
    
      Cullen Lark vs. James Cunningham.
    
    Though a father, when he puts slaves in the possession of his married daughter, may annex conditions to the delivery — as, for instance, he may reserve the title in himself — and they will be binding on the husband, though he be ignorant of them; yet, there must be good faith in the transaction, for if it be fraudulent, as against the husband, his rights will rest upon the delivery — the conditions being void as to him.
    A father put slaves in the possession of his married daughter, and took from her a paper by which she promised to return them when called for, and such paper was designedly concealed from the husband. The jury having found that the condition annexed to the delivery was fraudulent as against the husband, and that his marital rights had attached, the Court of Appeals refused to disturb their verdict.
    
      Before Q’Neall, J., at Laurens, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as'follows:
    “ This was an action of trover, to recover the value and hire ofa negro man slave, Ben. The plaintiff married the daughter of the defendant, his only child. When they went to housekeeping, in March, 1851, the slave, now in dispute, went home with them.
    “In the Spring of 1851, on their way from the Poplar Spring meeting house, defendant said to Waldrop, one of the witnesses, ‘ he had given to them’ [the plaintiff and his wife] ‘a negro boy and two women, and if his’ (the plaintiff’s) ‘father would do as well for them, he’ (the plaintiff) ‘would have a fine little start.’ In June, 1852, while the negro Ben was run away from the plaintiff, the defendant said to Austin, ‘he thought Ben could be got, if Cullen would trade or swap him — he’ (the defendant) ‘would give one of two women for him.’ In October, 1852, the defendant said to Spears, that ‘ he was not allowed to go and see his daughter; he and Lark had fallen out about some negroes, which he had given to them. The negro, Ben, ran away, and he, the defendant, sent another in his place, whom the plaintiff sent back. Lark and Pitts,’ he said, ‘ came in pursuit of Ben; they rode down to the field where he was at work. On seeing them, he ran; the plaintiff rode back to the house, demanded the slave, and cursed him (the defendant) for a d — d old abolitionist.’
    “ Oh the part of the defendant, a paper, signed by his daughter, Mrs. Lark, was given in evidence, which acknowledged the receipt of four slaves, Ben and two women and a child, ‘ to be returned to the defendant when called for.’ This paper was prepared under the advice of James H. Irby, who was applied to by the defendant, to know how he could control the property. He (the defendant) asked him (Irby) if a receipt from his daughter would have that effect. Irby told him it would. The defendant said he did not wish the plaintiff to know it, to prevent his feelings 'from being wounded, and that it might create unpleasant feelings between him and his wife.
    “ John Shell, the defendant’s overseer, proved that, when the property went into the possession of the plaintiff, the defendant told him, ‘ the property was for the use of his daughter, but it was to remain his’ (the defendant’s) ‘until he saw fit it should be otherwise. The defendant said he had made an arrangement to that effect, and that he acted in conformity to the advice of counsel.’
    
      “ For the plaintiff, in reply, it appeared, from the testimony of David Bell, that the defendant spoke to him of the instrument of writing signed by his daughter ; he said that the plaintiff knew nothing about it, and it would not have been known, if all things had gone right. He (the defendant) said he intended to have the property entailed, if it was in the plaintiff’s possession. A conversation took place between the defendant and his daughter, at the house of Capt. G. W. Sullivan. She asked her father if it, the paper, could not be kept from her husband; she said she was afraid if he knew it he would abuse her. This was in a few days after the plaintiff and defendant had fallen out about the negro, Ben. To this witness, Sullivan, the defendant, in August, before Ben ran away, said he had reserved the title to the negroes he had placed in the plaintiff’s possession.
    “ The question of gift or no gift, was carefully submitted to the jury. In speaking of the concealment of the paper from the husband, which it was argued constituted a fraud upon him, I said to the jury, it was difficult for me to conceive how that could be a fraud upon him. The property placed in his possession was the defendant’s, and not his wife’s. Still, the Court of Appeals (
      
      ) had pretty strongly intimated an opinion, that that such a paper as that executed by the wife might be a fraud on the husband. It was, therefore, an inquiry to be made by them, and if they found such facts in the case as satisfied them of the fraud, they might find for the plaintiff.
    “ The jury, after several hour’s deliberation, found a verdict for the plaintiff, for the value and hire of the slave, $1200.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the verdict of the Jury was not only without evidence, but against the evidence of the case, and the charge of his Honor, the presiding Judge, upon the law and the facts.
    2. Because it is respectfully submitted that his Honor erred in this, to wit: in saying to the jury in regard to the receipt, that “its effect would be destroyed, as against the husband, if they could find anything in the case that satisfied them that it was a fraud upon the husband, though it was a difficult proposition of law to his mind, that merely withholding from the knowledge of the husband the fact of the existence of the receipt could be considered a fraud, when the slaves included in the receipt were capable of rendering him service, and that he could not regard it as such ; but inasmuch as his brother Withers had thrown out a remark, by way of illustration, to that effect, in delivering the opinion of the Court of Appeals in this case, that he felt himself bound to say to them that if they were so satisfied they might find for the plaintiff;” when, in fact, there was nothing in the case proved, that could constitute a fraud upon the plaintiff, and the remark referred to in the opinion of the Appeal Court had no application to this case.
    
      3. Because the defendant’s delivery of the slaves in question to his daughter, upon terms expressed in her receipt taken by him, was no fraud upon the plaintiff — the evidence being that the slaves were' capable of rendering service.
    4. Because it is respectfully submitted, the delivery by a father, of slaves to his married daughter, taking her receipt for the same, “ to be returned when called for,” without the knowledge of the husband, is no fraud upon the husband.
    
      Irhy, Henderson, Sullivan, for appellant.
    
      IToung, Simpson, contra.
    
      
      
        (a) See this ease Ante p. 57.
    
   The opinion of the Court was delivered by

Glover, J.

On the first trial of this case, a receipt given by the plaintiff’s wife, without his knowledge, admitting that the negro in controversy, with some others, was to be returned when called for,” was oifered in evidence, and rejected by the presiding Judge. For error in this ruling, a new trial was granted, and the Judge, who delivered the opinion of this Court, says, Something more than merely his ignorance of what the father said or did, must appear to make it a fraud on his marital rightsand he supports this view, not only on the authority of cases referred to, but by some put by way of illustration, and concludes, that in the cases suggested, the husband would be liable for the acts of his wife, except by showing a fraud by concealment or otherwise. It is admitted that the husband would be bound by his wife’s declarations, whether by deed or parol; and although conditions and limitations may be annexed to the delivery or gift, that are known only to the wife, and unknown to the husband, yet that he would be bound by them.

He claims through his wife, and must adopt her acts. (Henson vs. Kinard, 3 Strob. Eq. 371.)

The second, third and fourth grounds of appeal submit, that there was nothing in the case proved that could constitute a fraud upon the plaintiff.

Although the mere ignorance of the husband that conditions had been imposed on the delivery of the property, would not defeat such conditions; yet there is a manifest distinction between an ignorance on his part and a designed concealment on the part of the parent. The formei-, without more, would not authorize a presumption from which fraud could be inferred; whereas the latter closes all the channels through which the husband might derive a knowledge of his rights to the property. Studied concealment is, of itself, a fact from which an intention to deceive may be inferred. Suppose the delivery of slaves to a son-in-law, coupled with a secret understanding, designedly concealed, that a loan only is intended; and, acting under the presumption of a gift, which the law authorizes, he shall purchase real estate, and incur all the expense incident to the settlement of a plantation : the parent, in the mean time, standing by and interposing no claim till a large investment is made in lands that are no longer valuable, when the force necessary for their cultivation is withdrawn. Will it be said that this is not a fact from which fraud may be inferred 1 It is not unlike the familiar case of one who stands by and sees another erect expensive improvements on real estate under color of a'n apparently good title, without interposing his better title. Other cases may be readily suggested, which will justify the former opinion delivered in this case, touching the effect of the receipt, as against the husband; and how far circumstances may authorize the conclusion, that there was a design to conceal what he ought to know.

The concealment connected with the receipt was properly submitted to the jury, and the defendant has had the benefit of strong intimations by the presiding Judge against the inference of fraud from that circumstance. This Court would have been satisfied if the verdict had been for the defendant; but can see no reason to order a third trial.

Motion dismissed.

O’Neall, Wardlaw, Withers, Whitner, and Munro, JJ., concurred.

Motion dismissed.  