
    Cornelius Crenshaw vs. William Anthony.
    A bona Jide deed of trust executed for a valuable consideration, and by which certain slaves are vested in a son, for the sole and separate use of his mother; (a married woman,) who takes possession of the slaves, and has them in her possession more than five years, is not an instrument, creating a loan, or reservation or limitation of a use or property, &c. by way of condition, &c. &c., with» in the meaning of the act of 1801, ch 25, sec 2: Therefore, such an instrument executed in Virginia, and registered there, requires no registration in this state, upon the removal of the mother and her husband here, bringing with them the trust property, to preserve it from being levied on and sold as the property of the husband — although they have been more than five years in possession in this state.
    This was an action of detinue, brought by the plain-i.itT Crenshaw, against the defendant, in the circuit court of Williamson county, to recover a female slave named Juno. The defendant pleaded, first, non detinet, upon which issue was joined. Secondly, that he claimed the slave Juno under Daniel Crenshaw, to whom she was loaned in the state of Virginia, by the said Cornelius Crenshaw, and possession delivered to said Daniel, who had retained her in posses-i sion for five years, without demand made and pursued by-due process of law, by said Cornelius, the pretended lender, and which pretended loan was not evidenced by deed in writing, and recorded according to the law of Virginia. Thirdly, that he claimed said slave Juno, under Daniel Crenshaw, to whom said slave was loaned by the said Cornelius Crenshaw, in the state of Virginia, and possession delivered, in pursuance of some reservation, or limitation pretended to have been made of the use, or property, hj way of condition, remainder, reversion or otherwise, and that the possession of the slave so obtained remained with the said Daniel Crenshaw by the space of five years, without demand made, and pursued by due course of law, by said Cornelius; which reservation or limitation of a use or property was not declared by will or by deed in writing, proved and recorded, as required by the law of Virginia.
    To these two last pleas, a replication was filed, on which issue was joined.
    At the trial of the cause in the court below, the following facts were given in evidence to the jury, as appears from the bill of exceptions:
    In the year 1812, in Lunenb urgh county, (Virginia,) Daniel Crenshaw, the father of the plaintiff, sold and conveyed by bill of sale, for a valuable consideration, the slave Juno in dispute, and some others, to a certain Richard Herring, possession of the slaves accompanied the sale, and remained with Herring for a few days — he then hired them to Daniel Crenshaw, and re-delivered them to him, upon the contract of hiring; — previous to the sale to Herring, the slaves had been levied on by virtue of an execution against Crenshaw, but the proceeds of the sale to Herring were applied in the discharge of that execution. The hill of sale to Herring was never recorded in Virginia, and the reason given by the witnesses is, that it was not customary at that time to record hills of sale for negroes.
    Some time after the sale of the slaves, Herring also purchased of Crenshaw, a certain tract of land situated in the .county of Lunenburgh — but Crenshaw’s wife refused to relinquish her right to dower in the land, and Herring wishing to sell it, and being unable to do so, unless she would relinquish her dower, he agreed with her if she would release her right to dower in the land, to convey to her son Cornelius, for her sole and separate use and benefit, the slave Juno and her daughter Sally, purchased by him of her hus-hand. This being agreed to, he conveyed the said two slaves to said Cornelius, for her use, on the 16th of July, 1813. The deed of trust is in these words; “Know all men by these presents, that 1, Richard Herring, for and in consideration of the sum of one dollar, to me in hand paid by Cornelius Crenshaw, and for the further consideration that Nancy Crenshaw, wife of Daniel Crenshaw, hath relinquished and made over to me her right of dower in and to a certain tract of land purchased by me,of said Daniel Crenshaw, have given, granted, made over and confirmed, and by these presents do give, grant, make over and confirm to the said Cornelius Crenshaw, one negro woman named Juno, and her child named Sally, to have and to hold, to him the said Cornelius Crenshaw, his executors or administrators forever, in trust nevertheless for the separate and exclusive use °£sa|¿ Nancy Crenshaw, and her assigns forever; and it shall he the duty of the said Cornelius to permit the said Nancy, during her life, to have, receive and enjoy the services of the said negroes, and all benefits and advantages arising or accruing therefrom in any way whatever, free from all claims, rights or demands of her said husband Daniel Crenshaw; and it shall be the further duty of the said Cornelius, to hold, convey or dispose of said negroes in such manner and to such uses as the said Nancy shall, by deed or last will and testiment, signed and sealed by her, and attested by one credible witness, appoint, direct or prescribe.”
    This conveyance in trust, was acknowledged and duly recorded in Lunenburgh county, in the state of Virginia.
    In 1814, Daniel Crenshaw and his wife removed from Virginia to Williamson county, in this state, and brought with them four negroes, the property of said Daniel, and also the said slaves Juno and Sally.
    The deed of trust to Cornelius, for the use of his mother, was never registered in Williamson county or in any other county in the state of Tennessee, nor was the wife’s right to the slaves Juno and Sally generally known. Some individuals to whom she communicated her right, she requested not to say any thing of her having told them, as she apprehended violence upon the part of her husband, and because she thought it would impair his credit. But in 1817, Cornelius Crenshaw was in the county, and he claimed the property, and called witnesses to the fact of his making-such claim — the slave Sally was conveyed to their daughter upon her marriage in Williamson county, by bill of sale from her mother.
    it -was generally supposed, that the slave belonged to Daniel Crenshaw, as was proved by several witnesses; though others say, that as early as 1819, it was known in the neighborhood that Daniel Crenshaw had no right to the negroes.
    The slave Juno was levied on as the property of Daniel Crenshaw, by the defendant, who was then the sheriff of Williamson county, by virtue of an execution, founded upon a judgment obtained by John Stacy, against Daniel Crenshaw, for $>253 73$, and interest from February, and taken into possession by him.
    Thé judge charged the jury, “that if the original trails-action between Daniel Crenshaw and Richard Herring was fraudulent, the plaintiff was not e'ntitled to recover; and if the said transaction was bona'fide, and the conveyance or trust to plaintiff duly recorded in Virginia, still upon the removal of Daniel Crenshaw and his wife Nancy to this state, bringing-with them the trust property, if the deed of trust or some writing evidencing the loan from Cornelius, the plaintiff, was not registered here according to the laws of this state, a possession of five years here without claim made and prosecuted, would divest the’ right of the plaintiff in this suit as to creditors and subsequent purchasers for valuable consideration.” This charge was excepted to by the plaintiff’s counsel.
    The jury found a verdict for the defendant — a new trial was moved for by the plaintiff, which motion was overruled by the court — and an appeal in the nature of a writ of error, prosecuted by the plaintiff to this court.
    Rucks, for the plaintiff in error.
    
      Washington, for the defendant in error.
   Crabb, J.

The plaintiff brought this action of detinue against the defendant, in the circuit court of Williamson county, for a slave. The defendant pleaded the general issue, and two special pleas, which two last it is unnecessary to notice.

From the bill of exceptions, it appears that Daniel Cren-shaw, the father of Cornelius the'plaintiff, formerly owned the slave in dispute in the state of Virginia. On the 30th March, 1812, he by bill of sale bargained and sold her with others, to one Richard Herring. By a deed made under the hands and seals of Herring and the plaintiff, dated 16th July, 1813, the former, in consideration of one dollar to him paid by the latter, and for the further consideration, that Nancy Crenshaw, the wife of Daniel, and mother of Cornelius, had relinquished to Herring, her right of dower to a certain tract of land before that time sold to Herring by her husband Daniel; bargained and sold the slave in dispute and her daughter Sally, to Cornelius Crenshaw, for the only and exclusive use and benefit of his mother Nancy* free from all claims, rights and demands of her husband Daniel Crenshaw — and said Cornelius was to hold, convey or dispose of said slaves, to such use as his mother by deed or last will and testament, signed and sealed by her, and attested by one credible witness should direct or prescribe. Much proof was submitted to the jury, to show that the sale to Herring and that to the plaintiff, were fraudulent and void, as to the creditors of Daniel Crenshaw; and on the other side to prove, that they were bona fide transactions.

Several questions have been argued at the bar. But it is not necessary to give an opinion upon any, except, as to the correctness of that part of the charge, which relates to the registration in this state, of the deed of trust to the plaintiff.

The act of 1801, cb. 25, latter part of sec. 2, provides, that where any loan of goods and chattels, shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained by the space of five years, without demand made and pursued by due process of law, on the part of the .pretended lender; or where any reservation, or limitation, shall be pretended to have been made of a use of property by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken, as to the creditor and purchasers, of the person aforesaid, &c. remaining in possession to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, re. servation or limitation of use or property were declared by will or by deed, in writing, proved and recorded as aforesaid.

This act of assembly was doubtless copied from the Virginia act of 1785. The clause above recited is not found in the British statute of fraud and perjuries, and against fraudulent conveyances. It is believed to have been introduced into the Virginia code, by the distinguished and learned gentlemen who composed the revisors of her laws. The same provision is found in the statute book of Kentucky.

In the reports of decisions made by the courts of appeals in those two states', are many adjudications upon the clause of the act in question, most of which have been examined by this court.

Upon clear and long settled principles, a liberal construction ought to be given to the clause in question, for the suppression of the fraud and mischief it- was intended to remedy.; Heydon's case, 3 Rep. 7; 1 Blac. Com. 88. It is argued by the counsel for the defendant in error-, that a registration in this state of the deed or will, declaring a loan, reservation or limitation of a use of property, is as much requisite, where the loan, reservation or limitation took place in another independent government, and where a registration has been made there, as if the transaction had originated in this state. That the object of the act was to apprise the community here, of the otherwise secret fact, that he who has the possession, is not the real or entire owner: that it is the continued possession for five years, In this state, upon which the provision acts, and which it pronounces to be evidence of ownership, as against creditors pf, and purchasers from the possessor. These arguments merit, and would receive much attention and consideration, in a case where it should be necessary to decide the point to which they apply.

Being satisfied that the case before the court, is one to which this clause of the act of 1801, has no application, we need not, and do not intend to express any opinion upon the point before alluded to. The clause in question, was framed by master workmen in their profession, and under circumstances the most favorable — not"in the hurry and excitement of a legislative session, but as all laws of general import and consequence ought to be, in contemplative retirement. The words used in the act, are of well known technical signification — familiar to those who are versed in she common law. The cases embraced in the clause, are cases of loans, and cases of reservation, or limitation of a use oi property, by way oí condition, reversion, remainder or otherwise. In all such cases, the person to whom the property is lent, or who has a particular estate of any kind, (after the determination of which,) a use of property reserved, or limited to another, by way of condition, reversion, or remainder, &c., is absolute owner, &c. unless the loan, &c. were written and recorded.

Now, what is the case before the court? Was it a loan? or was there a reservation, or limitation of a use of property by way of condition, reversion, remainder or otherwise?

There was no loan — Herring having conveyed the slaves to Cornelius Crenshaw, for the only use of his mother, &c. forever, she could only have the use by having the possession ; she was entitled to it. There was no reservation of a use or property to the seller of the property, on condition, or as a reversion. The whole property was divested out of him, by the plain words and meaning of the deed; nor was any remainder limited to any other person. The whole equitable interest was vested in the mother. True, as a matter of form, the legal estate was vested in Cornelius, because none such could vest in his mother, she being a married woman.

But it is apprehended that this is not a limitation of a use or property in the son, within the meaning of the act. Had there been a particular estate vested in the mother, as an estate for years, or for life, remainder to the son; or a condition inserted, that on the happening of a certain event, or the doing or not doing of some specified act,‘the right should be vested in the son — then the son would have had an interest at war with the unexplained possession of the mother, and calculated to mislead creditors and purchasers. But there is no interest limited to the son — the interest is all in the mother. He is a mere trustee, and sue when he may, he can only do so for the benefit of his mother.

Leave the relation of man and wife, between Daniel and Nancy Crenshaw, out of view, and it would he impossible that any one could be misled bv Nancy Crenshaw’s having the possession, for Nancy Crenshaw had the sole and exclusive interest.

The question whether such a deed of trust ought not to fee registered, in order to its validity, as against creditors and purchasers, from the bargainor, is one of an entirely different character — not in the least depending upon the clause we are considering, and certainly has no relation to this case, as the attempt here, is not to subject the slave to Herring’s, but to Daniel Crenshaw’s debts. The truth is, the difficulty principally arises from the circumstance of Daniel and Nancy Crenshaw being husband and wife, and property which is in her possession, must, therefore, almost necessarily be somewhat in the possession of her husband. That the slave might be legally sold for the exclusive use and benefit of the married woman, by the intervention of a trustee, cannot be doubted. (Bacon’s Abr. Baron and Feme D, and the authorities there referred to: Rich vs. Cockrell, 9 Vesey, jun. 369.) And we have no law, which will make an unregistered deed, for such a purpose, necessarily fraudulent or void, as against the creditors of the husband; however it might be as against the creditors or purchasers, from the bargainor for a sufficient consideration. When a deed has been bona fide made, conveying property for the separate use of a married woman, we apprehend that the law looks upon it with as much complacency, and feels as much solicitude to render it effectual, as it does to support and protect the rights of creditors. If it was not bottomed upon such consideration, or was not Iona fide, then it is certainly void; and that is a matter of fact for the jury to determine, from a view of the circumstances of the case.

The court below erred in charging the jury, that if the transaction were bona fide, yet upon the removal of Daniel Crenshaw and his wife to this state, bringing with them the trust property, if the deed of trust, or some writing evidencing the loan from Cornelius, the plaintiff, was not registered here, a possession of five years here, without claim made and prosecuted, would defeat the right of the plaintiff For this cause the judgment must be reversed, and a new trial had. '

Catron, J.

Richard Herring conveyed to Cornelius 0rens]jaWj for a fall and valuable consideration, paid to the grantor, by Nancy Crenshaw, the mother of Cornelius, 'and for her sole and separate use, two slaves, Juno and her daughter Sally, in the following words:

[Here the deed is set out in judge Catron’s opinion, which is omitted by the Reporters.]

This deed of trust was executed-in the county of Lunen-burg, in the state of Virginia, where the parties thereto resided, and the property was, at the time of its execution, and where Richard Herring and Cornelius Crenshaw yet reside.

On the 12th day of August,'1813, the deed was acknowledged by Herring and Cornelius Crenshaw, in the Lunen-burg county court, and recorded.

In 1814, Daniel Crenshaw, the husband of Nancy, and father of Cornelius, removed to the state of Tennessee, together with his wife and the slaves; has resided in Williamson county more than five years, without the deed having been registered in this state; contracted debts, judgments were recovered against him, the slaves were seized upon and sold as his property; upon which Cornelius Crenshaw sued the sheriff, who pleaded the statute of frauds, of 1801 ch. 25, in bar, and also non detinet.

The court charged the jury substantially, that unless the deed or writing, evidencing the loan from Cornelius Cren-shaw to his mother, was registered here, according to the laws of this state, a possession for five years in this state, would divest the title of Cornelius to the slaves, and authorize the creditors of Daniel Crenshaw, to seize upon and sell them for his debts. The jury found for the defendant.

The first question to be examined, is, whether this is a conveyance, upon which the act of 1801, ch. 25, sec. 2, operates?

The act provides, that where any reservation or limitation shall be made of a use, or property by way of condition, reversion, remainder, or otherwise, in goods, the possession, whereof shall have remained in the eestuique trust, or those claiming under him, for the space of five years, such reservation, as to creditors and purchasers, shall he taken to he fraudulent within the act, and the absolute property with the possession; unless such loan, reservation or limitation of use — or property were declared by will, or by deed in writing, proved and registered in the register’s office of the county where the goods and chattels, or the most valuable part of them are. It is contended on the part of the plaintiff in error, that the deed set forth, has none of the characteristics of the deeds contemplated by the act of 1801, and therefore, had it been executed in this state, no registration thereof Would have been necessary to preserve the estate of Cornelius and Nancy Crenshaw, from Daniel Crenshaw’s creditors.

The act provides, that where any reservation is made of the property, by way of reversion, remainder or otherwise, five years possession shall bar so much of the title as is reserved.

Has Cornelius Crenshaw reserved any interest in himself in the two slaves? For where any interest is reserved, this statute intended to bar; whether it be that of a naked trust, or a beneficial interest, the absolute property shall be taken to be with the possession, and not a mere right to use the property, which interest, creditors and purchasers, cannot reach.

In this state, slaves are subject to be limited as real estates are, and hence the terms by which real estates are limited, are used in our act of 1801, ch. 25, which is copied from the act of Virginia of 1785, ch. 10, where the same practice, sanctioned by statute, prevails, and has been very extensively practised. It is said in the statute, that all reversions shall be barred. In the present instance, should Nancy Crenshaw fail to dispose of the slaves, by deed or will, they will revert to Cornelius or his executors :this reversionary interest, the act also intended to bar in favor of creditors, and purchasers of him holding the possession of the slaves.

Had this deed then been executed, for the purpose of conveying the title to property in this state, at the time of its execution, and not been registered in the county where the property, or the most valuable part thereof was, at the tjme Q£ jtg executi0n, the same would be fraudulent, as to creditors and purchasers, and the- absolute property taken to be with the possession.

The acts of 1805, ch. 16, sec. 2, and 1807, ch. 85, sec. 3,. 4, have been referred to, as having an influence upon the present question. So it was impressed on my mind during the argument, but upon examination, the fact is found to ■ he otherwise. The acts provide, that all deeds, &c. for slaves, shall be acknowledged or proved by two witnesses, and registered within one year after the execution of the deed, and unless so registered, the deed shall be void, as to creditors and purchasers.

The creditors and purchasers, referred to in these acts, are creditors of, and purchasers from the grantor, not the grantee, as in this instance. (Pierce vs. Turner, 5 Cranch 154.) Nor is there any statute in this state, materially altering the provisions of the act of 1801; and if there is no necessity for the registration of deeds, like the present, by this act, there was no registration required by any other, to protect the title of Cornelius Crenshaw, against the claim of Daniel Crenshaw’s creditors-; nor would any deed or writing, for this purpose, have been necessary by the laws of Virginia, (Randolph vs. Randolph and others, 3 Mun. 99,) supposing the deed without reservation. Had this, deed, however, been made in this state, for property here, I feel great confidence in the opinion, that it is of a character to be operated upon by the act of 1801, and would be void, as to the creditors of Mrs Crenshaw, and probably those of her husband.

The policy of the legislature, it is apprehended, was to cut off, and bar in favor of creditors and purchasers, all outstanding titles to personal property, which were not vested in the possessor, unless such titles were made public, by being put on record. Hence, the 2d and main question in this case, and which is deemed of great importance, necessarily ai’ises: — The circuit judge charged'the jury, that notwithstanding the recording of the deed in the state of Virginia, or the removal of the slaves to this state by Daniel Crenshaw, and. a continuance of possession here for five years, without the deed, or some paper evidencing the title of Cornelius Crenshaw, being registered, his title would divested, as to creditors of, and purchasers from, Daniel Crenshaw.

Much slave property is limited, and the title held in trust, and distinct from the possession, in the state of Virginia. The cases of most common occurrence-there, are limitations and trust interests, declared by last wills and testaments. The statutes of this and that state declare, that the reservation of title, which is distinct from the possession, shall be declared by deed or will, proved and recorded, otherwise the absolute property shall be taken to be with the possession, where it has con tin ued for five years; during all ofwhich' time, the courts of Virginia and Kentucky have decided, the parties to the deed, are entitled to have the same proved and recorded. (Beasley vs. Owens, 3 Hen. and Mun. 449; Farquarson vs. White, 3 Marshall 6.)

Did the legislature of Tennessee in 1801, intend to regulate any contracts, other than such as were made for the transfer of property in our own state? Or was it intended by the statute, to divest honestly acquired titles, pursuant to the laws of sister states, by a possession of five years, im the cestuique trust in this state? The statute says, the reservation shall be declared by will, duly proved and recorded'; or by deed in writing, acknowledged or proved by one witness at least, in a court of record, and registered in the register’s office of the county, where the goods and chattels, or the most valuable part of them are, within eight months after the execution thereof.

That the deed is to be registered in the county, where the goods were at the time of the execution of the deed, is too plain to admit of argument or illustration. This is the notice to creditors and purchasers, required by the statute. Suppose it registered in an improper county, would such registration be any notice? It surely would not. In what county then ought Cornelius Crenshaw to have registered his deed? In the first county in Tennessee, to which Daniel Crenshaw brought the slaves. For, according to the doctrine contended for on the part of the defendant in error, the moment the property was brought to this state, the runnjng Gf t[le statute, to the destruction of the trustee’s right commenced its operation: or should it have been re-gistéred in the county of Williamson, where Daniel Cren-shaw resided for some years, and became indebted? This cannot be, for it is clear, that the deed must be registered in the county where the property was, at the time the contract was made, separating the title from the possession* This was impossible in the present instance. Hence it follows, that the deed could not be lawfully registered in this state, in any county, unless the court were, by construction, to say it was reasonable, that it should have been registered in Williamson county. This would be making the law, not expounding it.

Our statute declares, that trusts and reservations of title, shall be declared by will duly proved and recorded; that is, proved in manner to pass goods, and recorded in the county, where the testator resided at the time of his death. That this provision relates to wills executed by citizens of Tennessee, need only be stated to gain admission; because there was no law, authorizing foreign wills to be proved and recorded in this state.

Did the legislature intend to bar and destroy the vested rights of citizens of other states fairly acquired, according to the lex loci contractus of the state where the contract was made? That a compliance with our statute, on the part of the trustee^ is impossible, whether the limitation, trust or reservation of title, was declared by deed in writing, or by will, has been shown.

To illustrate this, let us suppose a common case, of a father in Virginia, making a deed, or will, vesting the legal title to slaves in a trustee, for the use of a married daughter for life, with a remainder over to her children: the husband, during the life of the wife, removes to this state, resides here five years, and then sells his slaves — Would the purchaser take a good title? It is impossible to prevent the bar, by those in remainder, or the trustee, if the statute applies to such a case, should the husband choose to remove the slaves to this state. The point arose, and was earnestly urged in the cause of Coalson vs. Blanton, reported in 3d Haywood; but the court took no notice of the argument.

The case supposed, iá one clearly not within the words of the statute of 1801; but it is said it is within its spirit. It is very improbable, that the framers intended to restrain citizens of other states from emigrating to the country, at a time when we needed additions to our population; which must have been the consequence, was it intended to declare titles to slaves, held by a settlement to trustees void, after a possession of five years in this state.

It is urged, that we should apply the law by construction, in suppression of fraud, and in favor of creditors, to divest Mrs Crenshaw, and her trustee, of the title of these slaves. To which it may be answered, that no reason can be seen, why the wife in this instance, should not be as much favored as the creditor. It would be a harsh construction to deprive her of property, which she had no means of preserving, other than those she employed, by giving the creditors of her husband, notice of her right to the slaves; which was an act of, good faith, yet not required by any known law: that notice, or the want of it, could make the title to Cornelius Crenshaw, either valid or void, if bona fide in its inception, and lawfully vested, cannot be maintained, we apprehend, as a legal position.

It is believed the statute of 1801, will not admit of the construction contended for: and was the court to declare the title of the creditors of Daniel Crenshaw, superior to that of Mrs Crenshaw, it would be making a law, not construing one already made, which neither, by its terms, or by any reasonable implication of the words employed, can be extended to the case under consideration, so as to form a bar to the recovery of the plaintiff — and, therefore, the judgment ought to be reversed.

Whyte and Peck, judges, concurred.

Judgment revex’sed.  