
    William Bell, vs. William Strother and John Buchannan, Executors of Woodward.
    
    The delivery of property, on the marriage of a child, is presumption of a gift, and will be considered as such, unless there be something to counteract ■thepresumption, and this without regard to time.
    This was an action of trover to recover the value of a negro woman called Sarah, and her three children, Jane, Charles and James, tried before Judge Gantt-
    
      The plaiutiff claimed under a deed of trust from Joins Bell, to himself, dated 15th January, 1813. By which deed the negroes in question were settled to the following uses: “To the sole use of Izabella Turner, the wife of William Alexander Turner, for life, with a limitation after her death to the children of that marriage.” The execution of this deed was proved by Richard Watson and William Delany. It was done at the house of John Bell. The demand and refusal were admitted, and also that Jane, Charles and James were the children of Sarah, and that the value of the negroes sued for v. as ‡ 975.
    The defendants claimed, in right of Woodward, dec’d. as Ills executors, under a gift from the said John Bell to the said Izabella Turner, on her marriage with the said William Alexander Turner; and as her property, the negroes in ques^ tion were sold under execution and purchased by the dec’d Woodward. The gift to Izabella on marriage was inferred from the circumstance of Sarah having been in possession of Turner for some years before the execution of the deed, and before she had children.
    The question was submitted to the jury on the evidence, who found for the plaintiff the value of the negroes as admitted.
    The defendant moved the court of appeals for a new-trial upon the following grounds:
    1st. Because the finding of the jury was without evidence, there not being a tittle of testimony to do away the legal effects of John Bell’s suffering the negro woman Sarah to go into the possession of William Alexander Turner, his son-in-law, upon his marriage with his daughter.
    2nd. Because the verdict of the jury was contrary to evidence, in as much as the circumstances under which the negro went into, and remained in the possession of Turner, were clearly demonstrative of a gift, and there was no evidence to the contrary,
    
      3rd. Because the verdict of the jury was against law, ’tij as much as the right of the negroes having passed out of John Bell before the time of his executing the deed of trust, plaintiff therefore could prove no property in himself, as he claimed under John Bell, and was not entitled to a verdict.
    
      Clarke for the motion.
    The legal effect of John Bells suffering the negro to go into his daughters possession, on marriage, is the presumption of a gift. The negro remained five or six years in her possession, before the deed of trust was executed. What testimony is there to do away this legal effect. The deed of trust can have no effect, as it is not connected with the precedent transactions. In 2 JYott and M‘ Cord 367, Foster vs. Cherry, a deed drawn before delivery and executed afterwards, it was held that the gift was controlled by the deed. In some cases the jury might perhaps presume only a loan, where the parties are all poor and needing some small assistance. The deed of trust is accounted for, upon the circumstances ofTurner’s becoming dissipated and embarrassed in 1813, and he wished to secure the negro to his daughter. Woodward was a purchaser without notice, The deed of trust is not .recorded. The negroes remained in Turner’s possession. Perhaps the possession of the negroes caused credit to be given Turner.. Woodward, being a creditor it was a fraud on him.
    
      Clendenin contra.
    There is no proof of an absolute gift, but a bare presumption arising from the possession. There was no admission on the part of John Bell Presumptions may be rebuted by other presumptions. The declarations of Bell and Turner would have been good evidence for them, but'not for us, yet no evidence has been offered to prove such’ /declarations. Turner’s acquiescence in the deed is a strong, circumstance to rebut the presumption; besides the acquiescence ot creditors whose debts existed at the time. Judgments remained unsatisfied while the property was in possession of Turner. None but creditors can take advantage of the statute of Elizabeth, and they must be creditors whose' debts existed at the time. A person may give, though in debt, if he leave enough to pay his debts. (Kid vs. Mitchell, I JVoit and M’Cord 334.) Woodward is in no danger of losing his debt. All of it is paid but $150, which M'Crory offers to pay. Besides he had notice of the deed. He owned he had heard of it before. But Turner had other property enough to pay all his debts. This is different from the case of Bra-shears andBlassingame, (1 JYottand M’Cord 223.)
    
      W. F. DeSaussure,
    
    said fraud was not in question. The only ground is, was there any sufficient evidence of an absolute gift? Chattels may be given by deed or -words sufficiently proved, without delivery. Possession, sometimes presupposes delivery, but no case has been decided that mere possession proves delivery. No evidence how long Turner had possession before the deed. No proof of continued pos - session. Turner’s acquiescence makes the deed as valid, as if he had made the title. In Kid vs. Mitchell, another person made the deed.
    
      Clarice
    
    There was no evidence that Turner knew of the deed.
   C one o- k, J.

In this case the motion must be granted. On the third ground, the verdict is directly contrary to the established doctrine of law. It has been repeatedly decided that the delivery of property on the marriage of a child, raises the presumption of a gift, and will be considered as such, unless there be something to counteract the presumption, and this without regard to time. (1 Bay 232. 2 Nott and M’Cord 93.)

This is a stronger case in favor of the defendant than the case of Winn and Irby, decided on Monday-last; for here the possession was at least seven years antecedent to the deed of trust under which the plaintiff claims. Now such a possession even in a stranger, would have given him title, if not accounted for. The father-in-law, John Bell, had no property in these negroes when he made the deed, consequently could convey none. But even if the period of possession had been shorter, to have suffered such a deed to prevail, would be-a fraud on the community. The defendant may have been, and I have no doubt from the facts of the case, was, credited on the faith of the property; and it. Is no answer to this to say that the particular creditor, Woodward, who forced a sale of this property, did not credit the defendant on the faith of it; for others might have done so; and the debt to M'Crory, and that to M‘Cready, were contracted in 1807, after, as we are authorized to suppose from the testimony, the negro woman, the mother, came into the possession of the defendants; and their executions were actually paid out of the proceeds of. the sale. It was said however, that, as Turner was supposed to be able in 1813 to pay his debts, the deed ought to be considered as his deed, and if it had been made by him it would have been effectual. Now there is no evidence to shew that the deed was made with the knowledge or consent of Turner. But if it had been actually made by him, I cannot think that it would have availed; though it is not necessary to determine that question.

The motion is granted.

Clarice for the motion.

Clendenin and DeSaussure contra-. 
      
       This case I have not thought worth publishing, as the decision turned on circumstances of fraud, and very contradictory and irrelevant testimony. E» '
     