
    Dillard vs. Dillard.
    1» The registration of a bill of sale of a slave, is only necessary to perfect the title of the vendee, as against the creditors of the vendor. Morgan vs. Elam, 4 Yerger: Baldwin vs. Baldwin, 2 Humphreys.
    2. Dillard advanced one hundred dollars for the purchase of a negro girl for his infant daughter, and the negro was conveyed to his daughter by the vendor: Held, that having ample property to satisfy all demands against him at the time the money was advanced, and having satisfied them all, his subsequent insolvency could not affect her right, and she took the slave, free from any trust in favor of her father or his creditors.
    3. An infant cannot be affected by a sale of her property for the debts of another, unless she did some act by which bidders were imposed upon and induced to purchase.
    This bill was filed in the chancery court at Sommerville, by Sarah Dillard, an infant, by her next friend against Gaston Dillard, for the purpose of recovering, a slave.
    In 1827, in the State of North Carolina, Merritt Dillard, as executor of Josiah Dillard, deceased, sold the slave, Caroline, in controversy, at auction, and she was bid off by William J. Dillard. Merritt Dillard, the father of complainant, advanced one hundred dollars and took the slave, and the vendee conveyed the slave in October, 1827, to complainant Sarah.
    Merritt Dillard was somewhat indebted at the time of the advancement of the one hundred dollars aforesaid, but had ample property to satisfy his debts. He did satisfy them, and removed to the State of Mississippi, carrying his daughter and the slave with him, and holding her as the property of his daughter. In 1839, he became insolvent, and the slave in question being found in his possession, she was seized by execution creditors and sold, and defendant Gaston Dillard became the purchaser at the execution sale. The bill of sale was not registered until after the rendition of the judgment upon which the slave was sold.
    The answer of the defendant urged: First. That the slave was bid off at the auction sale, in North Carolina, by William Dillard for Merritt, and that no title passed to William.
    2. That Merritt Dillard was so involved in debt, at the time, that he could not convey his property to his daughter without a good consideration.
    3. That the deed by William J. to Sarah had not been registered at the date of the judgment.
    
      The complainant filed her replication to this answer, and the cause came on to be heard before chancellor McCampbell, at Sommerville. He decreed in favor of complainant for the slave and her hire, and directed an account, &c., and the defendant appealed.
    
      J. C. Humphreys, for the complainant.
    Between the parties a bill of sale registered is not necessary. A parole sale has always been held good in this State and in North Carolina. Payne vs. Lassitter, 1 Yerger. So too, it is the bargain not the delivery which vests the title. See Potter vs. Coward, Meigs, 22.
    The defendant claims the slave under a sale under execution against the property of Merritt Dillard. The legal title to the slave never was in Merritt Dillard in his own right, and, therefore, never was or could have been subject to execution against him.
    Merritt Dillard had the title as executor — -he had power to sell by the will, a copy of which is made part of his deposition, and independent of the will he had power to sell by virtue of his office. It is an act of Assembly in Tennessee, (none similar to which prevails in North Carolina,) by which an executor or administrator is restricted in the power to sell slaves.
    The sale he made was not void as to his creditors for want of bill of sale registered, because the slave never was subject to his creditors. The slave could not be sold under execution against Merritt Dillard, even though the conveyance to complainant were with the intent to cover the property for Merritt Dillard. Childs vs. Deadericic, 1 Yerger, 7&.
    William J. Dillard says the conveyance was made with that intent. This witness is not sustained by the subscribing witness to the deed — he is contradicted by Merritt Dillard — he is discredited by his own testimony upon cross-examination — ■ he is the brother of defendant, and O. Suggs swears that he would not believe him on oath.
    Many witnesses prove that Merritt Dillard at the time of the transaction and for years afterwards was rich. Many witnesses prove that Merritt Dillard ought to be believed on his oath.
    
      Many witnesses prove that the slave Caroline, from the time of the conveyance to complainant in 1827, was known and claimed as the property of complainant. That alone would be sufficient to vest her with the title. Williams vs. Walton, 8 Yerger, 387: jDavis vs. Mitchell, 5 Yerg-er, 281.
    
      II. 6r. Smith, for the defendant.
    Though chancery will interfere to restore slaves to the owner from whom they are wrongly withheld, it is only where the title of the complainant is clear and above suspicion of fraud. 4 Yerg. 84: 5 id. 142: 6 id. 24: 2 Hum. 510.
    In the present case, the title of the complainant is not thus clear and above suspicion of fraud.
    The transaction of 1827, the bid of William J. Dillard, and the relinquishment to the complainant, was substantially a gift of the slave by Merritt Dillard to the complainant.
    It was a double fraud : a fraud on the distributees of Josiah Dillard, and a fraud on the creditors of Merritt Dillard: The fraud on M. D.’s creditors was constructive, for he was deeply in debt in fact, for thus William J. Dillard testifies, and abundant circumstances corroborate.
    Existing creditors may set aside a gift for constructive fraud. Subsequent creditors may avail themselves of the equity of existing creditors to set aside a gift, where it was fraudulent in fact: 4 Dev. Rep. 197: (cited 1 Ird. Dig. 493): 2 Dev. 326: 1 Ird. Dig. 491, 492: 1 M’Cord Ch. Rep. 521: 1 Am. Eq. Dig. 568: 8 Wh. 229: 2 Brock. 132: 2 Pet. Dig. 363: 1 Sto. Eq. Ju. 352, and n. 1 to page 353: id. 354-5.
    M. Dillard, as executor of J. Dillard, had the legal title to the slave. At law such, title may be sold under execution against him. By the act of 1784, ch. 10, sec. 7, a sale of slaves is not valid unless in writing, and attested by two witnesses. By act of 1789, ch. 59, sec. 2, bills of sale of slaves are void unless registered. (Cited Meigs, 32.) In this'case the sale was not by writing nor registered, therefore the slave was subject to execution at law.
    The stat. lim. avails the complainant nothing. If she ever had possession at all, it was not exclusive, and there is no evidence of delivery. 1 Hum. Rep. 348: id. 335.
    The defendant claims under Merritt Dillard. Equity will not interfere in favor of a fraudulent grantee. 1 Am. Ch. Dig. 459 and cases cited there: 1 Sto. Eq. Ju. 295-6 and note: 1 A. K. Marsh. 210.
    Where A. advanced purchase money for a slave, the legal title of which was however conveyed to B. with a view to defeat A.’s creditors, in equity B. is trustee for A.’s creditors, and they can enforce their claims by filing a bill. 7 Yerg. 155. In such case will equity assist B. to defeat A.’s creditors?
    In the case stated, where A. advanced the purchase money and took the conveyance to B.; and, also, where a debtor to defraud his creditors, conveyed slaves to A., and A. exchanged the slaves for others, the latter cannot at law be taken by the debtor’s creditors. The reason is, because the legal title never was in the debtor. The present case differs from both these cases. The legal title was in the debtor; it never passed out of him, because the conveyances were void for fraud.
    The complainant, if the property in the slave was in her, was fully apprised of it. She stood by at the sale and was silent as to her rights. Her infancy is no excuse for such silence; she is estopped. 1 Sto. Eq. Ju. 376: 1 Pon. Eq. B. 1, ch. 3, sec. 4: Sug. Yen. 16.
    
      W. H. Humphreys, concluded the case.
   GREEN, J.

delivered the opinion of the court.

This is a bill to recover possession of a negro girl. There is a mass of irrelevant testimony which it is unnecessary to notice. It appears from the proof, that Merritt Dillard, the father of the complainant, béing executor of Josiah Dillard in 1827, in N. Carolina, made a sale of the personal property of the estate of said Josiah, part of which was the girl in controversy, then about four years old; this girl was bid off at the sale by William J. Dillard, who conveyed her by bill of sale, dated 15th October, 1827, to the complainant, who was then about five years of age. The price of the girl was advanced, to the estate of Josiah Dillard by the complainant’s father. The bill of sale was not registered until 1839. It is insisted by the defendant, that no title vested in the complainant by this proceeding in the State of North Carolina, because, as he alledges, the girl was bid off at the sale by William J. for Merritt Dillard, and at his request, so that no title passed to the said William by the sale, and consequently none was communicated by his deed to the com-, plainant; and because the said Merritt was so involved in debt at that time, that any gift he -would make to his daughter would be in fraud of his creditors, and therefore void; As to the first proposition in this defence, we think it is not sustained by proof. It is true, William J. Dillard in his deposition says, that he bid off this girl for the complainant’s father; but Merritt Dillard in his deposition directly contradicts the statement, and says, that he had no communication with the said William J. on the subject until after the sale — that thcj, said William J. came to him and told him that his purchases were beyond his means of payment, and requested him to take some of the negroes off his hands, which he agreed to do, and did so; procuring the said William J. to malte the conveyance aforesaid to his daughter, he paying the price of the negroes to the estate. This statement we believe to be correct. William J. Dillard himself, when cross-examined, says, “I bid off four negroes, Caroline and Willis for Merritt Dillard, and Chany and her child for a Maj. Ward; that is, they took them at my bid, and released me of the liability.” This statement does not support his first assertion, that he bid off’the negroes as the agent of Merritt Dillard, and not on his own account. He here says, “they took them at my bid and released me from liability.” A statement that indicates he had bid for them on his own account, and was liable, and that the other persons agreed afterwards to take them at his bid. This view of the subject agrees with the fact, that Chany and her two children (of which Caroline is one) were set up in a lot and sold together. That they were thus sold is proved by the testimony of Merritt Dillard, and by the return of the account of sales made by the executor. It is highly improbable, therefore, that in buying a lot of negroes, consisting of a woman and two children, the bidder would act as the agent of one man as to the woman, and as the agent of another man as to the other child. As they were all cried off at an aggregate price of $360, if the bidder acted as the agent of Ward and Merritt Dillard both, it would have been necessary that they should confer together and agree upon the proportion of that sum that each would pay. But it is not pretended that there was any such conference. Merritt Dillard agreed with William J. Dillard, the bidder, to pay $100 of his bid and talce the girl Caroline for his daughter Sarah. In pui-suance of this agreement, the deed of the 15th October, 1827, was made.

We are, therefore, satisfied that the title to the girl Caroline passed to William J. Dillard by the purchase at the executor’s sale, and was vested in the complainant by the bill of sale aforesaid. This being the state of the title, the question of registration cannot arise in this case, the complainant not holding the legal title under the father, but under William J. Dillard; and as the want of registration can effect the title in favor of the creditors of the grantor only, Merritt Dillard’s creditors have no right to object to this deed on that account. Morgan vs. Elam, 4 Yerg. Rep.: Baldwin vs. Baldwin, 2 Hum. Rep. The only remaining question is, whether Merritt Dillard was so involved in debt that equity will not permit the one hundred dollars bestowed on his daughter in the purchase of this girl to be retained by her, but will hold her a trustee for the creditors of her father. Upon this subject there is a volume of testimony, but it is unnecessary to go into a minute examination of it. We are satisfied from all the proof, that although Merritt Dillard became very much involved before he moved to the western country, and has since been insolvent, yet that his embarrassments commenced after this transaction in 1827, and that he had ample property at the time this bill of sale was executed to satisfy every demand against him; and that after the payment of all his debts in North Carolina, he removed considerable property to Mississippi. He might, therefore, at the time this transaction occurred, lawfully advance for his daughter the one hundred dollars he gave for the girl Caroline. Having done so, she was vested with the legal title, by virtue of the bill of sale from William J. Dillard, discharged of any trust in favor of her father or his creditors. This being the case, the subsequent insolvency of her father could not affect her rights. The girl Caroline has always been held by Merritt Dillard for his daughter, the complainant, and not for himself; so that his possession instead of operating against the complainant, has been in confirmation of her title, if it needed confirmation. There is no pretence for the ground assumed in defence, that the complainant committed a fraud in permitting the negro to be sold as the property of her father without objection. Merritt Dillard says, that objection was made. But if that were not so, it is not pretended that this infant complainant would be affected unless she did some act by which bidders were imposed upon and induced to purchase; but this is not pretended. Upon the whole, we think the complainant has shown a clear right, both legal and equitable, to the negro in controversy, and therefore affirm the decree. 
      
       See Smith vs. Greer, post.
      
     