
    A. D. Jones and T. Briggs v. J. H. Blake and E. H. Blake, his Wife, and Others.
    What will be sufficient evidence of delivery to constitute a gift. [*632]
    A former decree against one as administrator on a bill to compel delivery of slaves claimed under a gift from intestate, will not conclude his rights as creditor, on a bill by him against the former plaintiffs to set aside the conveyance for fraud. [*635]
    The decision in Smith vs. Henry, (1 Hill, 10,) that a debtor in giving a preference by conveyance of his property, to one creditor over another, shall not secure an advantage to himself at the expense of creditors as the price of such preference, means a certain direct benefit or advantage to be derived from the use of the property. And therefore, where a debtor transferred slaves to his daughter in satisfaction of a precedent debt and retained possession of them under an agreement to pay hire, the conveyance was held to be valid, and was sustained against the other creditors. [*636]
    Before Chancellor Johnston, Fail-field, July, 1835.
    In, or before 1829, the defendants, J. H. Blake and wife, filed their bill against the plaintiff, A. D. Jones, as administrator, and the heirs at law of James Goodwyn. The object of that bill, and the case then made, will be understood from the following extract from the decree of Chancellor Harper, before whom it was heard in July, 1829 :—
    
      “ The principal object of the bill is to compel the delivery of certain, slaves mentioned in it, and to have an account of their hire. These slaves are charged to have been legally transferred and delivered to the plaintiffs, by the defendant’s intestate, Major James Goodwyn, who was the father ©f the plaintiff,'Mrs. Blake, in the latter end of the year 1824. The charge is, that the slaves were delivered in satisfaction of a precedent debt, which was due by the intestate to his' daughter, for a part of her deceased mother’s estate, which consisted of a chose in action, not reduced into possession *by the intestate, during the life of his wife. The r*/.™ intestate had administered on the estate of his deceased wife, and L ’ ” was guardian of his said daughter. — Or, if the transfer of the property ' should not be established, the bill seeks to cover this demand, which is claimed to be ranked as a bond debt.
    “ The principal points made in this- case were, whether there was any actual delivery of the slaves, so as to transfer the legal title; whether, if there was evidence of this, it was a gift, voluntary, or for a valuable consideration, in satisfaction of a previous debt; and in fact, whether any such debt existed ; whether that which is supposed a chose in action, was not property in possession on which the intestate’s marital rights had attached.
    “ It may be observed here, that much of the evidence and of the argument seemed to be directed to this point — Whether, if there be sufficient ' evidence of the gift or transfer, as against the intestate himself, or those claiming under him as volunteers, it .may not still be fraudulent and void as to creditors. The- question seems to me hardly to be sufficiently made by the pleadings; though the defendant, Abraham D. Jones, in his answer, prays that if the gift or transfer is established, it may be subject to the claims of creditors. If a gift or conveyance be made by a person indebted at the time, it will, from the mere fact of its being voluntary, be held fraudulent as to existing creditors, who are unable to obtain satisfaction of their demands. Now, there is no distinct allegation that the debts now existing against the estate of Major Groodwyn, were due at the time of the alleged transfer, or that the estate will not be sufficient to pay all debts, independent of the property claimed by plaintiffs. From the amount of the debts, I suppose I may take for granted, however, that a considerable portion of them existed at the time of the transfer; and if I should suppose the transfer voluntary, but good against the intestate and his personal representative, such decree might be made as is suggested— that it should be confirmed, subject to the claims of creditors. I therefore regard the point of the transfer’s being voluntary or founded on consideration, to -be before me, so far as regards the parties to this suit; it is unnecessary to say that creditors, not parties to the suit, will not be' bound by the decree. But a voluntary conveyance may be fraudulent against creditors whose debts were contracted after its execution, although it be founded on a valuable consideration. The difference is, that in such instances there must be *proof or circumstances to establish the actual fraudulent intention. No charge of fraud of this sort is >- made in the pleadings, nor was the testimony offered which would be necessary to enable the Court to decide on such charge. I do not therefore consider the point in issue.
    “ I shall first consider whether there was a sufficient delivery of the slaves claimed, to transfer the legal title. The defendant, Abraham D. Jones, in his answer, admits his intestate to have expressed his intention to give the plaintiffs ten negroes; but states that no particular slaves were specified, and supposes the intention was never carried into effect by an actual gift or delivery. Similar declarations of a future intention are testified by the witnesses. The only evidence we have of the transfer’s having been actually made and of the slaves'included in it, are the declarations of the intestate, testified by Mrs. Howell and Col. Chappell. The former, after mentioning that she had frequently heard Major Goodwyn, before marriage of the plaintiffs, express his intention to give his daughter, the plaintiff, the negroes, Aggy and her family, and Betty and her family, whom he had got by her mother, stated that after the marriage, she had heard him say he had given them ; that the plaintiff Blake, said, he could not then take them; he could only hire or sell them: that Major Goodwyn stated himself to have replied, “ when you get a plantation I will send them to you ; in the meantime, I may as well pay you hire as any one else —the hire was to be settled by the Messrs. Jones. Major Goodwyn said, every one of his family knew the negroes that were Eliza’s. Col. Chappell testified to repeated conversations with the intestate, in which he expressed his intention to give to his daughter the negroes he had obtained with her mother; that, in contemplation of plaintiff’s marriage, he declared his intention to give them the negroes, among whom the witness thinks he enumerated the women Aggy and Betty : After the marriage, witness understood from Major Goodwyn that he had given the negroes, in pursuance of his promise; witness thinks he recollects him to have said, that he told them “there they are, take them !” — Witness’s clear impression was that he had given : Major Goodwyn enumerated all the individual negroes he had given : The witness recollects but a few of the names from the conversation, but had learned them since : the women Aggy and Betty, their husbands and children, and Martha, were the negroes specified. The witness was struck with *cqo-i the circumstance *that more than ten negroes were enumerated— á -I the number Major Goodwyn had promised to give. Major Goodwin related the conversation he had had with the plaintiff Blake : said he had agreed to pay him hire, to be fixed by the Joneses. Witness is as certain as of any thing that ever happened, that Major Goodwyn distinctly said he had agreed to pay hire for the negroes enumerated.
    “ The question is, whether this testimony is sufficient to establish a delivery. It appears to me so. A delivery is to be proved in the same way as any other fact. It seems to me that the deliberate admissions of the donor, that he has delivered, are about as satisfactory as his calling witnesses to the transaction at the time. As is said in repeated adjudications, Brashears v. Blasinghame, 1 N. & M’C., 224; Reid v. Colcock, lb. 603, when a party says he has given, he may be fairly presumed to have known what is necessary to a gift, and to have observed the requisite ceremonies. What shall consitute a delivery, has not perhaps been very accurately defined. In Davis v. Davis, reported in a note to Brashears and Blashinghame, the idea is, that any act will do which is significant of the donor’s intention that the transfer shall take effect at the time. The same thing is to be found in other authorities. In Reid v. Colcock, and Fowler v. Stuart, 1 M’C. 504, that seems to be regarded as a sufficient delivery which would authorize the donee to take possession, without committing a trespass. Now, when Major Goodwyn said, with reference to these slaves, “There they are, take them,” the plaintiff could not have committed a trespass by taking possession of them, whether they were present or not. The words seem to indicate, however, that they were present; and then it would constitute a delivery in the strictest sense of the law, even applied to the livery of land. Blackstone says, “livery in law is when the same is not made on the land, but in sight of it only ; the feoffor saying- to the feoffee, “ I give you yonder land, enter and take possession.”
    “ As observed in the case of Reid v. Colcock, parol gifts are regarded with jealousy by the Courts, and only established on the most satisfactory proof; because it frequently happens that men make loose or playful declarations of having given, or intending to give, property to their children. I perceive nothing of this character in the declarations now in evidence. Major Goodwyn’s conversations with both the witnesses seem to have been circumstantial *and detailed ; particularly that with Col. Chappell, with whom he had so repeatedly conversed on the L subject of making such a provision for his daughter. It seems to me that he went designedly into the detail for the purpose of making him a witness of a transaction which had happened to pass without the presence of a witness. There would be more reason to suspect such declarations, if the’gift were made to one for whom the donor was under no obligation to provide, or if it appeared to be a sudden act, and not in pursuance of any previously expressed intention. But it appears he had a deliberate purpose for years to make some such provision; — the defendant admits that he expressed such intention ; he was under a natural obligation, and according to the testimony of Col. John Taylor as well as of Col. Chappell, under the obligation of his honor and promise to do so. It is true, the provision was somewhat larger than he had expressed his intention to make; but if it were necessary to account for that, it might be done perhaps by the circumstance that the negroes, Aggy and Betty, with Martha, were those specifically that he intended to give, and in giving them, it would have been necessary to separate the families unless he had given them entire. That the plaintiffs did not take possession of the slaves, is sufficiently accounted for. That they were left in the intestate’s possession, might he a material circumstance, if we were considering the claims of creditors ; hut, so accounted for, is not material as between the parties themselves. If the testator were in debt to his daughter, that would be a circumstance to corroborate the testimony respecting his declarations of having made satisfaction; but he certainly believed and acknowledged himself to be so. The agreement to pay hire is a strong evidence of the transfer. This agreement is admitted by the defendant; but he supposes it to have related'to future hire, after the contemplated gift should have been completed. Col. Chappell, as I understand him, is positive that it related to the hire then accruing. This seems to me the more probable. It is unlikely that for two consecutive years he should be making arrangements to have the hire valued for the purpose of ascertaining- what he should pay after some future period, when the value of the hire might be altered. If he had actually paid hire, this would be conclusive evidence of the transfer.”
    His Honor then went into evidence of the consideration, which he held was sufficient to show that the transfer was made for a ^valuable consideration; and then decreed, that the defendants should de- L liver up the slaves to the plaintiffs, and account for hire.
    The present bill was filed by the plaintiffs to establish their claims as creditors of Goodwyn, alleging that his estate would be insolvent and their demands unpaid, unless the slaves decreed to Mrs. Blake were subjected to their payment; and charging that no deed or bill of sale was made, and as the alleged transfer was not accompanied by actual possession, that the transaction was fraudulent and void as to creditors — and prays that the slaves may be charged with the payment of their demands.
    The defendants, Blake and wife, in their answer, set up by way of defence, that the decree in Blake v. Jones had established their right to the slaves, not as a gift, but a sale for value in payment of a preceding debt, which could not be affected by Goodwyn’s debts.
    The plaintiffs’ demands were established before the Commissioner. Exceptions were taken to his report; and the statute of limitations pleaded to Briggs’ claims.
    Johnston, Chancellor. In the case of Blake v. Jones, Chancellor Harper considered Mr. Jones before the Court as a creditor. He weighed the transfer of the slaves to Mrs. Blake against Jones’ claims as creditor, and decided that the transfer was valid.
    Although I do not see how this decision can be reconciled with Smith v. Henry, (1 Hill, 16,) I am bound by it. If the Appeal Court should think fit to re-consider their opinion affirming Chancellor Harper’s decree, they can, upon the authority of Price v. Nesbit (1 Hill Ch. 445), do so. But this Court possesses no appellate power. As the Chancellor, whose decree has been affirmed, decided against Jones as a creditor holding demands which existed at the time the slaves were transferred to Mrs. Blake, the same principle, the evidence being the same, must support the transfer against Briggs. This obvious view of the case renders it entirely unnecessary to consider the report and exceptions.
    From this decree the plaintiffs appealed on the grounds :
    1. That the gift or sale of the slaves to Mrs. Blake is void as to creditors.
    *6351 That ^ie ^ecree v■ Jones did not conclude the rights *of the plaintiff, Jones, as a creditor ; and did not and could not affect Briggs, who was not a party to the case.
    
      Peareson and W. F. De Saussure, for the appellants.
    
      Chappell and Gregg, contra.
   Harper, Chancellor.

It appears to me that the decree delivered by myself in the case of the present defendants against the present plaintiff, is sufficiently explicit in stating that the claim of Mr. Jones, in his character of creditor, was not considered. And it is manifest that it could not be then considered. The bill was against Jones as administrator, for the purpose of establishing the gift or transfer of the slaves by his intestate to the then plaintiffs. This was the case he was called upon to meet. But being a creditor of the estate, he had a right, if the estate were insolvent, to say that though such transfer were made, it must be regarded as fraudulent against creditors. This defence might perhaps have been made by the answer, or might have been the subject of a cross bill. But the defence was not made by the answer nor the evidence, although intimations were thrown out that the interests, of creditors might be affected by the determination. This, however, was not enough. To invalidate a conveyance, the party must allege and prove it to be fraudulent. To do this, it was necessary to show, not only that debts existed at the time of the transfer, .but that, apart from the property transferred, the estate was insolvent. This showing must have been preliminary to any relief to be afforded by the Court. The Court could not volunteer to direct an inquiry into the concerns of an estate, for the purpose of establishing a charge of fraud, upon a surmise that it might turn out insolvent. Plainly it was impracticable for the present plaintiff, Jones, to make out that case at that time. The lands of the estate were unsold and their value unknown, and there were important and litigated concerns of the estate to be settled. Could the Court have retained the bill for an indefinite length of time, in order to afford a party the chance of making out a charge, which, if he had alleged it, he ought to have been prepared to prove at the hearing ? I have little doubt but that the determination, that the transfer was founded on valuable consideration, was regarded at the time as a determination in effect on the rights of Jones as creditor. Before the case of Smith v. Henry, (1 Hill, 16,) an opinion seemed to have ♦obtained, that to show a conveyance to be valid as against creditors, it was enough to prove that it was founded upon valuable *- ° consideration. And it may be that the decision in that case has suggested the present proceeding.

The case being properly before us then, we are first to inquire whether it comes within the principle of the case of Smith v. Henry. It appears to me that it does not. The principle of that decision, as it is expressed in very terms, is, that the law allows a debtor to give a preference to one creditor over another, “ but it will not allow him to secure an advantage to himself, at the expense of .creditors, as the price of such preference. ” An advantage to himself,” in law, of which the function is to adjust the rights of property, must mean an advantage in relation to property, profit or pecuniary advantage. It could not mean, for instance, the gratification of taste or vanity. It was suggested that an advantage might be obtained by quieting other creditors, in consequence of the appearance of property in the donor. This is a sort of speculative and uncertain advantage which it is difficult to estimate, and perhaps it would be impracticable in a majority of cases for Courts to determine whether a donor had secured such an advantage or not. Still I think the consideration is entitled to its weight in considering the question of actual fraud or fairness upon all the circumstances of the case. But whatever weight it might be thus entitled to, it does not come within the principle of Smith and Henry, which speaks in the most explicit manner of the certain, direct benefit or pecuniary advantage to be derived from the use of the property. I believe there is scarcely a sentence of the opinion, in relation to the matter, which does not illustrate this. “ If a party, indebted to several, goes to one of his creditors and says, ‘ my whole property is not more than sufficient to pay you ; I will give you the preference, however, and assign to you, provided you will allow me to have the use of it for a stipulated length of time, or until I work out the debt,’ — this is fraud in both.” The use spoken of is of course for the donor’s own benefit. “The debtor gains what he is not entitled to at the expense of creditors, and enjoys the property independently of them.” The creditor “gives a bribe for the preference.” A bribe means, in law, a pecuniary benefit. The expression — “use and enjoy the property as his own” — is frequently repeated. So in the quotations from Twine’s case and Sheppard’s Touchstone. In short, I cannot think that there is any ambiguity in the decision,

*In this case, the proof is distinct and certain that the donor ' bá ‘ J was to pay hire for the slaves. Can I say that his retaining possession under this stipulation was the securing of a benefit to himself ? I do not see how. In general, a party who hires slaves may be supposed to do so for his own convenience. But if the price be full and fair, the law must regard the transaction as an exchange of equivalents. I do not suppose that it would be generally advantageous to cultivate a man’s plantation by hired slaves. In this ease, the hire was to be fair, for it was to be valued by indifferent persons. And it appears from the testimony of Mrs. Howell in the former cause, that Major Goodwyn consented to hire the slaves, not for his own convenience, but for that 'of the donee, Mr. Blake, who had no land.

I am- well aware that this construction may occasion attempts to evade the rule as laid down in the case of Smith v. Henry. But it must be the business of the Court to guard against evasions. If the stipulation for hire were kept secret between the parties themselves — if the hire were very inadequate — if it remained for a long time not paid or demanded — , all these would be circumstances to show the stipulation to be colorable or evasive. I should say that when the grantor retains possession after the sale, the presumption of law is that he does so for his own benefit, and that the burden is on him to show by the most satisfactory proof that he obtained no advantage from it. This has been done in the present case by the testimony of Mrs. Howell and of Col. Chappell — and indeed in some degree by that of the present plaintiff, who admits that he knew that a transfer of the slaves was intended, and ■ that he and his father were to value the hire — on which the claim for hire was established and decreed against the estate of Major Goodwyn, when the present question was not under consideration.

Though not within the rule of Smith v. Henry, and though there was a valuable consideration, still the transaction might be fraudulent if there were proof of an actual fraudulent intention. But the proof is otherwise. The consideration was not greatly inadequate, — though it is said the Court will not look nicely into considerations. The donor then possessed a very considerable estate, and there is nothing to show that he had the slightest reason for believing himself to be approaching insolvency. The plaintiff did not certainly know the estate to be insolvent at the hearing of the former cause. He did what he.had long intended, and *6381 *what the plaintiff admits that he knew him to have intended, and J what he was under the strongest obligations of honor and conscience to do. Indeed I do not understand the charge of an actual fraudulent intention to be urged on the part of the plaintiffs. The decree dismissing the bill must therefore be affirmed.

Chancellors Dr Saussurr and Johnson, concurred.

Chancellor Johnston. I concur in the result.  