
    Barden Tolar v. Nehemiah Tolar,
    From Wayne.
    If a voluntary deed, fairly obtained, is destroyed bv the donor before registration, a Court of Equity \yill compel him to convey the same property to the donee.
    The Plaintiff alleged, that his father, the Defendant, being willing to advance him in life, as well as to repay him for services rendered, in February, 1821, coin ey ed to him in fee-simple 100 acres of land, and also six slaves — that the deed was delivered by the Defendant to the Plaintiff, and was hy the latter deposited for safekeeping with one Iloplon Coor — that the Defendant after-wards, by some contrivance, got. possession of it, and destroyed it.
    The prayer was, that the Defendant might be compelled to execute to the Plaintiff another d^eed for the same property.
    The Defendant denied every allegation of the bill, as 4o the execution of the deed, and averred, that he was very illiterate, and also old and infirm — that he had once executed a will, which he supposed was the paper mentioned by *ho Plaintiff, by which lie divided all his property equally among all his children, and insisted that to be the only instrument he had ever executed disposing of his property; and that if it was not a will, it had been falsely read to him. This he admitted had been destroyed.
    
      Upon replication, many depositions were taken — a ■jta«emeiit of which will be found in the opinion of his Honor Judge Hall.
    
      Mor decaí, with whom was Bevereux, for the Plaintiff,
    ci'ed Dawson v. Dawson (ante 93) Souverhje v. Mrden (1 John. Ch. Ilep. 240) Due ex dent, of Gummis v. Knight (12 Ser. & Low. 351) Worrail v. Jacob (3 Mere, 256).
    
      Gaston, for the Defendant.
   Hall, Judge.

— The Plaintiff does not call upon the Court f< t- its assistance to supply any defect, or rectify a mistake in the voluntary deed of gift, which is the subject of the pieseut dispute, but to restore him to the evidence of a legal title — the deed of gift of which he lias been deprived (as is admitted in the answer) by the Defendant’s own conduct.

It appears, that the Defendant was an old man, ami that his mind laboured under the infirmities incident to old age. But none of the numerous witnesses examined in the case, say, that he was incapable of transacting his business, or of making a contract.

I< is oleas-, that the deed of gift was not executed with precipitancy, but with some deliberation. Jlrihur Jones st tes, in bis deposition, that he saw the Defendant at his father’s, and he told him In w s on his way to flop-ton Coot’s, to get him to write a deed of gift, ami that he is tended to give all his property to Barden, the Plaintiff. He says further, that he and the family remonstrated with the Plaintiff against the irnpropruty of giving all to one child. He persisted in his determination to do so. and said, if Hopton Coor would not write it for him, he would get some other pri son to do it. He would not return until he had accomplished it. This happened two or three days before the delivery of the deed of gift. Calvin (oor says, in his deposition, that the Defendant iveñi to the house of Mopion Coor, about the 20th of Fe* bruary, I8£l; that he appeared to be in his senses ; that be wrote a deed of gift for him; that he signed it, andl that lie and Hopton Coor attested it as witnesses ; that by the deed of gift, he conveyed all the land that lie liad in possession, and six negroes, by the names of Dorcas, Hardy, Britton, Zeny and Jonas’, that the name of the. other negro lie does not recollect; that the deed was read over to the Defendant; that he expressed his satisfaction witb'it; that it was delivered to Barden Tolar, the Plaintiff; that he told the Plaintiff to go and have it recorded ; but that in consequence of something Hopton Coor said, the Defendant observed, it would be time enough to have it recorded after his death, and told Plaintiff to let Hop-ton Coor keep it, upon which the Plaintiff delivered it to Hopton Coor. In the most important facts stated by this witness, he is supported and corroborated by the testimony' of Dorcas Coor. Jlrthur Jones states, that in a short time afterwards, he saw the Defendant, and was told by him that he had executed the deed of gift, and that it was left with Hopton Coor.

At this stage of the inquiry, it may be assumed, that title to the property contained in the deed of gift became vested in the Plaintiff. For although it had been placed in the possession of Hopton Coor, it had been previously delivered to the Plaintiff, and his placing it there was his own act. The title to the property had previously passed to him. That, act was not obligatory upon him. He might have had it recorded when he pleased. Several depositions have been read to prove, that the Defendant, on several occasions, declared that he had conveyed all his property to the Plaintiff, excepting perhaps his hogs, chickens, &c. and that he had no right to" exercise acts of ownership over it. Other depositions have been read, to prove that he did, on various occasions, exercise acts of ownership over'it, arid treated it as his own. These circumstances relative to rhe management of the estate, prove nothing on either side, t was natural? when fa-¿her and son lived together, that each of them should occasionally use the property, and treat it as if it was his own.

It does not appear, that after the Defendant had regained possession of ttie deed of gift, and destroyed it, which was a few days after he executed it, that, the possession of the. property was in any respect changed, until toe Plaintiff left his father’s, and went to live by himself. Until then, the possession accompanied the title, whether it was in the father or in the sen. After their separation, it does not appear that the father had such an adverse possession of either the land or negroes, as would give him a title under the statute of limitations.

Depositions have been read to prove, that the Plaintiff himself did not consider that he had a right to the land or negroes. Some of the depositions say, that the Plaintiff was an ignorant man. Pei haps he might have thought, that his title was divested by the destruction of the deed of gift. If such was the case, his misconception of his rights should not injure him. It is admitted by the Defendant, in his answer, that some days after the execution of the deed of gift by him, he went to Hopton Goar’s, house and applied for it; that Boreas Coot delhered it to him, and lie destroyed it.

• From an examination of the whole case, I am of opinion, that the Defendant be decreed to convey to the Plaintiff, ail the land that he was possessed of at the date of the deed of gift •, and that the Master ascertain the identity of it: That he also convey to him the six ne-groes, with their increase since the date of the deed off gift: That he ascertain the name of the sixth negro, not recollected by Galvin Goor ; and that this conveyance be made by such a deed as the Master shall approve,, without warranty.

Per Curiam.

— Decree accordingly.  