
    Twiss et al. vs. Martin’s Administrators and Distributees.
    
    Where slaves were loaned by the father-in-law to the son-in-law by parol, and the son-in-law held the possession of them for more than five years, but that possession was not continuous but was broken by repeated restorations of the slaves to the father-in-law during that period: Held, that the property in the slaves did not vest in the son-in-law so as to subject them to the claims of the Iona fide creditors of the son-in-law contracted during the said period of five years.
    Where property has continued for five unbroken years in the possession of the son-in-law, and the possession is then restored to the father-in-law, and during the continuance of the possession of the father-in-law debts are contracted and the property is, whilst in the possession of the father-in-law, conveyed by him to a trustee for the benefit of the wife and children of the son-in-law, this deed is good against such creditors, and is fraudulent only as against the creditors whose debts are contracted during the five years possession of the son-in-law.
    On the 26th day of March, 1838, Hiram Twiss, a citizen of Davidson county, and Mark Leavenworth, a citizen of Connecticut, filed this bill in the chancery court at Gallatin, as creditors of the estate of Samuel Martin, deceased, on behalf of themselves and the other creditors who should come in under the decree that might be made and contribute to the costs and expenses thereof.
    The bijl charges that in 1818, Samuel Martin, a citizen of Sumner, married Sally, a daughter of Abraham Young, and that in a short time after the marriage Young advanced to his daughter and son-in-law two negro girls, slaves, to wit, Betsy and Jinny,, and delivered the possession thereof to said Martin, and that they and their increase during the lifetime of said Samuel remained in the possession of said Samuel, and were still in the possession of his widow, the said Sally Martin, and that said Samuel Martin was the absolute owner thereof; that one of the slaves had three children, of which Martin also held possession during his life, and was the absolute owner. They further charge that they are informed that a deed of trust had been executed by Abraham Young and Samuel'Martin, bearing date the 13th August, 1832, by which they conveyed said slaves for a nominal consideration to M. A. Martin, senior, in trust for the support and maintenance of the said Sally, wife of Samuel, de-¡ ceased, and the children which they then had and might. afterwarc[s have) an¿ at the death of said Sally they should be equally divided amongst the children of said Sally. The cjiarges that Martin, at the date of the deed of trust and for a long time before and from thence till his death, was much embarrassed in his circumstances, and that if the said negroes were excluded from his estate he was insolvent when the deed was made, and from that time till his death. The bill further charges that the deed was not legally proven and registered, and that complainants were wholly unapprised of its existence till the death of said Martin, and that they trusted him in the creation of debts upon the faith of said slaves, which he held whilst he lived and of which he died possessed, and that said deed was fraudulent and void, and they pray that it may be cancelled and declared void. The bill further charges that Martin was indebted to complainant Twiss about the sum of two thousand seven hundred and seventeen dollars, due by notes, and complainant Leavenworth in the sum of one thousand five hundred dollars, due also by note; that he died a resident of the county of Sumner in the month of August, 1836, leavingjSally, his widow, and JohnF. Martin, M. A. Martin, junior, and Lucinda Y. Martin, his heirs and distributees; that letters of administration were granted upon his estate by the county court of Sumner at the October term, 1836, to Peter W. Martin and Sally Martin, his widow, as aforesaid; that said administrator and admin-istratrix had reported the estate insolvent, and that the estate of said Martin exceeded in value the sum of five hundred dollars. Thq bill further charges that said Samuel died possessed of real estate, and that the administrator and ad-ministratrix refused to take the necessary steps to appropriate the real estate or slaves to the payment of the debts of the intestate; that Abraham Young was dead, and that B. Frey had administered upon his estate,
    The bill prays that M. A. Martin, H. Frey, the admin-istrator_of Young, and Peter and Sally Martin, administrator and administratrix of S. Martin, deceased, and John F. Martin, M. A. Martin, junior, J. Walsh and wife, L. Y., the heirs and distributees of said Samuel, be made defendants; that an account be taken of the real and personal estate of decedent, __ ii, , Martin, the negroes included; and that the same be sold the proceeds applied to the payment of the debts set forth in the bill as due complainants and the debts of such other creditors as might come in under the decree; that all proceedings in the county court of Sumner be enjoined; and that the assets of the intestate and the further administration of said estate be transferred to the chancery court. In conformity with the prayer of the bill, process of the court was served on all of the defendants.
    H. Frey did not answer the bill, and it was taken for confessed as to him, and set down by complainants for hearing ex parte as to him.
    John F. Martin, M. A. Martin, junior, Lucinda Y. Walsh and Thomas Walsh stated that the slaves mentioned in the bill were in the possession of their father and mother at the •time of their father’s death, and had been for some time before, except that said slaves were twice or oftener taken to Abraham Young’s and their place supplied by others, and were subsequently returned; that they know nothing in regard to the motives which operated upon Samuel Martin; A. Young and M; A. Martin in the execution of the deed of trust, &c. &c.
    The administrator and administratrix of S. Martin answered. They denied explicitly that Abraham Young had ever given the two slaves, Betsy and Jinny, or their increase, to the said Samuel and his wife, but that the slaves were sent to them shortly after their marriage, in 1819, with the expi'ess and positive understanding that they were loaned and not given, and that this was made known at the time of the delivery of the said slaves, was repeatedly spoken of, recognised by all the parties interested, and acted upon foi a series of years by them; that Young répeatedly sent for the slaves and took them home with a view to make manifest his ownership of them; and that he had the possession of them at the time the deed of trust set forth in the bill of complainants was executed, and that he was the absolute owner of them at that time. They deny that Samuel Martin was at the date of the deed insolvent, excluding the slaves; and state that at the time of its execution, Abraham Young gave him absolutely one of the slaves with a view to have her sold for the payment of the debts of said Samuel Martin.
    The defendants stated that they had reported the estate of Samuel Martin insolvent; that such was the fact; that advertisement had been made and other steps taken in accordance with the acts of the legislature, and that a settlement had been made by commissioners duly appointed for that purpose; that complainants had not filed their claims according to law and that they Were excluded, &c. &c. -
    M. A. Martin answered and stated that he knew nothing of his own knowledge with regard to the title of the slaves mentioned in the bill; but that Samuel Martin and Abraham Young had applied to him for the purpose of procuring him to act as trustee for the benefit of the wife and children of Samuel Martin; that before he agreed to act, he enquired of said Samuel Martin and Abraham Young if their object and intention was to delay or defraud any of the creditors of said Samuel, informing them at the same time, if such was their object that he would not have any thing to do with the transaction; that said Young informed him that all the existing debts of said Samuel should be paid; that a negro should be left out of the deed of trust for that purpose; that the slaves in question were his own; that Samuel Martin was a bad manager and somewhat intemperate in his habits, and that his sole object was to make a provision for his daughter and children; having good reasons to believe those statements to be true he consented to act as trustee, informing them that the deed should not form any obstacle in the way of the then existing creditors of said Samuel. The deed was accordingly executed, and was acknowledged in the county court of Robertson, and delivered over to Abraham Young, who promised to have it registered; respondent did not have anything further to do with the property or the deed until the death of said Young, as the said Young, by the terms of the deed, had the right of controlling during his lifetime the mode in which said property should be enjoyed by the beneficiaries of the deed; he then found that the deed had been mislaid, but was again found and registered after the death of said Samuel; respondent that there was no fraud intended in the execution of said deed of trust, notified the administrator and administratrix of Samuel Martin’s estate not to intermeddle with the slaves mentioned in the same; respondent asserts that complainants have not placed themselves in such an attitude before the court as to authorize them to question the validity of the deed, &c. &c.
    The complainants filed a general replication to the answers of the defendants; much proof was taken, the substance of which, so far as it bears upon the points involved in the cause, is as follows:
    Samuel Martin was married to Sally Young, daughter of Abraham Young, in the year 1819, in the county of Robertson. He settled in the county of Sumner, and in the same year, to wit, 1819, A. Young sent him two negro girls, (slaves.) They were loaned and not given, and this was the explicit understanding of all parties at the time they were sént, though there was no writing in regard to the title or possession of the slaves at the time. Martin became intem-pérate and was a bad manager and became embarrassed in his circumstances. In 1822 he became insolvent, and all his property real and property was sold by execution; the slaves were not however interfered with by the officers under the belief that they belonged to Young. They were in the pos^ session of Samuel Martin. This possession was continued except at times, when Young would send for them, and resume the control of them with a view to manifest his ownership, and then return them. This was done repeatedly; the uninterrupted possession of them never continued in Martin more than two years at anyone time. The negroes increased in number and value and Martin’s circumstances improved, and most of his debts which created the insolvency of 1822 were discharged; he was still, however, intemperate at times. In the month of August, 1832, Young again took possession of the slaves and took them to his house with the consent of Martin, who acknowledged his ownership. The deed was then executed and signed by Samuel Martin and Abraham Young. This deed, after reciting that Samuel Martin had married Sally Young, the daughter of Abraham Young, in 1819, and that said Young had sent to the house of said Samuel Mar-two slaves shortly after marriage, where they had been permitted to remain until within ten or twelve days of thp execution of the deed; and after further reciting that said slaves had increased, and that said Abraham Young and said Samuel Martin were desirous of securing to said Sally and the children which she then had and which she might after-wards have “a maintenance and support independent of the control of said Samuel,” declared that said Samuel Martin and Abraham Young did bargain, sell and deliver to M. A. Martin the said negroes, (slaves,) and their increase, to hold in trust for the use and benefit of the said Sally, the children which she then had and which she and the said Samuel might afterwards have, in such manner as the said Abraham Young might direct, by hiring them out or by permitting them to remain in the possession of the said Sally and her children; and that at the death of the said Sally they should be equally divided between the children; and that in the event, that any of the said children should die, the said slaves and their increase should go to the survivors or survivor of them share and share alike, to be possessed and enjoyed by said children free from and discharged of all the trusts created by t he deed. The deed further provided that “it was covenanted, and agreed that in case of the death of said Abraham Young, such part or portion of the estate of said Abraham Young as might belong to said Samuel in right of his wife, the said Sally, upon a settlement of such estate as the said Young should db seized and possessed of, should be settled on the said Sally and her children aforesaid according to the declaration of trusts and uses of the deed,-so as to be likewise free from the control of said Samuel.” The deed was acknowledged in the county court of Robertson county at the August term, 1832, and deposited in the hands of Young, who it seems mislaid it. In the years 1833, 1834 and 1835, Martin engaged in the purchase and sale of clocks, and in the months of April, May, July and August of 1835 he contracted the debts set forth in the bill of complainants. It was with some difficulty that he was able to raise the means of purchasing ii- i • • ii . i S, . , clocks, and his condition was regarded as doubtlul, and the ^ agents of complainants refused to let him have clocks without the deposit of promissory notes of individuals as collateral security for the debts contracted in the proportion of one dollar and fifty cents for each dollar of debt. This was done to a considerable extent, but by reason of the insolvency of the payors of the notes the complainants had failed to make their money. About this time Martin told the trustee that Young had, as he supposed, destroyed the deed, and stated to the agent of the wholesale dealer in clocks, after the creation of the debts of complainants, that he had a valuable family of negroes. In the latter part of 1S35 Young died, and the deed of trust was not found. H. Frey administered upon his estate. In the distribution of his estate Martin claimed a full share, alleging that he- had received nothing therefrom-. In August, 1836, Si Martin died,, and Peter Martin and his wife, T. S. Martin, administered upon his estate, reported it insolvent, and had a pro rata division of his effects among his creditors. After his death the deed was found and registered on the 22d November, 1836. The trustee took, the control of the slaves. The complainants refused to come in for their proportion of the estate and filed this bill, which, upon the above facts and state of pleadings, came on for trial at the October term, 1839, before the honorable L. M. Bramlett, chancellor, who being of the opinion from the proof that the slaves were not in 1819 given to Martin* and but loaned to him only, and that they had not- remained in the possession of Martin five years at any one time previous to the execution of the deed in 1832, that Young had the possession and was the legal owner of said slaves and their increase at the time of the execution of the deed, that the same was a valid and legal conveyance of' the property therein, ordered the bill of complainants to be dismissed as to M. A. Martin, Sally Martin, Lucinda Y. Walsh and her husband, John Walsh, and M. A. Martin, junior, and that the complainants pay the costs of-making them parties; and that the clerk and master take an, account of the assets of' the- estate of Samuel Martin, dp-ceased, in the hands of his administrator and administratrix, and also that he should ascertain the amount of the debts due the complainants, and that the said complainants should come in pro rain with the other creditors of Samuel Martin, deceased, in the distribution of assets in the hands of the administrator and administratrix which had not been paid. out under the proceedings in the county court, &c.
    From this decree the complainants appealed.
    
      J. W. Campbell, for the complainants.
    1. The recital in the deed clearly vests the title to the negroes in Samuel Martin at the date of the same, and being embarrassed in his circumstances he could not make the conveyance so as to shield the property from the claims of his creditors. Although complainants are subsequent creditors the deed is as much void as to them as to previous creditors.
    2. The deed was never registered till after the death of Samuel Martin, in 1836, and it is void as against the creditors of S. Martin because of its non-registration. See act of 1831, ch. 90, sec. 2,5 and 6. Property secured to the separate use of the wife is by this act required to be registered.
    3. The chancellor should have decreed to complainants a proportionable part of their debts out of the assets which, had been paid over, as well as of those that might thereafter accrue; because: 1st. The administrator and administratrix did not state of their own knowledge that notice had been given in accordance with, the provisions of the act of 1833, ch. 36, sec. 1, N. and C. 395. 2d. There is no record produced showing any order directing an advertisement for all creditors to come in, as required by the act of 1838, eh. 36, sec. 1, N. and 0. 395. It is insisted that complainants have no judgment at law, and that they refused to come in at a proper time for their proportionable share, and are therefore precluded. The provisions of the act of 1837, ch. Ill, prohibited them from suing at law, and authorized them to file this bill; but independent of the act, upon general grounds of chancery jurisdiction, the complainants had a right to proceed in this way for the establishment of their demands against trustees, for the discovery of assets, and the removal of impediments that stood in the way of making available, in the payment of their debts, all the assets belonging to the tate. idee 1 Story’s Equity, ch. 9, in which all the authorities upon this branch of law are collected, reviewed, and the correct principles declared.
    
      Cook, for the defendants,
    cited 7 Johnson’s Reports, 161: Oro. Jas. 270: Cobb vs. Lanier, 4 Haywood’s Rep.: Roberts on Frauds, 641-2-3-4-5: 16 Johnson, 189; 7 Mass. 354.
   Reese, J.

delivered the opinion of the court.

’ This bill is filed against the administrators for. an account, and against the distributees to subject certain negroes to the satisfaction of the claim of complainants, on the ground that the negroes were in fact, or at all events by operation of the third section of the act of 1801, ch. 25, as to creditors, the property of the intestate, and were fraudulently conveyed by him and a certain Young to the defendants in his lifetime. As to this latter branch of the case much testimony has been taken, and one proposition is clearly established in proof, namely, that the possession which the intestate had of the negroes in controversy was as bailee and not as donee; the negroes were lent to him by Young, his father-in-law, and not given. But it is said that they continued for more than five years in the possession of the intestate, and so, by the provisions of the act referred to, were liable to the claims of his creditors. But a great many witnesses state, in general terms, that the negroes were re-possessed by Young once, at least in every two years, and two or three instances of re-delivery and re-possession are specially proved. As a matter of fact, then, we. think it well established that the negroes never continued for the term of five years at any one time in the possession of the borrower. But if this were not so, it is proved that in 1832, when the conveyance to the trustee of the defendants was made by the intestate and Young, the negroes were in the actual possession of Young and had been for some weeks; and if, prior to that time, they had remained for more than five years in the possession of the in-, testate, they would still have continued the property of the bailoiyexcept as to the claim of creditors existing at and during that period. But the complainants became creditors subsequently to the regaining of possession by Young in 1832,. and have no claim to affect the property founded on the prior possession of the bailee. This point was decided by this court, in the case of Walker vs. Wynne, 3 Yerger’s Rep. 72. The court in that case say, “ We are of opinion, from the evidence, the property was a loan to the son; and although in the first instance the negro remained with him for the space of five years, and thereby became liable to creditors who were such at the expiration of the term of five years, yet before these defendants became such, the property was re-vested in the complainant, who held the same as his own. As against his son he could retain the property; neither time nor limitation operated for him, being a mere bailee. When the father became possessed of the property a second time, and then parted with it, it was a new lending,, and five years not having elapsed since such last loan,, these-creditors could not seize and sell this property.” There is nothing opposed to this view of the case in Peters vs. Chares, 4 Yerger, 176. What is said in that very brief case is con-, firmatory of it. We are altogether satisfied of its correctness, and we affirm the chancellor’s decree dismissing the bill as to the claims for the slaves from the distributees..  