#### O’Neill vs. Henderson, Trustee, &c.

Whenever a perfect title, according to the laws in force in the State in which it is made, vests property in the wife, or in trustees for her use, such title remains in her notwithstanding any change of the residence of the husband, who may exercise an apparent control and ownership of the property, or any act of fraud or negligence on the part of the trustee or the husband; nor is she required to do any act to protect her title. — such as recording in this State the evidence of her title.

A trustee, who brings suit as such, is not required to offer proof of his acceptance of the trust — the bringing of the suit and acting as such, are sufficient.

"Where the separate property of the wife was levied upon and sold for the husband’s debts, no demand is necessary to entitle the trustee to recover against the purchaser in an action of detinue.

"Where interrogatories are filed under the 9th, 10th, 11th and 12th sections, ch. 55, Dig., and notice is given to the adverse party of the application for a commission, he is not entitled to notice of the time and place of taking the depositions.

Appeal from, Drew Oi/rcwt Gov/rt.

Hon. SheltoN WatsoN, Circuit Judge.

S. H. HeMpstead, for tbe appellant.

1. The depositions taken in Tennessee, should have been suppressed. The application was to take testimony in an action of replevin, and this was an action of detinue. 5 JEng. 420.

.2. It was a proper enquiry as to whether the negro woman and her child were conveyed to Buck’s wife, to enable her husband to avoid payment of his just debts, and among them the debt due to the appellant. 5 Podge 586.

3. Henderson did not show any right of action in himself. If any -one had such right, it was Burk and wife, and not this sham and pretended trustee, who, at all events, had nothing but a naked legal title. Digest 702.

4. The Court should have granted a new trial for the reasons *236stated in the motion. O’Neill purchased at sheriff’s sale; and Burk, the husband, had such right as was subject to execution. 3 Eng. 302; 2 litt. 79/ 7 Ala. 32.

Pike & Cummins, for appellee.

No new trial can be granted, because the verdict is clearly in accordance with the merits of the case. Sjparlcs vs. Berner, 6 JEhg. 630; 7 IJ>. 651.

No notice is necessary where depositions are taken on interrogatories. Bees. 9, 10, 11, a/nd 12, oh. 55, Rev. Slat.

Perno val from one State to another, does not affect the character of a loan. Smith vs. Jones, 3 Eng. 109.

No demand was necessary before suit. Beebe vs. BeBcnm, 3 Eng. 510; Prater vs. Frazier, 6 Eng. 249.

Where property is conveyed in trust for wife, her possession is that of trustee, and so far from being inconsistent with deed, is according to the very objects of the transaction, and no presumption of fraud can be indulged.

Mr. Justice Walker

delivered the opinion of the Court.

This was an action of detinue, brought by Henderson, as trustee for Nancy Burk and her children, against O’Neill, for a negro slave.

The trial was had upon the plea of the general issue, and a plea of property in the defendant. Judgment was rendered for the plaintiff. Yarious exceptions were taken to the opinion of the Court upon the trial, all of which were presented upon a motion for a new trial, which was overruled, and, upon exceptions to the opinion of the Court in overruling the motion, are made part of the record, and assigned as grounds of error in this Court.

As the correctness of the decision of the Court below, in giving the instructions asked by the plaintiff, and refusing to give those asked by the defendant, must depend upon the nature of the plaintiff’s title as trustee, and the effect of our statute of frauds upon it, we will proceed to examine the facts and settle the questions of law arising upon them.

*237In tbe year 1843, William Hack, a resident of tbe State of Tennessee, loaned a negro woman to bis sister-in-law, Mrs. Nancy Burk, wbo, with ber husband, John F. Burk, then, resided in tbe State of Mississippi. In tbe fall of 1846, or tbe winter of 1847, Burk and wife, having tbe woman slave still in possession, removed to Drew county, Arkansas; tbe woman, in tbe meantime, having born “ Joe,” tbe property now in dispute. On tbe 20th of April, 1847, Hack conveyed said woman and ber child Joe to tbe plaintiff, Simeon Henderson, in trust, for tbe sole use and benefit of Mrs. Burk during ber life, and to ber children after ber death, for their separate use, maintainance and support, wholly free from the debts and liabilities of the husband, and denying him tbe right to exercise any control whatever over said slaves,, or to hire or sell them. This conveyance by deed, of tbe date-above, was duly acknowledged and recorded in the county of Marshall, and State of Mississippi, the then residence of Henderson, tbe grantee. Burk and wife still continued to reside in Arkansas with tbe slaves in their possession, and apparently under tbe control of the husband and wife, in the performance of ordinary household duties, until tbe 26th of June, 1849, at which time tbe boy Joe was taken in execution to satisfy a debt contracted by Burk with O’Neill, the appellant, on tbe 27th of April, 1849,. for $66 47. The deed from Hack to Henderson was never recorded in Arkansas; nor was it known here that such conveyance-, existed. Under this state of facts, the question of law, intended to be raised by the instructions asked by tbe defendant, and refused to be given by tbe Court, is, whether the deed was or not void, under the 1th seo., oh. 104, Digest, as against creditors and purchasers for want of registry in this State.

. As between parties in interest, competent to assert and protect, their legal rights, it would seem clear that the grantee holding tbe title to tbe property, by suffering tbe property to remain in, the possession‘of a third person without notice of his title, could not hold against a creditor who had, upon the presumption that the title and true ownership were with the possession, given credit *238to bim wbo beld sucb property in possession, or against an innocent purchaser, wbo buys upon sucb presumption, and in good faitb pays bis money for tbe property. But in a case like tbe present, where tbe real party in interest is a feme covert, subject to tbe control of her husband, and for tbe most part, by reason of her coverture, without power to assert and protect her interest, and rights, tbe law has thrown around her its protection, and not only relieves her from acting, or from tbe consequences of her acts, but also protects her against tbe negligence, or tbe abuse of tbe trust by tbe trustee. If sucb was not tbe case, tbe trust would amount to nothing, tbe trustee having a mere naked legal title in tbe property, but which (as is tbe case in this instance) is not to remain either in bis possession, or under bis control, but to be used and enjoyed by a wife and helpless children, made by tbe law, as well as their helpless dependance, and their affection, subject to tbe control of tbe husband, over whose character for prudence and discretion, by tbe mere fact of executing sucb a deed, a shade of doubt is cast: wbo may, at pleasure, change bis residence, involve himself in debt or even sell tbe property. It would be hazardous to tbe interest of tbe wife, even with tbe greatest vigilance, on tbe part of tbe trustee, to require bim to follow up tbe trust property, and have bis interest in it made known of record; but even .then, if tbe statutq of frauds may be successfully pleaded against her rights, no vigilance on her part, or on tbe part of tbe trustee, would be sufficient to protect her interest, because tbe husband might remove tbe property, and contract with innocent purchasers and creditors to the utter overthrow of tbe rights of tbe wife.

That, under circumstances sucb as tbe present, and perhaps in this case, tbe husband may perpetrate fraud upon innocent creditors and purchasers, is very true, and it may seem wrong to protect tbe property against their equitable claim. But, then, when we consider tbe situation of tbe wife, bow utterly impossible it is for her., in view of her relation to her husband, to protect her rights, it would be equally wrong to bold her responsible for tbe *239acts of her husband. The most important question is, did the wife acquire an interest in the property as cestui que trust, by a full compliance with the laws of the State, in which the contract was entered into at the time it was executed. If so, we apprehend that no act of the trustee, or of the husband, nor would any apparent hardship, growing out of such act, divest her of her interest in the property. In the correctness of this position, we feel fully sustained by the opinion of the Supreme Court of the United States, (Bank vs. Lee et al., 13 Peters 107.) The facts in that case were: That, in 1809, Bichard Bland Lee,- then a resident of Fairfax county, Yirginia, with his family, conveyed several slaves to certain trustees, in trust, for the sole use of his wife; which deed was duly acknowledged and recorded in said county ; afterwards, Lee moved with his family to Washington City, in the District of Columbia, and took with him the slaves so conveyed in trust, and exercised ownership over them as his, and executed a deed of trust to the Cashier of the United States Bank for said slaves, to< secure the payment of $6,000, money borrowed of the Bank. The deed of trust executed in Yirginia for the use of Mrs. Lee, was never recorded in the District of Columbia, nor had the Bank any notice whatever of the claim of Mrs. Lee to the slaves until long after the deed was executed to the Bank, and after the death of Mr. Lee.

Under this state of case, it was contended for the Bank, that, notwithstanding Mrs. Lee’s title may have been perfect, and well' protected against the statute of frauds, under the registry act of Yirginia, whilst the property remained in the possession of Lee¿ in that State, yet when removed to the District of Columbia, the statute of Maryland, which requires all contracts for goods and' chattels, whereof the vendor shall remain in possession, to be recorded, or else to be void as to purchasers, operated' upon the Yirginia title of Mrs. Lee, and defeated it for the benefit of purchasers from the husband. When answering this- position, Judge OateoN, who delivered the opinion of the Court, said: “The statute has no reference to a case where the title has been vested *240by tbe laws of another State; but operates only on sales, mortgages, and gifts, made in Maryland. Tbe writing shall be recorded in tbe same county where tbe seller shall reside when it is executed. Tbe seller, Richard Bland Lee, residing in Virginia, it was impossible for Mrs. Lee to comply with tbe act; that tbe Virginia deed secured to Mrs. Lee tbe same right here, that it did in Virginia, we apprehend to be, to some extent, an adjudged question.” Tbe Judge then cited Smith vs. Burch, (3 Harr. & John.;) Crenshaw vs. Anthony, (Martin and Yerger 110;) and closes bis opinion thus: “ The deed vesting tbe property in Mrs. Lee’s trustees, having been duly recorded in tbe manner required by tbe statute, it was effectual, according to tbe laws of Virginia, to protect tbe title against subsequent creditors •.of, or purchasers from, Richard Bland Lee.”

'The case of Crenshaw vs. Anthony, was an action in detinue for a slave sold by a judgment creditor to satisfy a debt contracted by tbe husband, whilst tbe slave was in bispossession. Tbe deed <of trust, securing tbe property to tbe use of tbe wife, was executed in Virginia, and there duly admitted to record, all of tbe parties .•and tbe property then being in Virginia. Tbe husband moved tto Tennessee, with tbe slave in bis possession. Tbe deed never was recorded in Tennessee, nor bad tbe creditor any notice of tbe wifeis title.

The Supreme Court of Tennessee held, that tbe deed made in Virginia, separating tbe title and tbe possession, was of a character to be operated upon by tbe Virginia statute, andhad the deed mot been recorded there, as to creditors and purchasers, tbe title would have been deemed to be with tbe possession; but, having been recorded there, a title, fair and unimpeachable, vested in tbe trustee, and oestm que trust, and, being valid in Virginia, tbe statute of Tennessee could not affect it; and that tbe wife’s interests were not affected by her silence in regard to tbe title, which she held to tbe property. These decisions distinctly announce the principle, which we think must govern tbe decision of the case now before iis, which is, that if a perfect title is ae-*241quired in accordance witli tbe laws of tbe State in wbicb tbe parties reside at tbe time tbe contract is made, and where it is made, that such title is not affected by neglect or omission of tbe trustee, tbe husband, or tbe wife, to record such deed in tbe State to wbicb tbe property may be removed, or where it may be subsequently held. Some importance seems by tbe Court, in tbe case of Crenshaw vs. Anthony, to be attached to tbe fact that tbe deed was recorded in Virginia, and it is said, that, bad that not been the case, registry in Tennessee would have been necessary in order to prevent tbe operation of tbe statute of frauds in that State. If tbe Court intende.d to assert, that registry in Virginia was necessary in order to make tbe title in tbe trustee perfect, then this decision rests upon tbe ground assumed in the case of tlie Bank vs. Lee: That if tbe title is perfect, tbe wife is not bound to record such title in every State to wbicb her husband may remove, and if it is perfect in tbe State where it is made without registry, that it is a matter of no consequence to tbe creditors of another State, whether it was or not recorded in tbe State where it was executed, because it is very evident that it would be no notice to them and no compliance with tbe laws of tbe State to wbicb tbe projierty may be removed. We have remarked upon this part of tbe Tennessee decision, ■ that we may avoid the inference, wbicb might be drawn from silence, that we consider registry, in tbe State where the right accrues, essential to protect tbe rights of tbe wife only so far as may be necessary to make lier title perfect in the property. And it has been deemed tbe more necessary to this, from tbe fact that tbe Supreme Court of Texas has made this part of the decision of tbe Court, in tbe case of Crenshaw vs. Anthony, tbe basis of their decision of tbe case of Warren vs. Dickinson and Tutt, 3 Texas Rep. 460. In that case, Warren and wife resided in Texas, and had in their possession a slave belonging to the father of Mrs. Warren, whore-sided in tbe State of Mississippi, where be died, and by his will bequeathed this slave to bis daughter, Mrs. Warren. After tbe death of tbe testator, Warren (tbe husband) sold tbe slave to tbe *242defendant, who had no notice of the title of Mrs. Warren, (un-. less the recording of the will in Mississippi should be held such). Under this state of case, the Supreme Court of Texas decided against the title of the wife to the slave; not because of an y defect in the will, or that it was not in all respects a valid will accor-dingto the laws of Mississippi, where it was made; but upon the ground that the property and the claimant (the wife) should have been resident in Mississippi at the time the will took effect and was recorded.

Now it is evident, if this be the case, it cannot be for want of title in Mrs. Warren in the slave, unless it could be maintained that property cannot be devised unless it is actually in the date where the devise is made, and where it took effect, and where the devisee also resided; which is certainly not the law. But it must be upon the ground that registry, under the circumstances of the case, in the state of Mississippi, was equivalent to registry in Texas, in protecting the registry of the wife to the property there, and if so then as the will was registered in Mississippi before the sale of the slave to the defendant, it would seem to- follow that the Court should have charged them with notice of the wife’s title, and have decided in her favor; but as such was not the decision of the Court, and as it was held that the notice, to be effectual, should have been given whilst the property was ,in the State of Mississippi, and before the removal' of the wife to Texas, we must presume that the Court, in fixing-the notice at that date, considered it in some respects as essential to the validity of the title itself, when it took effect in- Mississippi, and by so considering that decision, it may be reconciled with the rule held in the Bank vs. Lee; and if considered otherwise we must dissent from it, in so far as it may conflict with the opinion already expressed: that wherever a perfect title, according to the laws in force in the State-in which it is made, vests property in the wife or in trustees for her use, such title remains in her notwithstanding any óhange of the residence of the husband, who may exercise an apparent control and ownership of the property or any act of fraud or negli*243gence on the part of tlie trustee or the husband; nor is she required to do any act on her part to protect her title. But the law, in consideration of her limited rights as a feme cevert, so far throws around her title its protection as to protect it from the consequences incident to such negligence or abuse of trust.

It is very true that this rule may result in cases of hardship to creditors and innocent purchasers, who, finding the property in the possession of the husband, may well presume the title to be in him: but, then on the other hand, without this rule, the greatest wrong might result to the wife, who for .the most part is deprived, under the laws, of the power to hold a separate and distinct ownership, and who, on account of her marriage relations, public policy would not compel to expose the fraud perpetrated by her husband by gaining credit upon the faith of the property as being his. In view of these principles, a brief review of the facts of this case will enable us to decide the material question involved in it.

We have seen that the deed of trust was' executed in the State of Mississippi, the residence of the trustee, and was there duly authenticated and recorded. This, in our opinion, was sufficient to vest the legal title in the trustee for the use therein expressed. It is true that a few months before that tíme, Burk and wife had removed with the slave to Arkansas, but this we have said did not affect the validityof the title. Thedebt, for the satisfaction of which the boy was seized and sold, was not contracted until more than two years after the execution of the deed of trust. Under this state of case, even under the rule as held, in Warren vs. Dickinson, by the Supreme Court of Texas, if the slave had been in Mississippi, and the wife, the cestui que trust, had also resided there, when the deed was executed and recorded, the subsequent removal of the property to Arkansas would not have affected the wife’s title, and, if not there, would it if made a few months after? "Was the creditor in the first instance affected with notice of a deed recorded in Mississippi ? If so, why not when the deed was'recorded a few months after? There can certainly be no good reason, because the same rule of law that required him to look to a registry beyond the limits of *244this State at one time, would also at another, and as his contract was made long after the execution of the deed, he would be held to notice of it. But the truth is, that the registry of the deed in Mississippi was no notice to the creditor in Arkansas, no matter when made. At the time of the levy, the purchaser had notice of the title of Mrs. Burk; and, by a jury called to try the right of property, it was found not to be subj ect to the payment of Burk’s debts, so that he purchased with the fullest notice of the trust, but the question does not turn upon notice at the time of the levy and sale, but upon the question as to whether the trust title was void under our statute for want of registry in this State, and we have said that it was not.

From the view thus taken of the rights of the plaintiff as trustee, it follows that the 1st, 2d, 3d, 5th and tth instructions were properly refused by the Court below ; all of them growing out of the supposed effect of the statute of frauds upon the plaintiff’s title. It was not necessary, in order to maintain the action, for the plaintiff to offer proof of his acceptance of the trust; the bringing of the suit, and the acting as such were sufficient; therefore, the 4th instruction asked was properly overruled.

The 6th instruction was also properly overruled, because the property was tortiously taken from the possession of the feme covert, and although the tort was waived, and the suit brought in detinue, no demand was necessary to entitle the plaintiff to recover. Schulenburg vs. Campbell, 14 Miss. Rep. 491; Prater vs. Frazier and wife, 6 Eng. 249.

The remaining question relates to the admission of the deposition of a witness over the objection of the defendant. The principal ground of objection to the deposition is, that it was taken without notice to the defendant. The deposition was taken under the provisions of the 9íA, 10th, 11 th cmd 12th sections of the 55th ch., Dig., 433, which provide for the taking of depositions upon petition to the Court. The order was granted upon petition for leave to take depositions upon interrogatories and cross-interroga-torion. The 11 th section provides, that the interrogatories shall *245be drawn up and signed by the parties under the direction of the Court, and if either party shall refuse to join in such interrogatories, such refusal shall not prevent 'the issuing of the commission. Under the provisions of this statute, when the interrogatories are agreed upon by the parties and signed by them, or where one of the parties shall refuse to join, the effect of which is an abandonment of his right to file cross-interrogatories, there can be no necessity for notice of the time and place for taking the depositions, because the evidence is confined to the particular interrogatories propounded, and the officer, or person appointed by the Court to take the depositions, is charged with the due execution of the commission, and his conduct can in no wise be influenced by the presence of either party.

It seems that the delendant was duly notified of the application for the rule in this case, and thereafter must be presumed to have had notice of the further action of the Court upon the petition. TTis failure to file cross-interrogatories or to sign the interrogatories propounded by the plaintiff, could not, under the 11th section of said act, prevent the issuing of the commission, or become the grounds for objection to the depositions when taken. There was. no valid objection to the deposition upon this ground, but, even if there was upon this or either of the other grounds relied upon, it could in no wise change the final determination of this case, because, independent of that deposition, there was clear and conclusive proof, to which it was cumulative, of the plaintiff’s right to recover. And when this is the case, and the question is presented to the Circuit Court, as to whether the party should have a new trial, that Court may well refuse to set aside the verdict and grant a new trial under the rulé repeatedly recognized by this Court, that where upon the whole case, as shown by the evidence, irrespective of that objected to as inadmissible, the verdict is right, it should not, because of the improper admission of such evidence, be reversed. (Payne vs. Bruton, 5 Eng. 60.) Affirmed.