redress.

Whether any testimony was properly rejected, as well as some other questions in the case, may only be adverted to, to say that we do not deem it necessary to pass any judgment on them.

It is ordered and decreed that plaintiffs’ motion be refused, and that their bill be dismissed, with costs.

Chancellors Harper and Johnston, and Justices O’Neall, Richardson, Evans, and Earle, concurred.  