
    
      John H. Harley vs. John J. Platts.
    
    The trusts of a post-nuptial settlement were to hold the land and negroes to the sole and separate use of the wife during life, &e.; “ and upon her death to deliver up the aforesaid property, free and discharged of all trusts, to such child or children as she may leave alive at her death, to bo held by them, their heirs and assigns forever.” Other trusts were declared in case the wife should die without issue, and power was given to the trustee, with her consent, to sell. The wife died leaving issue, an infant daughter: Held, as to the negroes, that the trust was not executed upon the death of the wife; and that it could he executed only by delivery of possession to the daughtei', upon her becoming sui juris, or to some one invested with legal authority to receive them for her or in her place.
    Trusts in personal property are not executed by mere operation of law, as in oases coming within the statute of uses: the trustee must do some act, as delivering possession; and where the cestui que trust is an infant, incapable of joining in the act, the trust will not he executed.
    
    In an action of trover hy a trustee he need not describe himself in the pleadings as trustee.
    Where negroes are held in trust for the use of a married woman for life, and after her death to her children, the mere possession of the husband after the death of the wife, and during the infancy of their only child, will not, in favor of a purchaser from him with notice, be held to have invested him with title, or to have been adverse, or fraudulent.
    In an action of trover new trial on the ground of excessive damages refused — the verdict being warranted hy the evidence, under the rule allowing the jury to give the highest value up to the time of trial, with interest, or hire.
    
      Before WhitNer, J., at Barnwell, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was an action of trover, brought to recover the value of four slaves, viz: a woman and three children. The plaintiff claimed under a trust deed, executed by Owen P.. Smith to plaintiff, 27th August, 1844, which had been recorded in the office of the Secretary of State, 2d September, 1844, and in the ■office of the Register of Mesne Conveyances for Barnwell, (where the parties resided,) 9th September, 1844. 
    
    
      “ Mrs. Susannah Smith, wife of Owen P. Smith, died 3d August, 1845, leaving an .infant daughter, an only child, yet living, and now aged eleven or twelve years. The negroes were in the possession of her husband and herself at the time of her death, and remained after with the husband, until the spring of 1851, when they were removed from the district, having been sold by Smith to defendant Platts, who likewise lived in same district, and a few miles distant from the parties. They were soon after in Charleston, and sold by Z. B. Oakes, February, 1851, at instance and on account of defendant, for $750, to a man said to be from Barnwell, name not recollected, and proceeds applied to credit of defendant, on a demand held by Oakes against him. Platts had told Oakes he had bought the slaves from Smith : the negroes had not been seen since by any of the witnesses, nor any intelligence had of their subsequent possession.
    “ When a demand was made of Platts by Dr. Harley, he paused for awhile, and asked if money would not answer in place — then if other negroes would not do : and being answered negatively, as they were trust property, said : ‘ will keep this to yourselves until I can see something about it.’
    “ One witness gave a description of the negroes, as they were well known to him, and an opinion as to value. He said Hester was a good field hand, 25 or 30 years of age, with one hand that had been burnt, when young, and consequently somewhat drawn, though this did not injure her as a field hand, as she was smart and active, ploughed, hoed, &c., as hands usually, and was worth $400.
    “ George, her eldest child, was a very likely boy, 6 years old, and was worth $200, perhaps more.
    
      “ Benjamin, a likely boy two years old, and Joseph, an infant, of fine healthy appearance. He spoke of the negroes when he last saw them at Smith’s, in 1851, and considered the group as well worth 700 or $800 at that time.
    
      “ Col. Brown said such negroes as these were described to be, would have commanded here, an average of from 300 to $350, unless the woman was injured by her hand, of the extent of which, of course, he could not judge.
    “ A motion for a non-suit was made, as indicated in grounds of appeal, and overruled, and the case was submitted to jury without testimony on part of defendant.
    
      “ It seemed to be conceded in the argument, that Platts had advertised the notes given for the purchase of these negroes, and that suit was now brought on them, though the precise terms of purchase were not brought out. The defence before the jury was mainly directed to the subsequent possession of Smith. Hence was set up a title in Smith, and also fraud was alleged on the part of Smith and plaintiff, as against this defendant, regarding him as an innocent purchaser without notice of title in plaintiff. If the jury should have been charged in the terms set forth in the grounds of appeal, the defendant has cause of complaint. They were instructed that four years’ possession of a slave in this State, gave title — that mere possession was prima facie evidence of claim and of title or property — that such possession must be adverse, and notwithstanding the presumption, if the proof satisfied them that the possession was permissive, in acknowledgment of title in another, and not in his own right, as against such an one, it would not avail. Instead, therefore, of instructing the jury that the defendant had acquired a good title by his possession, the jury were charged with an inquiry into the character of that possession.
    “ So likewise as of the fraud alleged as perpetrated by Smith, in which plaintiff might be held, to have participated, as against an innocent purchaser, according to the view authorized by the fact, should be their verdict for or against. I do not remember that any allusion was made to the presumption which it is now said might ‘ well have grown out of a delivery to Smith as the natural guardian of the cestui que trust] though the presumption of sale under the power contained in the deed, was suggested and referred to the jury, to go for what it was worth. Upon these questions raised as to the title in Smith, by possession, or in the defendant as a purchaser, without notice, the jury were aided by suggestions for and against, and were certainly furnished with every possible presumption that might well arise.
    “ As to the amount of the verdict, I will only say, with the defendant’s counsel, I did not anticipate so high a valuation of the negroes, though I must add that defendant’s conduct well justified the adoption of the highest measure furnished by the proof. From what transpired in the Court room, in giving proper form to the verdict, it seems the jury had fixed on $ 1,300, and interest from time of conversion. Hence, a verdict for #1,483.»
    The defendant appealed, and now renewed his motion for a non-suit on the grounds :
    1. Because the trust was executed before the commencement of the suit, and therefore the plaintiff had no right of action.
    2. Because, even if the plaintiff had the right to sue as trustee, he should have been so described in the pleadings, in order that his recovery might be an estoppel to a second suit for the same cause of action by the cestui que trust.
    
    And failing in that motion, then he moved for a new trial on the grounds:
    1. Because Owen P. Smith having had four years’ possession of the slaves, did thereby acquire a good title, which he transmitted to the defendant, and the jury should have been so charged by his Honor.
    2. Because even if Owen P. Smith did not acquire title by possession, yet the plaintiff, by allowing him to retain possession for so long a period after the death of the tenant for life, enabled him to commit a fraud upon the defendant, and the jury should have been so instructed by his Honor.
    3. Because the evidence did not warrant the jury in finding so large a verdict.
    4. Because the possession of O. P. Smith, in the absence of all proof, might well be presumed to have grown out of a delivery to him as the natural guardian of the cestui que trust, or as the vendee of the plaintiffj and in either case, his possession was adverse to the plaintiff, and his Honor should have so charged the jury.
    5. Because the question of notice of the trust deed, was immaterial to the issue, since notice of the trust deed would not have explained the nature of Owen P. Smith’s possession, and there was no proof that the defendant had notice that the possession of Owen P. Smith was other than what it imported to be, to wit — a possession in his own right.
    
      Aldrich, for appellant,
    cited Wilson vs. Pyron, 1 Sp. 339 ; 1 Ch. Pi. 69 ; Ramsay vs. Marsh, 2 McC. 252; ClmdleigJi’s case, 1 Co. 120 ; 3 Kelly, 551; 2d Id. 307 ; Hinson vs. Pickett, 1 Hill Ch. 35; Garner vs. Garner, 1 DeS. 437; Porter vs. Doby, 2 Rich. 49 ; 1 Eq. Lead. Cases, 38; McNish vs. Gnerrard, 4 Strob. Eq. 74.
    
      Trotti, contra,
    cited Posey vs. Cook, 1 Hill, 414; Jones vs. McNeil, 1 Bail. 235 ; Guphill vs. Isbell, 1 Bail. 230 ; Hartón vs. Hartón, 7 T. R. 648 ; 1 Ch. PI. 114 ; Browning vs. Huff, 2 Bail. 174; Martin Sf Cornell vs. Kelly, Cheves, 216.
    
      
      
         It is hardly meant, it is presumed, that an actual, formal delivery is necessary* Possession taken, or continued, hy the cestui que trusty with the permission, express or implied, of the trustee, would, it is apprehended, he construed a delivery. And where possession cannot he given or taken, would not a symbolical delivery answer — as the delivery of a deed transferring the title 2 Vide 2 Kent, (5th Ed.) 600-1, and notes.
    
    
      
      
         The following is a copy of the deed under which the plaintiff claimed:
      SOIJTH-CAKOLINA — BARNWELL DISTKICT.
      
        Know all men by these Presents: That I, Owen P. Smith, (for and in consideration of the love and affection I boar towards my family, and my natural desire to provide for them, and in further consideration of the sum of one dollar, which I hereby acknowledge to have received from Dr. John H. Harloy, whom I have chosen trustee of this deed,) have granted, bargained, sold and released, and by these presents do grant, bargain, sell, release, and in open market deliver to the said John II. Harley, as trustee, one hundred acres of land, cut off from the south side of my tract on which I now reside, the said hundred acres being situate, &c. And also, a negro woman slave, named Hester, and her future issue: To have and to hold the said premises and the said negro and her future issue, unto the said John H. Harley, trustee, and his heirs, executors, administrators and assigns, forever. In trust, nevertheless, and to and for the following uses, intents and purposes, and to and for no other; that is to say, to suffer and permit my wife, Susannah Smith, for and during the term of her natural life, to tako, have, use, possess and enjoy, either the use and occupancy of the said property, or else the rents, issues and profits thereof, as she may elect, to and for the sole and separate use of herself, and such child or children as she now has or may hereafter have by me, the said Owen P. Smith; the said property to be by her used, or its income expended by her for herself, and the children, already described, without accounting or discriminating; but the same to be in no way subject or liable for her, or my present or future debts, contracts or engagements. And upon her death, then in trust to deliver up the aforesaid propertyfroe and discharged of all trusts, to such child or children by me as she may leave alive, at the time of her death; if there be more than one, to be equally divided, share and share alike, (children of deceased children taking a parent’s share;) to bo held by them, their heirs and assigns in severalty forever. But should the said Susannah die in my lifetime, without leaving alive at the time of her death any issue by me, thon in trust to reconvey the said property to me, my heirs and assigns forever. But should the said Susannah survive me, and at the time of my death, thero should be no issue of our marriage alive, then in trust to convey the said property to the said Susannah, her heirs and assigns forever, free and discharged from the trusts.
      Lastly, I do fully empower the said John H. Ilarley trustee, with the consent of the said Susannah, to sell, alien, exchange and reinvest (always on the same trusts) all or any part of the said property.
      "Witness my hand and seal, this 27th day of August, 1844, and in the 69th year of American Independence. Signed, sealed, &c. OWEN P. SMITH, [l. s.]
      J accept the trust of the foregoing deed.
      JOHN H. HAKLEY.
    
   The opinion of the Court was delivered by

Glovee., J.

The statute of uses refers to persons who are seized, and its principle has never, therefore, .been applied to trusts of personal property. In regard to real estate, embraced within the provisions of the statute, Sir William Grant says, (Mott vs. Buxton, 7 Ves. 201,) “Whenever any act is to be done by the trustee — as to convey — it is a trust, and not a use executed.” If the necessity of preserving the trust no longer exists, the statute executes it and the legal title vests in the cesttá que use. These principles apply only to cases falling within the provisions of the statute, and are not extended, by analogy, to trusts in chattel interests ; yet the rule applicable, under the statute, to real, has, to some extent, been applied to trusts of personal property in regard to the transferring of the use into possession, or the vesting of the legal title in the cestui que use. In real estate, if no further act is necessary to be done, the statute executes the use or the legal estate vests : in personal property, a delivery of possession by the trustee to the beneficiary, vests the title. If the cestui que use be not entitled to the immediate possession of personal property, or if any duty be imposed on the trustee by the terms of the deed creating the trust, he must retain the possession. Deeds of this character,” says Chancellor Dunkin, (Rice vs. Burnett, Sp. Eq. 579,) “ should be construed according to their plain intent and meaning. The legal estate should continue in the person to whom it is transferred, until the property is to be delivered to those for whom an absolute estate is provided.” When a trust has been created in personalty, and all the purposes of the trust have ceased or are at an end, the absolute estate is in the person entitled to the last use. From the character of the property, possession is a sufficient title without a formal conveyance.”

The first ground of appeal submits, that “the trust was executed before the commencement of this suit, and that, therefore, the plaintiff had no right of action.” The rights of the parties do not depend on the statute, which does not embrace chattel interests ; but on the terms of the deed ; and a delivery of possession by the trustee, after the purposes of his appointment had been accomplished, would vest the title. If, at the death of Mrs. Smith, the necessity of retaining the possession by John H. Harley had ceased, and her daughter had then been capable of holding the possession, a delivery of the property would have conferred on her the absolute interest and the right of action. The trusts declared in this deed are — to permit Mrs. Smith either to enjoy the use and occupancy of the property, or the rents and profits, during her life, not subject to her husband’s debts, and, upon her death, then in trust to deliver up the aforesaid property, free and discharged of all trusts, to such child or children as she may leave alive at the time of her death. By the terms of this deed, the right of possession, and, consequently, the legal title, remained in JohnH. Harley, after Mrs. Smith’s death. His trust was to be discharged by a delivery to such child or children as she may leave alive at her death. The transfer of possession was an act to be done by the trustee, and, till he performed it, the right of possession and of action was in him. If the issue of Mrs. Smith had been sui juris at her death, the trustee, by a delivery of the negro woman and her children, would have been discharged of the trust; but as the cestui que use was an infant, there was no one capable of receiving the possession, and, therefore, it must continue in John H. Harley until the infant shall have arrived to full age or a guardian shall have been appointed ; or, in the event of the death of the infant intestate, until administration shall be granted. The expenditure of money by the trustee for the benefit of the trust property, and thereby creating a lien upon it, might authorize a continuance of the possession. It is enough that there was no evidence shewing that John H. Harley had parted with the possession, and the retention of it by him is consistent with the terms of the deed.

It was not necessary that the plaintiff should, in the pleadings, assume the character of trustee. The right of possession and of action was in him, and describing him as trustee would be regarded as descriptio persones, and, if used, might be rejected as surplusage. This Court looks to the legal interest only, and it is sufficient that the party who represents it, in this case, is before the Court.

The questions which are suggested by the 1st, 2d and 4th grounds of appeal for a new trial, will be considered together.

The trust deed was duly recorded, and was notice to the defendant of the rights of the parties, and the possession of Mrs. Smith, during her life, was consistent with its provisions. She. was permitted to possess and enjoy the use and occupancy of the property or the rents and profits, and, after her death, no power is vested in the trustee to sell the property; and, therefore, no presumption of a sale to Smith could arise in favor of one who has notice of the contents of the deed. The possession of Smith after the death of his wife could not be adverse to the rights of his child, under a deed which he had made and which had been duly recorded; and the presumption that Smith’s possession was in his own right is not warranted by the circumstances of the case, nor can it avail a vendee from Smith with notice of the deed. Suppose, during the minority of the cestui que use, Hester and her issue had been in the possession of a stranger on hire, can it be said that such a possession would, after four years, confer title on the hirer or his vendee ? When the possession of personal property, especially by a donor, is unexplained, it is sometimes considered as a badge of fraud, and the gift might be set aside in favor of creditors or of purchasers for valuable consideration without notice. Here there is no pretence of indebtedness on the part of Smith when the deed was executed, nor are creditors before the Court; and if the defendant claims to be a purchaser, the recording is legal notice to him of the declaration of a trust made by Smith bona fide for the benefit of his wife and child. If any fraud was committed by Smith, it was iir derogation of the rights of his infant child, and those who claim through him are equally culpable, and will not be allowed to avail themselves of it to defeat those rights. In a case, not unlike this, (Jackson vs. McAliley, Sp. Eq. 303,) Chancellor Harper says: “ I know of no other ground on which the decree could be sustained, unless there was fraud in permitting the property to go into the possession of the husband, so as to enable him to gain credit. But this cannot, of itself, constitute fraud, or every one who lends or hires property to another, or furnishes him with goods on credit, would be guilty of the same kind of fraud.”

The appellant also relies, for a new trial, on the ground, that the evidence did not warrant the jury in finding so large a verdict. In trover, the jury is not limited to find the mere value of the property at the time of conversion; but may find, as damages, the value at a subsequent time at their discretion. (3 Steph. N. P. 2711.) The jury may give the highest value up to the time of trial. (Kid vs. Mitchell, 1 N. and McC. 334.) In Barney vs. Pledger, (3 Rich. 191,) Judge O’Neal! says, “that the plaintiff is entitled to recover for the value of the property, at the time of the trial, with interest; or for the value of the property at the time of the trial, with hire from the conversion, as may be most beneficial.” And in Rodgers vs. Randall, (2 Sp. 38,) it was held that the jury have a discretion between the highest and lowest estimates.

Governed by these rules, so long and so repeatedly established, the evidence appears to have authorized the conclusion attained by the jury in this case ; and the motions for a non-suit and for a new trial are, therefore, dismissed.

Wardlaw, Frost, Withers and WhitNer, JJ., concurred.

O’Neall, J., absent.

Motions dismissed.  