
    * Montgomery v. Rose.
    
    January Term, 1855,
    Richmond.
    Absent, Tyleb, J., and Gilmeb, J.
    Purchaser — Bona Fide, without Notice. — A defrauds B of certain slaves, and afterwards makes a deed conveying' it to a trustee to secure a debt. The trustee sells the property, and C becomes the purchaser for valuable consideration, without notice of the fraud. C then conveys the property to D. Held: That D is entitled to hold the slaves against B, whether he had notice of the fraud or not. In the former case, he holds a valid title under C; in the latter, he is himself a ioiiaMs purchaser without notice of the fraud.
    Gustavus A. Rose filed a bill in November, 1821, in the Circuit Court of Lynch-burg, setting forth that his relation, Alexander B. Rose, of Nelson county, ..had become the victim of his own unfortunate habits and the evil practices of others, and had been reduced from affluence to poverty by constant frauds practiced upon him. That his intemperance, his total unfitness for business, and his liability to constant imposition, had renderd him unfit to prosecute any remedy for the wrongs which had been done him; and that, in consequence, he had been induced to convey all the property he then possessed, to the said Gustavus A. Rose, by deed duly recorded, with the express trust, among other purposes, that he should prosecute for the benefit of himself and his creditors, the claims embraced in this suit, and such others as he might have against other persons.
    The bill further alleged, that in 1810, by a variety of fraudulent practices, (which were stated in detail,) John Eubank, John Jacobs and John Barnett succeeded in depriving the said Alexander B. Rose of njuch of his property, including nine negroes— that they divided the negroes between them; and having sold the remaining ^property, also divided the proceeds. These allegations were substantially proved.
    It also appeared, that after the three parties above named had come into possession of their respective shares of the ne-groes, and in the year 1810, the said Alexander B. Rose brought suit in chancery to recover the said property, and in July 1811, dismissed the same in consideration of an agreement entered into on the 11th of that month between himself and Jacobs, Barnett, and Eubank to submit the matters in controversy to the arbitration of David S. Garland, John Camm and James Montgomery. No award was ever made under this submission, but it is alleged in the bill that a fraudulent settlement of all the matters in controversy, was made by Jacobs with Rose, and it is admitted in the answers that a settlement was made, which settlement is exhibited with the answer of Jacobs, dnd is in these words: “Ido acknowledge the balance due to John Jacobs, or five pounds sixteen shillings, after settling all our accounts to this date.
    “Given under my hand this 24th day of September, 1812.
    “Alexander B. Rose, [Seal.]”
    After the occurrence of all these transactions, Barnett disposed of all the negroes acquired by him. One of them fell into the hands of Benjamin D. Harris' — one into those of James Sheppard Pendleton — and two, Ross and Delphy, with four children, their increase, were conveyed by said John Barnett in trust to secure a debt. The date of this deed does not appear from the record, but it must have been between 1814 and 1820; nor does it appear who was the trustee, nor when the sale was made. All that appears to be certainty ascertained about it is, that it was bona fide, and that at a public sale made under it, one David S. Garland became the purchaser. In July, 1820, the negroes embraced in the said deed were conveyed to James Montgomery for their full and fair value by said Garland, with special warranty.
    *In November, 3824, Gustavus A. Rose filed a supplemental bill, by which it appeared that he had lately, bjr a contract made with Alexander B. Rose, and for valuable consideration, become entitled to the interest of Alexander B. Rose in the whole subject in controversy in his own right, and he prayed that John Eubank, John Barnett, John Jacobs, Alexander B. Rose; and the vendees of Barnett, to wit, Benjamin D. Harris, James S. Pendleton, and James Montgomery, should be made parties to the same, as they all had been made to the original bill. David S. Garland seems to have been omitted as a party by both bills.
    *Note by the Reporters. — In citing-this case, the counsel read a manuscript opinion of the late Jurj ge Stanard therein, concurring in the opinion of Judge Aleen, and giving additional reasons for his own. tt does not appear why this opinion was not printed in the report of the case in IS Leigh ; hut it is possible that it was mislaid, as the volume was not published until three years after the decision of Owen v. Sharpe. However this may be, we have been politely furnished by Robert Stanard, Esa-, with this manuscript opinion of his father, found by him among his papers : and copy it here, not only because anything from the pen of that distinguished jurist must be of interest to the profession : but because it is a lucid opinion, constituting an interesting addition to the case of Owen v. Sharpe.
    
    Stanard, J. The appellant by his answer unequivocally denies the. trust, charged in the bill to have been annexed, by a parol agreement between Waddy Thompson and appellant, to the bill of sale of the slave So key ; and insists that the bill of sale was unconditional and given on a purchase for valuable consideration. If the evidence of the appellees, to establish the trust, be sufficient to counteract the answer and circumstances corroborative of it which the record shows, (of which I have some doubt.) the case made by it is this: Waddy Thompson, the father of the female appellees, being embarrassed by debt, and desirous of securing a portion of his property to his daughters, so that it might not be exposed to the claims of his creditors, placed money in the hands of the appellant to be used in the purchase of a slave belonging to him, and then under execution —on the secret trust that the slave so purchased should be held by the appellant for the use and benefit of his said daughters. The slave was purchased under this arrangement, ana an absolute bill of sale of the slave was thereafter given to the appellant by Thompson, and she was then nominally hired to Thompson, and his bond for the hire given to the appellant.
    Had this secret trust been for Waddy Thompson, and he or his representative been plaintiff in equity to set up this trust, the principles conceded in Austin v. Winston. 1 Hen. & Munf. 33; and governing the decisions of the Court of Appeals in the cases of Bishop v. Estes, (not reported, but cited 4 Ran. 372, 377.) Starke v. Littlepage, 4 Ran. 368; James v. Bird, 8 Leigh, 510; Terrell v. Imboden, 10 Leigh, 321; and also, settled in the leading case of Hawes v. Leader, Cro. J. 270, would forbid all countenance to the claim. Even the opinion of the dissenting judge in the case of Starke v. Litilepage, would deny relief to the party plaintiff claiming under the vicious contract. The principle of those cases (and it has my full approbation,) is, that a title or defence cannot be made good by proof of the turpitude of the party who sets it up, and which is unsustained, if the proof showing the turpitude be excluded. In other words, the morality of the law forbids that such proofs should be respected or heard in behalf of such party. That the claim is made by the daughter rather than the father, cannot place it in a different category. The claim is condemned as the offspring of fraud. It is proven only by proof of the vicious contract, and has no other foundation to rest on; and to sustain it is, not only to hear and respect the proof of turpitude in behalf of a party, whose claim is founded on it alone, but to give judicial aid to, and enforce the vicious contract. Had the bill of sale declared on its face a trust for the daughter,, then the title ought to have been sustained, because it could only be impeached by extrinsic evidence to prove that it was a contrivance to defraud the creditors of Waddy Thompson, and the appellant, a party to the deed, could not set up such defence, as evidence in his behalf to prove it would not be heard. On this hypothesis, the appellees’ title would appear without proof, on their part, of the vicious contract, and the defence would require proof which, offered on behalf of a party to the transaction, ought not to be heard. It is hardly necessary to say, that these remarks do not apply to cases of contracts in violation of law, which are relieved against or enforced by courts of law or equity, as the one or the other course may best advance the policy of the law, and secure its observance.
    
      The objections to the recovery made in the answers of all the defendants were : 1st. That the original bill savored of champerty and maintenance. 2d. That there was no fraud in the transactions detailed in the bill. 3d. That the supplemental bill could not be maintained, for it asserted new claims inconsistent with and repugnant to those set up in the original bill. 4th. That all recovery in the case was barred by the statute of limitations.
    The court below, at the hearing, held the transactions of Eubank, Barnett and Jacobs to be fraudulent. It further held, that the defence of champerty to the original bill could not be maintained, and that, on the contrary, it was a meritorious bill; that the objection to the supplemental bill could not be sustained, for it was only filed for the purpose of claiming a greater interest in the same subject, against the same parties ; that the statute of limitations did not apply to protect the said Jacobs, Eubank and Barnett, since they should be considered, not only as trustees, but as fraudulent trustees ; and that it did not apply to protect the other defendants, the purchasers of any part of the trust property, because, though fair purchasers, their adversary possession was not of five years’ continuance before the commencement of this suit. It, therefore, decreed as to the slaves, that they, with their increase, in the hands of the several defendants, should be delivered to the ^plaintiff, and directed an account of their hires and profits to be made by each of the defendants for the period within which they were severally possessed of any of them. A similar direction was made as to the other property of which Rose had been defrauded.
    It seems that all the defendants acquiesced in this decree, or took no further steps to oppose it, except James Montgomery who appealed to this court.
    Stanard, for appellant.
    The decree is erroneous as to Montgomery. The property was sold to Jacobs in 1809, and, as he contends, was a conditional sale, and not a mortgage. In 1810, Jacobs, Eubank, and Barnett took possession of it as their own, and this bill was not filed till 1821. The statute of limitations would therefore protect them; for it runs in all cases of constructive trusts raised by fraud or other causes; and equitable protection to trusts, can only be invoked against the effect of lapse of time, in cases of direct trusts, between trustees and cestuis que trust. Sheppards v. Turpin, 3 Gratt. p. 394. And even in cases of gross fraud, the statute still runs. Owen v. Sharpe,* 12 Leigh, p. 427. There *is, therefore, nothing in the record to justify the court in taking the property even from the original parties — Jacobs, Eubank, and Barnett — -a fortiori, it could not deprive Montgomery of what he had. He was wholly innocent of any such offences as the others were affected with, and could in no way be considered a trustee, or be affected with fraud in the matter.
    These are my impressions in regard to the principal question discussed at the bar. It is needless, however, to make them the ground of the decision in this case, as on another point my opinion (in which, I believe, the other judges concur.) is that the decree of the court ought to be reversed, and the bill dismissed.
    The answer not only insists on the fairness of the transaction, and the title of the appellant as a fair purchaser for value, but also on his long possession. It appears that the appellant, between 8 and 9 years before the institution of this suit, settled his account as guardian of the female appellees with the husband of one and the agent of the other (that other being then of age;) that he then did not bring into the account the profits and hires of the slave, and on a claim then made to the slave, he denied the right of the female appellees, and claimed the slave as his own. From thence, at least, his possession was adversary, and that possession continued nearly nine years before the institution of this suit. Such possession vested in him a title to the slave independent of the bill of sale. It has been repeatedly decided that five years’ possession of a slave vests a title against parties not under disabilities that would protect their claims from the operation of the statute of limitations —and this possession may not only be used in de-fence, as in the case of Elam v. Bass, 4 Munf. 301, and Garland v. Enos, 4 Munf. 504, but is sufficient to establish a title warranting a recovery by the plaintiff in the suit.' Newby's adm'r v. Blakey, 3 Hen. & Munf. 57.
    He knew that Barnett had been in possession for many years, and that no adverse claim had been set up by *Rose or any one else. Some attempt was made in the bill to affect him with notice of the fraud, because he was appointed one of the arbitrators between Rose and his supposed despoilers in 1811; but this attempt must be wholly vain. The award was never made, nor did the arbitrators ever act, and he knew therefore, and could know, nothing of the fraud. Montgomery was a bona fide purchaser, for valuable consideration, without ^notice of the fraud or trust, and is therefore entitled, on this ground also, to the protection of the court.
    Should the court reverse the decree in favor of Montgomery, I would ask that a mandate to the court below may be entered, directing a decree for restitution of the property to Montgomery, if (as I understand to be the fact) he has been deprived of the possession of it by the decree complained of. Authority for so doing will be found in the case of Flemings v. Riddick’s ex’or, S Grat. p. 272.
    There was no appearance for the appel-lee.
    
      
      For monographic note on Frond, see end of case.
    
   FIEBD, P.

The Court is of opinion that the decree of the Chancery Court is erroneous, as to the appellant Montgomery. The negroes held by him had been sold by virtue of a deed of trust from Barnett, under which Garland became a purchaser, for valuable consideration, without notice; and thus acquired a valid title to them against the claim of Rose. Garland sold to Montgomery for valuable consideration, and he also was a purchaser for valuable consideration, without notice of the claim of Rose; but whether with or without notice, is immaterial; for, by his purchase, he acquired the same valid title which Garland held. The decree is therefore to be reversed, with costs; the bill dismissed as to Montgomery, with costs, and the cause remanded to the Circuit Court of Bynchburg, with directions to extend to the plaintiff Rose such other and further relief as he may be entitled to ask for and háve against any of the other defendants in consequence of the dismissal of the bill as to Montgomery. And the said Circuit Court is further directed to provide for the restitution of the negroes to Montgomery or his representatives, if he has been deprived of their possession under the decree hereby reversed.

THOMPSON, J., and CBOPTON, J., concurred with Field, P.  