
    Ann Guphill vs. Henry Isbell.
    A secret resulting trust arising from the fact that the negro was paid for with the defendant’s money, cannot avail as a defence to an action of trover brought by the party having the legal title — where the possession was never surrendered to the cestui que trust.
    
    An executor who had the possession may maintain trover in his own right, without styling himself executor.
    BEFOSE EAELE, J., AT FAIRFIELD, SPRING- TERM, 1832.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of trover for four negroes, Betty and her three children. The case has heretofore been before the Court of - Appeals, and all the questions of law which I supposed could arise on the facts proved, were then settled. The case made before me was the same as that formerly made, except that the ground relied on by the defendant was weakened by new evidence on the part of the plaintiff in reply. He produced a copy of .the returns made by George Slappy, as the administrator of George Snider, showing the actual value of the estate, and that it was impossible that the negro Betty could have been purchased wholly with the funds of the defendant’s wife, or that any considerable portion of them could have been so used by William Guphill. It will be sufficient for the purposes of this report, to refer to the opinion formerly delivered, as containing a correct' summary of the facts proved before me, with the,exception already mentioned. I believe the only additional fact proved on the part of the defendant was, that in 1818 or 1819, David Foster, who had married Mrs. Snider, • and she, were appointed the guardians of Mrs. Isbell. Foster died in February, 1819, and Mrs. Foster, towards the end of that year, went to live with Mr. Guphill. She either then returned the negro Betty at the time of her own removal there, or bad done so before. On this point there was conflicting testimony. It was fully proved, however, that the negro was in the possession of Guphill several years before his death, which occurred in November, 1821; and she and her children were then in possession of the plaintiff until December, 1825.
    “Various and contradictory declarations were proved to have been made at different times by the different parties, concerning ,the title to the negroes, on the effect of which the Court has already given its opinion, that they were not inconsistent with the plaintiff’s right to recover at law, on the supposition .that there was a trust.
    “ The defendant offered to prove some declaration made by the plaintiff in the lifetime of her husband. On an objection being made, the counsel was asked to state to what effect, and the answer was a declaration by the plaintiff in her husband’s lifetime, that the negroes did not belong to them, but to Mrs. .Foster. I overruled the testimony as incompetent or irrelevant. If the possession of the plaintiff since the death of her husband, under his will, be adverse to the right of Mrs. Poster, she would be entitled to recover; and if she was in possession as bailee of Mrs. Poster, she would still be entitled to recover against the defendant, a wrong doer.
    “ The defendant’s counsel relied on the fact, that Foster and his wife were guardians of defendant’s wife in 1818 or 1819, and therefore there might have been a surrender of the trust to them. If the negro had been delivered to them after the appointment, there would be ground for argument; but the negro had been in possession of Mrs. Snider for seven or eight years. And the jury could not presume a surrender, even if the guardian had been competent to accept or to make the election, which I by no means admit, from the mere fact that the negro remained in their possession as she had been before.
    “ I charged the jury on the whole case in exact conformity to the principles laid down by the Court in their opinion setting aside the former verdict. I did not think the case made now varied in any important particular from that made before, except that new evidence on the part of the plaintiff in reply went to show that the negro was purchased with the funds of Mrs. Snider (Foster), if not with those of Guphill himself. The plaintiff had a verdict for the negroes and hire.”
    The defendant appealed, and moved for a new trial, on the following grounds:
    1. Because the Court rejected the evidence of a witness by the name of John Ford, who was called on the part of the defendant to prove the declaration of the plaintiff respecting the right of the negroes in dispute.
    2. Because the Court charged the jury, that inasmuch as defendant’s wife was a minor, there was no person legally authorised to accept from William Guphill the trust that had been reposed in him, although it was expressly proved that David Foster, the step-father of defendant’s wife, and her mother, became her guardians in the year 1817 or 1818.
    8. Because the Court charged the jury, that plaintiff was in possession of the negroes more than four years, between the death of her husband, William Guphill, and their going into possession of defendant, and that she was entitled to them by the statute of limitations, unless they were trust property; although it was proved that Mrs. Guphill, plaintiff, in the year 1822, acknowledged the negroes to be the property of defendant’s wife.
    4. Because, if the negro girl Betty was purchased with the funds of Harriet Snider, the mother of defendant’s wife, as intimated by the Court to the jury, she and her increase became the property of David Foster on his intermarriage with the said Harriet* Snider, and the right of them after his death vested in his representative'Dixsey Ward, and he alone, or his bailee, could support an action for them against defendant.
    
      5. Because, if the negro Betty and children were really the property of defendant’s wife, as was clearly proved, the negroes being in the possession of defendant, he had a right to defend his title to them at law; although the property might originally have been trust property.
    6. Because the Court charged the jury, that plaintiff could recover against defendant on the proof of possession, although the defendant set up a title to the negroes in himself and wife.
    Olarhe, for appellant.
    
      Crregg, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The presiding Judge reports, that the case proved on this trial-is the same as that formerly made, except that the ground relied on by the defendant was weakened by new evidence in reply. This is decisive of the questions now made, and which are embraced in the former opinion. But with a view of satisfying the learned counsel for the motion, that he has not been precluded from availing himself of a de-fence at law, which was there possible to have been made, I have looked into the notes of the evidence, and if any trust at all was proved, it is clearly not more than a resulting trust, from the investment of the funds of the defendant’s wife in the purchase of the negro woman Betty. Such a trust ’cannot be set up at law; it is a mere equity, which the cestui que trust may, in equity, set up, and have decreed; or claim on account of the fund invested, at her election. It is true, it is said by some of the witnesses, that G-uphill said he bought the negro for the defendant’s wife; and if that stood alone, and the cestui que trust had the possession, I should be inclined to say, that it would be a good legal defence to an action of'trover, at the suit of tbe trustee; for in that ease tbe cestui que trust would bave tbe right of possession; and, that must defeat-an action of trover. But notwithstanding these declarations, it appears that tbe plaintiff’s testator took the title to tbe negro in bis own name, without any declaration of the trust. ■ This vested the legal estate and right of possession in him, and at law this cannot be defeated by a secret trust which results from the purchase being made with the funds or for the use of another. The whole evidence, therefore, which went to set up this secret, or resulting trust, was inadmissible at law, as contradicting a plain legal estate created by deed. Redwood vs. Reddick, 4 Mun. 222.

It has been contended on this occasion, that the bequest to the plaintiff for life, could not convey to her the 'trust estate which her testator had in the slaves. The bequest to her is general, of the use of all my slaves and all their future increase during her life.” This would not pas'’ to her. slaves which were held by him as a plain and direct trust for the use of another; for it would not be intended that the testator intended to give by a»general bequest, that in which he had nothing but 'the legal right of property, while the right of possession was in another. But it may well be doubted, whether property in which a resulting trust might or might not be set up at the election of the cestui que trust would not pass, subject to the equity, under such a general bequest. In this case however the inquiry is unimportant. The plaintiff is the only qualified executrix of her husband’s will; in that character the trust devolved upon her; she had the actual possession of the property, which went either tortiously or accidentally into the possession of the defendant. Upon her possession she could maintain trover without styling herself executrix; and before the defendant could have forced her to rely upon her right of property as executrix of William Guphill, he must have made out a primé facie case of a legal right of possession. This he 'failed to do; for bis rights (if he has any) are entirely equitable and not legal.

The motion for a new trial is dismissed.

Harper and Johnsoíj, JJ., concurred.

Motion dismissed.  