
    Hickman vs. Quinn and others.
    
    A. devised as follows: “I lend unto my daughter, A. W. L., the follow-¡ng s)aveSj a]| during her natural life, and after her death, to the lawful heirs of her body, if there, beany; if not, to be equally divided among my other children or their heirs.” Held, that the words “heirs of her body,” were descriptive of the persons of those in remainder; and that A. W. L. was only entitled to a life estate, with a remainder to her children.
    A. had an estate for the life of his wife, in certain slaves, with a remainder to her children; he conveyed his life interest to B and C for §1332: Atthe same time B and C covenanted and agreed, “if the heirs of the wife would pay one fourth of the sum and interest annually, until the whole was paid, that they would sell and convey their right and title in the slaves to them, &c.” Held, 1st. That the words “heirs of the wife ’’meant children of the wife. 2d. That it was a valid contract and vested aright in the children, which by payment of the money, they had a right to enforce. 3d. That the sale was not void as to A’s creditors; and 4th. That it was not a mortgage, but a conditional sale.
    This is a bill in equity, filed on the 2d October, 1830, in which the complainant states, that in 4pril 1827, he recovered a judgment against defendant, Lanier, for thirteen hundred and ten dollars forty cents, and five dollars sixty five cents costs, upon which execution issued and was returned to the July se&sion of the county court of Davidson, “No property found.” The bill further alleges, that this judgment was obtained by complainant, for money paid by him as the accommodation endorser and surety for said Lanier. That he became the endorser and surety for Lanier in November, 1820. That he was sued upon said endorsement, and judgment obtained against him, which judgment he had satisfied and paid. It further states, that before the judgment was obtained against complainant, Lanier was possessed in right of his wife, Amy W. Lanier, of a life estate in twelve negroes; and that said Lanier and wife, combining with the other defendants to defraud complainant, (said Lanier being insolvent,) on the 10th March, 1821, for the pretended consideration of thirteen hundred and thirty two dollars, conveyed to the two defendants, Quinn and Elliston, all his . . . ... , , , _ right and title to said slaves, which was registered in Davidson county, 15th November, 1821. That thirteen hundred and thirty two dollars was an inadequate price for the slaves, &c. That since the sale, some of the said slaves have been placed in the possession of said La-nier and wife, without hire. That the hire of said slaves since the pretended purchase of Quinn and Elliston, would amount to more than the said sum of thirteen hundred and thirty two dollars, with interest. That said sale was covinous and intended to defraud creditors, &c. Prays that the hire may be accounted for, that his debt be satisfied out of the hire, and -by the sale of said slaves, and for general relief.
    The joint answer of all the defendants filed the 31st of January, 1823, admits the judgment of complainant and its payments by him as stated; admits the purchase for the price of thirteen hundred and thirty two dollars, as stated, but denies that the said price was inadequate, or that Lanier and his wife had the possession of any of the slaves without compensation, or the promise thereof, after the sale, or that it was fraudulent.
    The answer also states, that at the time of the purchase, Quinn and Elliston executed their covenant, binding themselves as follows: “Know all men by these presents, that whereas Edmund Lanier and Amy W. Lanier have this day sold to us twelve negroes which Amy W. Lanier has a life estate in, to wit, (naming them,) for the sum of thirteen hundred and thirty two dollars. Now we do agree, if the heirs of Amy W. Lanier do pay us one fourth of the above amount of thirteen hundred and thirty two dollars each year, with interest from this date, when the whole is paid, to sell and convey our right and title to said negroes to them, if not previously taken out of our possession by legal process or act of providence, &c. Witness our hands and seals this 10th day of March, 1821.” The execution of this instrument'was proved.
    
      Q1™11 and Elliston further state, that in agreeing to this repurchase by Lanier’s children, they were actuated by motives of .kindness to the children of Lanier, and had no fraudulent purpose; that said children have made them no payment, and that they stand discharged from said obligation.
    The answer further shows, that judgment was rendered against Lanier, as well as complainant, in favor of the United States Bank upon said note mentioned in the bill, in which complainant was accommodation endorser; that execution was levied upon several of said slaves in the possession of defendant Quinn, and sold by virtue thereof, and purchased by complainant. That in 1821, he brought his action at law against defendant, Quinn, for said slaves, in which action the complainant relied upon the charge of fraud in the purchase of defendants, and the question was fairly tried, and verdict and judgment was rendered for defendant, and the records are exhibited. Defendants rely upon the judgments as concluding the complainant.' They deny ail fraud, &c.
    E. H. Foster proved in April, 1831, that Mrs. La-nier was at least sixty years of age and not of robust constitution. The estate for Mrs. Lanier’s life in 1821, in grown slaves, was not worth half the entire value; young slaves not able to work, worth nothing for her life estate.
    On the trial at law, Hickman Charged the fraud, which was the only question before the jury, and they found for defendants; the obligation for resale was not before the jury-
    D. Robertson proves that Mrs. Lanier in 1831, was sixty two or three years of age, and of delicate health.
    Felix Grundy valued the life estate of Mrs. Lanier at thirteen or fourteen hundred dollars, without knowing what defendants had given; this was in 1821; was well acquainted with the negroes then, and with Mrs. Lanier; thinks she was about fifty years of age, and he thought she had a broken, shattered constitution; was a witness on llie trial at law; the fraud of the sale was put in question before the jury, and decided upon; Lanier derived his title under the will of Benjamin Goodrich, his wife’s father, which is as follows: ££I lend unto my daughter, Amy W. Lanier, the following negroes, (nine in number,) all during her natural life, and after her death, to the lawful heirs of her body, if there he any; if not, to he equally divided among my other children or their heirs.”
    This will was made in the State of Virginia, where the testator died. It was proved that the consideration for which the slaves were conveyed by Lanier to Elliston and Quinn, was mostly for debts he owed to them, and which they were anxious to secure: it was also proved, that at the time of the conveyance, Lanier was greatly embarrassed, and in fact wholly unable to pay his debts. There was other testimony bearing upon the different questions made in argument, all of which, however, is stated in the opinion of the court.
    The cause was heard by the Chancellor' now Judge Green of this court, in October, 1829, when his honor decreed against defendants, placing their title on the footing of a mortgage; directed them to account for hire; allowed them their purchase money, with interest; after deducting which, the complainants’ debt was to be paid by the hire and sale of the slaves, and directed an account, &c. At May term, 1830, Quinn and Elliston filed a petition for a rehearing. The rehearing was granted, and came on at May term, 1831, before his honor Judge Green, the Chancellor, when his honor decreed as before, and ordered an account, which being taken and report made, there was a final decree at May term, 1833, against defendants, and an appeal pfáyecl to this court.
    
      G. M. Fogg and Thompson, for complainant,
    contended, 1. That the conveyance from Lanier and wife to Quinn and Elliston was void; that it was amere contrivance to hinder and delay Lanier’s creditors, and to save or preserve the slaves for the use of the family; that his em- * . . . .. barrassed situation at the time, the inadequacy oi the consideration, the circumstance of several of the slaves remaining in possession of the family after the supposed sale, all tended strongly to prove that the sale was a mere contrivance, and, so far as Lanier’s creditors were concerned, was a nullity; they cited act of 1801, ch. 25, sec. Í: Richardson vs. Smallwood, 1 Jacob’s Re^. 552.
    2. That the sale and covenant to resell to the heirs of Mrs. Lanier, was void upon its face; that although it was permitted an insolvent debtor to prefer any of his creditors, by selling or conveying property to them to secure their debts, yet it was not permitted that conditions should be annexed to the sale, the only object of which was to permit the property to be repurchased for the use of the family; that if this were tolerated it would be subversive of all honesty'and fair dealing in such transactions; that pretended sales would always be made at reduced prices, and to such creditors as would be willing to resell upon the best terms to some member of the family; that however bona fide any particular transaction of this kind might be, its tendency was to encourage andv promote fraud, and that the annexation of such a condition to a transfer of property by an insolvent debtor, was conclusive evidence of fraud.
    3. That the conveyance in this case was made to secure existing debts; that it was. in fact the intention of the parties that this should be a mortgage, and that parol evidence was admissible to prove a sale absolute in its terms, to be a mortgage. Ross vs. Norvell, 1 Wash. Reports: John. Ch. Rep.
    
      W. E. Anderson and G. S. Yerger for defendants,
    contended, 1. That from the evidence in the cause, it was clear that Quinn and Elliston gave the full value of the life estate in the slaves; and that the transaction was fair and bona fide, could scarcely admit of a doubt. That it was so decided at law by a juryq as well as by the Chancellor who decided this cause. That it was a risking bargain, and so understood by both parties, for had Mrs. Lanier died the next day, Quinn and Elliston would have lost their debts entirely; and that she having lived, con-traiy to all expectation, to this time, could not alter the nature ;of the contract. That a court of equity would enforce a losing as well as a beneficial contract, when there was no fraud, and the contract was subject to a contingency. Fonblanque’s Equity, 132, sec. 11.
    2. That the law did not prohibit the purchaser of property from an insolvent or any other person, to stipulate to sell it upon certain conditions or limitations, either to the vendor himself or any third person. That if the sale was honest and the value of the property given, the purchaser could give it or sell it to any person he pleased. See Demarest vs. Wyncoop, 3 John. Ch. Cases, 147.
    ■ 3, That this was not a mortgage, but a conditional sale. Lanier’s debt was extinguished.. If the slaves had died the next day, or if Mrs. Lanier had died, the loss would have fallen on Quinn and Elliston. That no instrument was to be construed by any consideration of contingent circumstances happening after its execution. 1 Supplement to Vesey, jr. 393. They cited and commented upon the following cases to prove this a sale with, or upon a condition: Barret vs. Lubins, 1 Yernon’s Rep. 268: 2 Atkins, 494: 1 P. Wms. 272: 1 Vernon, 7, 114, 232 : 3 Haywood’s Rep. 181, Myrick’s heirs vs. Boyd: 2 Yerger’s Rep. 11, Bennet vs. Holt: 2 Yerger’s Rep. 215, Scott vs. Britton: 2 Ball and Beatty, 274: 1 Call’s Rep. 280, Chapman vs. Turner: 7 Cranch, 218, Conway vs. Alexander.
    4. The words “heirs of her body” in the will of Mr. Goodrich, and in the covenant of Quinn and Elliston, were words of purchase, descriptive of the persons who were to taire. 2 Jacob and Walker, 77: 4 Kent, 220, 221: 2 Call, 265.
   Catron, Ch. J.

delivered the opinion of the court.

The bill charges, that the bill of sale made in 1821, to Quinn and Elliston by Lanier and wife, was made with the intent to cover the slaves and defraud Lanier’s creditors. That the consideration paid, if any was paid, which complainant does not admit, was wholly inadequate, and is colorable, to hinder and delay creditors. The defendants are especially called upon to set out the circumstances of the purchase.

They say the purchase was absolute for the sum of thirteen hundred and thirty two dollars, due from Lanier to -Quinn and Elliston, and made at a full and fair price for the life estate, and they wholly deny all fraud. This is the joint answer of Quinn, Elliston and Lanier. They further state, that at the time Lanier and wife conveyed the negroes, Quinn and Elliston executed the following covenant: [Here the Judge recited the agreement before stated.]

Amy W. Lanier derived title to the slaves by virtue of the will of her father, Benjamin Goodrich, executed in Virginia in 1803. The devise is as follows: “I lend unto my daughter, Amy W. Lanier, the following negroes, (nine in number,) all during her natural life, and after her death, to the lawful heirs of her body, if there be any; if not, to be equally divided among my other children or their heirs.”

A material difficulty, and one that seems to have had a controlling influence on the cause below, is the construction of the foregoing covenant to the heirs of Amy W. Lanier. It is said Mrs. Lanier could not have any heirs, until her death, and therefore there were no covenantees. The will of Benj. Goodrich vested a life es-tato to the slaves in Amy W. Lanier, and the remainder in the heirs of her body. This in Virginia was a lawful devise to her children. Higginbotham vs. Rucker, 2 Call, 265. The record shows Amy W. Lanier had children living and adult at the time the evidence was taken in this cause. We think there can be no doubt the word heirs, is descriptive of the persons of those in remainder after the expiration of the mother’s life interest. So it is frequently used. 4 Kent’s Com. 220, 222. Had the children of Amy W. Lanier filed their bill on the covenant, alleged and proved a tender of the money by instal-ments to Quinn and Elliston, that they would have had a right to a decree for the slaves, and thereby extinguish the life estate of their mother, it is believed, cannot admit of serious doubt. When the bill of sale was taken from Lanier, the parties thought it was necessary Mrs. Lanier should join in the sale. It appears from the evidence of Moses Stevens and E. Goodrich, that she was unwilling the negroes should be sold, unless provision was made that they should return into the family, and that she did assent because of the covenant, there can hardly be a doubt. Judgments were hanging over the husband. He could not hold the negroes. She felt as every woman does and should feel, that to take away the negroes her father had given her, was taking from her part of her family, and a cruel necessity. Unfortunately, however, the father had not vested the slaves as separate property, and Mrs. La-nier’s title was subject to her husband’s debts. Her joining in the bill of sale was a mere nullity and unnecessary. Still, it was a wise provision to secure to the children the right to purchase the interest of Quinn and Elliston, so that they might have a more direct control of the slaves during the four years, or life of the mother. We |hink there is nothing in this paper going to show either fraud or trust, as between Quinn and Elliston and Edmund Lanier.

In the next place, was the bill of sale from Lanier to Quinn and Elliston fraudulent as to creditors? That they paid the thirteen hundred and thirty two dollars, is as substantially proved as could reasonably be expected, after the lapse of such a length of time. There is no good reason to doubt it. Amy W. Lanier was about fifty years of age when it was made, a feeble and frail woman of shattered constitution, and unlikely to live long. Most of the negroes were young and an expense to the purchasers of the life estate. The witnesses prove, and especially Mr. Grundy, that'the price paid was a full and fair one. > Indeed, it was a contingent interest that no prudent man would have dealt for, unless to save a doubtful claim, if he intended to deal fairly by those entitled in remainder; that is, keep the negroes together, and take the care of them a prudent man should of his own, and especially the women and children. Had Quinn and Elliston acted differently, they would have been subject to have the slaves impounded in their hands, and to pay damages. Smith T. vs. Bell and wife, Martin and Yerger, 305. It is pressed as a badge of fraud, that Lanier, contrary to conscience, in avoidance of the payment of his other just debts, and in a secret manner, conveyed the whole of his slaves to Quinn and Elliston. Judgments were certain to be recovered against him very shortly. To permit a levy and sale of the negroes would have produced a separation of them, and threatened destruction to the title of his children. That he selected the creditors to whom he conveyed tire slaves, with a view to his children’s interest, we do not doubt. He conveyed to separate creditors jointly, when he owed Elliston only about three hundred and fifty dollars, to secure the responsibility of the latter to his children. He obviously preferred this man to Grundy, Hickman and his other creditors. This he had a right to do, if he received a fair price, and the sale was made in good faith.

But the main ground on which relief is sought by the bill is, that Quinn and Elliston had hired the negroes, and from their hire received their debts, and therefore they ought to surrender them to Hickman.

Contrary to any prudent calculation, Amy W. Lanier is yet living. Quinn and Elliston had the possession, and received the hire of the slaves from March, 1821, to October 1827, when Hickman filed his bill. This supposed foot of relief, is rested on time and chance. There was not the slightest ground for the assumption in 1821, that Quinn and Elliston could be compelled to take their debt out of the hire. Their chance of not being paid rested upon the highly probable contingency of Mrs. Lanier’s death at an early day, and also on that of the death of the adult slaves, some of whom did die. It was in its nature a risking bargain, not open to impeachment by either party, or creditors, should it turn out ill or well.

It is next assumed, that the contract made by Lanier was a mortgage, and Hickman as a judgment creditor, entitled to redeem from Quinn and Elliston. This is not charged in the bill, but as the decree below proceeded upon the assumption, it will be briefly examined. Laying the covenant to the heirs out of the case, and of course the right to redeem rests on parol proof. That such proof may be received to show the redeemable quality of the absolute bill of sale, is too well settled to be shaken. But to do this the proof must be so clear as not to admit of a doubt that the contract was made subject to the condition, not reduced to writing through fraud, mistake, accident, &c. The reason the proof must be plain is, that the presumption is strongly opposed to the existence of such a defeasance. In addition to the presumption in this case, the witnesses prove that the debts of Quinn and Elliston were discharged. This is in affirmance of the answer of all the parties. Had the bill of sale only been a security for the money, Lanier would at all times have been subject to be sued, and the debt recovered from him. Had Mrs. Lanier died the next month after the contract was made, Quinn and Elliston could have sought their remedy against Lanier. We think that if any thing is plainly manifest from this record, it is, that Quinn and Elliston parted with their remedy.

To prove the condition, the evidence of James Condon is first relied upon. He was a subscribing witness to the bill 0f sale. When they left Lanier’s house, he asked Quinn if he thought he and Elliston were secure? Quinn answered, ‘Conditionally; that is, if Mrs. Lanier lives long enough.’ That this expression of Quinn had reference to the contingency on which their right to the use of the negroes rested, and nothing more, can hardly be doubted.

2. The evidence of Edmund Goodrich is relied on. He says, in the latter part of the spring or early part of the summer of 1827, before the filing of the bill, he had a conversation with Elliston, (having been requested to 'do so by Lucy Lanier, one of the daughters, and Mr. La-nier and his wife,) when Mr. Elliston stated he wished to make over the negroes for the benefit of Mr. Lanier and the balance of the family. That he had from the hire received the amount he claimed; or that the hire that year would amount to within twenty dollars of paying him, or would over pay him twenty dollars. Witness understood from Elliston that he did not conceive himself bound to make the conveyance to the children or any other person, but that his wish to do so arose from his friendship to Mr. Lanier and his family; and that El-liston had previously proposed to do so, for which reason, Goodrich, the brother of Mrs. Lanier, was sent to him. Elliston said, and Goodrich understood, the act proposed by Elliston was one of charity, and there is no evidence in the record to contradict it. A man of opulence and high standing, and who acted on the precept of doing unto others as he would be done by, under a change of conditions, had hardly another course left him. To such men the moral sense of the surrounding community is, and ought to be, the standard of their moral conduct. We think there is nothing in this circumstance.

Next it is insisted, some of the slaves, after the bill of sale was made, continued in the possession of Mr. La-nier. They were women and children worth nothing to Quinn and Elliston. To have taken thorn away if they wore of use to the family, would, to say the least of it, have been uncharitable. To cut off all opportunities for the exercise of the charities of life, in such cases, would be an attempt, on the part of the courts, as unwise, as in this country it has been found to be impossible. To test all these circumstances of fraud, Hickman caused some of the negroes to be seized and sold by virtue of his execution, and sued Quinn in detinue for them. The result was a verdict for the defendant.

Hickman’s case is a very hard one. He has suffered as a security, and is an object of great commiseration, which resulted no doubt in a decree in his favour below; and$ was there any ground of relief known to a court of chan-eery, it would afford us great satisfaction to decree him the hire in the hands of Quinn and Elliston during the progress of this suit, in satisfaction of his favor-ed and meritorious demand. A court- of equity having no such power on any recognized principle, we must leave him to the humanity and moral sense of the defendants. The complainant will pay his own costs, and the defendants jointly pay the defendants’ costs, and the bill be dismissed.

Whyte J. concurred: Peck, J. absent, being related; and GREEN J. gave no opinion.

Bill dismissed. 
      
      The defendants, after deducting their expenses, attorney’s fees, &e. and after payment of all the costs in the cause, voluntarily ga’ve to the plaintiff, all the hire over and above their principal debt and interest. They also voluntarily conveyed the slaves to the children of Mrs. Lanier.
     