
    *London v. Turner.
    November, 1840,
    Richmond.
    (Absent Stanard, J.)
    Personal Property — Parol Declaration of Trust-Valid as between Whom. — Although, where personal property is given to one upon a trust hy parol for another, the declaration of trust hy parol may he valid as between the donee and the cestui que trust, yet as between the cestui que trust and tie creditors of the donee the case is essentially different.
    Fraudulent Conveyances— Limitation of Chattels— Possession in Another — When Liable for Debts of Person in Possession. — where any reservation or limitation is pretended to have been made of a use or property, hy way of condition, reversion, remainder or otherwise, in goods and chattels the possession whereof shall have remained in another for five years, the same, as to the creditors and purchasers of the person so remaining in possession, is, under the "act to prevent fraud, and perjuries, taken to he fraudulent, and the absolute property to he with the possession, unless such reservation or limitation were declared hy will or hy deed in writing, proved and recorded.
    Same — Same—Same—Same—Case at Bar. — A father, upon the marriage' of his daughter, makes her a gift of slaves, and the possession thereof remains in the daughter’s husband five years. While the husband is in possession, the father makes his will, confirming the gift, and declaring that the same is ‘‘to her in trust for the sole and only purpose of her immediate use and comfort in life, and after her decease the title and fee simple interest to he vested forever in the children or issue lawfully begotten of her body, free from the claim, control or direction of any other person whatever.” Although this will is made and recorded within five years from the time of the gift, yet Held that the slaves are liable to he taken in execution hy the creditors of the husband.
    This case distinguished from Beasley v. Owen, 3 Hen. & Munf. «9.
    In December 1827 Terza London exhibited her bill to the judge of the superior court of chancery holden at Lynchburg, setting forth that about the 31st of December 1809, the complainant, whose maiden name was Higginbotham, intermarried with John London; that ‘some time after the marriage, her father John Hig-ginbotham delivered into her husband’s possession two female slaves, to wit, Par-melia and Elvira, “declaring at the time of said delivery his intention to give the said slaves in trust for the sole and only purpose of the complainant’s use and comfort during - her life, and at her death the title and fee simple interest to descend and vest in her children or issue, which she might thereafter have; that the slaves remained in the possession of her husband from the time of said delivery until his death, without any effort on his part in any single instance, and without the assertion on his part, during all that time, of any claim or right in opposition to the said limitation and trustthat in addition to the limitation and trust declared at the time of the delivery, the father of the complainant, in 1813, shortly previous to his death, made his will, which was duly recorded in the county court of Amherst, in which, out of abundant caution, and for the purpose of committing the title of said slaves to record, he confirmed the gift of them to the complainant and her children, in the manner and under the limitations and trust before mentioned; that since the said gift, Parmelia has had four children, Henry, Edmund, Fleming and-; that in 1823 complainant’s husband died intestate, largely indebted by specialty and simple contracts; that she qualified as his administratrix, and has administered the whole of his personal assets (with the exception of a small sum retained to cover future contingent and unavoidable expenses) in the payment of specialty debts, leaving a large amount of them still unpaid, and the whole of the simple contract debts; that her husband died seized of several tracts of land amounting to between 1500 and 1600 acres, no part of which has been subjected to the payment of his debts; that among the specialty debts left unpaid is one of large amount, to wit, 857 dollars 81 cents, besides interest and costs, due James Marr deceased for the purchase of a part of the said land, for which debt William Turner is bound as the surety of her husband; that Turner having paid 300 dollars, part thereof, to Alexander Marr the personal representative of the said James, recovered, upon motion in the superior court of Amherst county, a judgment against the complainant as administratrix as aforesaid, for the said sum of 300 dollars with interest from the 24th of July 1826 till paid, and the costs of the motion; that upon this judgment he has sued out a fieri facias, which he has caused to be levied on the negro boy Henry, a child of Parme-lia ; that he alleges he has no paid the balance of the debt to Marr’s administrator, and will obtain a judgment against the complainant as administratrix for the same, and upon such judgment will cause execution to be levied on the remainder of the said slaves; that whatever right her husband had in the usufruct of the said slaves by virtue of his marital rights, was sold by the complainant as his administra-trix, at a sale of his personal property made when Turner was present, to wit, in December 1823, at which time she became the purchaser at the price of 201 dollars, which sum she was enabled by the bounty of her brother to pay, and which, as administra-trix, she has appropriated in payment of her husband’s debts; that she is advised now that she acted under a mistaken idea of her own rights in purchasing the said slaves and paying the said sum of 201 dollars of her own money for them, because, upon the death of her husband, no right or interest in said slaves was transmitted to his representatives; that the complainant has by the said John London six children, to wit, Frances Jane, John James, Anne Eliza, Daniel H., Mary Banks and William Augustus London, of whom Frances Jane has intermarried with Winston Woodroof, and the remaining five are infants under the age of 21 j'ears; that the said Turner has heretofore exhibited several bills in chancery against the complainant and her children, to subject her husband’s lands to the payment of his debts, which suits are still pending, and she is at a loss to conceive why he should have relinquished the pursuit of those lands to invade the rights of herself and her children, of which rights he must have been apprised, and in which he had heretofore acquiesced. The bill makes Turner, Wood-roof and wife, and the complainant’s other children, parties defendants. And it prays that Turner be injoined from selling Henry, and from levying upon or selling the other slaves; that if it be found necessary, an account may be taken of the complainant’s administration, and if it shall appear that she has paid the said sum of 201 dollars under a mistake of her rights, that she may be reimbursed out of the rents of the real estate.
    Chancellor Taylor denied the injunction, but it was awarded by one of the judges of the court of appeals.
    Turner, by his answer, after objecting to the jurisdiction of equity, stated that he thought it probable the marriage took place at least a year anterior to the time stated in the bill; that there was no material lapse of time between the date of the marriage and the time of the delivery of the slaves; that it is untrue that the delivery of the slaves was accompanied by any such declaration as is slated in the bill, or clogged by any condition or limitation whatever, but on the contrary the said slaves were fairly and unconditionally given by the father of the complainant to herself and her husband, for her advancement in marriage, and the husband claimed the slaves as his own property, and treated them as such, from the time they came into his possession until he died; that for these reasons the title to the slaves was not subject to the will of the complainant’s father, and that will can have no influence upon the case; that respondent is advised the personal estate of the complainant’s husband must be exhausted before his realty can be reached; but at all events, as the complainant and her children have the same interest in the personal as in the real estate it is more just and equitable that the personal estate should be given up for the benefit of creditors, and the matter of subjecting the lands adjusted between the-widow and heirs, than that a suffering surety should be delayed.
    Daniel Higginbotham, the brother of the complainant, deposed that some time in the year 1809 (as well as he remembers) and previous to the intermarriage of the complainant with John London, the deponent was in company with his father John Higginbotham, who informed him that in the event of the marriage of his daughter Terza with London, he intended to settle some negroes upon her and the issue of the marriage. The names of the slaves were Jenny and her children. He said he intended so to settle them, or any thing else he might think proper, upon his daughter and the heirs of her body, that in the event of her dying without issue, they should return to his estate. He requested deponent at the time to draw up such an instrument as would secure to the said Terza, and her children by the said intended marriage, the said slaves according to his intention, and the deponent thinks he drew such an instrument and left it with his father. Some short time after this the marriage took place, and some time thereafter (perhaps two or three months) the slaves were delivered into the possession of the said John London, as the property of the said Terza for life, and at her death to go to her children. Deponent was informed this was the character of the gift and the delivery, by conversation with his father, not only at the time first referred to previous to the marriage, but after the marriage and previous to the delivery. The intention of his father is the more strongly impressed upon deponent’s memory, by the remark made by his father in one of the conversations alluded to, that he wished to secure the property to his daughter and her chi 1-dren in such a way as to leave no question of its validity, and that he did not wisji to encounter again such a controversy as he had had with his son in law Isaac Rucker. Since deponent drew the instrument referred to, he does not remember to have seen it, and cannot say what has been done with it. It may be that his father determined to substitute his will in lieu of that instrument, as the provisions of the will in relation to the property given to Terza London are substantially the same (so far as deponent recollects) with those contained in the said instrument. In the year 1812 or 1813 (deponent is not certain which) he was in company with John London, when there was a conversation about the negroes given by deponent’s father, in which London told deponent that two of the negroes had died, and he was apprehensive there was some defect of constitution attaching to the rest, and he believed the interest of the family would be promoted by a sale or exchange of the rest, and he would sell them or put them off if he had the right to do so; but he said, “You know how they are given, and that I have no right to do so, and therefore have not attempted and would not attempt to do so.”
    Prances R. Coleman, the sister of the complainant, deposed that the marriage took place in 1809 or 1810, and her father’s death in 1813; that her father gave to the complainant at the time of the marriage, and for the sole benefit of herself and children, a negro woman Jenny and her children Celia, Parmelia and Elvira; that Celia has since died, and Parmelia has several children, Henry, Edmund, Fleming, Jane, and an infant whose name is not known; that the witness heard John Eon-don state, on one or more occasions, that he wished to sell the said slaves, but could not, on account of the slaves having been given to his wife.
    Jesse Higginbotham, a brother of complainant, in answer to interrogatories of her counsel, said, ‘‘I do not ^recollect in what year she was married, nor in what year my father died. I know the slave Parmelia was the daughter of Jenny, given by my father to my sister at or after her intermarriage. The said Elvira I believe to be the daughter of Jenny, but do not know it. I never heard John Eondon say any thing about the character of the gift.”
    The affidavits of Chárles Palmer and Alexander Jewell were taken for the defendant. Palmer deposed that he lived within 9 or 10 miles of Eondon, and never heard that Eondon held the property which came by his wife in any other way than as his own. He always understood and believed the property wasEondon’s. Jewell resided nearer to London. He deposed that he considered the slaves as London’s own slaves, and never heard any thing said to the contrary. Eondon offered to sell him one of the women. “I had,” says this witness, “no doubt about the title, when he offered to sell me the woman. I .think her name was Jenny. My wife observed to mr. London, that probably his wife would not be willing for him to sell that woman, coming by her. His reply was, that lie cared nothing about that; that the property given to him by her father he would sell as soon as if he had laboured for it.” This conversation took place IS or 16 years before the date of the deposition, which was October 1828. Witness did not want to buy the woman, and for that reason the sale was not made.
    The clause in the will of John Higgin-botham referred to in the bill and relied on by the complainant is in these words: “Item, I do also confirm the gift or gifts which I occasionally made to my daughter Terza Eondon, hereby declaring the same is made to her in trust for the sole and only purpose of her immediate use and comfort in life, and after her decease the title and fee simple interest to be vested forever in the children or issue lawfully begotten of her body, free from the claim, control *or direction of any other person whatever.” The will bore date the 22d of June 1813, and was admitted to record in the court of Amherst county on the 19th of September 1814.
    On the motion of the defendant Turner, the court of chancery, on the 19th of May 1830, ordered that the injunction be dissolved. And from that order the complainant appealed.
    Lyons and Stanard for appellant.
    Johnson for appellee.
    
      
      He had been counsel for the appellant.
      The principal case is cited in foot-note to Bradley v. Mosby, 3 Call 50.
    
    
      
      FrauduIent and Voluntary Conveyances. — See mon-ographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 348.
    
    
      
      The case of Higginbotham v. Rucker is reported In 2 Call 313. — Note in Original Edition.
    
   BROOKE, J.

I do not think • that parol evidence is admissible to prove a trust in the slaves delivered by the father to the wife of Eondon. The act of 1787 concerning slaves (1 Rev. Code of 1819, ch. 11, § 51, p. 432), adopts the provision of the act of 1758, which required that gifts of slaves should be by will or deed duly proved and recorded; but provides that that provision should not extend to gifts of slaves where the possession was in the donee or those claiming under him; evidently intending to apply to the case of absolute gifts, and leaving the cases of special gifts with limitations and trusts for others than the donee, to be provided for by will or deed duly proved and recorded according to the act of 1758. The delivery of possession by the donor to the donee would be insufficient evidence to all the world of the right of property in the donee, but would be no evidence of any trust or limitation for others; and to admit parol evidence to prove such trust or limitation, would let in all the frauds intended to be prevented by the will or deed required in the first provision of the section in the case of special gifts of slaves. In the case before us, the delivery of the slaves by the father to his daughter mrs. Eondon vested the property in them in her husband, by virtue of his marital rights, and left nothing in the father to be disposed of by his will: which .disposition, by the way, appears to me, upon the testimony in the case, to have been an afterthought, when Eondon the husband had become much involved, and to have been designed to protect the property in the slaves from his creditors.

I prefer this view of the case to putting it on the last provision in the 2d section of the act to prevent frauds and perjuries, 1 Rev. Code, ch. 101, p. 373, as upon the evidence in the case the possession of the slaves had not remained In the donee five years before the will of the father was duly proved and recorded; a point much pressed in the argument.

The order must be affirmed.

TUCKER, P.

From the evidence in this case I am satisfied that very soon after the marriage of mrs. Eondon, her father made her a gift of the slaves, from one of whom the slave in question descended. The testimony does not furnish the slightest foundation for the opinion that the transaction was a loan; and hence the notion of a reclamation by his will, according to the principles of Beasley v. Owen, 3 Hen. & Munf. 449, is out of the question. The will can have no influence except to confirm the position that there was a gift, and not a loan. If it applies to this transaction at all, it recognizes it as a gift; if it does not, it can have no effect in confirming the rights of mrs. London.

Considering it as a gift, and admitting that it was to the daughter for life, with remainder to the children, what was its effect? It is contended that it was designed as a trust for the daughter, and equity will consider the husband as trustee, if none other be named. The legal title is cast upon him by the gift without the intervention of a trustee, and equity will affect his conscience with the trust, if he received the property upon confidence that he would hold it for her use. This is indeed true as between the parties themselves; but the ^'question is not between them, but between the wife and the creditors of the husband; and then we are to say whether equity will set up a secret parol trust in behalf of the wife against the creditors of the husband. The statement of the question at once suggests the answer. If there were no statute of frauds, such a course would be against the best received principles of equity. The creditors have the law in their favour, and the equity set up against them is secret and eminently calculated to defraud and deceive. But the statute places the matter beyond question. Here is a limitation of an use pretended to have been made by way of trust, in this property which was given to the wife, and the legal title and possession whereof eodem flatu vested in the husband. This limitation is by the statute denounced as fraudulent, and the absolute property is declared to be with the possession.

The pretension of a remainder in the children is yet more unfounded. If they take any thing, it is a legal estate in remainder, and not a mere equitable interest. Now it may well be doubted whether a remainder in chattels can pass without deed or will. At common law, such remainders were in no case permitted. Afterwards they were recognized in deeds and wills (5 Bac. Abr. 720; 1 Burr. 284; Bradley v. Mosby, 3 Call 50), but I have found no case where a parol remainder has been sustained. But be this as it may between the parties, the statute of frauds very clearly declares such a limitation invalid as to creditors.

It is suggested, however, that there being no children in esse when the parol gift was made, the remainder was for that cause void, and so the right after the daughter’s death would revert to the father, and was therefore liable to be disposed of by his will. I do not think so. The father by the gift intended to pass away the property altogether from himself; and where such intention appears, the absolute property vests in the first *taker, if the remainder over is void. 1 P. Wms. 666; 5 Bac. Abr. 722. A gift of personalty, on common law principles, passed the absolute right. The courts afterwards modified that general principle, in behalf of certain remainders and limitations which the law recognized as good. But if the remainder limited is not good, the original rule prevails. So that here the estate of the daughter was absolute if the remainder was void, and the marital rights of the husband were commensurate with hers.

If majT be proper to observe that if, contrary to this view of the matter, a reversion was reserved to the father, dependent upon the daughter’s life, it would be as literally within the statute of frauds as a remainder is, and would accordingly be void, since it would set up a secret interest in derogation of that absolute property which the law infers from possession, unless it be limited by deed or will duly proved and recorded. There is indeed nothing against which the act is so distinctly directed, as a parol reservation of rights in the donor, while to all the world the donee retains that principal indicium of property, the possession of the chattel.

As to the alleged purchase of London’s interest by his wife, that was so far from being made the foundation of her title, that she alleges it was made under a mistaken view of her rights. The defendant therefore was not called to answer to it. If, upon the cause going back, she choose to amend her bill apd rest herself upon this purchase, the defendant will then answer, and that matter will be determined upon such evidence as she shall produce.

I am of opinion to affirm the order.

CABELL, J., concurred in the opinion of the president.

Order affirmed.  