
    Collins v. Lofftus & Co.
    January, 1839,
    Richmond.
    34 Am. Dec. 719.
    (Absent Parker. J.)
    Chancery Practice — Parties—Cestui Que Trust. — In general, a cestui que trust is not bound by a decree rendered against his trustees, in a chancery suit to which the cestui que trust was no parti’.
    Parol Gift — Evidence.—The evidence to sustain an alleged parol gift by a father to his daughter on her marriage, should be clear and cogent.
    Loan — Slaves—Evidence.—What evidence is insufficient to prove a loan of slaves.
    Same — Same—Resumption of Possession. — What is a sufficient resumption of possession of slaves loaned.
    Same — Statute of Frauds — Resumption of Possession-Recordation. — According to the settled construction of the clause in the statute of frauds, concerning loans, a resumption of possession by the lender, or the recording a deed or will granting away the property to another within the five years, avoids the operation of the statute and puts an end to the loan.
    Moses Hughes senior, late of Nelson county, died in the year 1824, having first made and published his last *will and testament, in which (inter alia) he devised and bequeathed as follows :
    “ I give, devise and bequeath to my two sons Moses and James Hughes, in trust for the use and support of my daughter Polly Collins (the wife of Samuel Collins) and her children, during the natural life of my said daughter Polly, but not to be subject to the debts or the control of the said Samuel Collins,.the following property, to wit, the tract ■ of land on which the said Samuel Collins now lives, containing 60 acres, be the same more or less, together with all my interest in the lands allotted to the widow of William Fitzpatrick deceased as dower land, my interest being six eighths of said land ; also the following negro slaves, to wit, Charles, Dick, Sam, Dicey and her six children, viz. Albert, Newman, Christopher, Clary, Tabby and Rachel, — Dinah and her two children Joseph and Rdy, together with the future increase of said female slaves; also my stock of horses, cattle, sheep, hogs, plantation utensils, household and kitchen furniture, and crop of every description, that shall be upon the said plantation so devised as aforesaid in trust, at my death, except so much of the crop as shall be sufficient to pay the one half of my debts that I may be owing at my death. After the death of my said daughter Polly it is my will and desire that all the property left for the use and benefit of my said daughter and children, shall be equally divided among her children and their legal representatives, share and share alike. It is my will and desire that my son in law Samuel Collins have a support out of the property left in trust as aforesaid, during his natural life.” Moses Hughes and James Hughes were appointed the executors of the will; which was proved and recorded in Nelson county court in June 1824. Both the executors qualified.
    Samuel Collins, the son in law of the testator, between the years 1819 and 1824, contracted a debt with the firm '*'of Lofftus & Co. of 423 dollars and 4 cents ; for which Lofftus & Co. brought an action against him in Nelson county court, and in May 182S recovered a judgment for the amount of the debt, with interest and costs. Being arrested under a ca. sa. sued out by the plaintiffs upon the judgment, Collins, on the 26th of August 1825, subscribed and delivered in a, schedule of his property (to wit, one riñe gun and one table) and took the oath of an insolvent debtor.
    In 1826, Lofftus & Co. filed their bill in the superior court of chancery holden at Lynch-burg, against Samuel Collins and Moses and James Hughes, in their own right and as executors of Moses Hughes deceased, impeaching a conveyance that Collins had made of certain property to Moses and James Hughes on the 13th of August 1824, as fraudulent and void; and charging also, that the slaves bequeathed as aforesaid by Moses Hughes the testator, in trust for mrs. Collins and her children, were liable to the debts of Samuel Collins, because those slaves had been in the quiet and uninterrupted possession ot the said Samuel Collins for more than seven years before the testator’s death. Neither mrs. Collins nor her children were made parties to this suit. In May 1830, a decree was rendered therein, by which the conveyance aforesaid, and so much of the testator’s will as bequeathed the slaves Sam, Charles, and Dicey and her increase, in trust for mrs. Collins and her children, were declared fraudulent and void as to the plaintiffs, and accordingly set aside, and the defendants ordered to deliver the property comprised in the conveyance, and the slaves Sam, Charles, and Dicey and her increase, to the marshal of the court, who was directed to advertise and sell the same, or so much thereof as should be sufficient to defray the expenses of sale, and satisfy the principal money, interest and costs due to the plaintiffs. The marshal was further required to deposit the proceeds of sale in bank to the credit of the cause, and ^report his proceedings to the court in order to a final decree.
    Whereupon, in July 1830, mrs. Collins, by John Hughes her next friend, exhibited her bill in the same superior court of chancery against Lofftus & Co. Samuel Collins, and Moses and James Hughes, executors of Moses Hughes deceased, setting forth the above mentioned provisions of her father’s will, insisting on her rights under the same, and that, as the controversy respecting the slaves thereby bequeathed had been carried on in a chancery suit against her trustees, to which she was not a party, she was consequently not bound by the proceedings and decree in that suit; in which she further alleged that her interest had not been properly defended by the trustees. She charged, that Samuel Collins her husband never had any title whatever to the said slaves, nor any control or possession of them during her father’s lifetime except as manager for him of the plantation on which the complainant, with her said husband and their children, resided. Wherefore she prayed an injunction to restrain Lofftus & Co. from proceeding to execute the decree aforesaid, so far as the same directed a sale of the slaves bequeathed for her benefit; and general relief.
    The injunction, having been refused by the chancellor, was awarded by a judge of the court of appeals.
    The answer of Lofftus & Co. alleged that the slaves in question had remained in the quiet and undisturbed possession of Samuel Collins for more than five years previous to his dealings with these respondents; and insisted that they were properly subject to the debts of the said Collins.
    The defendants Samuel Collins, Moses Hughes and James Hughes answered, admitting in substance the allegations of the plaintiff’s bill.
    A general replication having been put in by the plaintiff to the answer of Lofftus & Co. the depositions of *various witnesses were taken and filed on behalf of those parties respectively, with a view to shew the duration and character of the possession which Samuel Collins had held in the slaves in controversy, during the testator’s lifetime. The effect of the evidence, according to the view taken of it by the court of appeals, is stated in the opinion delivered by the president.
    In October 1830, upon the motion of the defendants Lofftus & Co. the court of chancery ordered that the injunction be discharged, as having been improvidently awarded. From which decree this court, on the application of the plaintiff, allowed her an appeal.
    The cause was argued here, by Stanard for the appellant, and Johnson for the ap-pellees, upon two questions of law : 1. What is the effect of the first decree against the trustees 7 does it bind the rights of the cestuis que trust who were no parties to the suit ? 2. Whether, if chattels lent remain more than five years in the possession of the loanee, and then the loan be regularly declared according to the statute 1 Rev. Code, ch. 101, §2, p. 373, a creditor of the loanee, whose lien did not attach by judgment till after the loan was so declared, can subject the property to the satisfaction of his demand ? And upon the evidence in the cause, a third question was discussed, namely, Whether, in point of fact, Samuel Collins ever had possession of the slaves in controversy, for five years without interruption ?
    
      
      Chancery Practice — Parties—Cestui Que Trust. — See foot-notes to Com. v. Ricks, 1 Gratt. 416; McDaniel v. Baskervill, 13 Gratt. 228. The principal case is cited in Richardson v. Davis, 21 Gratt. 710; Simon v. Ellison, 90 Va. 158, 17 S. E. Rep. 836; and distinguished in Fitzgibbon v. Barry, 78 Va. 763, 764.
      Same — Same—Principal Case Distinguished — Interest Defeasible by Act of Defendant. — where the plaintiff’s interest might be barred or defeated at any time by an act of the defendant, his interest is not such as will sustain a bill in equity. Fitzgibbon v. Barry, 78 Va. 755, citing Dursley v. Fitzhardinge, 6 Ves. Jr. 251; 1 Dan. Ch. Pl. & Pr. 317; Story’s Eq. Pl. § 301; and distinguishing Collins v. Lofftus, 10 Leigh 6; Richardson v. Davis, 21 Gratt. 706; Hartman’s Appeal, 90 Pa. St. 203; Matter of Sheppard’s Trusts, 4 De G. F. & J. 423.
    
    
      
       See monographic note on “ Gifts” appended to Barker v. Barker, 2 Gratt. 344.
    
    
      
      See monographic note on “ Frauds, Statute of” appended to Beale v. Digges, 6 Gratt. 582.
    
   T1JCKLR, P.

I am far from thinking that the injunction in this case was improvidently awarded-by a judg-e of this court. The property of the feme covert settled upon her by her father’s will had been decreed to be sold to satisfy her husband’s debts, in a cause to which she was not a party, her trustees alone being the defendants. In the estimate of a court of equity, they were unsubstantial • shadows. That court could not pronounce *upon the rights of the parties really interested, without haying- them before it. At law, indeed, the trustee is the proper party defendant; but in equity no decree can be rendered affecting the rights of the cestui que trust, unless he is a party ; for it is a fundamental principle of the court that all parties, however remotely concerned in interest, must be before it, or no decree can be made to bind them. Mitf. Plead. 144, 3 Munf. 376. And 2 Madd. Ch. Pract. 142. This is particularly the case as to cestuis que trust, since the trustee is a mere nominal party, and the real beneficial interest is in the cestuis que trust. 2 Johns. Ch. Rep. 238 ; 1 Ball & Beatty 181, 184. The exceptions to the rule it is unnecessary to state, as they would have no application here. I think the injunction was properly awarded, and that the only question in the cause is upon the merits.

As to the merits, I am satisfied that the weight of the evidence is decidedly against the allegation that any of the slaves were given to mrs. Collins. I have in other cases declared that I deemed it necessary, in order to sustain an alleged parol gift by a father to his daughter on her marriage, that the evidence of such gift should be clear and cogent; and in that opinion I understood my brethren to concur. Brown v. Handley, 7 Leigh 119 ; Mahon v. Johnson, 7 Leigh 317. In this case, to say the least, the testimony is very meagre. I think it altogether insufficient.

Then, as to the alleged loan : It will be unnecessary to say any thing upon the legal question spoken to in the cause. It has been long settled in this court, that according to the true construction of the loan act, a resumption of possession by the lender, ór recording a deed or will granting away the property to another, within the five years, avoids the operation of the act and puts an end to the loan. Beasley v. Owen, 3 Hen. & Munf. 449. The evidence of a loan in this case is itself equivocal. Hughes, having married his daughter *to Collins, puts him upon one of his plantations to manage it for him, and sends with him various slaves, some to work in the field, and Dicey as a house servant. She was therefore still as much in his service as any of the rest, and the evidence clearly proves that they were not loaned. On the whole of them, including Dicey, he always paid taxes, and listed them with the commissioner of the revenue in his own name. What more can the owner of slaves do, who places them in the hands of a manager to do service on his estate ? How can a creditor complain of being deceived, who advances.goods to my manager, not for my use, upon the credit of property held by him upon my own estate, worked by my own slaves, which slaves are listed in my name on the commissioner’s books, and the taxes on them paid by me ? If he uses ordinary diligence, or if he does not wink hard that he may not see, he must learn that he should not give the credit. In this case, if he had gone to the farm, he would have found it was Hughes’s: if he had applied to Collins, he would have learned that the property was not his ; and if (as was most natural) he had gone to the commissioner’s books, which furnish a record of the property of individuals, he would have there seen that Hughes claimed to be the owner of the slaves, and paid taxes on them as such. In no other way can the owner of property under the management of another, better manifest his own rights, and negative a pretension on the part of creditors to charge his estate with the debts of that other. Therefore, even if there was no further proof, I should be of opinion to reverse the decree. But it is proved that in four years after the marriage, Hughes himself went and lived on the place which Collins lived on, and continued to live there till his death. It was managed for him by Collins and he received the crops, allowing Collins a part of them for his services. He lived in the house where Dicey was house servant, and even if she had *not before that time been in his possession, yet from that time she must be construed to have been so. The possession must be construed to be with the property, unless the contrary be actually proved ; and that has not been done here, as Dicey was a menial in a household where a father and his daughter and son in law appear to have resided together, all having the services of the slave ; the father having (as one of the witnesses testifies) “gone to live with them that the daughter might be better provided for.”

Upon the whole, I am of opinion that this is one of the numerous instances afforded by our courts, of an attempt to make one man pay another’s debts.

I am of opinion to reverse the decree, reinstate the injunction, and send the cause back for further proceedings.

The other judges concurring, decree reversed, injunction reinstated, and cause remanded for further proceedings.  