
    John Dawson, Jesse A. Dawson and Martha Dawson, v. Sally Dawson, Evelina Alston and George Alston,
    From Halifax.
    Defective voluntary, conveyances, are not aided by a court of Equity-! but-, those rights which vest under them, are protected.
    Where a tenant in common of slaves, voluntarily conveyed all of a par<?. ticular kind, which might fall to his share upon a division, and then fraudulently contrived that none of that kind should be allotted to him . —a division, made with this fraudulent intent, was held to bo-inconsis-tent with the rights which the deed vested in the donees.
    The case made by the bill was, that Harry Dawson,, the husband of the Defendant Sally, died, leaving a will,, by which he bequeathed his negroes to his wife and her sister, the Defendant Evelina, as tenants in.common- — * a moiety to each ; that letters of administration with the will annexed, issued to the Defendant George, a brother of the two legatees. That the Defendant Sally, by deed executed the 5th March, 1824, in consideration, of the Natural love and affection which she had to the Plaintiff*, John and Jesse, brothers.of her deceased husband, conveyed to them all the negroes which belonged to her husband before his marriage, which might fall to her upon a division between her sister and herself. The deed reserved to the donor a life-estate in the negroes, and provided that the donees should pay to the PlaintiffMartha,, one-third of their value. The bill then charged, that the Defendant George caused a division of the slaves to be made between the legatees, under an order of the County Court. That at the time of making the division,, the commissioners were notified of the interest which the Plaintiffs held under the deed from the defendant Sally,.. and were requested either to make a division by chance, after dividing the negroes into two lots, without any regard to the fact of their being either the property of Harry Dawson, or of the Defendant Sally, before their 
      Intermarriage; or by allotting them indiscriminately, first to one of the legatees,-then to the other j or to dh vide them in any fair and equitable manner. But that the Defendant George, with at? intent to render the deed ,of the Defendant Sally ,to the Plaintiffs Jol/n and Jesse ineffectual, fraudulently procured the commissioners to allot to the Defendant Sally, all those negroes which belonged to her before her marriage, and to the Defendant Evelina, all those which, before that time, belonged to the testator, ami liad delivered the negroes in pursuance of this unjustaud fraudulent division. The prayer was, that the division thus made, might be set aside, and the Defendant George compelled to divide the negroes again upon just and equitable principles.
    A demurrer to the bill was filed by the Defendants, which was on the Spring Circuit of í 82", sustained by liis honor Judge BuEEisr, and the bill dismissed. Whereupon the Plaintiffs appealed. At June term, 1827', tho cause was argued, by Gaston for the Plaintiffs, and by Badger for the Defendant?,
    
      Gaston, for the Plaintiffs.
    1. The property conveyed by the deed; was an inch dent to property vested in the Defendant Mrs. Dawson, sind therefore is the subject matter of an executed contract. CVonville v. Casey, 1 Murph. 389.)
    2. But if the contract cannot bp deemed as executed, the subject matter of it not being in ess.e, yet it is a contract executory, and binding upon the covenantee.
    
      3. Whether the contract is executed or executory, as it relates solely to chattels, and is under seal, it require? no consideration for its support, and will be protected from fraudulent combinations. (Bunn v, Winihorp 2 Johns. Ch. Bep. 329, 336.)
    If the deed passes an actual interest, we do not come into Court for the purpose of setting it up, but to present that interest from being effected by a fraud.
    
      If the deed is only the evidence of an executory contract. we coinc into Court to have it executed ; upon the ground, that by our practice,contracts concerning slaves, though they are chattels, arc regarded precisely as contracts concerning plate, family jewels &c. are in England. A .specific execution is decreed as to them, because tbe market value which is all that can be recovered at law, is not a compensation.
    4. The contrivance whereby the Defendant gets none of the specified slaves, is manifestly a fraud upon the Plaintiffs. It is inconsistent with their rights on the subject,- — they bad not notice of the division, whereas, if it was the intention to make one fairly, they ought to have been parties to it.
    
      Badger for the Defendants-—
    To enable a party to obtain relief, there must be, 1st» an interest which the Court considers entitled to its aid. £<!, An injury to that interest.
    The present case is similar to cases to compel the specific execution of agreements. It is not the case of a trust or equitable estate, which in this Court, is what a legal estate is at law; for the deed has had its operation at law. The plaintiff comes into this Court to have its effect at law enlarged by a new division, so as to be accordant to what, he says, was the intent of tbe parties. it is then, in effect, to execute an agreement, and to make that agreement more available at law, than it is as matters now stand.
    No agreement will be enforced here without a valuable or a meritorious consideration — the latter of which includes only a case of a father providing for a child, a husband for a wife, &c. and never extends to collate-rals. (JSTewland on Contracts, 65 — Ellison v. Ellison, & Ves. C61. — Coleman v. Barrel, 1 Ves.jun. 50 — 3 Bro. Ch, Rep. 12 8. C.)
    In the case of a mere voluntary contract, Equity will do nothing. It will not interfere to prevent a voluntary settler from selling so as to defeat the settlement. (Pul-•vertoft v. Pulvertoft, 18 Ves. 84,98. — Buckle v. Mitchell, 18 Ves. 100/ll2j
    There is wo case showing that (4 Cruise, eh. 17, The practice of the Court in aiding the defective execution of powers, has some analogy to the present case. Powers defectively executed, are aided in a Court of Equity only in favor of a wife, children, purchasers or creditors, but never for volunteers. (4 Cruise Dig. ch. 17) The only exception is, when the remainder man gets the possession of the deeds, and keeps them from the tenant for life, and the latter appoints, but does not pursue the form — the ground of interference then is, that the tenant for life intended to execute, hut was prevented by the wrong of the remainder-man, who claims in consequence of that wrong, the tenant for life is ever controlled. S* 33).
    
    But it is said, that the bill is filed to prevent a fraud from being perpetrated on the Plaintiffs. The use of hard names will not sustain the Plaintiff’s case. The bill charges fraud, but shews no right which is entitled to protection. Was the Defendant bound to give any thing? If she had never divided, she could not be quickened. If she is at liberty never to divide, the Plaintiffs cannot complain that their dividend is too small. As the Defendant originally acted without consideration, as it was a mere gift to the Plaintiffs, they cannot complain that they have less than they expected. (Wallwyn v* Coutts, 3 Merivale, 707.)
    
    
      Gaston, in reply.
    — It is admitted that Courts of Equity will not compel the specific execution of a contract purely voluntary.
    No part of the jurisdiction of Courts of Equity hag been watched with more jealousy by Courts of Law, than that of compelling the specific performance of agreements, Their successful assertion of this jurisdiction, in spite of the struggles of the Law Courts, is attributable principally to the prudent limits within which they have themselves restrained it. They have taken it as a rule to exercise this extraordinary jurisdiction only where it is clearly due in conscience, and Courts of Law cannot give adequate relief. They will not interfere in executing agreements respecting tiie purchase of personal chattels, as adequate damages may be had at law. They will not compel the specific execution of contracts purely voluntary, but leave them to law, because many of these in law' are not even binding, and in the others conscience is satisfied by damages adequate to the disappointment.
    If no more appears, a Court of Equity will not compel, as against the maker, the specific execution of a contract', but if any interest passes, that interest will be supported in Equity against all. Thus in Coleman v. Barrel, the deed purported to assign stock to Trustees for strangers, but an actual transfer was not made. The executor of the donor filed a bill to set it aside, and the cestui qae trust a cross bill against the executor to compel a transfer. The bill was dismissed — cross bill retained for twelve months, until a suit should be brought at law on the covenant to transfer.
    This shows if a recovery should be there effected, Equity would protect the interest of the cestui que trust.
    
    
      Ellison v. Ellison, was a settlement in trust, with a power to revoke the trust in a specified form. An instrument was set up as a revocation not pursuing those forms. It was objected that the first settlement was voluntary, but the objection was overruled.
    In Wallwyn v. Contis, it was decided that Equity will not compel a specific execution against donors, in favor of third persons not parties to the deed. It was voluntary, therefore not to be enforced in Equity. Persona not parties to the deed could acquire thereby no interest which was protected.
    
      In Fulvertoft v. Pulvertoft, the Court would not grant an injunction to prevent a donor from aliening for value for this would he to overrule stat: 27th Elia. But it win sustain and aid the trust until a sale.
    This bill is not died to compel a specific execution — it does not ask the Court to decree that Mrs. Dawson should do any act. It is a bill against the administrator and to have an act set aside as fraudulent, which has been done hj her and our trustee, because it is contrary to the executed contract between her and (he Plaintiff.
    Suppose Mrs.- Dawson had given her entire equitable interest, either by deed-or will-can it be doubted but that the Court would have compelled the trustee, the administrator,-to deliver the negroes? (18 Ves. 99).
    He, the administrator, therefore cannot object to a prayer even for specific execution, and much less to a prayer, to- have his fraudulent act set aside.
    Suppose after such an assignment, the donor or her' executor to release, the interest transferred would be pro-tested, and the release set aside.
    Suppose after such an assignment, she should agree to take money and no negroes — surely this agreement would-be set aside.
    Suppose a second assignment purporting to be for va-hie — would not a bill lie to have it set aside on an allegation that it w'as fraudulent. She is made a party, because interested.- The hill seeks to set aside a fraudulent and collusive conveyance.
    But the fact is,- that in our country, as to many pur*-poses,- legacies aro legal rights. In England they are not noticed at law. But here the ease is different. If it is a legal right, it is conveyed at law, and the interest conveyed will be protected, in Equity.-
    The act done is in violation of the plain intent of thd contract.
    
      I 1st. The words <( all that part &c. that may fall to me” [clearly indicate an allotment, in the ordinary sense of the [word, and not “ such a part as I may choose to take.5*
    That is a vicious construction of an agreement which I leaves the contractor unbound. By the contract, she was bound to give all of a particular kind, and it is contended that she has a right to give only what she pleases. This case is very similar to that of Jones v. Martin, (5 Ves-jr. 266 note.)
    
    It is also similar to cases of collusive appointments under a power, which are held to be void, and the estate goes as if the power had not been executed, (CocMinton v. Bayne, l Bro. Ch. Rep. 450 — 16 Ves- 26 — 1 Maddox, 205.)
   Henderson, Judge.

— Voluntary executory agreements receive no aid, either from Courts of Law or of Equity. The parties stand upon their rights, such as they are, and hence it is a maxim, that defective voluntary agreements will not be aided in a Court of Equity; any reformation of a conveyance being an execution of the original agreement, so far as the conveyance is varied. The same motive, which induces a Court to refrain from enforcing an agreement, no part of which is executed, prevents it from enforcing any part of it. The want of a consideration is therefore universally a good defence to a bill for rectifying a voluntary conveyance, or enforcing a voluntary agreement.

Where however the conveyance is complete, and property passes, or rights are vested by it, that property, or those rights, arc guarded and protected, notwithstanding there was no consideration for passing or raising them.

The question presented by this demurrer, therefore, is does this bill seek other rights than those created by the conveyance, or does it only seek for the security and protection of those, which the deed lias already given to the Plaintiffs ?

The deed transfers to the Plaintiffs, such of the slaves as had belonged to the husband of the donor, and which should be allotted to her upon a division between her sister and herself. This is a gift of slaves in presentí, who were to be designated by an act in futuro. If upon the division, none of the kind were allotted, nothing passed ; if any such were'allotted, they did pass. The right to call for this division, did not arise from any promise made by the donor, that she would divide; for then, it is admitted that a consideration would be necessary to support it — but it arose as a necessary incident to tiie right ofproperty created by the deed. If any thing passed by the deed, it diminished the property of the donor, and destroyed the power of making such a division as she pleased, which, as owner, she possessed before its execution, and imposed upon her the obligation of regarding the interest of the donees. If this is not the case, and she is at liberty to divide as she pleases, the deed might be made by her perfectly ineffectual, as she could at once have assigned to her sister all the slaves which belonged to her husband, and thus entirely defeat the gift. A difference cannot be perceived between such a division and the one complained of; for it is clearly illusory, and defeats the rights of the donees — if not to the same extent, certainly it does in some degree, which, in principle, is as objectionable as the total frustration of the gift. It has been likened to the case, whore a roan grants all the corn which he may grow, or to use the common phrase, make, in a particular field. Although he cannot be enforced to cultivate that field, yet he shall' not actively interfere for the purpose of defeating bis gift or grant, by wantonly destroying the corn growing there. But this, it is said, would he a wanton act, and one to which self-interest does not prompt, as it docs in the present case. True, but it is as equally inadmissible to pursue our own interest, at the expence of the rights of others, as it is wantonly to destroy those rights. The principle is, that I may, by a rightful act, take care of myself, although I may thereby injure another. A11 laws, human or divine, allow this $ but I cannot do this by a wrongful act. Hut this, it is said, is begging the question ; and it is insisted, that the division complained of, is not a wrongful act. That act however, cannot be rightful, which entirely destroys, and renders of no effect, a gift, or transfer, passing property; which, if permitted to operate in the usual and ordinary way, would produce a probable benefit to the donee; and it is obvious, that the probable effect of the deed W'ould be beneficial, as it required a combination to prevent its ordinary result.

As soon as this gift tvas made, if the deed was not a perfect nullity, certain rights were created by it in the donees. It is true, they were contingent, as to the particular subject upon which they would attach; but it would bo strange to allow the right, and at the same time place it out of the protection of the law.

Such is my view of the case. I have considered the deed as if fairly obtained, and that there has been a fraudulent combination to obstruct its fair and usual operation. But 1 must observe, that I have bad, and still have, difficulty upon it. I am disposed to overrule the demurrer, without prejudice and without costs.

Hail, Judge.

— When it is said the deed in question is voluntary — that it was given upon no consideration, it seems difficult to adduce reasons why the Court should proceed in this case, and grant relief. The old beaten ground, long since occupied by the Courts of Equity — . not to aid voluntary conveyances, seems to render any reasons that might be urged to show’ that the bill should be dismissed, both trite and unnecessary.

But fraud in making a division of the negroes is alleged. The deed of gift was certainly given upon a contingency. There was something like a blank to a prize; something like an appeal to the doctrine of chances. If the division of the negroes is set aside for fraud, and there is to be another drawing of the lottery, the managers or commissioners must be instructed, in the next division which they make, in order to protect the interest of the Plaintiffs, or fraud will be again alleged. Indeed, to avoid fraud altogether, an equal division of the negroes ought to be made between Mrs. Dawson and her sister. For if we depart from the case, as the parties have made it by the deed, there is no stopping-place between that and allowing the Plaintiff a full share of the negroes in dispute. The parties themselves might have so inserted it in the deed, but we see they have not done so. And by this mode of proceeding, the Plaintiffs will be placed upon much more favorable ground, than they stand on in the deed of gift made to them. They will, in fact, be made to draw a prize, when they have not paid for a ticket.

I cannot hesitate to say, that the bill should be dismissed.

Taylor, Chief-Justice, concurring in opinion with Judge Henderson, it was ordered, that the decree below be reversed, and the Demurrer overruled, without prejudice and without costs.  