
    D. Thompson, Appellant, v. J. L. Thompson et al.
    
    Thompson, by an instrument of writing, gaye to his children all his negroes, who were delivered as given, with the exception of thirteen and their increase, Who, by the condition of the instrument of gift, were' to remain in the possession of the donor during his life.
    By the court. The gift is good as to the negroes who were delivered, but inoperative as to those who remained in the possession of the donor. The delivery alone Wnd not the writing vested the title.
    APPEAL from chancery.
    The appellant filed his hill in the court below, to rescind an'd cancel a gift made by him to the appellees, his children.
    Marsh and Lea for appellants.
    The bill exhibits a writing, without seal, dated February 8, 1821, signed by complainant, and attested by George Fox, as appears by inspection. It purports to give and deliver presently to the children of complainant, respectively and severally, certain slaves by name; and then it proceeds thus: “ Fifthly, and lastly, I do hereby give unto my above named children, Patsy, John, Catharine and James, the following negroes by name, viz: .Fan, Ann, Nancy, Phillis, Tom, Abram, Charity, Chaney, Jerry, Andrew, Lindey, Jordan and Henry; the last above named negroes, males and females, being valued at one thousand dollars; to be equally divided among my above named children, either by lot or in some other way or manner, which they, my aforesaid children, may think proper, to be and remain for the only use and behalf of them, my aforesaid children, and the lawful heirs of their body, and no other. Nevertheless, the last above named negroes, male and female, with their increase, to be and remain with me, the said David Thompson, for my use during my natural life, and after my decease to be disposed of among my aforesaid children, in the -way and manner, and for the use above directed. In testimony,” &c.
    The bill prays that this writing may be cancelled.
    In argument, the general principles are admitted that the complainant must show not only his superior right, but also that there is some necessity, or proper occasion, for invoking the aid of this court. If he has acted so as to destroy his right, the court cannot relieve him; nor will it sport with its time and dignity in giving relief when there is no danger. But, on the other hand, if the superior right be ascertained, the court will incline to dis-embarrass that right, so that it may be enjoyed without hazard or annoyance.
    Complainant’s right is not controverted, except on the strength of the writing in question.
    1. This paper is impugned for want of proper execution; and on this point,, the parties are at issue. While the complainant admits his signing of the paper, and that he placed it in the hands of John L. Thompson, yet he says it was imperfect, having a blank left for the name of another negro, and it was not delivered as an executed instrument, but to be held merely at the pleasure of complainant. The answers, on the other hand, admit the blank as to one negro, but insist that the paper was signed and delivered as a perfect instrument for all the others; and to support this position, they urge several circumstantial facts, the paper being recorded, present delivery of some of the negroes, acquiescence of complainant, and other incidental matters.
    On the question whether the paper has been duly executed or not, the complainant holds the negative, and the burden of proof is on the defendants, who seek to set it up. To do this, they may avail themselves of any admission in the bill, and of any other proof to the point; but the allegations of the answer, unsupported by evidence, amount to nothing. And, on the other hand, complainant may take the admissions of the answers without relieving the defendants from the necessity of proving all matters in avoidance. Hart v. Ten Eyck, 3 Johns. Chan. Rep. 87 to 94.
    The case made by the pleading, is not a due execution, and the defendants have failed to give any evidence touching the execution of the paper, merely relying on the insufficient admissions of the bill, and their own unsupported allegations. It is, therefore, an imperfect paper, begun but not completed, and is not sufficient to divest complainant’s previous right. But it is recorded, and although without sufficient evidence or authority, yet it is threatening and embarrassing to complainant’s right, and the presumptions of the law might mature it in the lapse of time, by supplying the deficiencies in the proof of its execution. This cloud of increasing -darkness ought to be removed by cancelling this paper, having such strong appearances of right, but really devoid of substance.
    2. But even if the paper itself Avere properly executed, yet the gift would be incomplete, because there was no delivery of the property. Actual delivery, according to the nature of the property, is essential to a good gift. ' Donatio perficiiur possessions accipientis. It has been sometimes assumed, that a gift of a chattel, by deed or writing, Avill supersede the necessity for actual delivery. Flower’s case, Noy’s Rep. 67; Irom v. Smallpiece, 2 Barn. & Aid. 551; Bohn v. Headley, 7 Har. and Johns. Rep. 257.
    The better authorities known, maintain and confirm the inflexibility of the general rule, and overrule those which make the particular exceptions. 2 Kent’s Com. 43,7, 438, 439; Ewing v. Ewing, 2 Leigh, 337; Elam v. Kune, 4 Leigh, 333; Bunn v. Markham, 7 Taunt. 244; Noble v. Smith, 2 Johns. Rep. 52. 56; Pierson v. Pierson, 7 Johns. Rep. 26; Grangia v. Arden, 10 Johns. Rep. 293; Cook v. Husted, 12 Johns. Rep. 180; Fink v. Cox, 18 Johns. Rep. 145; Picot v. Saunderson, 1 Dev. N. C. Rep. 309; Cotteen v. Missing, 1 Madd. Chan. Rep. 176. 183; Snell-grove v. Bailey, 3 ■ Atk. 214; Denny v. Smith, 1 P. Wms. 404; Jones v. Selby, Prec. in Ch. 300; 2 Eng. Com. Law Rep. 81; Ward v. Turner, 2 Yes. Sen. 431. 442; Duflield v. Elwes, 1 Sim. & Stu. 293; Pleasants v. Pendleton, 6 Rand. 473. It is to be remarked, moreover, that the cases which seem to militate against the principle, that actual delivery is necessary to perfect a gift, on strict examination, only confirm the doctrine, by attempting to conclude the donor by his own writing or deed from denying the fact of delivery, thus conceding the necessity of ‘its existence, and only contending as to the mode of proving or establishing it. In the case of a writing without seal it is attempted to hold the donor to his admission, as matter of evidence and a kind of estoppel in pais, and in the case of a deed the estoppel is treated as conclusive in'law.
    The writing in question is not a deed, and by the weight of authority is open to the first inquiry. It amounts of itself, to no more than a mere promise to give, executory and voluntary, to be consummated by actual delivery, or defeated for the want of it, at the pleasure of the promiser. The fact of delivery is essential tOj the title of defendants, yet they content themselves with, their own allegations, entirély devoid of sustaining proof. And, indeed, as to the negroes mentioned in the last part of the writing, present delivery would have been inconsistent with the declared purpose of the maker. So far as the court is informed, therefore, •the previous right of complainant is not destroyed by any delivery ■in connection with the writing. A court of equity would not interfere and give effect to a gift thus left inchoate and imperfect. Antrobus v. Smith, 12 Vez. 39; Pennington v. Gittings, 2 Gill & Johns. 208; 2 Kent’s Com. 438. But the question occurs on this part of the case, whether it is proper under existing circumstances to cancel the promise to give. And such an application is always referable to the sound discretion of the court. No injury nor damage can arise from cancelling this paper, even if the court should feel disposed, in a spirit of precaution, to look beyond the proof;' for if any of the property has been actually delivered, the gift for so much would be complete and irrevocable. 2 Kent’s Com. 440, 441; Bayard v. Hoffman, 4 Johns. Chan. Rep. 450. And a gift of personal property may be by parol. 3 M. & S. 7. More especially could there not be any danger if the answers be true as to the time of delivery, if any; for then the right would be certainly protected by the statute of limitations. As no injury could arise to the defendants from cancelling the paper, the court would incline to grant the relief, in the absence of any special objection, if thereby the complainant might enjoy or dispose of his property more free from embarrasment of either actual danger or well founded apprehension. If the writing contained no other provisions than the last clause, the court might, perhaps, regard it as a mere will. Rev. Code, ch. 9. 5. 14, 15. But, even in that case this court would decline, perhaps, to turn complainant over to the chances of litigation under this paper in his lifetime, and others after him to the further chances of subsequent litigation; for similar papers have occasioned much diversity of opinion as to their true character and legitimate consequences. Harrington v. Bradford’s Executrix, Walk. Rep. 520. This paper however, has other parts, which may give character to the whole. The defendants have treated it in the pleadings and otherwise as a gift inter vivos-, as to part it could be nothing else, if good for any thing. It has been placed of record, and otherwise attempted to be set up as such, and present right of property is claimed under it. A trustee to sell, ought to have such a cloud removed before he would sell; and shall not the owner himself, on similar principles, have equal aid in securing a full price, if he should choose to sell? Or why should he not be permitted to have the unembarrassed enjoyment of his own property? The defendants being mere volunteers, and not entitled to obtain any thing more than they have already received, (as has been shown,) have no right to the continuance of their claim, nor have they sustained their allegations tending to show the justice of the proposed gift; but it is admitted on all hands, that the writing was made, imperfect as it was, immediately before the second marriage of complainant. The circumstances show manifest fraud on the intended wife; and the defendants, as proposed beneficiaries, have no right to the consummation of this fraud. On the other hand, the complainant is bound by honor and duty to refrain from consummating such a fraud, and while the locus penitential is yet afforded him, the gates of chancery will open wide for the returning sinner.
    3. In aid of the last proposition, and as a principal point of itself, the rights of the rvife on this second marriage are further presented for consideration. The “Act to prevent frauds and perjuries,” (of Mississippi,) is a modification of the English .Statutes of 13 and 27 Eliz.; and it is contended that, under our law, the wife is a purchaser in relation to personal property as well as the realty. Rev. Code, ch. 26, s. 2; ch. 9, s. 14. There being in this case no such deed authenticated as required by the act, nor possession in the supposed donees, the wife, at the death of her husband, would be allowed to treat this paper as fraudulent; and more especially for all the property remaining in his hands until his death. Her right to the property and to sue are both imperfect during his life; but every wife has some present interest in the personal as well as real property of the husband. Her interest in property conveyed by him in fraud of her matrimonial rights is more fixed, while his is diminished. The rights of the wife are continually jeopardised and disparaged by this fraudulent paper, which is of record and maturing with age. It is not necessary that she should be a party of record. The imperfect character of her rights, as already shown, may make it premature to have her thus presented, but her rights are presented in the bill by her husband, in connection with his own; and although the time may not have arrived for her to speak in person in relation to this matter, yet there is a peculiar propriety in her husband’s asserting their connected rights as soon as possible. He has, for the present, a leading and controlling interest, while her provisional interests may most properly be urged by him, so as to avoid the necessity and indelicacy, at some future day, of her charging the fraud perpetrated by her husband and step-children. By can-celling the paper the rights of all would be disembarrassed. Any property actually delivered would stand on the footing of a perfected gift; and every one, while knowing his own, would be at liberty to use it to the best advantage. The question of necessary parties is more or less a. matter of discretion, depending on convenience, and does not affect jurisdiction. No other party is necessary in this case for the full administration of justice and the relief desired. Executors of Brasher v. Van Courtlandt, 2 Johns. Chan. Rep. 247; Elmendorf v. Taylor et at., 10 Wheaton, 152, and notes.
    Rawlings, for appellees.
    The bill in this, case seeks to cancel an instrument purporting to be a deed of gift, of certain negro slaves given by complainant to his children therein named. The position and ground assumed and alleged by the complainant is, that the deed of gift was fraudulently obtained; that by the persuasion and undue influence of the defendants, who are his children by a former wife, he was induced to execute the instrument sought to be cancelled; that the delivery of the slaves therein named, was not made, and, in fact, that the instrument, although made and executed by him, was not intended to vest a full and complete title in the defendants to the slaves therein granted and given. These are the substantive allegations in the bill, which seems to be predicated entirely upon the ground of fraud.
    ■ The defendants, each and every of them, deny positively the charge of fraud, and detail all the circumstances attendant upon the execution and delivery of said instrument, which repudiate the idea, that fraud could attach to them or either of them. The case then rests upon the allegations and charges in the bill, and a full denial thereof, as is stated in the respective answers of the defendants. Has the instrument been fully executed? and was the actual delivery of the property essential to the consummation of the gift, or absolutely necessary to vest a full and complete title in the defendants? The signing and delivery of the instrument is not controverted. The actual delivery of a chattel is not in all cases necessary to vest a fee simple title' in the donee, and especially in the case of donations or gifts, where the instrument, by its provisions, is not to take effect instanter, but at a future time. When the gift is made by deed, the actual delivery of a chattel is not required hr order to vest title in the donee. When the donation is made, and the deed of gift executed by the mere act of signing and the delivery of the instrument to the person for whose benefit the gift is intended to operate, the donor cannot take advantage of the act himself, even if given or made under fraudulent circumstances. .It may be taken advantage of by third persons, but not by the donor or his representatives. The law will not permit him to take advantage of his- own act, however fraudulent. By the act of signing and delivering the instrument, he thereby divests himself and those of his immediate representatives of all interest in the property conveyed or intended to be conveyed.
    
      It appears, and this case must rest upon the charges of fraud as set forth in the bill and denied by the answers, that the instrument was executed at the instance of the complainant, who, anticipating a second marriage, proposed the execution of said instrument. That circumstances attending his future matrimonial connection, and to protect the interest of his children by his former marriage, operated upon his mind, and induced the execution and delivery of said instrument. Such being the motives which acted upon the mind of the complainant, a just regard for the interest of his children, based upon the principles of equity, and where there is no proof of the charge that his children or either of them, by, any act on their part forced, or by fraudulent acts, caused the execution and delivery of the instrument, where the act was voluntary, the courts will not interfere or divest the interest of the donees, or cancel the deed. Upon this subject, the court will find it decided, 4 Dessaus. 518, “that a deed of gift to particular children will not be set aside on the ground of an unequal or unjust division of the property of the grantor: some incompetency of mind at the time of executing the deed, or some imposition practised on the donor” must be proved.
    That the instrument in question was duly executed, and the delivery thereof by the donor himself, is fully sustained by the statements both in the bill and answers; the subsequent acts and conduct of the donor cannot effect the legal operation thereof. I Johns. Chan. Rep. 240. The mere words and acts on the part of the donor, and the delivery of the same into the custody of one of the defendants named in the bill for the use of the donees, is sufficient to destroy all the right of property which the donor had, or can have therein. 12 Johns. Rep. 536. Weakness of mind, or old age will not, unaccompanied with fraud, invalidate the instrument. Maddock’s Chancery, 280-81-82, and authorities there cited. And such is the effect of the law, and the decisions thereon, that a voluntary conveyance cannot be annulled or set aside by the grantor.
    The deed of gift has been recorded, and if, as is the fact, that the same was recorded with the knowledge and consent of the complainant, it gives additional weight to the claims of the defendants; but in fact, had the record of it not have done, it would not have altered, affected, or in the least impaired the rights of the defendants, the recording of it not being necessary under our statute. Upon this general view of the law, connected with the facts in the case, and a due respect to the relative rights of the parties, the conclusion of my mind is, that the bill must be dismissed.
   Mr. Chief Justice Shahkev

delivered the opinion of the court.

The complainant filed his bill to rescind and cancel a gift made by him to the defendants, his children. All the allegations in the bill, in regard to the manner, purpose, object and inducement for executing the writing, are denied by the answers. The whole matter, therefore, rests upon the construction and effect of the writing: It is not under seal, and cannot, therefore, be dignified by the name of “deed.” After giving to each of the children certain negroes, naming those given to each, the donor proceeded to give to his said children, jointly, thirteen other negroes, to be equally divided, retaining to himself the possession and use of the last mentioned negroes for life, and after his death they were to be divided.

It appears, that the children took possession of the negroes first given, and have continued to hold them. So far as these negroes are concerned, therefore, the gift became complete, by delivery, and cannot be interrupted. The delivery alone, and not the writing, vested the title. But the writing cannot have any Validity in regard to those that were retained, during the life of the donor. Even if it had been a deed, it would fall within the rule already established by this court, in the case of Marshall v. Pulgham. It could only be regarded as a contract, and as such, could not be enforced.

Although this writing was recorded, it was improperly admitted to record without proof, and derives no additional validity from that fact.

The decree of the chancellor must be reversed, and the instrument cancelled, not, however, to affect the right of the property delivered.  