
    A. Jackson and others vs. John and Andrew Inabinit.
    Heard before Chancellor Desatjssuke, Walterborough, January,-Í835.
    In this case an objection was taken to the want of parties, which forms a preliminary question. It was insisted that Mrs. Inabinit, the' widow and administratrix of Christian Inabinit, deceased, ought to be made a party defendant. It seems to me, after a careful examination of the bill and answer, and the deed in question,-that it is proper that she should be made a party to the suit. She is the legal representative of the estate of Christian Inabinit, and it was at her instance, that the slaves now claimed by the complainants, under the deed set forth in the bill of complaint, were sold as part of that estate : and any decree against the persons named in the said deed, as trustees, may affect her, ultimately. And it appears to me, also, that John Boss, and the other purchasers of the slaves in question, are also so much interested, that they ought to be made parties. For though they might not be bound by a decree in this case, to which they are not made parties, a decree for the| complainants, establishing their right to the slaves, might seriously affect their interests. It is therefore, ordered, that the said widow and administratrix of Christian Inabinit, and John Ross, and other purchasers of the slaves in question, be made parties to the suit. It might be sufficient to stop here. Rut as the parties before the court, went fully into their case,- and produced their evidence, and argued their cause fully, with a view, I presume, to ascertain the opinion of the court, and thereby, if satisfactory, to save the delay and expense of further litigation, I have no objection to deliver the judgment I have formed, if it may contribute to those good purposes.
    The bill and answer state the case. The former states the claim of the complainants to the slaves in question, to be founded on a deed alleged to have been executed by the late Baltus Inabinit, the father of the female complainants, and of the late Christian Inabinit, and of the defendant, John Inabinit. A copy of that deed was offered in evidence, on the allegation, that the original was not to be found ; and evidence having been given, that search had been made for the original, without success, it was received. The deed purported to be an instrument, under seal, executed by Baltus Inabinit, on the 2d of December, 1822, in the presence of Mr. Harley, George Clayton, and Abraham Gilbert, who subscribed their names thereto. On the back of the certified copy of the said deed, there is a probate thereof, by George Clayton, made before Robert May, as Justice of the Quorum, on the 10th November, 1823. And the instrument is certified to have been recorded on the 8th of February, 1827. The complainants insist, that under this deed, and on the events which have happened, to wit, the death of Christian Inabinit, the grantee, without leaving issue, they are entitled to the property. And the present bill seeks to recover from the defendants, John Inabinit and Andrew Ina-binit, who were named trustees therein, such of the slaves as they have obtained possession of, and to account for the remainder, wh© were lost, as is alleged, by the conduct and neglect of the trustees. A question was made as to the due execution of the deed. George Clayton, one of the subscribing witnesses, was called by the complainants, and testified, that he believed the copy produced was a true copy of the original, though he had no distinct recollection thereof. He also testified, that he had proved the execution thereof, before Mr. May, (Q. IT.,) as certified on the said copy ; which stated that he saw the said Baltus Inabinit, sign, seal, and deliver, the instrument in writing, for the uses and purposes therein mentioned. On the cross-examination, he testified, that he did not, in fact, see the deed delivered, for John and Andrew Inabinit were not present, and the donor, Baltus Inabinit, took the deed away. In was objected for the complainants, that it was inadmissible for the witness to be examined as to the deli, very, as he had previously sworn to that fact, when he proved the execution of the instrument, on 10th November, ¡823; it being stated in the probate, “that he saw the deed signed, sealed, and delivered.” 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 inabinit 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 wi( nesses 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 bv the statute. Besides, the proof is clear, that John Inabinit was not present, and it was not alleged that Andrew Inabinit 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 Inabinit 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 Inabinit 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 Inabinit; 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, shewing an acceptance of the trust. 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.
    But as the counsel argued the cause, on all the grounds of the merits, to elicit the judgment of the court, I have no objection, as I have carefully examined the evidence and the arguments, to express my opinion upon it. On examination of the deed itself, which must be read as a whole, it will be found to be profoundly obscure ; more obscure than perhaps the subtlety of learning, designing to conceal a meaning, and not express it, could have contrived it. It is very difficult, if not impossible, to discern any clear intent; and then it was a gift of the property to Christian Inabinit, with incomprehensible limitations, and provisions, which are void for uncertainty, and he held the property clear of these limitations. But if we can discern any thing like an intelligible meaning on the face of the instrument, it is, that there is a gift for love and affection, to a son, of the use, and the profits of the labor of certain slaves, (which in personal es. tates, is usually a gift of the absolute estate, unless qualified ;) and incase of his death, to his lawful children; “and in case of his death, without issue, then to the heirs of the bodies, to his brothers and sisters, and the heirs of their bodies.” It is by transferring words, and parts of sentences, that this sense can be made out; and if that be a right collocation, then it is a limitation on the indefinite failure ef issue, aud therefore void ; and the estate vested in Christian Inabinit, and was liable to his creditors.
    The evidence in the case proves that Christian Inabinit had a child born alive, which died immediately. It breathed, and the physician proved that was evidence of life. It appears further, by the evidence, that Baltus Inabinit 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 Inabinit 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 Inabinit, the brothers and sisters set up a claim, andera 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 complainants 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 cornplainants, that the deed was so obscure, that no intelligible meaning .could be made out of it; and that in his opinion the complainants 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 complainants 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 complainants gave up their claim. They abandoned their intention to pursue it; and the creditors were informed of this resolution. Whereupon, they to.ok no steps to get the judgment of a court. In .consequence of this-abandonment, the creditors of Christian Inabnit .acted upon .t.heir liens, and the slaves in question .were sold publicly, and in the presence of almost all the complainants, 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 .valuable 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 complainants cannot have relief, and their bill should be dismissed. I ought .to have noticed, that Mr. B. Smith was offered as a witness, to prove certain facts, or declarations, which were stated to have taken place between the defendant, Mr. John Inabnit, and himself. But I did not feel at liberty to receive the evidence; for, notwithstanding the highest confidence in the .character and veracity of that gentlemen, I could not violate the rule of law, that a counsel is not .at liberty to disclose any facts, or declarations, which come to his knowledge, in his character of counsel of the party. It is the privilege, not of the counsel, but of the client, and is sacred. The violation of it would he most mischievous, as it would weaken that absolute confidence which ought to subsist between the client and his counsel. It is in vain to say that the connexion has ceased. In relation to the facts obtained in confidence, the connexion, and its obligation, cannot cease. And the attempt in this case shews, that danger to the interests of the client would exist, if the rule should be relaxed.
    HENRY W. DESAUSSURE.
    DEED.
    
      State of South- Carolina, Colleton District. Know all men by these presents, That I, Baltus Inabnit, Senior, of Four Holes, St. George’s Parish, planter, being thereunto moved by parental affection, do give the use of the following named negroes, viz: — Old Sue, and some of her children and grand children, Dinah, Susan, Mary, Hee, ttor, Betsey, and a fellow named Dick, to my son, Christain Inabnit, the whole profit arising from the said negroes; and in case of said Christian Inabnit’s death, I finally give unto his lawful begotten children, the aforesaid negroes, with all their future issue and increase; and the aforesaid .shall be understood, and be deemed, as a part of a gift unto the survivors, brothers and sisters, or the heirs of their body, lawfully begotten, to have and to hold, them and their increase, to 'their only proper use and behoof, against all claims whatsoever; and I do, from henceforward, and hereby exclude myself, and all my other heirs, in favor of my said son, Christian Inabnit, his heirs, lawfully .begotten, .and in right of either brother or sister, in case of his death, without issue, and then to the heirs of their body, from any claim, or right, or interest, in the aforesaid slaves. And, for the more effectual execution thereof, I do appoint my son, John Inabnit, and my nephew, Andrew Inabnit, as trustees to' the aforesaid deed.
    In testimony whereof, I have hereunto set my hand seal, this second of December, in the year of our Lord one thousand eight hundred and twenty-two, and in the forty-sixth year oí the Independence of the United States of America.
    BALTUS INABNIT, Sen. [i. s.]
    Signed, sealed, and delivered, in presence of William Harley, .George Clayton, Abraham Gilbert.
    
      Grounds of Appeal.'
    
    -I. Because his Honor refused to receive the testimony of the wit. ness, R. Barnwell Smith, shewing the fact of a written contract being made with him by the defendant, John Inabnit, as trustee of the deed in question, to sue James L. Ross for the slave Dinah, and her children, several months before he had purchased the said slaves from Ross. Thereby shewing that he not only knew of the deed at the time .qf his .purchase, but had acted under its trusts.
    2. Because his Honor declared that the deed was void for want of delivery; whereas the deed being recorded, it must be presumed to have been recorded either by the grantor or grantee, and in either •vent the delivery was complete.
    S.Because it being proved that the deed was found amongst the papers of the testator, Baltus Inabnit, after his decease, delivery was not necessary, and the deed is good, as a voluntary deed.
    4. Because his Honor decreed that the limitations over in the deed in favor of complainants, were too remote, and therefore void.
    5. ■ Because his Honor decreed that Christian Inabnit was put into possession of the slaves in question, before the deed was executed; whereas, this was proved only with respect to one of them.
    6. Because his Honor decreed that the plaintiffs, by waiving the prosecution of their claim, had lost their right to enforce them, and therefore, were barred of their recovery.
    7. Because his Honor decreed in other respects contrary to law .and evidence.
    R. B. & E. SMITH, Complainants Solicitors.
    
   Mr. Justice Buti/ek

delivered the opinion of the court.

The chancellor who pronounced the circuit decree, being in full possession of the whole ease-, has decided all the questions fairly involved in it. His decision leads to the conclusion that complainants bill should be dismissed, and we eoncur in this conclusion. Whilst it was proper for him to decide on all the grounds tafeen 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 j — •

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

And 2d. The parties who were interested in claiming under the deed, after Christian’s death, haying 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 Inabinit, on the faith of them.

As it regards the first ground, it is perhaps sufficient to say, that the chancellor who heard the testimony was more capable of judging of its force and sufficiency, than we can be, whe 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 witness that was examined, that the deed .was not delivered in fiact, at the time it purports to have been executed. Baltus Inabinit kept it in his possession — in his exclusive possession —during his life-time. 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 acknowledged its existence in the life-time of his father. But such a conclusion does not seem to be authorized. At least, th@ judge below did not think so. He says, “ It appears further by the evidence, that Baltus Inabinit 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 those 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 after-wards, 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 1 before ob. served, 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 debts of Christian Inabinit, 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 its provisions and legal requisites. But the deed is exceedingly obscure, and of doubtful import. So much so, that it would be diffi. cult for any court to pronounce a satisfactory judgment on its legal construction. The complainants 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, by agreement with the representatives of creditors, to investigate the question presented. The complainants were informed that their claim could not be sustained. This was not the hasty conclusion of inexperienced advisers. The complainants, 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 1 To do so, would be to sanction, if not an intentional, a practical fraud on the purchasers. By the conduct and consent of the complainants, 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 complainants must fail in their application for redress.

Whether Mr. Smith’s 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 complainant’s motion be refused, and that their bill be dismissed, with costs.

A. P. BUTLER.

Smith, Attorney General, for the motion.

Memminger, contra.

Filed 20th May, 1836.

We concur,

B. J. EARLE.

WM. HARPER,

J. S. RICHARDSON,

JNQ. B. O’NEALL,

JOSIAH J. EVANS,

J. JOHNSTON.  