
    Carsten Vose, Adm’r of Josiah Dangerfield, vs. R. S. H. Hannahan.
    A deed of gift of slaves, accompanied by a secret trust, that the “ slaves shall be held in nominal servitude only,” though declared “ void and of no effect,” by the third section of the Act of 1841, (11 Stat. 155,) is nevertheless good, not only against the donor, but, also, against his administrator after his death. Such deed is void, only “ for the benefit of the distributees or next of kin of the donor;” and they alone, it seems, can impeach it under the provisions of the Act.
    BEFORE GLOYER, J., AT CHARLESTON, FALL TERM, 1855.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    Tbe action was trover to recover damages for tbe conversion of eleven slaves, Eve and ber eight children and two grandchildren. Tbe intestate, in bis lifetime, and at bis death, was in possession of these slaves. The defendant claimed them by virtue of a deed from the intestate, executed on the 12th May, 1852, and a few days before his death. By this deed, the intestate reserved to himself a life-interest with a remainder to the defendant, Mr. Brewster, who drew the deed at defendant’s request, read it over twice to the intestate, and explained its contents, who said that it was in accordance with his instructions, and was exactly what he wanted. When a will was suggested, he said he wanted something permanent, and that could not be changed. Neither the defendant nor intestate expressed an intention to make the slaves nominally free. Intestate said to Tim. Johnson, that he wished to make his children (Eve’s issue,) free, and desired defendant to act for him. He got a copy of the deed to show to Mr. Eggleston, and to know if any advantage could be taken of it. It appeared that he drank much, but was sober when the deed was executed. There was no connection by blood .or marriage between the defendant and the intestate, who left surviving him brothers, as his distributees.
    The plaintiff resisted the deed on the ground, that there was a secret trust between the intestate and the defendant, that such slaves should be held in nominal servitude only, and that said deed was void under the Act of 1841, (12 Stat, 154,) and also that the deed was obtained by the fraud and imposition of the defendant; and, therefore, is void.
    I instructed the jury, that if they were satisfied there was such a secret trust, or that the deed was obtained by fraud, they should find for the plaintiff, the legal representative of the intestate, who, in that event, would be entitled to hold them under the Act of 1841, either for distribution among the next of kin, or for payment of debts. These seemed to me to be the important questions presented, and the attention of the jury was called to the evidence, certainly without prejudice to the defendant’s claim. The verdict was for the plaintiff, for the value of the negroes.
    
      Tbe defendant appealed on tbe grounds :
    1. Because, bis Honor, tbe presiding Judge, charged tbe jury, simply, that if tbey were of opinion tbat tbe deed was obtained by fraud or imposition, tbey should find for tbe plaintiff, whereas be should have charged as requested, tbat if tbe deed bad been so obtained, it could not be impeached by tbe administrator in this form of action.
    2. Because, under-tbe Act of Assembly, 1841, tbe present action could not be sustained by tbe administrator in tbe face of a deed made by bis intestate, and tbat bis Honor, therefore, erred in charging tbe jury, simply tbat if tbey were of opinion tbat tbe deed was accompanied by a secret trust, to find for tbe plaintiff.
    8. Because, tbe verdict, in either event, was wholly unsupported by tbe testimony.
    Tbe case was first argued in tbe law Court of Appeals at January Term, 1856, and was ordered to this Court, where it was now beard.
    Simonton, for appellant.
    Tbe deed cannot be impeached by tbe administrator in this form of action. Tbe distinction is between executory and executed contracts. If in this case tbe contract bad been executory, and tbe defendant bad called upon tbe Court to assist him in obtaining possession of tbe property in question, tbe objection to tbe validity of tbe deed would have been a sound one on tbe part even of tbe. administrator. But here tbe contract is executed, tbe defendant is actually in possession of tbe property, and tbe administrator cannot successfully invoke tbe aid of tbe Court to set aside tbe deed upon tbe ground of fraud, bis intestate having participated in tbe illegal transaction. In pari delicto potior 
      
      est conditio defendentis. Broughton vs. Broughton, 4 Eich. 491; Oshorn vs. Moss, 7 Johns. E. 161; Bao. Abr. Fraud. C.; Collins vs. Blantern, 1 Smith. L. C. 165 ; 4 Phil. Ev. 612, n. 804, 615 ; 1 East, 97; Doug. 466; 8 Johns. E. 113; 17 Eng. C. L. E. 244, 1 Bay, 461; 2 Hill, Ch. 613.
    The Act of 1841 does not declare the deed void as between the parties. Wherever a deed is declared void by statute, it is universally understood guoad certain .persons or purposes. A deed void for want of registration, is good between the parties. A deed void for fraud will enable the donee to hold the property as against any one except the person defrauded. The same construction has been given to the Acts of 1795, 5 Stat. 271, respecting gifts to a mistress or bastard children. Ford vs. McFlray, 1 Eich. Eq. 475; Breithaupt vs. Bauskett, 1 Eich. Eq. 467; 2 Strob. Eq. 198 ; 3 Eich, Eq. 99. Under the Act of 1841, the deed is void only as to the distributees or next of kin. As between the parties it is good. If Dangerfield, instead of reserving a life estate, had- given the whole estate to Hannahan, he would have held the slaves in trust for the next of kin of the donor. But so long as Dangerfield lived no one could attack the donee’s title, for the Act gives the slaves to the distributees or next of kin, and nemo est hceres viventis; and besides, it was uncertain who would be the next of kin or distributees. Until his death then, the deed would be valid and binding. Now if Dangerfield could not have maintained trover for the negroes, can his administrator do so ? The action should have been by the distribu-tees or next of kin. Bethel vs. Stanhope, Cro. Eliz.' 811, and Dougherty vs. Dougherty, 2 Strob. Eq. 67, cited and explained.
    
      Porter, Yeadon, contra.
    
      Petigru, in reply.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

Tbe question in tbis case is, wbetber tbe Judge below was right in instructing tbe jury that if they believed there was a secret trust between tbe plaintiff’s intestate, and tbe defendant, that tbe slaves conveyed by tbe intestate’s deed to tbe defendant should be held in nominal servitude, that then tbe deed would be void, under tbe Act of 1841, and they might find for tbe defendant.

Tbe 3d sect, of tbe Act of 1841, 11 Stat. 155, declares “ that any bequest, gift, or conveyance of any slave or slaves accompanied with a trust, or confidence, secret, or expressed, that such slave or slaves shall be held in nominal servitude only, shall be void and of no effect, and every donee, or trustee bolding rrnder such bequest, gift or conveyance, shall he liable to deliver up such slave, or slaves, or held to account for tbe value, for tbe benefit of tbe distributees or next of Mn of tbe person making such bequest, gift or conveyance.” Under tbis clause of tbe Act it is first to be inquired, is tbis deed, (supposing a secret trust to be established) ipso facto void as against tbe donor himself? It appears to me to be clear upon tbe words of tbis statute itself that it is not. Eor although tbe words are void and of no effect” yet it is followed by words, which show that tbe estate is in tbe donee as against tbe donor. For tbe donee is declared “ to be liable to deliver up such slave or slaves, or held to account for tbe value.” These are enough to show, that tbe legal title was to remain in tbe donee, until be was called upon by some one entitled finder tbe Act to make tbe claim for tbe delivery, or an account for tbe value. "Who under tbe Act could make such claim ? Tbe donor! Certainly not, for it is to be for tbe benefit of tbe “ distributees, or next of kin” of tbe donor. Such persons, as occupy these characters, after tbe death of tbe donor can alone make tbis claim. Tbe words void and of no effect” used in our Act of tbe Legislature do not necessarily make tbe deed void, as of course. They are generally used in the sense of may be “ avoided.” Such has been the construction in the various cases arising under our registry laws. Tait vs. Crawford, 1 McC. 265; Mansell vs. Steel, 6 Rich. 437.

The great question, in this case, is whether the plaintiff, the administrator of the donor, can set up the secret trust to defeat the deed of his intestate ?

The words of the Act, as I have quoted and commented on them, clearly show that he is not the person to make the question. I think too there is no clearer proposition in the books than that an administrator cannot dispute the title of his intestate’s donee to personal property in possession, or conveyed by deed. As to the latter (property conveyed by deed) I put it alongside of property in possession. Por a deed by its delivery, carries the property the same as is done by manual tradition and delivery in the case of a gift by words.

On the proposition that an administrator cannot dispute the gift of his intestate” I shall be under no necessity of appealing to authorities out of the State, though I may refer to some cases in the English books to explain positions assumed in the argument. The first of our own cases, to which I refer is Shelton vs. Crosby, decided in Columbia, not reported, (but which will be I hope with this case). In Chappell vs. Brown, 1 Bailey, 531, Judge Evans states the ruling of Judge Johnson who delivered the opinion of the Court to be as follows: If it be true, that the intestate was in debt, and insolvent, and that a voluntary gift is void as a fraud on creditors, there is no doubt, that as creditors, they would be entitled to relief, but the plaintiff sued as adminis-tratrix, and in that character represents the person of her intestate, and is estopped to say he had committed a fraud.”

In Chappell vs. Brown, the defendant an administrator had been charged with the value of property found in the posses: sion of the intestate at his death, and which the defendant bad delivered to donees, on tbe allegation of gifts. This Court held the administrator was improperly charged. Judge Evans, delivering the opinion, said, “ If they” (the donees) “ did derive their title in this way” (as a voluntary gift,) “ and Love (the intestate) did give them the negro and horse, then I take it to be very clear, that these gifts though void as to creditors could not be disputed by Love’s administrator.”

In Anderson vs. Belcher, 1 Hill, 249, a, it was ruled, that an administrator could not dispute the voluntary conveyance of his intestate, in a ease where the rights of creditors were attempted to be enforced by seizing the property, under an execution against the administrator for the debt of the intes-, tate. The same doctrine was repeated in the same case subsequently tried but antecedently reported.. 1 Hill, 246.

These cases very clearly and fully show, that the administrator cannot make the allegation, which renders his intestate’s deed void. He is legally regarded, as his intestate, and it never has been allowed, when parties are in pari delicto that one should claim the aid of the Court to divest the possession, or legal estate of the others.

In Hawes vs. Leader, Cro. Jac. 271, it was held that an administrator cannot avoid his intestate’s gift on the ground that he was in debt. In Bethel vs. Stanhope, Cro. Elizabeth, 810, it had been previously held that a voluntary donee might be charged by a creditor as an executor de son tort, and in Tucker vs. Williams, Dud. 329, this ruling was carried out, and a voluntary donee was charged as an executrix de son tort with the debt of the deceased donor. But these principles cannot help the plaintiff, as was supposed in the argument The defendant can only be so charged by the creditors of the deceased, if he had any. The plaintiff is undertaking to dispute the defendant’s title by showing that his intestate and the defendant combined together to do that which the law forbade. He is estopped in pais by his character from making that allegation.

Tbe case of Collins vs. Blantern, 2 Wilson, 341, was much, relied upon by tbe plaintiff: tbat was an action, on a bond given to compound a prosecution for perjury. It was beld tbe action could not be sustained, inasmuch as tbe consideration was illegal and the bond therefore void. There is no doubt, tbat decision was right, but it cannot help tbe plaintiff, for there tbe aid of tbe Court was asked to enforce tbe illegal instrument. Here the, defendant is in possession, and tbe attempt is by tbe representative of bis particeps, to deprive him of bis possession: tbe aid of tbe Court is not sought to enforce tbe deed, but to set it aside. This tbe plaintiff cannot claim.

It was supposed, tbat because a deed conveying goods won at gaming was void, and tbat tbe loser might recover them back, or their value if over ten pounds, tbat by analogy, it ought to be beld tbat a deed conveying slaves, which by tbe Act of 1841, is also declared void, would not estop either tbe donor or bis administrator in recovering them back. Tbe Stat. of 9 Anne by its second section (2 Stat. 566,) gives to tbe loser, if be sues within three months, 4he right to sue and recover. There is no such provision, in tbe Act of 1841, and that distinguishes tbe case in band from tbat under tbe Statute of Anne.

Tbe case of Hockaday ads. Willis, 1 Speer, 379, affirms that tbe title of tbe winner after three months is good against tbe loser, showing that tbe statute alone enabled tbe loser to recover, and not tbe provision tbat tbe deed is declared to be void.

After this review of authorities I think it may be affirmed, tbat it is without precedent to sustain tbe attempt now made by an administrator to dispute tbe gift of bis intestate. Tbe law is indeed uniformly laid down by tbe authorities to be, that he cannot dispute a gift made by his intestate. The Act of 1841 by tbe words used in the third section, plainly show tbat none save the distributees or next of kinn were intended to divest tbe legal estate, which the conveyance of the donor conferred upon the donee under a secret trust, that “the slaves shall be held in nominal servitude only.”

It hence follows, as the administrator, the plaintiff, cannot set up the secret trust to defeat his donor’s deed, that the instruction below was wrong in that respect.

The motion for a new trial is granted.

JohNStoN, Dunkin and Wabdlaw, CO., and Withees, J., concurred.

Munbo J., had been counsel for the defendant, and did not hear the cause.

Motion granted.  