#### JOSIAH B. COX v. PATRICK MURPHEY.

Articles made in contemplation of marriage, whereby the intended: husband- “ sells and assigns” to a trustee all the right in slaves belonging to the intended wife, “ which he by operation of law may thereafter have,” do. not pass a title in the slaves to the trustee, but are merely executory, and. binding the husband after marriage, to make the necessary assurances to carry them into effect,

Detinue for sundry slaves, in whieh a case agreed, containing the following fauts, was, on the last Circuit, at Sampson, submitted to his Honor Judge Settee. The slaves demanded by the plaintiff, were the property of Susan B. Cox, who, prior to her marriage with Abner Branson, executed articles by which the intended husband- and the plaintiff, as- trustee, joined. The articles, after reciting the intended marriage, and the fact of the intended wife’s being possessed of the slaves in¡ dispute* and the intention to settle them upon her, proceeded as follows: “ that, for and in consideration of the premises, and for and in consideration of the sum of, &c., to the *258said Abner Branson, by the said Josiah B. Cox in hand paid, the receipt whereof is hereby acknowledged, I, the sa^ Abner Branson, do hereby sell, assign, and deliver, alien, and confirm, and have by these presents, sold, assigned, &c., to the said Josiah B. Cox, all the right, title, estate, interest and benefit, which I may by operation of law acquire, derive, or receive, either in law or equity, in and to the said slaves. To have and to hold, &c. And the said Abner Branson doth promise, covenant, and agree, to, and with the said Josiah B. Cox, that he will, upon the solemnization of the said marriage, or at any time thereafter when requested by the said Josiah or Susan, make, execute, and deliver, all and every necessary title, deed, or conveyance, advised or directed by counsel learned in. the law, more completely to secure the intention of this indenturewhich is entirely to divest himself of all right, title, and estate, in and to the above-mentioned land and slaves, so that he nor his creditors shall have no right to sell or control the same. It is further agreed and understood, by and between the said parties, that the said Josiah may receive, hold, and keep in his possession, the aforesaid slaves, hiring out the same, and paying over the proceeds to the said Susan-; or suffer the same to remain in the use and occupancy of the said Abner, he paying therefor by way of hire, one dollar, on the first day; of January in each and every year, if demanded,”

' The marriage took place, and the slaves went into the-possession of the husband,' Abner Branson, and continued in his possession until his death, which took place within a few weeks thereafter ; .when they went into the possession of the plaintiff, the trustee; where they continued until the second marriage of his cestui que trust, Susan, with one Isaac W. Grice; when they passed into his (Griee’s) possession, until his death, which also took place in a few weeks after the marriage. The defendant administered upon the estate of Isaac ,W. Grice, the second: husband, and under the letters to him, claimed to retain the possession of his intestate.

His Honor, the presiding judge, gave judgment pr® forma for the defendant; and the plaintiff appealed.

*259 Badger, for the plaintiff.

Strange and W. H. Haywood, for the defendant.

Gaston, Judge.

The decision of this case depends entirely on the question, whether the instrument executed by Abner Branson and Susan B. Cox, immediately before their marriage, transferred the property in the slaves therein mentioned, to the plaintiff, the trustee. The Court is of opinion, that in law, the instrument could not have this operation. The parties thereto must be intended, indeed, to have deliberately assented to all therein declared; but the question presents itself, what is thereby declared ? Abner Branson does not profess to sell or transfer the slaves to the trustee, but only to sell and assign the right, which by operation of law he may thereafter acquire in them. This was not the subject of sale or assignment. The instrument can be construed as executory only, and binding Branson, after marriage, to make the assurance or assurances necessáry to carry his covenant into effect.

Per Curiam. Judgment affirmed.