
    *Thomas M’Donald v. Elijah F. Crockett, Nathaniel Wade and Wife and Thomas Lee.
    Objection to the jurisdiction not lo be made after a decree by the chancellor. Permitting personal properly to go into possession of a daughter on her marriage, and to remain there a considerable time, raises the presumption of a gift. If any condition is attached to the gift, it must be expressed at the time the possession is changed. Where a deed gives a life estate in a negro to a wife, without saying for her sole and separate use, or using words from which it could be inferred, the husband is entitled to the life estate. The case of Johnson v. Thompson, 4 Desalts. Hep. 458, 9, commented on. An objection to the jurisdiction of the court may be made at any stage of the case, where the want of jurisdiction goes to the subject matter in dispute ; but with regard to all other cases, if the party submits to the jurisdiction and goes to trial, he cannot object after the decree.
    This cause came on upon the report of the commissioner, and exceptions thereto. The bill was filed by the complainant to recover a sum of money, about two hundred dollars, which he had been obliged to pay as surety for the defendant Wade, on his purchase of a horse. Wade was insolvent, and the question made for consideration was, “whether the complainant was entitled to be reimbursed by the sale of a slave named Daniel, who was put in possession of Wade by Mr. Simpson after his marriage with the daughter of Simpson, or out of the hire of said slave, the proceeds of which were in the hands of the defendants, Crockett and Lee.” It appeared that Wade married the daughter of Simpson in the year 1811, without his consent, as alleged; but after the marriage he received them home, and they resided with him some time. They then went to house-keeping separately from the father; and Wade worked a farm for his livelihood. Mr. Simpson sent them the slave Daniel, who continued in their service. No writing was sent at the time Daniel was delivered to Wade and his wife. It was stated that Wade became idle and extravagant after some years; and on the 8th of July, 1814, Simpson executed an instrument by which he conveyed to Robert Crockett and Thomas Lee the slave Daniel, in trust for the use and benefit of his daughter, Laura Wade, during the lime of her natural life ; and at her death for the use of her children, previously or subsequently born.
    The case was referred to the commissioner. The commissioner reported, that in his judgment, founded on *testimony, the slave Daniel was in the possession of Wade and his wife several years ; during which the slave Daniel, as well as the horse purchased bv Wade (for which the complainant, M’Donald, became security, and had been made to pay §200,) were employed by Wade in farming, for the benefit of his family. And there was more money than sufficient to pay the debt to complainant out of the hire of the slave Daniel, since he was taken possession of by the trustees.
    The principal exceptions to the report were, that Wade had no interest in the slave Daniel, that he was loaned by Simpson in 1811 ; and no deed of him till that of 1814; and that that was a deed of trust for the use of Mrs. Wade alone, and not for the benefit of the family, as the commissioner supposed.
    June, 1825. DeSaussure, Chancellor. There are several questions for my consideration.
    Was the horse, on account of whose purchase the debt to complainant was contracted, purchased and used for the benefit of the family of Wade ? There is no evidence that the horse was purchased expressly for that purpose; but there is evidence that the horse was employed for the subsistence of the family.
    But the more important questions are the following : Was the delivery of the slave Daniel to Wade and his wife a loan or an absolute gift? There was no written document given at the time of the delivery, and no evidence of what was said at that time. It stands then on the naked ground of the actual delivery of a personal chattel by a father to a married daughter. It has been decided long ago, ‘‘that permitting personal property to go into the possession of a daughter on her marriage, and to remain there a considerable length of time, is regarded as sufficient evidence of a gift.” See 2 Nott & M’Cord, 93, 95. 1 Bay, 232, and other cases. I concur* in, and feci bound by these decided cases. There is no evidence in this case sufficient to take away the legal conclusion, that possession delivered of a personal chattel, to a person standing in the relation of a married daughter, must be considered an absolute gift, unless restrained at the time by some condition. But it is said that the father, Mr. Simpson, by executing a deed in 1814, conveying the same slave to trustees for the use of his daughter for life, and then for the benefit of her children, expressed his intention, and explained the original delivery of the slave. Doubtless, a father would be disposed to secure the property to his daughter and her children, when he found the husband becoming extravagant and careless ; but if the delivery of possession, without limitation at the time, made it an absolute gilt, it is not in the power of the donor afterwards to qualify and restrain the gift, or attach conditions to it. Besides the deed itself gives a life estate to the daughter, without saying that it was for her sole and separate use, or using any words from which it could be inferred. The husband then, at all events, was entitled to enjoy that life estate; and the hire during that time furnishes a fund to pay the security debt. Besides, the deed from the father, to be operative as a settlement to the sole and separate use of the daughter, should (if it comes within the statute for recording marriage settlements, which I doubt) have been recorded in the office of the secretary of State, and not in the register’s office of the district. A good deal of reliance was placed on a decision of the court of appeals in equity, in 1814. See Johnson v. Thompson, 4 Desaus. Rep 458, 9. The court decided that a deed of gift of personal property, by a father to a daughter, then a married woman, should be considered as an instrument to give the wife a separate estate, though the deed was not explicit. I was favo^d a considerable time ago, by Mr. Justice Johnson,* of the present high court of appeals, with a minute of the terms of the deed. Ho stated to me in a writing, which I have attached to the case, that a father made a written deed of gift to his daughter of personal property, “to do with and dispose of as she pleases during her life.” Judge Johnson added, that perhaps the words “without the control of the husband” were added, but he did not recollect.
    The decree of the court of appeals also states, “ that it could be fairly inferred from the words of the deed, that the intention of the father, the donor, was to give her a separate estate, which her husband had no right to dispose of in any manner.” Thus we see that this case is very different from the one we are considering. The testimony in the case, generally, speaks rather to opinions than to facts, — the construction of the act of the delivery of the slave, and of the subsequent deed; and therefore does not assist us materially in forming a judgment in the case.
    Upon the whole, I am satisfied that the complainant is entitled to he paid, at all events, out of the funds in the hands of the defendants, derived from the hire and labor of the slave. Should that fund be insufficient, then to be paid out of the value of the slave. And it is so ordered and decreed, with costs out of the funds.
    From this decree the defendants appealed, on the ground that the court of equity had no jurisdiction of this case, the complainant having full and ample remedy at law.
    That the trust deed from Simpson to Crockett and Lee secured a separate support and maintenance to Mrs. Wade, which was not liable to Wade’s debt.
    Williams, for the appellants.
    The bill should be dismissed for the want of jurisdiction. The property was *delivered to Wade in rí¡.„. 1811, and the deed not executed until 1814. The remedy L should have been by trover at law. Simpson’s power over the property was gone so soon as he delivered it to Wade. The court has decreed the debt to be paid out of the slave ; and that would seem to decide the fact of the property being in Wade. Johnson v. Thompson, 4 Desaus. Rep. 458. But there exists another difficulty. The complainant must either claim under the parol gift, or under the trust deed. If under the parol gift, the suit should have been at law; and it could not be under the trust deed, as the property was bought before the date of the deed. The property under the trust deed never went into Wade’s possession; it remained in the possession of the trustees to the deed.
    Miller, contra.
   Curia, per

Nott, J.

With regard to the merits of this case the court concur with the chancellor, and have nothing to add to the views which he has taken in his decree. The only question on which it is thought necessary to make any observations, is that respecting the jurisdiction of the court. No question of jurisdiction was made in the court below, either by plea or answer. The defendants submitted to the jurisdiction until all the matters in issue had been investigated, and had undergone five years' litigation; and when a decree has been pronounced against them, they then, for the first time, allege that the court had no jurisdiction. It is difficult, perhaps, to set out the limits of the equity jurisdiction by visible metes and bounds, so that the lines and corners may be distinctly seen. There are certain cases of which the court alone will take cognizance; such as cases of trust, matters of account, specific performance of contracts and the like. There are other cases, the *subject matter of which cannot be brought within the pale of that court; such for instance, as slander, assault and battery, cases involving dry legal titles to land, &c. But there are other cases, such as cases of fraud, and a great variety of anomalous cases, of which the two courts have concurrent jurisdiction; or, if not such as precisely come up to our notions of concurrent jurisdiction, may assume such a shape as to give jurisdiction to either the one court or the other. Thus, for instance, on a covenant to make titles to a tract of land, the party may at his option bring his action at law for a breach of the covenant, or he may go into a court of equity for a specific performance of the contract. There are also other cases : where the remedy at law is doubtful or difficult, or where a multiplicity or circuity of actions may be avoided, a court of equity will entertain jurisdiction, although the party might have sued at law. Now I take the rule to be, that in those cases which cannot, from the subject matter of the cases themselves, be brought within the pale of the equity jurisdiction, the objection may be made at any time. But with regard to all other cases, if the party submit to the jurisdiction, even though he had a remedy at law, he must abide by the decision, if it appear upon the face of the bill that the complainant has a remedy at law, the defendant may demur. If it should not appear upon the bill and the defendant in his answer shall deny all the equity, he may then object to the jurisdiction, and the complainant must proceed at his peril. But the objection will come too late after the decree is pronounced. Such is the rule laid down by Judges Kent and Thompson, in the case of Ludlow v. Simond, 2 Caines’s Cas. 1; and the quotation in that case from Baron Gilbert’s History of the Chancery Practice is strong and conclusive on that point.

In the case of Underhill v. Van Cortland, 2 Johns. Cha. Rep. 369, Chancellor Kent again lays down the *same rule, and says, “ It would be an abuse of justice if the defendants were to be permitted to protract a litigation to the last extent, and with the expense attending the suit, and then at the final hearing interpose this preliminary objection.”

Chief Baron Gilbert, in his History of the Chancery Practice, says, “Where the common law would give the same relief as a court of equity then if the defendant would deny the deed and demur to the relief', the demurrer would be allowed ; but if the defendant doth not demur to the relief, the court will decree for the plaintiff on the hearing, because the defendant admitted the jurisdiction by answering and putting it in issue. “The court of chancery,” says Lord Redes-dale, “being a superior court of general jurisdiction, nothing shall be intended to be out of its jurisdiction which is not shown to be so.” Red. Treat. (3d Lond. edit.) 183. And it is said in Sir John Warden’s case, before Lord Talbot, there was an objection for want of jurisdiction, and that the matter was properly triable at law ; but it being disclosed that he had filed a cross bill, the court did not enter into that objection, but said the defendants had given jurisdiction. 2 Madd. Cha. 283. But the case now' under consideration is still stronger, because the objection was not made until the cause ivas brought to this court, after a final decree had been pronounced. I do not however wished to be understood that I am of opinion that this was not a proper case for the court of equity. I am inclined to think the jurisdiction might be maintained upon principle. The motion must therefore be refused, and the decree affirmed.

Colcock, J.

I am constrained to dissent from my brethren in this case, on the ground that there is plain and adequate remedy at law.

Decree affirmed.  