
    Henry Stevens, ex’r. of Letitia Gardner, v. Horace Ely,
    From Beaufort.
    yiavei can only be in-u’i «.? prepercy ; ano conveyances, having fui slit‘b‘ object either their emancipation or a qn-:M¿. d ¡.tatc of shivery, are uaainst public policy, and a trust result'; for the donor or hi1; executor.
    
      \s whore slaves were conveyed in trust to permit them to live loge- - thci, and he industriously employed, ami that the donee should ex-csvisc a control over their morals and furnish them with necessaries —it was held, upon the face of the 'toed (ifur., Judge, dcsse/dicnia) dint is the slaves were not considered the property of the donee, a trust resulted to the executor of the donor, anti a conveyance of die ieg.d title was directed to be made to him.
    
      Per HKMisnson, Chief Justice, arguendo, where the l-’gal estate, passes, mi its annexed toll, which are either illegal or impolitic, ' are avoided, and a trust declared for the donor, or the dom-e declared to hold discharged of any trust, as will best, tend to suppress the illegal purpose.
    ;risos po*[J.ea-i)Lusos-, Chief-Justice, argnendo. To a will, estates are created by the intent of the devisor, however expressed ; but tr. •die chatio ,» of tile same estate by a deutl, certain technical words are nect-nsary. lint when the estates art; created, wtiethei by de«-d or will, they possess similar qualities ; and the same circumstances will in one case cause a trust to result tor the heir, and in the other for the grantor.
    The ewe-; of Haywood v. Craven (1 Law Rep. 557) and of Huckuby v. Jones (2 Hawks 120) approved.
    The Plaintiff alleged, that his testatrix, intending to «mancípale her slaves, consisting' of a woman and Iter children, conveyed them to the Defendant, in considera-{.Son of £5, *’ i» trust, that the said Ely, his heirs, &c. “ shall, from time to time, permit the said negroes and their increase, io live together, upon his, the said Ely’s “ land, and to be industriously employed, and continue (i to exercise a controlling power over their moral condi ti.m, and ¡o furnish said negroes with the necessaries* íS and comforts of life.” That by au endorsement on the deed, iti was thnfc Füííhíi'ííF’s tewm/s should have tlid «se of i lie said mIvv;íw éWhw y me to y ■ -te, daring her life,/ in consideration of which, ah: oovehnnted to pay the Dr-?c.-,ukmt ,«»* hIkIIí.*»": for each year — that uh testatrix, hy ta- w;¡E ííeí¡»seathHdi«> rjif-r •viitf'v, and ss'j'.íií dü.r('.-’í/.íy uJ.'i.i u '• p'sv-kuhÍ'ív'í /.«a-.-,, tliet;- irto /r'/isesvSiotSo
    The Plaintiff averred, that this deed was executed with an intent to procure the emancipation of the slaves, and that being against the policy of the law, a trast resulted for his testatrix; The bill prayed for a reconveyance of the slaves, and for an account of the profits received by the Defendant.
    The Defendant, in his answer, denied that there was any trust, between him and the Plaintiff’s testatrix, to procure the emancipation of the slaves conveyed to him $ or that he had agreed to hold them in any way but that mentioned in the deed, and insisted, that the deed was executed by the testatrix, from a wish todo him, the Defendant, a favor.
    Replication was taken to the answer, and witnesses examined. Among them, the Register, Mr. Ellisons swore, that when the Defendant came to have the deed registered, lie observed, that the old lady had conveyed the negroes to him, for the purpose of having them emancipated.
    A copy of the will of the Plaintiff’s testatrix was by him filed, as an exhibit in the cause.
    His Honor Judge Nokwood, on the Spring circuit of the year 1829, declared that the Defendant held the slaves as a bare trustee — that the trust was one contrary to the policy of the law, and resulted for the benefi; of the Plaintiff, and decreed a reconveyance by the Defendant, upon having the consideration money refunded tv him, and directed an account of the rents and profits*— From which the Defendant appealed.
    
      The case was argued at December leifn, 1829, by Badger & Devereuoc, for the Defendant, and by Gaston, for the Plaintiff; and at. the last term, by the same gentleman for the Plaintiff, and by Hogg, f- >1- the Defendant.
    For the Defendant were cited, Curtis v. Perry (6 Vcsey 739) Cecil Butcher (2 .Tac. &* Walk. 565) Brackenbury *r. Brackenbury, (ditto 390).
    For the Plaintiff, Cruise Dig. Trust, c. 1, s 2, 7 & 28, 2 Thom. Coke Lit. 702, note. Robinson v. Taylor (2 Bro. C. R. 594) 2 Fonb. 117. Birch v. Blagrave ('Jhnb. 264) Ward v , I.ant (Pre. Ch. 182) Cottington v. Fletcher (2 Mk. 155).
    
   Henderson, Chief Justice.

— Were this donation by will, and the object to emancipate, the case of Haywood v. Craven (2 Law Rep. 557) is an authority to s!ibvrs that a trust results to the heir at law, and next of kin. If the object be, to hold the negroes, not as property, but In a qualified state of bondage, the case of Huckaby v. Jones (2 Hawks 120.) shows that a trust also residís-. — - It is unimportant therefore to inquire whethc-r the object of the parties was, that, the Defendant should etnancip-te the slaves | or that he should continue to hold them in the manner pointed out in the deed.

His Honor then stated the declaration of trust as above, and proceeded as follows: These trusts exclude the idea, tliat he should hold the negroes as property. And the policy of the law forbids, that they should be held otherwise. The trust therefore fails off, and the Defendant holds them as - property freed from the trust; or the beneficial interest results to the grantor; or rather, never was out of her,, I shall not examine the cases which were cited and commented on at the bar. They all go to prove, that unlawful trusts, motives or intents render the grant void or not, as will best tend ro suppress the illegal art, or intent contemplated. Or if they do not render the grant v'oidj they either fall olf or result? as will best effect the same object* And here it is obs.-• v.dht. (¡¡at fbere is no [}age ¿egig„} on the part of the maker, to do an immoral act, to cheat or defraud another. The act is forbidden only by the stern policy of the State, necessary to support our institutions in regard to slaves j but there is nothing malum in ss in the act. Nor did she attempt to conceal or disguise her object, but placed it in her deed, to be put on the public records. There is nothing therefore, which forbids this Court to give to her her legal rights. We cannot say that her bands are unclean; and therefore we will not aid her, or give her that which’ .in strict right she may be entitled to. For sensitive as we are, and ought to be, as to whatever may interfere with our laws on the question of slaves, and however severely we may punish, and ought to punish those, who in the most remote manner attempt to weaken the bonds, by which we hold them, yet these sensibilities are not roused, or acted on against a single female, who from feelings of kindness towards her three or four slaves, or from feelings of conscience, endeavors to better their condition, who has acted openly, and who from the publicity which she has given to her act, did not intend to offend against the law ; it is sufficient for her to feel the direct effects of her unlawful act, without also-subjecting her to its indirect effects. This consideration frees this case at once from the operation of those cases, where a fraudulent or dishonest grantor comes into this Court to annul his deed. Against her merits the .Defendant has none. He is a mere volunteer, and now attempts to hold the negroes as slaves, in fraud of his agreement with her. Sound policy, perhaps, would require that the slaves should be forfeited. But we have no authority to make, only to declare the law.

Had this case arisen on a will, there would not have been even an argument attempted to disprove a resulting trust. But being in a deed, it is said, that no such trust arises. And the reason assigned for this difference it, that in a will the intent alone is regarded, «Web shall he executed.; but not so in a deed. Is this rule applicable to the present case ? It is true, that certain technical words are required by law to express certain intents in a deed I --ho word heirs, to denote that perpetuity necessary to give a fee-simple.: the words heirs of the body, to (Trail* an estate tail. But in a will, wo particular words are necessary to denote an intent j any significant words will do. But, whew the- indent is thus fixed and ascertained, the thing created possesses the same qn.t!; ties, whether created by the technical wards required in a deed, or the significant words used in a will. A fee-simple is a fee-simple, and nothing more or less, whether created by deed or will; and the law will not permit an illegal estate to be created by either. Nor can an estate, which would be illegal, if created by deed, bo legal, because orea led by will. Neither can qualities be given to it by one, which it is unlawful to giro to it by the other, or which the other cannot give. That a different rule prevails in arriving at the intent, that a word would create a thing in the one, which it would not in the other, is admitted. But this is a rule in regard to the construction of the instrument. There can be no reason for raising a resulting trust for the heir, which does not equally operate to raise owe for the grantor. It is said, that the heir takes all that the ancestor does not devise to another. The grantor retains all that he has not given away ; and if the grantee cannot take the beneficial interest, if remains in the grantor. For to every grant there must be a grantee- — a faker. It is said, that the grantor had forfeited her estate, by attempting an illegal trust. So has the devisor, am his heir takes nothing hut what his ancestor had at his death. Si is said, the forfeiture is inflicted on bin», to prevent the commission of such acts. Onr. own feelings, way, our holy religion tells us, that we are more restrained by puni.dimefit io ho iniUctcd on our children for ok*" crimes, than on ourselves. So that policy is on the other side. I cannot therefore distinguish this case from a sr- . . . . milar disposition made m a will.

Ruffin, Judge, concurred.

Ham, Judge,

dissentiente. — This case differs from or» dinary sales in this: the vendee is “ required, from time to time, to permit the said negroes and their increase, to live together upon his land, and to be industriously employed, and to continue to exercise a controlling power over their moral conduct, and to furnish said negroes with the necessaries and comforts of life.” And the question is, whether this stipulation, request or confidence, renders the bill of sale void, and the Defendant a trustee, so as to be compelled to reconvey (he slaves mentioned in the bill of sale, to the Plaintiff. The question is the same, as if the Plaintiff’s testatrix were still alive, and . sought for a reconveyance. If she could not succeed, so neither can he.

It is proper to view the case as it really is, and to consider that no other trust is created in the vendee, than that which is expressed in the bill of sale. In that trust, I see nothing illegal or immoral. It is a trust, request, or confidence, reposed in the vendee — a confidence not controllable, or intended tobe controlled by any judicial, tribunal. The legal title to the slaves passed for a price, far below their value. But the vendor stipulated for their good treatment, and reserved the use of them to herself for life.

Therefore considering the bill of sale to mean nothing more-than it expresses, I am obliged to say that the Defendant cannot be deprived of the property in the slaves.

But it is attempted to prove that the bill of sale was made for the purpose of having the slaves, therein con» veyed, emancipated ; and the will of the vendor is produced, as in part evidence of it. I think it is unnecessary to notice the contents of the will, hecaqse certainly it is not eviden a; the Deferí'|,ií,w L V «rue after the date of tin. „f sale, ,''"1 •,|sa 'Vír? ¿he declarations of the veiN--" I'x-i.-nlf.

The testimony of ff\, 'W m h,ili'^u'kaii been taken. He aays he heard the Deferuiaiit say, that tlieslaves conveyed in the bill of sale by Lefhj Gardener were to be emancipated after her death. This evidence cannot be received, to raise a trust upon the bill of sale,, where nona such is expressed ; altim’ it might be received for the purpose of proving a fraud in the Defendant, in procuring the hill of sale to be executed upon such secret trust. But I think it insufficient for that purpose, contradicted, as it is, by the Defendant’» answer.

Supposing at the date of the bill of sale, it was the desire of the vemlor, that her shires should be liberated at her death, but she considered that to be a forlorn hope, ¡as being against the laws of the country 5 and that she concluded, as the next best thing she could do, to convey them to the Defendant in the manner which she has adopted. She certainly had a right to do so. It might have been more prudent in her to insert a power of relocation in the bill of sale. But her omitting to do so cannot affect the question before the Court.

Viewing the Defendant as the owner of the slaves, if he deviates from those duties which the law requires & master to observe,, as by fettling them hire their own time, he is answerable for such misconduct, as any other master is.

Per Curiam.

— Let the decree of the Court below he  